I.
In Florida the admissibility of expert testimony is governed by the Florida Evidence Code, which is codified at Chapter 90 of the Florida Statutes:
Testimony by
Experts -- If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding
the evidence or in determining a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify
about it in the form of an opinion; however, the opinion is admissible only if
it can be applied to evidence at trial.[1]
Experts may give opinions on the
ultimate issues to be decided by the trier of fact.[2] They may base their opinions on facts or data
“perceived by, or made known to, the expert at or before the trial.”[3] However, if the party against whom the
opinion is offered “establishes prima facie evidence that the expert does not
have a sufficient basis for the opinion, the opinions and inferences of the
expert are inadmissible.”[4]
“Whether a witness possesses adequate qualifications to submit expert opinion
testimony is a question of fact to be decided by the trial court.”[5]
“[T]he trial court’s ruling will not be reversed on appeal absent a clear
showing of error.”[6]
II.
The Florida
Evidence Code contains no specific provision pertaining to the admissibility of
novel scientific evidence. Section 90.702 is “silent as to any requirement that
there be general acceptance of a newly developed scientific technique or
principle in the particular field in which it belongs.”[7]
After the
Florida Evidence Code was adopted, “disagreement arose among the District
Courts of Appeal as to whether (i) the relevancy test under section 90.702
combined with the so-called balancing test of section 90.403 or (ii) the Frye
test was to be applied to determine the admissibility of novel scientific
evidence. This debate ended when the
Florida Supreme Court decided Stokes v. State.[8] In Stokes,
the Florida court decided that expert testimony may not be admitted unless it
meets the Frye test. In reaching
its conclusion, the Stokes court reasoned that a courtroom is not a
laboratory, and as such it is not the place to conduct scientific
experiments. “If the scientific
community considers the procedure or process unreliable for its own purposes,
then the procedure must be considered less reliable for courtroom use.”[9]
III.
In Daubert
v. Merrell Dow Pharmaceuticals, Inc.,[10] the Court
adopted what has become known as the “scientific validity” test. It set forth four nonexclusive factors that
courts should consider in determining the admissibility of novel scientific
evidence: “(1) testability (or falsifiablity), (2) error rate (3) peer review
and publication and (4) general acceptance.”[11]
By contrast,
in discussing what is meant by “general acceptance” the Frye court
explained:
Just when a
scientific principle of discovery crosses the line between the experimental and
demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential force of the principle
must be recognized, and while courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific principle or discovery, the
thing from which the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it belongs.[12]
In comparing
the two, the authors of Modern
Scientific Evidence have
suggested:
Frye asks judges
to decide the admissibility of scientific expert testimony by deferring to the
opinions of scientists in the ‘pertinent field.’ Thus, under Frye, judges need not have
any facility with scientific methods to make the admissibility decision. They must merely have some basis for knowing
what scientists believe. Under Daubert,
the trial court itself is initially responsible for determining the
admissibility of scientific expert testimony by determining that the science
supporting that opinion is valid.[13]
The Florida
Supreme Court has emphasized that:
[T]he Frye
test is utilized in Florida to guarantee the reliability of new or novel
scientific evidence. Despite the federal adoption of a more lenient standard in
Daubert v. Merrell Dow Pharmaceuticals, Inc., we have maintained the
higher standard of reliability as dictated by Frye. This standard
requires a determination, by the judge, that the basic underlying principles of
scientific evidence have been sufficiently tested and accepted by the relevant
scientific community. To that end, we
have expressly held that the trial judge must treat new or novel scientific
evidence as a matter of admissibility (for the judge) rather than a matter of
weight (for the jury).”[14]
Earlier the Florida Supreme Court
acknowledged the United States Supreme Court’s decision in Daubert, but
reaffirmed the applicability of Frye. [15] It remains the pertinent test under Florida
law today.[16]
In Ramirez
v. State,[17] the
Florida Supreme Court adopted a four-part test for determining whether a novel opinion
may be offered into evidence by an expert:
First, the
trial judge must determine whether such expert testimony will assist the jury
in understanding the evidence or in determining a fact in issue. Second, the trial judge must decide whether
the expert’s testimony is based on a scientific principle or discovery that is
“sufficiently established to have gained general acceptance in the particular
field in which it belongs.”. . . . The third step in the process is for the
trial judge to determine whether a particular witness is qualified as an expert
to present opinion testimony on the subject in issue. All three of these initial steps are
decisions to be made by the trial judge alone.
