Richard DeLisle v. Crane Co.

Supreme Court of Florida
____________

No. SC16-2182
____________

RICHARD DELISLE,
Petitioner,

vs.

CRANE CO., et al.,
Respondents.

October 15, 2018

QUINCE, J.

Richard DeLisle seeks review of the decision of the Fourth District Court of

Appeal in Crane Co. v. DeLisle, 206 So. 3d 94 (Fla. 4th DCA 2016), on the ground

that it expressly and directly conflicts with a decision of this Court on a question of

law.1 We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

1. We reject the argument that the Fourth District’s decision cannot conflict
with Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), because it construes an earlier
version of the statute. Marsh reaffirmed a procedural rule of the Court that the
Legislature has limited authority to repeal. Indeed, Marsh did not construe section
90.702, Florida Statutes (2007), because the test established by Frye v. United
State, 293 F. 1013 (D.C. Cir. 1923), was not codified within and, in fact,
contradicted it. Accordingly, the conflict between Crane and Marsh is properly
before this Court for our review.
 The facts of this case were described in the Fourth District’s opinion as

follows:

After developing mesothelioma, DeLisle filed a personal injury
action against sixteen defendants, claiming that each caused him to be
exposed to asbestos. He alleged negligence and strict liability under
failure-to-warn and design-defect theories. Of these defendants,
DeLisle proceeded to trial only against Crane, Lorillard Tobacco Co.,
and Hollingsworth & Vose Co. (“H & V”).
At trial, DeLisle presented evidence that he was exposed to
asbestos fibers from sheet gaskets while working at Brightwater Paper
Co. between 1962 and 1966. Crane, a valve and pump manufacturer,
used “Cranite” sheet gaskets containing chrysotile asbestos fibers.
DeLisle also testified that he smoked Original Kent cigarettes with
asbestos-containing “Micronite” filters from 1952 to 1956. These
cigarettes were produced by Lorillard’s predecessor, and the filters
were supplied by a former subsidiary of H & V. The filters contained
crocidolite asbestos. In addition to Cranite gaskets and Kent
cigarettes, DeLisle testified that he was exposed to asbestos-
containing products from the following nonparty defendants: Garlock
Sealing Technologies, LLC; A.W. Chesterton Co.; Ford Motor Co.;
Honeywell International, Inc., f/k/a Allied Signal, as successor in
interest to Allied Corp., as successor in interest to The Bendix Corp.;
Georgia-Pacific LLC, f/k/a Georgia-Pacific Corp.; Goulds Pumps,
Inc.; Union Carbide Corp.; Brightwater; and Owens-Corning
Fiberglass.
Lorillard contested DeLisle’s use of Kent cigarettes. DeLisle
testified that he smoked on average a pack of Kent cigarettes a day
from junior high school until he enlisted in the army in 1957. Two of
his high school friends, however, did not recall him smoking, and his
former wife testified that by the late 1960’s, DeLisle was only
smoking unfiltered cigarettes.
The parties hotly disputed causation, and even DeLisle’s own
experts did not agree on which products produced sufficient exposure
to asbestos to constitute a substantial contributing factor to DeLisle’s
disease. Although all of DeLisle’s experts agreed that the crocidolite
asbestos in the Kent filters was a causative factor, they disagreed as to
whether the other products were substantial contributing factors.

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 Appellees challenged each expert’s opinions under section
90.702, Florida Statutes, which adopted the Daubert test for expert
testimony. DeLisle introduced the causation expert opinions of Drs.
James Dahlgren, James Millette, James Crapo, and James Rasmuson.
Lorillard and H & V unsuccessfully moved to exclude their testimony,
as well as any testimony regarding experiments conducted by Dr.
William Longo. Dr. Dahlgren is a toxicologist who testified as to
causation. Dr. Millette is an environmental scientist who tested
asbestos-containing products for fiber release. Dr. Crapo, a
pulmonologist, reviewed studies by both Dr. Longo and Dr. Millette
to determine that Kent cigarettes would be a substantial contributing
factor to mesothelioma. Dr. Rasmuson, an industrial hygienist, relied
on Dr. Longo’s testing to opine on DeLisle’s exposure. Following
Daubert hearings, the trial court admitted each expert’s testimony.
Before the jury, Dr. Dahlgren opined that “every exposure”
above background levels to friable, inhaled asbestos—regardless of
product, fiber type, and dose—would be considered a substantial
contributing factor to DeLisle’s mesothelioma. In contrast, Dr.
Rasmuson testified that low-level exposures to chrysotile asbestos
would not increase the risk of mesothelioma. Dr. Crapo testified
similarly to Dr. Rasmuson as to low-level chrysotile asbestos.
Crane, Lorillard, H & V, and DeLisle all moved for directed
verdicts, and DeLisle sought to exclude any Fabre defendants from
the verdict form. The court denied the motions for directed verdict
and determined that Brightwater, DeLisle’s former employer, and
Owens-Corning, which manufactured asbestos-containing products
that DeLisle had worked with at Brightwater, should be included on
the verdict form. The court excluded the remaining nonparty
defendants as Fabre defendants.
During the jury charge conference, Lorillard and H & V asked
the trial court to instruct the jury on the threshold issue of whether
DeLisle ever smoked Kent cigarettes. DeLisle opposed the
instruction. The court denied the proposed instruction, reasoning that
the issue was “subsumed in the [standard] instruction.”
Following three days of deliberation, the jury awarded DeLisle
$8 million in damages and apportioned fault as follows:
• Crane: 16%
• Lorillard: 22%
• H & V: 22%
• Brightwater: 20%

