Court composition matters.

Yesterday, the Florida Supreme Court reversed a ruling from only last year and decided that the legislature was right (or at least within its authority) after all – henceforth the standards created in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), will govern the admissibility of expert testimony in the Sunshine State.  Specifically:

The Court, according to its exclusive rulemaking authority . . . adopts chapter 2013-107, sections 1 and 2, Laws of Florida (Daubert amendments) . . . to replace the Frye standard for admitting certain expert testimony with the Daubert standard.

In re Amendments to the Florida Evidence Code, ___ So.3d ___, 2019 WL 2219714, at *1 (Fla. May 23, 2019) (footnotes omitted).

This is an impressive reversal on this issue, since only seven months ago, in DeLisle v. Crane Co., 258 So. 3d 1219, 1230 (Fla. 2018), the court had rejected the same pro-Daubert legislation by a 4-3 vote, accompanied by dark mutterings about constitutionality and access to justice that seemed bizarre to anybody who’s ever practiced in federal court.  But three of the justices that sat in DeLisle (Quince, Pariente, and Lewis), and who helped comprise its bare majority, have retired.  Two of their three replacements joined the 5-2 pro-Daubert majority in In re Amendments.  In “reced[ing]” from DeLisle, the new majority dismisses those constitutional concerns as “unfounded.”  Id. at *2.  While the majority did not formally reject those concerns due to the present procedural posture, the handwriting is on the wall.  Id. (“we do not decide, in this rules case, the constitutional or other substantive concerns that have been raised”).

You can read the new opinion on Westlaw, or here on the court’s website.  But in one sentence, the upshot is that that “effective immediately” Daubert is now the law of Florida.  Id. at *3.