QUICK NOTE: …BACK TO THE DAUBERT STANDARD FOR EXPERT TESTIMONY

In what has previously appeared to be a game of moving chairs, the Florida Supreme Court formally adopted the Daubert standard to determine the admissibility of expert testimony.  This allows Florida to move on from the Frye standard and the moving chairs associated with which standard should apply to the admissibility of expert opinions.  A good discussion on the Florida Supreme Court’s recent application of the Daubert standard can be found here.  The Daubert standard determines the admissibility of expert testimony / opinions in federal court and now it is officially back in Florida to apply to Florida state court litigation.  This is important to know, particularly in the construction context, because many construction-related disputes utilize the services of an expert witness to render expert opinions.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

APPLICATION OF FRYE TEST TO DETERMINE ADMISSIBILITY OF EXPERT

shutterstock_96050015Florida went back to the Frye test/standard, instead of the Daubert test utilized in federal court, to determine the admissibility of expert testimony.  The Frye test is more favorable to plaintiffs because it applies when an expert renders an opinion based on new or novel scientific principles.  See D.R. Horton, Inc. v.  Heron’s Landing Condominium Ass’n of Jacksonville, Inc., 44 Fla.L.Weekly D109b (Fla. 1st DCA 2018) (“The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where the experts in the field widely share the view that the results are scientifically reliable as accurate. Stated differently, under Frye, the proponent of the evidence has the burden of establishing by a preponderance of the evidence with the general acceptance of the underlying scientific principles and methodology.  However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific principles.”). 

 

In D.R. Horton, Inc., a condominium association sued the developer and general contractor (same entity) for construction defects that included claims in negligence, violation of building code, and breach of statutory warranties.  The developer/general contractor moved in limine / to strike the association’s experts under, at the time, a Daubert analysis, but which became a Frye analysis during the pendency of the appeal.  The expert opined as to construction defects and damage and the appropriate repairs – really, no different than any construction defect dispute, from what it appeared. The trial court denied the motion and during trial the experts testified and a sizable damages judgment was entered against the developer/contractor prompting the appeal.  One issue on appeal was the admissibility of the expert’s opinion.  The appellate court noted that a Frye analysis is not necessary because the experts used a scientifically reliable and peer-reviewed methodology.  

 

A smart tactic, and I mean SMART tactic, that the association’s counsel seemed to utilize was to engage a third-party engineer to testify during a hearing that the methodology used by the association’s experts was industry standard methodology and generally accepted. Thus, the opinions were not based on new or novel scientific principles and the appellate court affirmed the trial court’s denial of the contractor/developer’s motion in limine.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

QUICK NOTE: EXPERT TESTIMONY – BACK TO THE FRYE TEST IN FLORIDA

imagesExpert testimony (opinions) – very important testimony in construction disputes.  Whether it is a delay claim, an inefficiency claim, a defect claim, etc., expert testimony plays an invaluable role in construction disputes.   Construction attorneys work closely with expert witnesses to ensure that an expert helps render an opinion to support their client’s burden of proof (including damages) or an affirmative defense.

 

 Recently, the Florida Supreme Court ruled that the Frye test governs the admissibility of expert testimony in Florida State courts.   Notably, this was the test used until circa 2013 until the Florida Legislature modified Florida’s Evidence Code to require the Daubert test to apply to determine the admissibility of expert testimony.  The Daubert test is the test used in federal courts and, quite frankly, is a more rigorous standard/test.   For more information on the Frye and Daubert test, please check out this article that I wrote to summarize Florida’s transition back to the Frye test.  In any event, this transition back to the Frye test can be both good and bad depending on who you represent in a Florida State court action and the expert opinion you are looking to introduce.  

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

UTILIZING EXPERT WITNESSES FOR CONSTRUCTION DISPUTES

untitledExpert witnesses are an integral part of construction disputes.  An expert assists a party in proving or disproving liability or damages. In construction disputes, an expert could be used relating to a construction or design defect, a delay, an inefficiency, the standard of care, building code violations, the repair protocol, etc.   Irrespective of the basis for retaining an expert, oftentimes the expert generates a report with his/her opinions (and documentation relied on to form those opinions), is deposed, and, if the case proceeds to trial, is relied on to provide expert opinion testimony.

 

Recently, I wrote an article about the Daubert test which is a court’s gatekeeping test to determine whether the expert opinion testimony is admissible.  Parties utilizing experts in construction disputes need to understand this Daubert test.  Please take a look at this article to familiarize yourself with Daubert to ensure you are engaging and preparing the right expert.

 

Additionally, I wrote another article on expert opinion testimony including the standard of appellate review if a court strike’s expert opinion testimony or allows an expert to testify subject to an objection.  Please take a look at this article because it is common for a party prior to trial to move to strike an opposing expert or portions of that expert’s opinion testimony.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.