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Florida Supreme Court Rules Expert Witness Law Unconstitutional

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TALLAHASSEE (CBSMiami/NEWS SERVICE OF FLORIDA) - In a case stemming from a man who developed the asbestos-related disease mesothelioma, a sharply divided Florida Supreme Court on Monday said a controversial 2013 law about expert-witness testimony was an unconstitutional infringement on the court's authority.

Justices, in a 4-3 decision, overturned a ruling by the 4th District Court of Appeal and ordered reinstatement of an $8 million verdict for Richard DeLisle, who contended he suffered mesothelioma because of exposure to asbestos in cigarette filters and in workplaces.

Bigger picture, the court majority found unconstitutional a move by the Legislature in 2013 to tighten standards for expert witnesses in court cases --- a move that was backed by business groups but opposed by plaintiffs' attorneys. The Supreme Court said the law violated the constitutional separation of powers because justices have the authority to set court-system procedures.

The 2013 law involved changing from the state's use of what is known in the legal world as the "Frye" standard to what is known as the "Daubert" standard for expert witnesses. Testimony from expert witnesses can play a crucial role in complicated civil lawsuits and in criminal cases that involve scientific evidence.

"We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence," Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis and Jorge Labarga. "Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts."

But Chief Justice Charles Canady, in a blistering dissent joined by justices Ricky Polston and Alan Lawson, said the court did not have the legal basis to decide the case because there had not been conflicting decisions in lower courts. Canady wrote that the majority "charts an unprecedented and ill-advised course" in the case.

"The constitutionality of (the 2013 law) is unquestionably an important issue that is worthy of consideration by this (Supreme) Court," Canady wrote. "But the importance of an issue does not justify transgressing the constitutional bounds of this court's jurisdiction. Instead, such an issue should be considered by this court only in a case that presents a proper basis for jurisdiction under our Constitution."

During the legislative debate supporters of moving to the Daubert standard, which is used in federal courts, argued it could help prevent the use of "junk science" in court cases. The standard includes a three-part test in determining whether expert testimony can be admitted. That test involves whether the testimony is "based upon sufficient facts or data;" whether it is the "product of reliable principles and methods;" and whether a witness has "applied the principles and methods reliably to the facts of the case."

But opponents argued that using the standard in Florida courts would make cases more expensive and time-consuming --- effectively making it harder for people to pursue lawsuits. Pariente, in a concurring opinion Monday, echoed those concerns.

"I acknowledge that neither Frye nor Daubert is a perfect standard that will seem fair to all litigants in every proceeding," Pariente wrote in a concurrence joined by Labarga. "However, this (Supreme) Court's case law makes clear that a proper and thorough application of Frye allows the trial judge to inquire beyond bare assertions of general acceptance. Daubert, on the other hand, has the potential to infringe on litigants' constitutional right to access the courts."

The Supreme Court signaled last year that it had "grave constitutional concerns" about the Daubert standard and refused to adopt it as part of the evidence code. But countering Canady's dissent, Labarga wrote in a concurring opinion that "resolution as to which standard applies is critical to resolve uncertainty in Florida law."

DeLisle filed a lawsuit in Broward County against a series of defendants alleging that exposure to asbestos had caused mesothelioma. For example, he argued that filtered Kent cigarettes he smoked in the 1950s contained asbestos.

A jury trial led to an $8 million award for DeLisle. But R.J. Reynolds Tobacco Co., a successor to the firm that made Kent cigarettes, and Crane Co., which was alleged to have made sheet gaskets that contained asbestos, appealed.

The 4th District Court of Appeal in 2016 reviewed the testimony of expert witnesses under the Daubert standard and tossed out the verdict, according to Monday's decision. The appeals court ruling prompted DeLisle to take the case to the Supreme Court.

"The News Service of Florida's Jim Saunders contributed to this report."

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