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Expert witness testimony.

This letter responds to "Adoption of Daubert in the Amendment to F.S. [section]90.702 Tightens the Rules for Admissibility of Expert Witness Testimony" (Sept/Oct). In fact, whether in theory or in practice, the rules have not been tightened for expert witness testimony admissibility.

In theory, Daubert is not necessarily more or less restrictive than Florida's version of Frye, which includes a "pure opinion exception" for expert testimony given novel or new areas of expertise and science. True, Daubert enumerates different factors. But the authors cannot point to anything Daubert mandates considered that judges did not in fact consider in the Frye era. The authors do point to the U.S. Supreme Court's decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), which is good, because the Court goes out of its way in that opinion to discuss the "liberal" and "flexible" admission standard for expert testimony. How this makes Daubert more restrictive than Frye is, again, a matter of mere assertion.

The authors go as far as to say the Florida Supreme Court is clearly wrong that the Frye standard is a higher threshold to surmount than Daubert. Yet, the article does not present any evidence, study, or case that explains why the authors' statement is true and the Florida Supreme Court is wrong. That's because the evidence for the authors' conclusion is at best inconclusive but more probably just wrong.

The only comprehensive study of which this author is aware on the subject was done by Edward Cheng and Albert Yoon, called "Does Frye or Daubert Matter? A Study of Scientific Admissibility," published in the April 2005 edition of the Virginia Law Review. It shows beyond doubt that there is no real difference in courts under differing admission standards. That's because, in practice, no judge is wont to let unqualified or unhelpful expert testimony into her or his courtroom.

Perhaps, the great irony of the article is that even this author admits the article would be more likely to be admissible under Frye than Daubert. The real takeaway for any litigator is to continue to follow the Frye approach, as restated in Daubert. For well-tested principles, explain why they're accepted principles. For novel ideas or theories, a litigator must show that the expert's expertise and training are enough to support the reliability of the testimony.


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Title Annotation:Letters
Author:Waugh, Christian W.
Publication:Florida Bar Journal
Article Type:Letter to the editor
Date:Nov 1, 2014
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