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As I ponder In re Amendments to the Florida Evidence Code, No. SC19-107 (decided May 23, 2019), I cannot seem to shake Yogi Berra's voice from my head. He is credited with such sayings as "the future ain't what it used to be," "it ain't over till it's over," and "you can observe a lot by just watching."
The admissibility of evidence is a critical matter in the trial of cases. It often involves conclusions about scientific issues and topics that are involved in a lawsuit. It is common for workers' compensation cases to involve expert evidence regarding the causation and diagnosis of injury, the appropriateness of medical care, the existence and extent of impairment or activity restrictions, and more.
Long ago, the Circuit Court for the District of Columbia issued a decision in which it outlined parameters for the admission of "expert opinion evidence," in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). For seventy years that analysis and logic was applied in federal courts, and was adopted by jurisdictions for use in state courts also. In 1993, the standard in federal courts changed, directed by the Supreme Court of the United States in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). There are those who feel that the Supreme Court of the United States' (SCOTUS) standard may lead to constitutional issues in some cases.
"The future ain't what it used to be."
Florida has talked about the Daubert decision for years. I tried several years ago to explain the Daubert standard in Daubert Better Explained. According to the Expert Institute, 24 jurisdictions have adopted Daubert outright, while 14 more either adopted some modified form of it or apply it in some circumstances. Notably, only 5 jurisdictions remain clear adherents to the Frye standard. Just over two years ago, the Supreme Court of Florida (SCFL) rejected adoption of the Daubert standard that was enacted by the Florida Legislature in 2013. This is discussed at length in Daubert, We Hardly Knew Ye, Or do We?
In short, since the time that court rules came into vogue in the 1960s and 1970s, there has been some degree of potential friction regarding the separation of powers in Florida. That constitutional construct essentially holds that the three branches of government have their own responsibilities and authorities; they are constrained by the constitution to both remain within their boundaries, and not to delegate their authorities to each other. In We Hardly Knew Ye, there is discussion of the enactment of Florida's evidence code (a statute), and the SCFL initial adoption of that code as "evidence rules." Since then, most statutory changes have likewise been adopted into the rules.
In February 2017, the SCFL rendered its opinion In Re: Amendments to the Florida Evidence Code, Case No. SC16-181 (Fla. 2017). Justices LaBarga, Pariente, Lewis, and Quince "decline(d) to adopt, to the extent they are procedural," the statutory changes to sections 90.702 and 90.704, Florida Statutes. This was characterized as "Daubert like language" by the Expert Institute, which also suggested that "while Florida remains a Frye state as of this writing, Florida is a state to watch as changes may be coming."
Justice Lawson did not participate in that 2017 decision. Justice Polston wrote to agree in part, but dissented in part also. Justice Canady joined Justice Polston. Thus, the majority rejected the legislative adoption of the Daubert standard; and the Florida evidence "rules" as regard expert testimony departed from the "code." From this, there was some expression in the legal community that the Frye standard would remain, that Daubert was no more in Florida. That conclusion was likely premature. The SCFL merely decided not to adopt the Daubert standard as a rule. For a decision regarding the applicability of that standard, there would have to be a "case or controversy," that is a chance for the Court to consider the application of that standard in the context and facts of a case.
Justice Lawson did not participate in that 2017 decision. Justice Polston wrote to agree in part, but dissented in part also. Justice Canady joined Justice Polston. Thus, the majority rejected the legislative adoption of the Daubert standard; and the Florida evidence "rules" as regard expert testimony departed from the "code." From this, there was some expression in the legal community that the Frye standard would remain, that Daubert was no more in Florida. That conclusion was likely premature. The SCFL merely decided not to adopt the Daubert standard as a rule. For a decision regarding the applicability of that standard, there would have to be a "case or controversy," that is a chance for the Court to consider the application of that standard in the context and facts of a case.
In January 2019, I penned Dissing Daubert? That followed the Court's decision in October 2018 in Delisle v. Crane Co., No. SC16-2182 (Fla. 2018). The Court there accepted jurisdiction on the basis that two Florida appellate decisions were directly contradictory to each other. See Express and Direct Conflict, a discussion of Glass v. Nationstar Mortgage, No. SC17-1387. In DeLisle, the Court concluded that the the legislative enactments adopting Daubert in Florida "infringe(d) on this Court's rulemaking authority." As such, it was unconstitutional under the doctrine of separation of powers. Justices Canady, Polston, and Lawson dissented in DeLisle.
And, after that decision in October, there was even more sentiment in the Florida legal community that Daubert was no more in Florida. I was even sternly lectured by one attorney that my ongoing analysis of, interest in, Daubert was a waste of time. My discussion of it remaining of potential impact to workers' compensation was "misplaced" according to this attorney. This attorney's read on Dissing Daubert was something short of complimentary.
"I ain't over till it's over."
In Dissing Daubert, I discussed the Florida Evidence Code, the DeLisle decision, and the distinction between the Office of Judges of Compensation Claims (OJCC) and the state's courts. The Florida OJCC is part of the executive branch, not the judicial branch (that point is periodically or even methodically lost on a great many people). Thus, the "infringement" of legislative action was perceptively, potentially, different. See, every power of this Executive Branch Office, and the judges that serve in it are delegated by the Legislature. Since publishing that post, I have had several robust and intriguing conversations about the question of whether Daubert is indeed the standard for expert evidence in Florida workers' compensation.
