In a 4-2 decision, the Florida Supreme Court today declined to adopt an amendment to section 90.702 of the Florida Evidence Code to the extent that the amendment is procedural. The applicable amendment adopted the Daubert rule to replace the Frye standard regarding the admissibility of expert opinion evidence. Before this amendment, Frye had been the law in Florida on this issue. The majority based its decision on what it characterized as "grave concerns about the constitutionality of the [Daubert] amendment." In dissent, Justice Polston, joined by Justice Canady, criticized the characterization that there were any real constitutional issues regarding the amendment, noting that the United States Supreme Court had decided Daubert v. Merrell Dow Pharmaceuticals, Inc., more than 20 years ago; that federal courts have routinely applied the Daubert rule since; and that "36 states have rejected Frye in favor of Daubert to some extent."
The case is In re: Amendments to the Florida Evidence Code, Case No. SC16-181. Carlton Fields is analyzing the decision's impact and ramifications going forward.
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