How Florida’s Supreme Court has become conservative
Justices of The Florida Supreme Court
Three newsletters ago we reported here on how the new Florida Supreme Court was reversing prior rulings made by the Court. They were at it again last week, this time in a case that affects the standard used for expert witness testimony in court proceedings, which could have a significant impact on business litigation in the state of Florida.
In 2013, the Florida Legislature passed the Daubert Standard into statute as a replacement to the longstanding Frye Standard, governing the use of expert testimony. Lawmakers said the move was necessary to prevent testimony based on “junk science” and to better conform to the federal courts, which also use Daubert. But the Florida Supreme Court in 2017 declined to adopt it, as well as the “Same Specialty” rule, siding with the Florida Bar and the state trial bar’s concerns that doing so would make cases more expensive and risk undermining the right to a jury trial and thus deny access to the courts.
For sure, Daubert creates a higher standard for expert testimony, requiring participants attend a special hearing before they’re allowed to testify. Under Frye, those experts could testify based on their opinion, using evidence and methods that could be considered new and not necessarily peer-reviewed or generally-accepted.
On May 23, based on a successful appeal by defendants in an underlying personal injury case who challenged admission of expert testimony, the Supreme Court reversed its prior decision and adopted the Daubert Standard as decreed by the Legislature. The 5-2 decision noted the “longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.”
Two of those five justices were Barbara Lagoa and Carlos Muniz, recent appointments to the high court by the Governor. A third new appointment, Justice Robert Luck, was in the minority however on this decision, noting the Court didn’t follow its own procedures by involving various committees and The Florida Bar Board of Governors to weigh-in on proposed court rule changes. This is the latest reversal of prior decisions by the state’s high court. The Court is now reconsidering another prior ruling, made in 2016, retroactively requiring unanimous juries for death sentences.
The Governor’s new appointments have changed what was considered by some as a more liberal leaning Court into a conservative one. This latest ruling was hailed by the Florida Justice Reform Institute, the Florida Defense Lawyers Association, and the Florida Chamber of Commerce.
LMA Newsletter of 6-2-19