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 • Owens-Corning: 20%
After trial, Crane, Lorillard, and H & V variously moved for a
judgment notwithstanding the verdict, judgment in accordance with
their motions for directed verdict, a new trial, or, in the alternative, for
a remittitur. The trial court denied the motions. The court then
entered a final judgment awarding DeLisle $8 million in past and
future non-economic compensatory damages, apportioned to Crane,
Lorillard, and H & V based on the jury’s distribution of fault.

Crane Co. v. DeLisle, 206 So. 3d 94, 98-100 (Fla. 4th DCA 2016) (footnotes

omitted). Crane appealed the trial court’s denial of its motions for directed verdict

and judgment notwithstanding the verdict and the trial court’s admission of expert

causation testimony among other issues. Id. at 100. R.J. Reynolds also appealed

the admission of expert testimony and both parties appealed the award as

excessive. Id.

The Fourth District reviewed the admission of the testimony of the experts

under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and

found that the trial court “failed to properly exercise its gatekeeping function as to

Drs. Dahlgren, Crapo, and Rasmuson.” Id. The Fourth District reversed for a new

trial for R. J. Reynolds and reversed and remanded for entry of a directed verdict

for Crane. Id. at 111-12. DeLisle sought review by this Court, which was granted.

The Florida Legislature and the Florida Supreme Court have worked in

tandem for nearly forty years to enact and maintain codified rules of evidence.

This arrangement between the branches to avoid constitutional questions of

separation of powers continued uninterrupted from the Evidence Code’s inception

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until 2000. In the instant case, we are asked to determine whether chapter 2013-

107, section 1, Laws of Florida, which revised section 90.702, Florida Statutes

(2015), and which we previously declined to adopt, to the extent it was procedural,

infringes on this Court’s rulemaking authority. We find that it does. Therefore, we

reverse the Fourth District and remand for reinstatement of the final judgment.

The Florida Legislature enacted the first codified rules of evidence in 1976.

Ch. 76-237, at 556, Laws of Florida. In 1979, we adopted the Florida Evidence

Code, to the extent that the code was procedural. See In re Fla. Evidence Code,

372 So. 2d 1369 (Fla.), clarified, In re Fla. Evidence Code, 376 So. 2d 1161 (Fla.

1979). We recognized that “[r]ules of evidence may in some instances be

substantive law and, therefore, the sole responsibility of the legislature. In other

instances, evidentiary rules may be procedural and the responsibility of this Court.”

Id. at 1369. We therefore chose to adopt the rules, “[t]o avoid multiple appeals and

confusion in the operation of the courts caused by assertions that portions of the

evidence code are procedural and, therefore, unconstitutional because they had not

been adopted by this Court under its rule-making authority.” Id. Since then, we

have traditionally continued to adopt the code, to the extent it is procedural, to

avoid the issue of whether the Evidence Code is substantive in nature and therefore

within the province of the Legislature or procedural in nature and therefore within

the province of this Court. See, e.g., In re Amends. to the Fla. Evidence Code, 53

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So. 3d 1019 (Fla. 2011); In re Amends. to the Fla. Evidence Code, 960 So. 2d 762

(Fla. 2007); In re Amends. to the Fla. Evidence Code–Section 90.104, 914 So. 2d

940 (Fla. 2005); Amends. to the Fla. Evidence Code, 891 So. 2d 1037 (Fla. 2004);

In re Amends. to Fla. Evidence Code, 825 So. 2d 339 (Fla. 2002); In re Fla.