Fourth, the judge may then allow the expert to render an opinion on the
subject of his or her expertise, and it is then up to the jury to determine the
credibility of the expert’s opinion, which it may either accept or reject.[18]
The court has also said that
[I]t is the
function of the court to not permit cases to be resolved on the basis of
evidence for which a predicate of reliability has not been established. Reliability is fundamental to issues involved
in the admissibility of evidence. . . . Novel scientific evidence must also be
shown to be reliable on some basis other than simply that it is the opinion of
the witness who seeks to offer the opinion.
In sum, [the court] will not permit factual issues to be resolved on the
basis of opinions which have yet to achieve general acceptance in the relevant
scientific community; to do otherwise would permit resolutions based upon
evidence which has not been demonstrated to be sufficiently reliable and would
thereby cast doubt on the reliability of the factual resolutions.[19]
Subsequently
the court defined “general acceptance” to mean acceptance by a clear majority
of the members of the relevant scientific community.[20] It further explained that in determining the
general acceptance issue, the trial court must consider the quality, as well as
the quantity, of the evidence supporting or opposing a new scientific
technique.[21] Mere numerical majority support or opposition
by persons minimally qualified to state an authoritative opinion was of little
value.[22] The court noted that acceptance need not be
predicated upon a unanimous view.[23]
A recent
application of this approach may be found in E.I. DuPont de Nemours &
Co. v. Castillo.[24]
There a child born with a rare birth defect, microphthalmia, sued the
manufacturer of an agricultural fungicide and the farmer who allegedly sprayed it
on a field. The plaintiffs claimed that
the mother’s exposure to the chemical caused a birth defect in the child, which
resulted in the child’s severely underdeveloped eyes.[25] The plaintiff’s expert opined that fetal
exposure to the agricultural chemical in the maternal bloodstream would cause
microphthalmia in humans. He based his
conclusions on two sources: Rat gavage
studies and lab experiments on human and rat cells. Over the defendant’s
objection, the court permitted the plaintiffs to refer at trial to an alleged
link between the fungicide and unspecified “clusters” of children born without
eyes in Great Britain. The jury
ultimately returned a verdict in favor of the plaintiffs.[26]
On appeal the
defendants argued that the trial court should not have admitted the plaintiff’s
scientific evidence because it did not satisfy the Frye test. After reviewing the relevant case law, the
appellate court concluded that “[t]he standard of review of a Frye issue
is de novo.”[27] The
defendants advanced two arguments in support of their contention that the
plaintiff’s scientific evidence did not satisfy Frye. First, the plaintiff’s expert was not a
teratologist, and was therefore unqualified to testify on the subject. Second, his scientific testing and results
were inadmissible because his methodologies were not “generally accepted.” The court quickly dismissed the first
argument, but found the second argument more persuasive.[28]
The court then
analyzed the plaintiff’s causation argument.
The general causation question was whether the fungicide had the
capacity to cause microphthalmia in humans.
The specific causation inquiry related to whether the chemical was a
necessary element in the plaintiff’s microphthalmia.[29] The court
found that three primary types of evidence could contribute to an inference of
causation: epidemiological studies, in vivo testing and in vitro testing. After a painstaking analysis, it concluded
that:
[P]laintiffs’
scientific evidence, and the conclusions it embraces, should have been excluded,
as the methodology used to obtain them is not generally accepted in the
relevant scientific community. In the
absence of this evidence plaintiffs presented no proof of causation. Accordingly, [the defendant’s] motions for
directed verdict should have been granted.[30]
V.
Although they
have never been described as such, there appear to be a number of exceptions to
the four-prong test set forth in Ramirez. For example, certain testimony might not
qualify as “scientific” within the meaning of Frye. In Williams v. State,[31] a
conventional DUI case, the court was asked to consider whether the testimony of
a certified drug recognition expert (DRE) was admissible. The DRE received specialized instruction to
learn a twelve-step evaluation for conducting a Drug Influence Evaluation
(DIE). The DIE consisted of the usual
DUI investigation, including a standard field sobriety test, with the addition
of a physical examination. The physical
examination involved measuring pupil size, observing pupil reaction to light,
taking blood pressure and pulse rate, examining the nose and mouth for evidence
of drug use and touching the arm to determine muscle tone. The information was recorded on a
symptomatology matrix. There were also
certain subsets of this protocol, which included a Horizontal Gaze Nystagmus
test (“HGN”), Vertical Gaze Nystagmus test (“VAN”) and Lack of Convergence test
(“LOC”).
