This article is the fourth in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal.

If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.

I.     Frye, not Daubert, should be used to preserve issues and arguments relating to the

       reliability of an expert witness's testimony.

Until recently, an open question existed as to whether Florida courts should apply the Frye standard or the Daubert standard in determining the reliability of expert testimony. See White v. Ring Power Corp., 261 So. 3d 689, 696 n.9 (Fla. 3d DCA 2018).

Under the Frye standard, expert testimony should be deduced from generally accepted scientific principles. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); DeLisle v. Crane Co., 258 So. 3d 1219, 1225 (Fla. 2018). This means that “the results of mechanical or scientific testing are inadmissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.” Bundy v. State, 471 So. 2d 9, 13 (Fla. 1985).

On the other hand, the Daubert standard requires an inference or assertion to be “derived by the scientific method” in order to qualify as “scientific knowledge.” DeLisle, 258 So. 3d at 1226 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. at 587 (1993)). The focus under Daubert “must be solely on principles and methodology, not on the conclusions that they generate.” Id. Unlike Frye, which relies on the scientific community to determine reliability, Daubert “relies on the scientific savvy of trial judges to determine the significance of the methodology used.” DeLisle, 258 So. 3d at 1229.

Confusion over which standard to use in Florida arose in 2013, when the Florida Legislature amended section 90.702, Florida Statutes, to incorporate Daubert into the Florida Rules of Evidence. See White, 261 So. 3d at 696 n.9. The Florida Supreme Court, however, recently found the amendment to be unconstitutional and clarified that Frye, not Daubert, is the standard to be used in Florida for determining the reliability of expert testimony. DeLisle, 258 So. 3d at 1229.

Therefore, the Frye standard should be used to preserve issues and arguments relating to the reliability of an expert witness’s testimony.

II.      When does Frye apply?

Frye only applies when an expert attempts to render an opinion based on a “new or novel scientific technique.” See U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002) (“[T]he Frye standard only applies when an expert attempts to render an opinion that is based on new or novel scientific techniques. Therefore, in the vast majority of cases, no Frye inquiry will be required—because no innovative scientific theories will be at issue.”) (internal citation omitted). “What exactly constitutes ‘new or novel scientific evidence’ is often difficult to ascertain.” Williams v. State, 710 So. 2d 24, 29 (Fla. 3d DCA 1998). However, “where a scientific principle has been established and generally accepted in the relevant scientific community, and has also been Frye tested in the legal community, it is no longer ‘new or novel’ and there is simply no need to reapply a Frye analysis.” Williams v. State, 710 So. 2d 24, 30-31 (Fla. 3d DCA 1998).

Notably, Frye does not apply to “pure opinion testimony.” State Farm Mut. Auto. Ins. Co. v. Johnson, 880 So. 2d 721, 723 (Fla. 2d DCA 2004); Rickgauer v. Sarkar, 804 So. 2d 502, 504 (Fla. 5th DCA 2001). “‘Pure opinion’ refers to expert opinion developed from inductive reasoning based on the experts’ own experience, observation, or research, whereas the Frye test applies when an expert witness reaches a conclusion by deduction, from applying new and novel scientific principle, formula, or procedure developed by others.” Holy Cross Hosp., Inc. v. Marrone, 816 So. 2d 1113, 1117 (Fla. 4th DCA 2001). See also Jones v. Goodyear Tire & Rubber Co., 871 So. 2d 899, 903 (Fla. 3d DCA 2003) (“Pure opinion” is expert opinion that is “based on an expert’s own experience or training.”).

III.      How does Frye apply?

When objections are made pursuant to Frye, courts follow a four-step process to determine the admission of expert testimony concerning a new or novel scientific principle. Ramirez v. State, 651 So. 2d 1164, 1166 (Fla. 1995).

Step 1

In step 1, the trial judge must determine whether the expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. Id. at 1167.

One specific argument you may want to consider making (and therefore preserving) during this step is that the testimony is outside the common evidence and understanding of the average person. The Frye standard does not apply to testimony that is “clearly within the common experience and understanding of the average person,” see Williams v. State, 710 So. 2d 24, 28 (Fla. 3d DCA 1998), and an expert will not be permitted to give opinions on facts that are “within the ordinary experience of the jury.” Angrand v. Key, 657 So. 2d 1146, 1149 (Fla. 1995) (quoting Mills v. Redwing Carriers, Inc., 127 So. 2d 453, 456 (Fla. 2d DCA 1961)).

Additionally, if you are offering testing as evidence, make sure that the conditions in the experiment are substantially similar to those at the time of the occurrence. Otherwise, evidence of the experiment cannot be admitted. See GMC v. Porritt, 891 So. 2d 1056, 1058 (Fla. 2d DCA 2004).

Step 2

Step 2 requires the trial judge to decide whether the expert’s testimony is based on a scientific principle or discovery that is sufficiently established to have gained general acceptance in the particular field to which it belongs. Ramirez, 651 So. 2d at 1167 (Fla. 1995). See also Brim v. State, 695 So. 2d 268, 272 (Fla. 1997) (stating that the Frye standard “requires a determination, by the judge, that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community”).

If you are seeking the admission of expert opinion concerning a new or novel scientific principle, then you, as the proponent of the evidence, bear the burden of proving by a preponderance of the evidence “general acceptance” of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand. Ramirez, 651 So. 2d at 1168 (stating that the proponent of the evidence bears the burden of proving “general acceptance” by a preponderance of the evidence).