Evidence Code, 675 So. 2d 584 (Fla. 1996); In re Fla. Evidence Code, 638 So. 2d

920 (Fla. 1993); In re Amend. of Fla. Evidence Code, 497 So. 2d 239 (Fla. 1986);

In re Amend. of Fla. Evidence Code, 404 So. 2d 743 (Fla. 1981).

Until 2000, the working arrangement between the Legislature and the

Florida Supreme Court remained intact. However, in In re Amendments to the

Florida Evidence Code, 782 So. 2d 339 (Fla. 2000), this Court for the first time

declined to adopt, to the extent they were procedural, amendments to section

90.803, Florida Statutes (1997). Id. (declining to adopt chapter 98-2, section 1,

Laws of Florida, amending section 90.803(22), Florida Statutes, which allows the

admission of former testimony although the declarant is available as a witness, in

part because of concerns about its constitutionality). We then considered the

constitutionality of the provision in State v. Abreu, 837 So. 2d 400 (Fla. 2003),

determining that the revised statute was unconstitutional because it infringed on a

defendant’s right to confront witnesses. Id. at 406.

Since then, we have only rarely declined to adopt a statutory revision to the

Evidence Code. See, e.g., In re Amends. to the Fla. Evidence Code, 210 So. 3d

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1231 (Fla. 2017) (declining to adopt chapter 2013-107, sections 1-2, Laws of

Florida); In re Amends. to the Fla. Evidence Code, 144 So. 3d 536 (Fla. 2014)

(declining to adopt chapter 2011-183, section 1, Laws of Florida, creating section

90.5021, Florida Statutes (2012), which establishes a “fiduciary lawyer-client

privilege,” and declining to adopt chapter 2011-233, section 10, Laws of Florida,

creating section 766.102(12), Florida Statutes (2012), which pertains to a medical

malpractice expert witness provision). Since its inception, therefore, the Florida

Evidence Code has been considered neither purely substantive nor purely

procedural. See In re Fla. Evidence Code, 372 So. 2d 1369, 1369

(Fla.), clarified, 376 So. 2d 1161 (Fla. 1979) (“Rules of evidence may in some

instances be substantive law and, therefore, the sole responsibility of the

legislature. In other instances, evidentiary rules may be procedural and the

responsibility of this Court.”).

Generally, the Legislature has the power to enact substantive law while this

Court has the power to enact procedural law. See Allen v. Butterworth, 756 So. 2d

52, 59 (Fla. 2000). Substantive law has been described as that which defines,

creates, or regulates rights—“those existing for their own sake and constituting the

normal legal order of society, i.e., the rights of life, liberty, property, and

reputation.” In re Fla. Rules of Criminal Procedure, 272 So. 2d 65, 65 (Fla. 1972)

(Adkins, J., concurring). Procedural law, on the other hand, is the form, manner,

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or means by which substantive law is implemented. Id. at 66 (Adkins, J.,

concurring). Stated differently, procedural law “includes all rules governing the

parties, their counsel and the Court throughout the progress of the case from the

time of its initiation until final judgment and its execution.” Allen v. Butterworth,

756 So. 2d 52, 60 (Fla. 2000) (quoting In re Rules of Criminal Procedure, 272 So.

2d at 66 (Adkins, J., concurring)). “It is the method of conducting litigation

involving rights and corresponding defenses.” Haven Federal Savings & Loan

Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) (citing Skinner v. City of Eustis, 2

So. 2d 116 (Fla. 1941)).

The distinction between substantive and procedural law, however, is not

always clear. For example, a law is considered to be substantive when it both

creates and conditions a right. See State v. Raymond, 906 So. 2d 1045, 1049 (Fla.

2005); Jackson v. Fla. Dep’t of Corr., 790 So. 2d 381, 383-84 (Fla. 2000) (holding

that the Legislature could properly limit the right of indigents to proceed without

payment of costs); Caple v. Tuttle’s Design-Build, Inc., 753 So. 2d 49, 54 (Fla.

2000) (holding that a statute creating the right to petition for mortgage payment

receipts during foreclosure proceedings and establishing the grounds for granting

such a petition was constitutional); School Bd. of Broward Cty. v. Price, 362 So. 2d

1337 (Fla. 1978) (holding that section 230.23(9)(d)(2), Florida Statutes (1977), set

the bounds of a substantive right conditioned on a waiver and was therefore not an

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unconstitutional infringement of the Court’s power to set procedural rules).

