Amendments To The Florida Evidence Code & What It Means To Homeowners
By Will Davich, Esq.
Effective immediately, Daubert is the standard for the admissibility of expert testimony in the State of Florida. In a 5-2 decision, the Florida Supreme Court reversed course from 30 years of its precedent and effectively overruled an October 2018 decision from the Florida Supreme Court that rejected the Daubert standard as unconstitutional.
Citing its “exclusive rulemaking authority,” the Florida Supreme Court adopted the Daubert standard as a procedural rule of evidence. The Florida legislature passed legislation in 2013 that mandated Daubert. However, until today, the Florida Supreme Court had refused to adopt Daubert as a rule of court. In fact, the 2013 legislation was previously blocked by the aforementioned October 2018 decision as unconstitutional because it would limit access to the courts. However, three new justices have been appointed to the Court by Governor Desantis and the newly made up Court clearly had it sights set on this issue.
Prior to today’s decision, the standard in Florida for the admissibility of expert testimony was known as Frye. Under Frye, expert testimony was admissible as long as the opinion wasn’t based on new or novel scientific evidence and Frye did not even apply to all expert testimony. The end result was that testimony that would have likely been excluded under Daubert was admissible under Frye.
Now that Frye is dead, what does it take for expert testimony to be admissible under Daubert?
In order for expert testimony to be admissible under Daubert, the court must apply a multi-factor test to the testimony that is proffered by the expert:
(1) whether the theory or technique in question can be and has been tested;
(2) whether it has been subjected to peer review and publication;
(3) its known or potential error rate;
(4) the existence and maintenance of standards controlling its operation; and
(5) whether it has attracted widespread acceptance within a relevant scientific community.
If the proffered testimony fails to satisfy even just one the above factors, the testimony will not be admissible.
So what does this mean in the context of first party property insurance claims?
In many ways this new Daubert standard is a win for homeowners and other policyholders in the State of Florida. The insurance companies’ hired guns (aka “engineers”), of which there is a cottage industry, with their boiler plate and predetermined opinions based on junk science, will no longer be allowed to testify unless they can satisfy the Daubert standard. (Assuming you have hired an attorney like the attorneys at Cohen Law Group who have the knowledge and experience handling first party insurance lawsuits along with the courtroom experience necessary to conduct a “Daubert challenge”).
Will Davich, Esq.
Resources:
https://efactssc-public.flcourts.org/casedocuments/2019/107/2019-107_disposition_146334_d29.pdf
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