“General acceptance” can be proved if “the use of the technique is supported by a clear majority of the members of that community.’” Brim, 695 So. 2d at 272 (quoting People v. Guerra, 37 Cal. 3d 385, 690 P.2d 635, 656, 208 Cal. Rptr. 162 (Cal. 1984)). However, “a ‘nose count’ is not alone sufficient to establish general acceptance in the scientific community.” Brim, 695 So. 2d at 272. Courts “must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique.” Id. (quoting People v. Leahy, 8 Cal. 4th 587, 882 P.2d 321, 336-37 (Cal. 1994)).

Therefore, proving “general acceptance” requires the “testimony of impartial experts or scientists.” Bevil v. State, 875 So. 2d 1265, 1268 (Fla. 1st DCA 2004) (quoting Ramirez, 810 So. 2d at 851 (Fla. 2001)). This testimony must be “more than ‘[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles.’” Bevil, 875 So. 2d at 1268 (quoting Ramirez, 810 So. 2d at 844). Instead, the testimony should focus on the validity of the underlying science rather than the application of the expert’s data. See Castillo v. E.I. Du Pont de Nemours & Co., 854 So. 2d 1264, 1276 (Fla. 2003) (stating that Frye “assesses only the validity of the underlying science. Frye does not require the court to assess the application of [an] expert’s raw data in reaching his or her conclusion”).

Step 3

During step 3, the trial judge must determine whether a particular witness is qualified as an expert to present testimony on the subject in issue. Ramirez, 651 So. 2d at 1167.

“A person can be qualified to testify as an expert witness if the witness possesses special knowledge, experience or skill in the subject upon which the witness is called to testify.” Sihle Ins. Group, Inc. v. Right Way Hauling, Inc., 845 So. 2d 998, 1000 (Fla. 5th DCA 2003). See also Fla. R. Civ. P. 1.390(a) (defining “expert witness” as “a person duly and regularly engaged in the practice of a profession and who holds a professional degree from a university or college and has had special training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify”) (emphasis added).

Step 4

Finally, in step 4, the judge may allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert’s opinion, which it may either accept or reject. Ramirez, 651 So. 2d at 1167.

The judge may proceed to step four only if he or she has found that the previous steps have been met. See Nelson v. State, 748 So. 2d 237, 241 (Fla. 1999); Hayes v. State, 660 So. 2d 257, 261 (Fla. 1995). In other words, the judge must find the following before allowing the expert to render an opinion on the subject of his or her expertise: (1) that the expert testimony will assist the jury in understanding the evidence or in determining a fact in issue; (2) that the expert’s testimony is based on a scientific principle or discovery that is sufficiently established to have gained acceptance in the particular field in which it belongs; and (3) that the particular expert is qualified to present opinion evidence on the subject in issue. See id.

IV.     A Frye objection must be made at the time the testimony is offered.

          Otherwise, it is waived.

In order to properly preserve a Frye objection, the objection must be made at the time the testimony is offered. Jones v. Butterworth, 701 So. 2d 76, 78 (Fla 1997). Therefore, in Jones v. Butterworth, the Florida Supreme Court found that a Frye objection was waived when a party raised the objection in a motion to strike after the expert completed his testimony as a witness even though the witness had not yet left the courtroom. 701 So. 2d at 78.

Though a Frye objection may be made at trial, the “better procedure” is to raise the Frye challenge prior to trial because it minimizes any inconvenience to the jury. Janssen Pharm. Prods., L.P. v. Hodgemire, 49 So. 3d 767, 771 (Fla. 5th DCA 2010). Therefore, you should raise any Frye objections that you may have prior to trial whenever possible.

V.     A Frye objection must specifically challenge the expert's testimony on the basis that

         the novel scientific evidence is unreliable in order for it to be preserved.

Additionally, in order to properly preserve a Frye challenge, the objection must specifically challenge the expert’s testimony on the basis that the novel scientific evidence is unreliable. Hadden v. State, 690 So. 2d 573, 580 (Fla. 1997). See also Jordan v. State, 694 So. 2d 708, 716 n.8 (Fla. 1997). A general objection to an expert under section 90.702, Florida Statutes, is insufficient to preserve a Frye objection. Janssen Pharm. Prods., L.P. v. Hodgemire, 49 So. 3d 767, 771 (Fla. 5th DCA 2010). Likewise, objecting that the expert’s opinion goes to the ultimate issue in the case or that the expert is not competent to testify is also insufficient. Id. Instead, “the objection must challenge the expert’s testimony on the basis that the ‘novel scientific evidence is unreliable.’” Id.

VI.      Conclusion

It is becoming increasingly important for practitioners and litigants to understand how to preserve issues and arguments related to the reliability of expert testimony under Frye, especially in light of the Florida Supreme Court’s recent clarification in DeLisle that Frye, not Daubert, is the standard in Florida. However, it remains important to understand how to properly preserve arguments regarding the other rules of evidence, which still apply to expert testimony even if the Frye standard is met, inapplicable, or waived in a particular case. See Glendening v. State, 536 So. 2d 212, 220 (Fla. 1989) (stating that an expert’s testimony is subject to section 90.403, Florida Statutes, which provides that “[r]elevant 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”). Such an understanding of preservation provides parties with an opportunity to have issues considered on their merits and the best chance for success on appeal.

About the Author:

Jillian E. Pratt is an Associate of Boyd & Jenerette, P.A., practicing in the Jacksonville office. Her practice primarily focuses on appeals. Prior to joining the firm, Ms. Pratt gained experience in civil, administrative, and criminal appeals as a judicial law clerk for the Honorable Timothy D. Osterhaus at the First District Court of Appeal. She then served as an Assistant State Attorney for the Second Judicial Circuit in Tallahassee, Florida, where she represented the State in trials and motion hearings.

Ms. Pratt can be reached at jpratt@boydjen.com or (904)520-7803.