To Daubert or Not to Daubert? Missouri and Florida Consider Changes to Expert Witness Standards

Two states are currently in debate over the question of expert witness standards. For Missouri, the issue at hand is whether to adopt the federal standard for expert witnesses and apply the Daubert test going forward. Elsewhere, Florida is having its own Daubert-centric debate with a slightly different twist. Florida embraced the federal standard for expert witnesses in 2013. It is now dealing with a call to revert to the old Frye test. With two states currently engaged in contentious decisions about the Daubert test and expert witnesses, it’s interesting to ask why there’s a push in either direction in both states; why it matters, and to whom?

This week, Missouri Governor Jay Nixon vetoed a bill proposing that the state adopt the federal standard for expert witnesses. A standard that would ostensibly raise the bar from the current standard to the Daubert test. The bill was supported largely by business groups and Republican leaders; all of whom cited the need for more stringent scientific testimony standards and the need to create a better lawsuit environment.

Supporters include the National Federation of Independent Businesses, the Missouri Organization of Defense Lawyers, Missouri Prosecuting Attorneys Association, Missouri Petroleum Council, Missouri Retailers Association, and more. On the other hand, the Missouri Association of Trial Attorneys, judges, and labor have been vocal in their opposition to the bill.

Governor Nixon’s response has been to tout the interests of parties with diminished financial abilities. Nixon asserts that a more stringent expert witness requirement would make it harder for damaged parties to qualify expert witnesses. It would also make using expert witnesses more expensive. And it would take discretion away from local judges to make expert witness decisions.

Proponents of the bill aren’t buying Nixon’s argument. They’ve pointed out that since the federal government adopted the standard in 1993, 76% of the states have followed suit. It isn’t a policy made to benefit one side or the other. It’s to improve the scientific evidence heard in courts.

Bill proponents claim that they will seek to override the veto. Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform has called on the Missouri state legislature to override the veto. She noted that Governor Nixon’s veto “will only help plaintiffs’ lawyers and further worsen the state’s already poor lawsuit climate.” Rickard went on to refer to a survey of national employers by the U.S. Chamber Institute of Legal Reform. National employers ranked Missouri’s lawsuit system near the bottom, at 42nd out of 50 states. In her statement, Rickard also noted that public opinion surveys showed that 79% of Missouri voters thought the prevalence of lawsuits was a serious problem.

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It’s an interesting point for Missouri to be grappling with at this time. Missouri has historically been ranked by the American Tort Reform Association and the U.S. Chamber of Commerce as one of the worst states in the U.S. for corporations to get sued. In the last six months, the Show Me State hasn’t done much to change that perception. From February to May of this year, three Missouri juries awarded sizable verdicts of $72 million and $55 million in lawsuits against Johnson & Johnson, and a verdict of $46.5 million against Monsanto Co.

The defense in both cases are attributing the verdicts to Missouri’s failure to use the Daubert test to determine the admissibility of expert witness testimony. They find that the state’s reliance instead on whether the expert’s opinion is “reasonably relied upon by experts in the field” is far too ambiguous.

The Daubert question also invites debate about the proper role of judges in relevant proceedings. Governor Nixon, in vetoing the bill, wanted to continue to allow local judges the discretion to make expert witness decisions. Defense lawyers, on the other hand, are saying the judges are taking too passive of a role under the current statute, and are letting juries decide things too often. Their position is that, under the Daubert standard, judges would act more as gatekeepers. Still others are saying that Daubert standard would actually give judges too much decisionmaking authority. If there’s a valid dispute in the scientific literature and community, the Daubert rule puts the onus on judges to decide which side is right. Some claim that judges cannot, and should not, be in this position.

There is also, of course, some noise about whether the recent verdicts against Johnson & Johnson and Monsanto would have ended differently under a Daubert regime. Johnson & Johnson attorneys claim that the “star” expert witness for the plaintiffs never would have been able to testify if a Daubert standard had been applied. That expert witness testified in both cases about the link between talcum powder and ovarian cancer, and those cases resulted in $72 million and $55 million verdicts against Johnson & Johnson. Plaintiffs’ attorney, however, says that the expert in question would have passed the Daubert standard anyway, having previously done so in another case in South Dakota where a Daubert standard was applied.

While Missouri is contemplating changing their expert witness standards, Florida is currently considering a return to its old ways. In July of 2013, the state amended the Florida Evidence Code to conform with the federal Daubert standard. Up until then, Florida courts had been applying the Frye standard.

Since the adoption of Daubert in 2013, Florida courts have repeatedly considered the question of whether the Daubert standard applies retroactively. At this time, three appellate courts, the First, Third, and Fourth Districts, have all said that it does apply retroactively. This is because it is a procedural amendment.

So why the call to change back at this time? The fact that the amendment is procedural is precisely the issue. Florida’s Constitution gives the Florida Supreme Court, and only the Supreme Court, the power to set procedural rules for the state court system. The 2013 implementation of the Daubert rule by the Florida Legislature is thus not set in stone until the state’s Supreme Court gives its blessing.

This past December, Florida State Bar’s governors voted 33 to 9 against Daubert. The Florida State Bar maintained that only the Supreme Court could decide what expert witness standard to adopt. It further recommended that the Supreme Court decide against adopting the Daubert standard.

The State Bar’s call to return to Frye is supported by plaintiffs attorneys. They claim that the more stringent federal standard would burden the state courts. They say it would adversely affect less financially able clients.

Their concern is that adoption of the federal standard would require scheduling and conducting Daubert hearing, and writing and considering Daubert opinions. Thus delaying justice further. The result would be a drain on already-scant judicial time and resources.

On the other side, supporters of the Daubert standard include business groups, insurance groups, and the criminal defense bar. Here, again, the U.S. Chamber Institute for Legal Reform has shown support for a move towards Daubert. Daubert proponents say that the seek a measure of consistency. They point to the federal system and other Daubert states. They also note that adopting the Daubert standard would discourage forum-shopping.

What’s interesting is how the Daubert debates in Florida and Missouri have elements in common. In both states, plaintiffs attorneys (especially in personal injury and medical malpractice sectors) have been understandably vocal in opposition to adopting the Daubert standard. The key concerns against implementing the Daubert test have been the increased burden on state judicial systems. As well as the burden on plaintiffs with fewer financial resources.

Similarly, the proponents of Daubert look the same in both states – business groups, insurance groups, and defense attorneys. They each point to the need to be consistent with other states and with the federal standard. There’s also a desire to vet and eliminate “junk science” more systematically, and to improve the state’s lawsuit climate.

It remains to be seen how the contentious Daubert vs. Frye question will unfold over the next few months in Missouri and Florida. Missouri may revisit the question soon, as bill proponents push the legislature to override Governor Nixon’s recent veto. The Florida Supreme Court is expected to hear oral arguments on the issue in September.