The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony

There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions. One method is known as the Daubert test. The other as the Frye test. Both are named after respective cases. The Daubert test is used in federal court. The Frye test was used in Florida until 2013 when the Florida Legislature modified the evidence code to reflect the application of the Daubert test. The Daubert test is widely considered a more stringent test relative to the admissibility of expert opinions at trial where trial courts perform certain gatekeeper functions to determine the reliability of an expert’s methodology (Check this...

20 May

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Preserving an Objection for Appeal

Posted by David Adelstein

in Appeal, Expert Testimony

Preserving an objection for appeal. Preserving an objection for appeal. Preserving an objection for appeal. Repeat again and again, because this is important. The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida, 43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife. Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder. The jury found that the man was guilty of attempted murder. An issue on appeal dealt with the scope of an expert's testimony that tied...

09 March

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Make Sure to Timely Raise Your Daubert Objection to Expert Testimony

Posted by David Adelstein

in Evidence, Expert Testimony

If you are going to raise a Daubert objection or challenge (or request a Daubert hearing), you need to TIMELY do so before the expert witness testifies. A Daubert motion / challenge / hearing relates to the admissibility of an expert witness’ testimony. As you can imagine, this is an extremely important issue as many cases depend on expert witness testimony to support their burden of proof. In Rojas v. Rodriguez, 41 Fla.L.Weekly D423a (Fla. 3d DCA 2016), a defendant raised a Daubert objection post-verdict. The defendant was challenging the admissibility of the testimony of plaintiff's neurosurgeon expert in requesting a new trial....

13 January

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Experts Cannot Tell the Jury How to Decide the Case

Posted by David Adelstein

in Expert Testimony

Previously, I discussed the employment litigation case of Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015) involving a terminated professor suing the University that fired him. Check it out here. In this case, the University called an outside counsel as an expert employment attorney that advised it in the termination of the professor. The lawyer testified that in her expert opinion the University had cause to terminate the professor. The appellate court held it was error to admit this testimony because the testimony was essentially telling the jury how to decide the case, particularly,...

11 January

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Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein

in Appeal, Expert Testimony, Standard of Review

Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony. An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial...

10 January

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Expert Opinion Testimony and Understanding Daubert’s Gatekeeping Test

Posted by David Adelstein

in Evidence, Expert Testimony

Expert opinion testimony is an important aspect of complex civil litigation. Expert testimony assists in proving or disproving liability and damages. A credible and persuasive expert can make the difference in a case and retaining experts, generating expert opinions, and the manner in which expert opinions are presented should not be taken lightly. Regarding expert testimony, Florida Statute s. 90.702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in...