Daubert in State Courts


Daubert in Florida

Florida is unambiguously a Daubert state. After many decades of Frye, the Florida Supreme court has handed down In Re Amendments to the Florida Evidence Code 2019 where they adopted the Daubert Standard passed by the Florida Legislature, making it unambiguously the law in Florida. Effective immediately. Petition for rehearing denied.

I write the preeminent Guide to Daubert in Florida and excerpts follow immediately infra. These excerpts are from “ Daubert and Commercial Litigation Expert Testimony” a chapter in the Florida Bar/Lexis publication “Business Litigation in Florida” You will be able to buy this from the Florida Bar in 2021, but because you are on my website, you can read it now for free. This is a massive update of the chapter, and what follows is a prepublication excerpt from the forthcoming 10th edition of that Book.

Daubert in California

California is historically a Frye jurisdiction, called Kelly-Frye, for the California case People v. Kelly (1976) 17 Cal.3rd 24 that applied Frye in California. In 2012 the California Supreme Court handed down Sargon Enterprises Inc. v. The University of Southern California, 55 Cal.4th 747 (2012) (Sargon) which has been heralded as a Daubert enabling opinion
The Sargon Court adopted the basic framework of Daubert and its immediate progeny, along with much of its terminology, prompting some commentators to put California into the Daubert column. But it’s not clear that Sargon goes quite that far.

Daubert in Texas

Texas follows Daubert. In Ashby v. State, 527 S.W.3d 356 the court wrote that ot be admissale expert testimony must pass a three step test. 1st the expert must qualify as an expert by reason of his knowledge skill experience training or education 2nd the subject matter of the testimony must be an appropriate one for expert testimony and third the court must find that admitting the expert testimony will actually assist the factfinder in deciding the case. Additionally the court outlined the test to determine the “reliability of expert testimony concerning the hard Science.s” This test provides that evidence from a scientific theory must satisfy three requirements. One the underlying scientific theory must be valid #2 the technique must apply the theory in a valid manner and three the technique must have been properly applied on the occasion in question. To show that the scientific method used is generally accepted in the scientific community the party proffering the expert must show evidence that the method has been peer reviewed and recently published. I suspect more Daubert factors here so I want to reread this case.

Daubert in New York

There is no Daubert in New York state courts but there is so much Daubert in the New York federal courts and so many firms that practice in both state and federal courts that Daubert arguments migrate into state court, making New York a very interesting case about which I will write much more anon.