Removing Junk Science From Your Trial

December 7, 2015 by Scott R. Schomber, Of Counsel

Litigants have long recognized the need for "expert witnesses" in the presentation of their claims at trial. The term "expert witness" has been defined as a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify. Florida Civil Rule of Procedure 1.390. In most instances expert witnesses are excellent tools utilized by litigants to assist the jury in its search for the truth. Unfortunately, however, some experts misuse their their qualifications and utilize "junk science" to advocate the position of the litigant who has retained and agreed to pay them for their opinions. In order to help prevent "junk science" from being injected into the litigation process, Florida Courts have adopted "The Daubert Standard," 

The Daubert Standard and its progeny rely on a “scientific knowledge” approach to determining whether expert testimony is not only relevant, but also reliable and, as such, admissible as evidence. The Daubert test is solely focused on the “principles and methodology” used by testifying experts in reaching their conclusions, “not on the conclusions that they generate.” Under this standard, the trial judge is the  “gatekeeper” and is required to use a combination of four considerations to address whether the proposed expert's theories and techniques of are reliable. Judges operating as a gatekeeper under Daubert must consider: (1) whether the theory or technique can, or has been, tested; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known or potential rate of error” for a “particular scientific technique”; and (4) whether the theory or technique is generally accepted in the relevant scientific community.

Against this backdrop Florida’s expert evidence standard now mirrors Federal Rule of Evidence 702 and requires a court to consider three enumerated requirements when determining whether evidence is admissible. Florida Rule of Evidence now requires the trial judge to determine whether: (1) the expert’s testimony is based upon sufficient facts or data; (2) the expert’s testimony is the product of reliable principles and methods; and (3) the expert applied the foregoing principles and methods reliably to the specific facts of the case. These consideration work in concert with the Daubert Standard, accordingly a court must now interpret and apply these three requirements with the four-part Daubert test, which is designed to assist in the analysis of requirement two (2) above, i.e., "principles and methods" of the expert.

The foregoing standards apply regardless of whether the expert's technique is "new-and-novel" or "tried-and-true." All are subject to analysis under the new standard. Further, relying upon the Daubert progeny, the new standard “applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge,” which includes “engineers and other experts who are not scientists.” 

The Daubert standard provides litigants with the opportunity to more thoroughly vet expert testimony and obtain sound opinions for jurors to consider. If you would like more information on the foregoing, do not hesitate to contact Scott R. Schomber at our Fort Lauderdale office (954)-322-0050.