However, when procedural aspects overwhelm substantive ones, the law may no

longer be considered substantive. Raymond, 906 So. 2d at 1049.

Here, the Legislature sought to adopt Daubert and cease the application of

Frye to expert testimony. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a

short opinion, the Court of Appeals for the District of Columbia pronounced that

the line between when a scientific discovery or principle crosses from experimental

to demonstrable is indiscernible so that courts would do better “admitting expert

testimony deduced from a well-recognized scientific principle or discovery.” Id. at

1014. Further, the Court explained, “the thing from which the deduction is made

must be sufficiently established to have gained general acceptance in the particular

field in which it belongs.” Id. This rule—that expert testimony should be deduced

from generally accepted scientific principles—has been the standard in Florida

cases and, today, we reaffirm that it is still the standard. See, e.g., Kaminski v.

State, 63 So. 2d 339, 340 (Fla. 1952) (recognizing Frye’s rejection of systolic

blood pressure deception tests as having “not yet gained such standing and

scientific recognition among physiological and psychological authorities as would

justify the courts in admitting expert testimony deduced from the discovery,

development, and experiments thus far made.”) (quoting Frye, 293 F. at 1014);

Bundy v. State, 471 So. 2d 9, 13 (Fla. 1985) (describing the Frye test as one in

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which “the results of mechanical or scientific testing are not admissible unless the

testing has developed or improved to the point where experts in the field widely

share the view that the results are scientifically reliable as accurate”).

Considering the admissibility of posthypnotic testimony, we formally

adopted Frye, determining:

[T]he test espoused in Frye properly addresses the issue of the
admissibility of posthypnotic testimony. We acknowledge that the
Frye rule has come under some criticism since its inception in 1923 as
too harsh and inflexible; however, we believe that the problems
associated with the other recognized judicial approaches foreclose
their use.
Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989) (citation omitted) (citing Bundy v.

State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984)).

Further, we noted:

[A] courtroom is not a laboratory, and as such it is not the place to
conduct scientific experiments. If the scientific community considers
a procedure or process unreliable for its own purposes, then the
procedure must be considered less reliable for courtroom use.
Stokes, 548 So. 2d at 193-94. We note that we adopted the Frye test irrespective of

the Evidence Code, which was in place at the time.

In Hadden v. State, 690 So. 2d 573 (Fla. 1997), we rejected the argument

that the Legislature’s enactment and this Court’s subsequent adoption of the

Evidence Code replaced the Frye standard with the balancing test that existed in

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the code. Hadden, 690 So. 2d at 577 (citing Daubert, 509 U.S. 579; Stokes, 548

So. 2d 188). We stated:

The reasons for our adherence to the Frye test announced in
Stokes continue today. Moreover, we firmly hold to the principle that
it is the function of the court to not permit cases to be resolved on the
basis of evidence for which a predicate of reliability has not been
established. Reliability is fundamental to issues involved in the
admissibility of evidence. It is this fundamental concept which
similarly forms the rules dealing with the admissibility of hearsay
evidence. As a rule, hearsay evidence is considered not sufficiently
reliable to be admissible, and its admission is predicated on a showing
of reliability by reason of something other than the hearsay itself. See
§ 90.802, Fla. Stat. (1995) (“Except as provided by statute, hearsay
evidence is inadmissible.”). This same premise underlies why novel
scientific evidence is to be Frye tested. Novel scientific evidence
must also be shown to be reliable on some basis other than simply that
it is the opinion of the witness who seeks to offer the opinion. In sum,
we will not permit factual issues to be resolved on the basis of
opinions which have yet to achieve general acceptance in the relevant
scientific community; to do otherwise would permit resolutions based
upon evidence which has not been demonstrated to be sufficiently
reliable and would thereby cast doubt on the reliability of the factual
resolutions.

Hadden, 690 So. 2d at 578.

After decades of the federal courts’ applying Frye, Congress revised the

Federal Rules of Evidence. The revision was addressed by the United States

Supreme Court in 1993. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.

579 (1993), the United States Supreme Court determined the appropriate standard

for admitting expert scientific testimony in a federal trial. Id. at 582. The Supreme

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Court ultimately agreed with the petitioners that Frye had been superseded by the

adoption of the revised Federal Rules of Evidence. Id. at 587.

The Court explained its decision, stating, “[I]n order to qualify as ‘scientific

knowledge,’ an inference or assertion must be derived by the scientific method.”

