Thursday, February 16, 2017

Daubert, We Hardly Knew Ye, Or do We?

For those who wonder, the title of this post is adapted from Hamlet's soliloquies regarding "poor Yorick," by William Shakespeare (unless you believe someone else did all that writing). 

On February 16, 2017, the Supreme Court of Florida rendered its opinion In Re: Amendments to the Florida Evidence Code, Case No. SC16-181. The process leading to this decision began in the Florida Legislature, comprised of representatives and senators elected by the people of Florida. In 2012, those representatives amended the Florida Evidence Code to change the legal standard for admitting expert conclusions into evidence. That bill was signed by the Governor of Florida, and many would, relying upon their civics lessons growing up, conclude that such would thereafter be the law. This was discussed in this blog last May in Daubert Better Explained

But, today, the Daubert standard is not the law in much (frankly most) of Florida. The Florida Supreme Court has decided that this decision making about filtering the evidence that a jury hears is procedural. Generally speaking, there are laws that are "substantive" and then there are "procedures." The Florida Supreme Court has long ago concluded that it has the authority to decide what procedures will be used in Florida courts. And, to the extend that the Evidence Code, Chapter 90, Fla. Stat. delineates procedure, the Court may either adopt such procedure or reject it. On February 16, 2017, the Court rejected the procedure that is the Daubert standard. 

Explained differently, there is a Florida Evidence Code (enacted by the legislature) and then Evidence Rules (adopted by the Court). Though this is difficult for some lawyers to comprehend, it is truly confusing for the public. In several conversations over the last year, since Daubert Better Explained, I have attempted to respond to non-lawyer questions about this distinction. In each instance, I have received head nods and thanks, but I have walked away each time convinced that I did little to clear the fog from the landscape for these questioners. This distinction, to many, is as clear and simple as quadratic equations or differential calculus. 

In Daubert Better Explained, I noted another distinction that has been equally difficult for people to accept. There are actually more variables in this equation. It is not just about whether the legislature or courts will make the law. This is because the Office of Judges of Compensation Claims (OJCC) is not a court (though a fair few judges do offhandedly refer to themselves as "this court" and "the court"). The OJCC is part of the Executive branch. The Florida Supreme Court stated this in Amendments to the Florida Rules of Workers' Compensation Procedure in 2004. So, the Florida Supreme Court cannot make procedural rules for the OJCC, according to its own logic and decision. Thus, while the February 16, 2017 decision of the Court is interesting in a broad context, and will certainly affect procedure in Florida's courts, it likely changes nothing in Florida workers' compensation. 

Today, in constitutional courts around Florida, the Frye standard controls under the Evidence Rules, despite the legislative adoption of the Daubert standard in the Evidence Code, because of the Supreme Court's decision. And in the Florida workers' compensation dispute system (the OJCC) the Daubert standard in the Evidence Code applies despite the Supreme Court's procedural rejection of the statute in the courts (as they used to shout at the ball park, "you can't tell the players without a program"). 

Interestingly, in an unrelated section of the opinion, the Court cited professor Charles W. Ehrhardt's book, Ehrhardt’s Florida Evidence. There, the professor recognizes value in avoiding "having the evidence rules scattered in piece-meal fashion in various statutes and rules of procedures” and instead having “a single comprehensive set of rules.” This outcome of a single comprehensive set of standards is avoided by the Supreme Court adoption process. And, the process likely creates two standards for Florida litigation, one in the courts and another in workers' compensation (and perhaps other administrative) proceedings.

The Court's decision on February 16, 2017 resulted from the Court's regular biennial process of reviewing rules. In that process, a committee of The Florida Bar makes recommendations regarding various rules, the Court considers recommendations and comments from the public, and rules are kept current. This opinion was written by a majority consisting of Justices LaBarga, Pariente, Lewis, and Quince. Justice Polston wrote an opinion concurring in part and dissenting in part, in which Justice Canady concurred. The newest member of the Supreme Court, Justice Alan Lawson, appointed in December 2016, did not take part in the decision. 

The Court noted that the Bar committee, by a very closely divided "vote of 16-14," recommended that the Daubert standard not be adopted by the Court. The Court considered reports of both the majority and minority positions of that committee. Some other recommendations of the committee were not as contested. Anyone interested in medical malpractice should read the opinion for more on that subject.  

