---
title: Frye Is Now, and Once Again, the Standard for Expert Opinion Admissibility in Florida | Product Liability Advocate
description: After more than five years of uncertainty, the Florida Supreme Court’s opinion in DeLisle v. Crane finally settled the debate over the standard for
image: https://productliabilityadvocate.wilsonelser.com/hubfs/Imported_Blog_Media/image-3-320x240.jpg
---

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 November 29, 2023

# Frye Is Now, and Once Again, the Standard for Expert Opinion Admissibility in Florida

![Picture of Sean M. McDonough](https://productliabilityadvocate.wilsonelser.com/hs-fs/hubfs/mcdonough_s_thumb.jpg?width=50&name=mcdonough_s_thumb.jpg) By  [ Sean M. McDonough ](https://productliabilityadvocate.wilsonelser.com/author/sean-mcdonough)  ·   3 minute read

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After more than five years of uncertainty, the Florida Supreme Court’s opinion in *DeLisle v. Crane* finally settled the debate over the standard for determining the admissibility of expert witness testimony in Florida state courts. Case No. SC16-2182 (Fla. Oct. 15, 2018). In a narrow 4-3 decision, the court rejected *Daubert* and adopted *Frye*. The outcome should come as no surprise. In 2017, in a rarely exercised move, the Florida Supreme Court declined to adopt the legislature’s 2013 revisions to the Florida Evidence Code codifying *Daubert*.

Prior to 1993, the *Frye* standard for admitting expert testimony was the prevailing standard for guiding federal and state courts in their consideration as to whether scientific expert testimony should be admitted at trial. *Frye v. United States*[[1]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftn1). The *Frye* standard requires that the proponent of the evidence establish the general acceptance of the underlying scientific principle *and* the testing procedures. Notably, *Frye* only applies to new or novel scientific evidence. However, in 1993, following a revision to the Federal Evidence Code by Congress, the Supreme Court of the United States annunciated the new standard in *Daubert v. Merrell Dow Pharmaceuticals, Inc.*[[2]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftn2) The *Daubert* inquiry was meant to be flexible and focused on scientific principles and methodology, not conclusions. The *Daubert *opinion emphasized that the Federal Rules of Evidence governed admissibility and suggested a series of factors a court could consider, but did not establish a test *per se*. Under *Daubert*, the admissibility of expert evidence rests squarely within the discretion of the trial court judge. In contrast to *Frye*, *Daubert* applies to all expert witness testimony. Since 1993, federal courts and most state courts adopted the *Daubert *standard, but not Florida.

In 2013, the Florida State Legislature attempted to join the majority of states when it passed an amendment to the Florida Evidence Code, codifying *Daubert*.[[3]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftn3) However, in February 2017, the Florida Supreme Court declined to adopt the changes and cited the “grave constitutional concerns” raised by The Florida Bar’s Code and Rules of Evidence Committee. The Committee expressed concerns that the amendments (1) were procedural and infringed on the Court’s rulemaking authority, (2) undermined the right to a jury trial and (3) denied access to the courts. Naturally, most Plaintiffs’ attorneys agreed with the High Court’s decision. In their opinion, *Daubert* created a “power imbalance” based on the relatively limited resources available to the average Plaintiff versus the seemingly limitless resources available to insurance companies and corporations.

Despite the Court’s rejection of the amendments, the *Daubert* standard remained a part of the Florida Evidence Code. What did this mean for Florida litigants? Well, courts are bound by the law, and the Florida Supreme Court’s decision not to adopt the Legislature’s changes to the Florida Evidence Code was a “rules-decision,” not a decision on the constitutionality of the newly codified *Daubert* amendments. So, most courts followed the Evidence Code, including the Fourth District Court of Appeals in *Crane Co. v. DeLisle*.[[4]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftn4)

In *DeLisle*, the Fourth DCA excluded expert testimony under the *Daubert *standard and reversed a trial court’s verdict and ruling on directed verdict. Seizing the opportunity to quash the *Frye*–*Daubert* controversy, the Florida Supreme Court accepted the case for review. The Court’s decision to review *DeLisle* was not without controversy. Justice Canady’s dissent argued that the court lacked jurisdiction to review *DeLisle*, since the decision did not “expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law.” Nonetheless, the majority’s opinion, authored by Justice Quince, based its review on a conflict with *Marsh v. Valyou*,[[5]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftn5) which decided the applicability of *Frye* to expert testimony causally linking trauma to fibromyalgia. The majority stated that “*Marsh* reaffirmed a procedural rule of the Court that the Legislature has limited authority to repeal.”

The Supreme Court held that the 2013 amendments to the Florida Evidence Code codifying *Daubert* were unconstitutional and infringed on the Court’s rulemaking authority. However, the majority’s opinion offered even more criticism of *Daubert* and expressed additional constitutional concerns:

Despite the Supreme Court’s intention that *Daubert *be applied flexibly, it has been observed that, in actuality, the gatekeeping role bestowed upon the judiciary has blocked more court access than it has enabled … defendants often exploit the requirements of *Daubert *as a sword against plaintiffs’ attorneys. Others have written that *Daubert *has “produced a minefield clogged with ‘*Daubert *hearings’ that are more lengthy, technical, and diffuse than anything that preceded them.”

As alluded to above, Plaintiffs’ attorneys view *Daubert *as advantageous to Defendants. Indeed, *Daubert* is applied more broadly than *Frye* and Defendants can challenge the admissibility of any expert testimony. Whereas *Frye* only applies to opinions based on new or novel scientific evidence. Plaintiffs argue that *Daubert* allows insurance companies and corporate Defendants to overwhelm Plaintiffs and exhaust their resources with multiple, costly *Daubert *hearings. Plaintiffs’ lawyers believe that returning to *Frye* will level the playing field. For Defendants, returning to *Frye* means one less arrow in their quiver, though it does not foreclose all challenges to expert testimony.

[[1]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftnref1) 293 F. 1013 (D.C. Cir. 1923)

[[2]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftnref2) 509 U.S. 5579 (1993)

[[3]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftnref3) The *Daubert* Amendments amended sections 90.702 and 90.704 of the Florida Statutes. Ch. 2013-107, §1-2, Laws of Fla.

[[4]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftnref4) 206 So. 3d 94 (Fla. 4th DCA 2016)

[[5]](https://productliabilityadvocate.wilsonelser.com/2018/10/frye-is-now-and-once-again-the-standard-for-expert-opinion-admissibility-in-florida#_ftnref5) 977 So. 2d 543 (Fla. 2007)

*This blog post was published originally on October 25, 2018.*

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