Challenging Expert Witness Testimony in Florida Products Liability Cases Under Frye

Challenging Expert Witness Testimony in Florida Products Liability Cases Under Frye

by Rebecca Cavendish and Nicole Atkinson

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Trials are often won or lost on the testimony of expert witnesses. Thus, successfully excluding the testimony of an opposing expert witness can deal a devastating blow to the opponent’s case. Because scientific expert witness testimony is virtually inescapable in products liability cases, it is crucial for counsel handling those cases to be well-versed in the relevant case law and equipped with a full arsenal of tactics for challenging the testimony of an opponent’s expert witness. This article examines the current state of Florida law with regard to the exclusion of expert witness testimony about scientific or technical issues and discusses techniques that may be particularly useful in challenging such testimony in products liability cases.

Evolution of Florida Case Law Regarding Admissibility of Expert Witness Testimony
F.S. §90.702 provides the framework for the admission of expert witness testimony in Florida state courts. It states “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 Over time, there has been much dispute about the proper role trial courts should play in assessing the scientific or technical merits of expert witness testimony when determining its admissibility. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court affirmed the trial court’s refusal to admit the expert witness testimony of a scientist who conducted a lie detector test because the scientific principles upon which the test was based had not “gained general acceptance in the particular field in which it belongs.”2

For nearly 70 years, the Frye standard of “general acceptance” controlled the admissibility of scientific expert witness testimony. Then, in 1993, the U.S. Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), and placed the responsibility on the trial court to act as a “gatekeeper.” This displaced the Frye test of general acceptance in federal courts, giving trial judges leeway to determine that new and novel scientific ideas and techniques are reliable and admissible as a basis for expert witness testimony even though they have not yet gained general acceptance in the scientific community.3 In this respect, many viewed Daubert as expanding the type of scientific expert witness testimony that is admissible by abandoning the brightline general acceptance standard of Frye and asking courts to instead evaluate the reliability of scientific evidence based on falsifiability, peer review, error rates, and acceptability in the relevant scientific community.