Excluding Bad Expert Opinions in Florida – A Primer

Many lawsuits in Florida turn on facts, events, details, and data that go beyond most of our daily experience. We don’t all walk around examining our own daily lives with calibrated tools and scopes. Most of us don’t have bookshelves full degrees and certificates reflecting our specialization in every facet of life. Likewise for a Florida jury. So attorneys frequently call in experts to help explain key events of a lawsuit, from corporate accounting to bullet ballistics, experts help juries and judges understand unfamiliar topics and complicated data. However, the need for experts could also open the doors to snake oil salespersons giving any desired opinion for the right dollar amount. Thus, Florida has set of tests to limit who can give an expert opinion and to ensure that the information is reliable and exact enough to give evidentiary weight and meaning. This article gives a primer on those expert standards in Florida, also known as Daubert standards. If you have any questions about expert testimony, bad expert reports, or Daubert motions in Florida, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, or abernhard@bernhardlawfirm.com.


The Daubert Test for Expert Opinions – Florida Statutes § 90.702

Under Florida Statutes § 90.702, if scientific, technical, or specialized knowledge will assist the jury in understanding evidence or 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 or otherwise, only if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993) ((to satisfy the relevance requirement, the proffered testimony must be “tied to the facts of the case so that it will aid the jury in resolving a factual dispute”); see also Royal Caribbean Cruises, Ltd. v. Spearman, 320 So. 3d 276, 290 (Fla. 3d DCA 2021); Cristin v. Everglades Correctional Institution, 310 So. 3d 951, 955 (Fla. 1st DCA 2020); Vitiello v. State, 281 So. 3d 554, 560 (Fla. 5th DCA 2019); Chavez v. State, 12 So. 3d 199, 205 (Fla. 2009) (citing Glendening v. State, 536 So. 2d 212, 220 (Fla. 1988)); Sidran v. E.E. Dupont De Nemours & Co., Inc., 925 So. 2d 1040, 1043 (Fla. 3d DA 2003) (excluding expert opinion that had some probative value that was substantially outweighed by the potential of misleading the jury).

Expert testimony must be based on sufficient facts or data, must be the product of reliable principles and methods, and must show reliable application of any reliable principles or methods to actual facts of this case—otherwise they are inadmissible. Id. Expert testimony cannot be “pure opinion.” Cristin at 955. An opinion must be based upon knowledge, not merely subjective belief or unsupported speculation. Kemp at 89; Royal at 291. The purpose of the Court’s gatekeeping requirement is to ensure that an expert employs in the courtroom the necessary level of intellectual rigor to be reliable. Cristin at 955–56 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

Likewise, experts must rely on a specific scientific theory to make their determinations, and one that: (1) can be or has been tested; (2) has been subjected to peer review and publication; (3) has any known or potential rate of error of a particular scientific technique; (4) has any standards controlling the technique’s operation; or (5) can show any general acceptance in the scientific community. Kemp v. State, 280 So. 3d 81, 89 (Fla. 4th DCA 2019) (citing Daubert, 509 U.S. at 593–94 and Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (the test of reliability “is not the correctness of the expert’s conclusions but the soundness of his methodology.”); Royal Caribbean Cruises, Ltd. v. Spearman, 320 So. 3d 276, 290 (Fla. 3d DCA 2021); Kemp at 89 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (the Court cannot “admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,” and “a court may conclude that there is simply too great an analytic gap between the data and the opinion proffered.”); May v. State, 326 So. 3d 188, 193 (Fla. 1st DCA 2021) (excluding master financial analyst’s opinion based on expert’s own method of analysis, that was not shown to be the product of a reliable method).


Additional Relevancy and Prejudice Standards Apply

Additionally, under Florida Statutes § 90.403, relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. Under Florida Statutes § 90.604, a witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter. If the introduction of certain evidence in combination tends in actual operation to produce a confusion in the minds of the jurors in excess of legitimate probative effect of such evidence, and tends to obscure rather than illuminate the true issue before the jury, such evidence should be excluded and stricken. Trahan v. State, 285 So. 3d 361, 364 (Fla. 1st DCA 2019) (probative value of other-acts evidence of presence of third-party checkbook was outweighed by substantial risk of interference based on propensity, undue prejudice, or confusion on burglary); Perper v. Edell, 44 So. 2d 78, 80 (Fla. 1949) (rev’ing entry of testimony on mental state and tendencies as prejudicial error); Wilson-Otwell & Cone v. Ritch, 93 Fla. 698, 704 (Fla. 1927) (evidence should be stricken upon motion).

Together with Daubert, these relevancy standards set strong limitations under Florida law for expert opinion and testimony. This article gave a primer on those expert standards in Florida. If you have any questions about expert testimony, bad expert reports, or Daubert motions in Florida, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, or abernhard@bernhardlawfirm.com.

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