Ian Dankelman | Property Insurance Coverage Law Blog | June 2, 2019
Picking the right expert has never been more important when fighting an insurance company that has wrongfully denied an insurance claim. The rule for expert admissibility has just changed in Florida and the same concerns about experts apply everywhere.
Under the Frye test, a party seeking to introduce expert evidence had to prove the general acceptance of the underlying scientific principles and methodology that the expert employed when advancing new or novel scientific testimony. Now, Florida has adopted the Daubert standard, which requires the trial judge to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.”1 In reaching this decision, the Supreme Court emphasized that the amendments would reduce forum shopping and harmonize Florida’s standard with the standard employed by federal courts.
However, in dissent, Justice Labarga cautioned that “Daubert and its progeny drastically expand[] the type of expert testimony subject to challenge.”2 One concern over the amendment the dissent highlighted was that the new standard would undermine the constitutional right to a jury trial by authorizing judges “to exclude from consideration the legitimate but competing opinion testimony of experts.”3 Another was that the new expert testimony standard would overburden the courts, impede the ability of parties to prove their cases on the merits, and increase litigation costs.
So what does this mean for policyholders? On one hand, Daubert is the well-established standard in federal court, and there is clear direction in federal case law that state judges can follow to reach reasoned rulings. It is likewise conceivable that the number of cases removed from state court to federal court will be reduced based on the amendments to the evidence code. The new standard will also give policyholders a new ability to challenge the insurers’ experts when their work does not meet the requirements demanded by the Daubert standard. On the other, policyholders’ cases may be delayed while Florida courts deal with increasing numbers of challenges to expert opinion testimony. Policyholders will likely face additional hearings on the admissibility of expert testimony that will require intense preparation.
It remains to be seen how judges will tackle the increase in challenges to expert testimony in Florida’s courts. Only one thing is certain: the amendment to the evidence code will have important ramifications on all litigation in Florida.
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1 In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019).
2 Id. at 13 (Labarga, J., dissenting).
2 Id. at 15-16.