The court
first considered the admissibility of the results of the usual DUI
investigation, including the field sobriety test and physical examination. In reaching its opinion that the opinions of
the DRE were admissible, the court stated:
These tests, are clearly within the common experience and understanding of the average person. For example, the average person has had his or her blood pressure, pulse rate, and temperature taken. Similarly, the fact that pupils become larger or smaller in different lighting conditions is well within the average person’s common experience, as is examining someone’s nose or mouth.
Because the tests, signs and symptoms of the protocol are within
the common understanding of the average layman, the general portion of the
protocol is not “scientific” within the meaning of Frye. The fact that some of the examinations in the
protocol are borrowed from the medical profession, does not elevate the
protocol to scientific status.[32]
In addition,
certain tests might not be viewed as “new or novel” by the court. For example,
with regard to the DRE protocol subsets, such as the HAN, VAN and LOC, the Williams
court found that although they were, in fact, “scientific” within the meaning
of Frye, the general acceptance test did not apply because none of the
tests were “new or novel.” The court
held “that where a scientific principle has been established and generally
accepted in the relevant scientific community, and has also been Frye
tested in the legal community, it is no longer ‘new or novel’ and there is
simply no need to reapply a Frye analysis.”[33]
It is also
clear that to be admissible the expert’s opinion need not be generally
accepted. In Berry v. CSX
Transportation, Inc.,[34] a
toxic tort case, the court considered that very issue in relation to
admissibility under the Frye test.
The court ultimately decided that “under Frye and its Florida
progeny, when the expert’s opinion is well-founded and based upon generally
accepted scientific principles and methodology, it is not necessary that the
expert’s opinion be generally accepted as well.”[35] It
observed that its conclusion was supported by the opinion of the Florida
Supreme Court in Brim.
In Brim,
DNA test results were held to be admissible.
Those tests consisted of two distinct steps. The first step relied upon principles of
molecular biology and chemistry, and was used to simply indicate that two DNA
samples looked the same. “A second
statistical step was needed to give significance to that match.”[36] It involved a calculation of population
frequency statistics.[37]
Although the
court found that both steps must satisfy the Frye test, it also found
that “scientific unanimity is not a precondition to a finding of general
acceptance in the scientific community.”[38]
It explained that although two conflicting scientific principles cannot
simultaneously satisfy Frye, it would allow multiple reasonable
statistical calculations which are based upon generally accepted principles of
population, genetics and statistics. [39] In short,
it appears that as long as a reliable, generally accepted methodology is
employed in reaching an opinion, the opinion will be admissible.
The court has
also distinguished “pure opinion” which is not subject to Frye. In Florida Power & Light Co. v. Tursi,[40] an
ophthalmologist was permitted to testify that a cataract was caused by electrical
transformer fluid that had accidentally dripped into the plaintiff’s eye. The ophthalmologist admitted that there were
“many causes of cataracts, including aging, congenital [sic], x-rays,
radiation, exposure to chemicals, and other trauma.”[41] He
further testified that chemical agents could cause cataracts that could take
from weeks to years to develop.[42] He was able to rule out a number of other
causes of cataracts and ultimately testified that “considering the relatively
young age of the plaintiff (60), the cataract was, within a reasonable degree
of medical certainty, caused by the transformer liquid.”[43]
The court
found that the testimony of the treating ophthalmologist was pure opinion. It did not rely on a scientific principle or
test that would have to comply with Frye. In discussing its opinion, the court
referenced Flanagan. In Flanagan
the Florida Supreme Court reviewed an en banc decision of the First
District Court of Appeal involving the admissibility of a psychologist’s
opinions that were based upon sexual offender profile evidence.[44] The court explained that this pure opinion
testimony does not have to meet the requirements of Frye, because the
opinion was based simply on the expert’s personal opinion and training. The jury could analyze the testimony in the
same manner that it analyzed any other personal opinion or factual testimony by
a witness.[45]
VI.