Then, on May 23, 2019 the SCFL published In re Amendments to the Florida Evidence Code, No. 19-107. That opinion admittedly came as a surprise. This "adopts" the 2013 amendments to "sections 90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts)." The opinion recites the procedural process that led to the 2017 rejection decision, the conclusion that the statutory amendments were "procedural" and thus within the authority of the Court rather than the legislature, and the decision of the Court in DeLisle. The Majority then receded "from the Court’s prior decision not to adopt the Legislature’s Daubert amendments."
In doing so, the Court quoted significantly from the dissenting opinion of Justice Polston in 2017. The Court noted the dissent's conclusions regarding arguments about the "grave constitutional concerns" expressed in comments submitted during that rules process regarding Daubert. It is easy for some to forget that the Daubert standard comes from the Supreme Court of the United States, the ultimate arbiter of constitutionality. The SCFL in its May 23, 2019 decision specified that it was not "decid(ing), in this rules case, the constitutional or other substantive concerns that have been raised about the amendments." The Court reiterated that such concerns should not be the subject of conjecture or hypothetical discussions, but should instead be decided in "a proper case or controversy." That "case or controversy" path to analysis is a bedrock principle of American judicial review.
And thus, Daubert is the law in Florida. As regards the admission of expert evidence, expressing opinions about a variety of potential topics, the Daubert analysis has been adopted by the Legislature as "code" and now by the Court as "rule" to "the extent it is procedural." Two of the Justices, however, dissented from the decision. Justice Labarga dissented, citing some of the "constitutional concerns" that had been raised originally when the Court considered the matter in 2017. This dissent raises and discusses issues of the potential effects of Daubert.
Justice Luck also dissented, expressing however that the Court's decision in DeLisle "is wrong." This dissent says that the Court should "overrule it when we have a proper case and controversy." However, Justice Luck concluded that adopting these legislative changes in this way, at this time, was not consistent with the Rules of Judicial Administration, specifically Rule 2.140. As the majority relied in part on the process and public comments leading to the 2017 decision, Justice Luck concludes that the Court should adhere to that same process in 2019 rather than adopting the Legislative amendments at this time, without further public comment and other procedural processes.
Any doubt that Daubert is the applicable Florida standard is perhaps removed, or at least cast in some doubt. But, remembering Yogi Berra, perhaps the debate is not as yet truly over. There is the potential, recognized in various statements in both the majority and dissent, that the application of that standard could potentially nonetheless effect an untoward result. Thus, in some "proper case and controversy" the Court might revisit the effect, or application, of Daubert yet again.
As discussed in A Procedural Progeny Potential of Castellanos, most constitutional challenges are either "as applied" or "facial." Ultimately, however, the SCFL eschewed both of these and instead implied a presumption analysis in deciding Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016). Thus, the effect of Daubert might yet be challenged in regards to the manner in which its application in a given case or controversy impacted the outcome of the case. The "application" of the SCOTUS' standard might be viewed as unconstitutional in some proceeding.
As discussed in A Procedural Progeny Potential of Castellanos, most constitutional challenges are either "as applied" or "facial." Ultimately, however, the SCFL eschewed both of these and instead implied a presumption analysis in deciding Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016). Thus, the effect of Daubert might yet be challenged in regards to the manner in which its application in a given case or controversy impacted the outcome of the case. The "application" of the SCOTUS' standard might be viewed as unconstitutional in some proceeding.
"You can observe a lot by just watching."
The legal community is full of amazingly bright, articulate, and deep individuals. In this regard, I hearken back to the several very insightful conversations I have had since publishing Dissing Daubert earlier this year. It is likely fair to remember that in any discussion, on any topic, we can learn from each other. Certainly, we can observe by watching, as this Yogi Berra quote reminds. But, I would stress we can as certainly learn a lot by just listening to each other. I think we may spend too much of our time speaking and conversely too little listening, really listening, to others.
There is no way to know whether or when there will be appellate challenges based upon the application of Daubert. We do know that the Florida First District has previously affirmed the application of Daubert in a workers' compensation case. See Baricko v. Barnett Transportation, 220 So. 3d 1219 (Fla. 1st DCA 2017). The explanation comes in that instance in a concurring opinion, which is not necessarily controlling law. However, that concurring opinions cites several court holdings that reinforce the applicability of "the Florida Evidence Code . . . in workers' compensation proceedings."
Therefore, at least for now, it is likely that workers' compensation practitioners will be thinking and talking about Daubert for some time to come. This change may be intellectually challenging. There may be different questions to pose regarding expert analysis and opinions. However, the bright and articulate attorneys that practice workers' compensation will undoubtedly adapt to the application of this standard just as practitioners already have in the majority of U.S. jurisdictions.
Therefore, at least for now, it is likely that workers' compensation practitioners will be thinking and talking about Daubert for some time to come. This change may be intellectually challenging. There may be different questions to pose regarding expert analysis and opinions. However, the bright and articulate attorneys that practice workers' compensation will undoubtedly adapt to the application of this standard just as practitioners already have in the majority of U.S. jurisdictions.
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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