The majority followed "the Committee’s recommendation and" did not adopt, "to the extent they are procedural, the changes to sections 90.702 and 90.704 of the Evidence Code made by the Daubert Amendment." Thus, Florida's courts remain using the Frye standard. According to Jurlytics.com, There are now 9 Frye jurisdictions (though that site has not yet been updated to reflect the Florida Court decision), including Alabama, California, Florida, Illinois, Kansas, Minnesota, Pennsylvania, Utah, and Washington. That site reflects that 21 states are Daubert jurisdictions and that 18 apply a standard that is a hybrid of the two. Two other states, North Dakota and South Carolina apply standards that are each unattributed or unrelated to either standard. The Federal Court system throughout the country adheres to the Daubert standard. 

There is debate  as to whether there is any real difference between the two. 

The Court explained that "the Frye test only applies to expert testimony based upon new or novel scientific evidence, and in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’” 

And, that "Daubert provides that the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Opinions may be rendered "if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case."

A second legislative amendment could also arise in workers' compensation proceedings. Though the Bar recommended Court adoption of legislative changes to Section 90.803(24) Fla. Stat., the Court rejected that legislative change also. This is an exception to the Hearsay Rule (which prohibits a witness from repeating things other people said outside of the hearing or court room, unless such a statement is (1) not being submitted for the truth of what was said, or (2) subject to one of the many exceptions recognized in the rules. This particular exception related to the statements of "elderly person or disabled adult." Thus, the process regarding this evidentiary standard is likewise likely to be different in the courts and in workers' compensation. 

Justices Polston and Canady dissented regarding the Daubert standard. This opinion noted that the prognostications of “grave constitutional concerns” about the Daubert standard, were not of concern because that standard was set forth by the United States Supreme Court in Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993). Presumably, the body with responsibility for ultimately determining constitutionality, see Marbury v. Madison, would not contrive an unconstitutional standard. He added that "the clear majority of state jurisdictions also adhere to the Daubert standard." And, he noted that there are no reported cases finding that standard constitutionally challenged. He concluded that Florida's Court "should adopt the Daubert standard," and Justice Canady concurred. 

What does this mean for workers' compensation disputes in Florida? In August 2015, the Florida First District Court of Appeal rendered Perry v. City of St. Petersburg, 171 So.3d 224 (Fla. 1st DCA 2015). In it, the Court reiterated that it had "long ago determined that the evidence code applies to workers' compensation." (Emphasis added)(Citations omitted). The Court remanded this case to the Judge of Compensation Claims (JCC) with instruction that the "JCC apply the Daubert test." It is perhaps symantics, or perhaps critical, that the Court used the phrase "evidence code" and not "evidence rules." The Court also recommended consideration of the Daubert process described in Booker v. Sumpter County Sheriff's Office, 166 So.3d 189 (Fla. 1st DCA 2015).

The "rules" and "code" distinction was explained by the First District Court in Baricko v. Barnett Transportation, 2017 WL 163692 (Fla. 1st DCA 2017). That case has no court opinion, it merely affirms the JCC decision. But, Judge Wetherell wrote a concurring opinion, essentially explaining his rationale for affirming. That opinion essentially agrees with the conclusions previously published in Daubert Better Explained. Judge Wetherell wrote even if in In re Amendments to the Florida Evidence Code, the Court declines to adopt the Daubert test in section 90.702 for judicial proceedings because the test is procedural in nature, that decision will have no impact whatsoever on the applicability of the Daubert test in workers' compensation proceedings."

The logic of this conclusion is dependent upon the distinction between "code" and "rules." But, fundamentally, it is likewise rooted in the Florida Supreme Court's conclusion that it has no authority to dictate procedural process to the Office of Judges of Compensation Claims. Amendments to the Florida Rules of Workers' Compensation Procedure (Fla. 2004). As it has no such authority under the Florida Constitution, its decision rejecting the Daubert standard would appear to have no affect on procedure in workers' compensation litigation. Seemingly, the First District would so decide if the specific question is presented, in agreement with Judge Wetherell. However, the concurring opinion in Baricko does not have the weight of law which a published opinion would carry.

As to how the standard works, the District Court's decisions discussed in Daubert Better Explained, Perry v. City of St. Petersburg, Booker v. Sumpter County Sheriff's Office, and Baricko v. Barnett Transportation are perhaps worthy of review. As Florida's constitutional judges tomorrow lament "alas poor Daubert, I knew him," perhaps the JCCs will instead lament "alas poor Frye," and some practitioners may lament that Florida now apparently has two standards, and no “single comprehensive set of rules?”




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