The Florida
courts both state and federal, have made an effort to eliminate “junk science”
from the courtroom. To some extent the
role of the state court judge and the federal judge is the same; both are
trying to ensure that only reliable evidence is presented to the
jury. However, their roles as
“gatekeepers” are quite different. As
discussed by the authors of Modern Scientific
Evidence, the federal judge must determine that the science supporting
the opinion is valid, by ensuring that the opinion was derived by using the
scientific method. The state judge must
determine the admissibility based upon the opinions of other scientists in the
relevant field. If there is no support
for the methodology that was employed in deriving the facts upon which the
opinion was based, the opinion is not admissible. This would tend to suggest that the far more
conservative standard implemented by the Florida judge should tend to restrict
the admissibility of scientific evidence.
[1] Fla. Stat. Ann. § 90.702 (West 1999).
[2] Id. § 90.703.
[3] Id. § 90.704.
[4] Id. § 90.705(2).
[5] Carrier v. Ramsey, 714 So. 2d 657, 659 (Fla. Dist. Ct. App. 1998) (citing Van Sickle v. Allstate Ins. Co., 503 So. 2d 1288, 1289 (Fla. Dist. Ct. App. 1987)).
[6] Carrier, 714 So. 2d at 659.
[7] Hawthorne v. State, 470 So. 2d 770, 783 (Fla. Dist. Ct. App.1985) (Ervin, J., concurring and dissenting), abrogation recognized by Hadden v. State, 690 So. 2d 573 (Fla.1997).
[8] Berry v. CSX Transp., Inc., 709 So. 2d 552, 555 (Dist. Ct. App.) review denied, 718 So. 2d 167 (Fla. 1988) (citations omitted) (citing Stokes v. State, 548 So. 2d 188 (Fla. 1989)).
[9] Stokes, 548 So. 2d at 193-94.
[10] 509 U.S. 579 (1993).
[11] David L. Faigman et al., Modern Scientific Evidence : The Law and Science of Expert Testimony §1-3.3 (1997).
[12] Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
[13] Faigman et al., supra note 11, § 1-3.0.
[14] Brim v. State, 695 So. 2d 268, 271-72 (Fla. 1997) (citations omitted).
[15] Flanagan v. State, 625 So. 2d 827, 829 n.2 (Fla. 1993).
[16] Id.; see also Hadden v. State, 690 So. 2d 573 (Fla. 1997).
[17] 651 So. 2d 1164 (Fla. 1995).
[18] Id. at 1167 (citations omitted).
[19] Hadden, 690 So. 2d 573, 578.
[20] Brim, 695 So. 2d at 272 (citing People v. Guerra, 690 P.2d 635, 656 (Cal. 1984)).
[21] Id.
[22] Id.
[23] Id.
[24] 748 So. 2d 1108 (Fla. Dist. Ct. App. 2000).
[25] Id. at 1110.
[26] Id. at 1111.
[27] Id. at 1115 (citing Hadden, 690 So. 2d at 579 and Brim, 695 So. 2d at 276).
[28] Id .at 1115-116.
[29] Id at 1116.
[30] Id. at 1121.
[31] 710 So. 2d 24 (Fla. Dist. Ct. App. 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
[32] Williams, 710 So. 2d at 28.
[33] Id. at 30 (citing State v. Meador, 674 So. 2d 826 (Fla. Dist. Ct. App. 1996)(DUI case in which a police officer was allowed to testify about the defendant’s performance on a standard field sobriety test), review denied, 686 So. 2d 580 (Fla. 1996)).
[34] 709 So. 2d 552 (Fla. Dist. Ct. App. 1998).
[35] Id. at 566.
[36] Brim, 695 So. 2d at 269.
[37] Id. at 269-70.
[38] Id. at 272 (citing People v. Dalcollo, 669 N.E.2d 378, 387 (Ill. 1996)).
[39] Id.
[40] 729 So. 2d 995 (Fla. Dist. Ct. App. 1999).
[41] Id. at 996.
[42] Id. at 996-97.
[43] Id. at 997.
[44] Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993).
[45] Id.
(Author’s bio)
Frank H. Gassler is the supervising shareholder of the Products Liability Practice Group at Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. in Tampa, Florida. He is a Vice-Chair of the Product Liability Committee, Litigation Section, ABA and of the Toxic Tort and Environmental Law Section of the FICC. He is a member of DRI and the Florida Defense Lawyers Association. He routinely defends products liability, toxic tort and professional malpractice cases.