Tort reform proposal alive in both House and Senate

As part of a package of tort reform proposals, Florida Gov. Rick Scott promised during his campaign to change the standard in which courts consider expert scientific testimony.

Scott argued during the campaign that the state should adopt what is called the "Daubert" standard for admitting expert scientific testimony. The "Daubert" standard -- named after a 1993 U.S. Supreme Court decision in the case of Daubert v. Merrell Dow Pharmaceuticals -- asks judges to more closely scrutinize expert testimony before admitting the testimony into a trial.

Currently the state uses something called the "Frye" standard -- another standard for admitting expert scientific testimony that resulted from a 1923 Supreme Court case.

"Florida is one of only a handful of states to use an antiquated, lenient standard for the admission of evidence at a trial, dating back to 1923," his campaign said as part of his platform for tort reform. "Rick Scott supports the adoption of the Daubert standard to be used in the state of Florida. Forty of fifty states have adopted the more modern Daubert standard, by which evidence based on innovative or unusual scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid."

The Frye standard creates a general acceptance test for admitting expert scientific evidence. To meet the standard, scientific evidence must be generally accepted by a meaningful portion of the appropriate scientific community. The standard came from a 1923 court case in which the courts ruled the results of a lie detector test inadmissible because the technology was not generally accepted by the scientific community.

The Daubert standard creates what most believe is a more rigorous threshold for admitting scientific evidence. Therefore, it is often considered more pro-defendant.

The Daubert test provides that an expert may testify or evidence may be introduced if the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts.

The new standard, in theory, puts more responsibility on a judge. The old standard relied more heavily on the scientific community.

As Scott wanted, bills changing the expert testimony standard are now being considered in both the House and the Senate.

HB 391 and SB 822 would replace the Frye standard with the Daubert standard. The House version has moved past committees and is awaiting action by the full House. The Senate bill is still in the committee process.

The bill's passage is not a slam dunk.

According to a staff analysis, the change in standard to admit expert opinions in Florida courts may have an impact on the number of pre-trial hearings needed, and may require additional staff time for prosecutors in criminal proceedings. The staff analysis also says that the Florida Supreme Court could refuse to adopt the legislative changes as part of its rules.

For now, we rate this promise In the Works.