Daubert, 509 U.S. at 590. The inquiry derived from Daubert is a flexible one, as

emphasized by the Supreme Court. Id. at 594. “The focus, of course, must be

solely on principles and methodology, not on the conclusions that they generate.”

Id. at 595. The Supreme Court in Daubert opined that the change in rule 702 was

necessary to permit scientifically valid and relevant evidence, summarizing:

“General acceptance” is not a necessary precondition to the
admissibility of scientific evidence under the Federal Rules of
Evidence, but the Rules of Evidence—especially Rule 702—do assign
to the trial judge the task of ensuring that an expert’s testimony both
rests on a reliable foundation and is relevant to the task at hand.
Pertinent evidence based on scientifically valid principles will satisfy
those demands.

Id. at 597. In short, in Daubert, the United States Supreme Court found that

otherwise probative and scientifically valid evidence was being excluded under the

Frye standard and the change in rule 702 was necessary to permit additional

relevant evidence to be considered even if it was based on scientific methods or

principles that were not yet generally accepted.

Nevertheless, in Brim v. State, 695 So. 2d 268 (Fla. 1997), we unanimously

emphasized that we continue to apply Frye to “guarantee the reliability of new or

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novel scientific evidence.” Id. at 271 (citing Stokes v. State, 548 So. 2d 188 (Fla.

1989)). We opined:

Despite the federal adoption of a more lenient standard in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), we have
maintained the higher standard of reliability as dictated by Frye. E.g.,
Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). This standard requires
a determination, by the judge, that the basic underlying principles of
scientific evidence have been sufficiently tested and accepted by the
relevant scientific community. To that end, we have expressly held
that the trial judge must treat new or novel scientific evidence as a
matter of admissibility (for the judge) rather than a matter of weight
(for the jury).
Brim, 695 So. 2d at 271-72 (footnote omitted).

Following our repeated affirmations of the Frye rule, in 2013 the Legislature

amended section 90.702 to incorporate Daubert in the Florida Rules of Evidence.

The amendment revised the statute to read as follows:

90.702 Testimony by experts.—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 the form of an opinion or otherwise,
if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods
reliably to the facts of the case.

§ 90.702, Fla. Stat. (as amended by ch. 2013-107, § 1, Laws of Fla.).

Article II, section 3 of the Florida Constitution prohibits one branch of

government from exercising any of the powers of the other branches. Further,

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article V, section 2(a) provides this Court the exclusive authority to “adopt rules

for the practice and procedure in all courts.” Art. V, § 2(a), Fla. Const. The

Legislature may only repeal the rules of this Court by “general law enacted by two-

thirds vote of the membership of each house of the legislature.” Id. First, the

amendment was not written to repeal Frye or Marsh but to overrule this Court’s

decision. See Fla. HB 7015, preamble (2013) (available at

www.flsenate.gov/Session/Bill/2013/7015) (“the Florida Legislature intends to

prohibit in the courts of this state pure opinion testimony as provided in

Marsh . . . ”. The vote here did not meet the requirement. The House passed the

bill with a majority, 70 to 41 (or 58.3% of the membership). The Senate passed the

bill with more than the necessary two-thirds vote, 30 to 9 (or 75% of the

membership). Id.

We have previously found that the Legislature exceeded its authority in

adopting statutes we found to infringe on the authority of this Court to determine

matters of practice or procedure. For example, in Massey v. David, 979 So. 2d 931

(Fla. 2008), we considered the constitutionality of section 57.071(2), Florida

Statutes (1999), finding that the section was purely procedural because the

substantive right it purported to create existed in a different section of the statutes.

Id. at 935-36. We determined that “because section 57.071(2) only delineates the

steps that a party must fulfill (i.e., the proverbial hoops through which a party must

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jump) to be entitled to an award of expert witness fees as costs, the statute is

unquestionably a procedural one which conveys no substantive right at all.” Id. at

940 (citing Raymond, 906 So. 2d at 1049). Likewise, we found the time

requirements established by the Legislature in section 44.102, Florida Statutes

(1993), to be unconstitutional, finding that the section “sets forth only procedural

requirements, [and therefore] intrudes upon the rule-making authority of the

Supreme Court.” Knealing v. Puleo, 675 So. 2d 593, 596 (Fla. 1996) (citing art. V,

§ 2(a), Fla. Const.).

In Jackson v. Florida Department of Corrections, 790 So. 2d 381 (Fla.

2001), we explained that a statute can have both substantive provisions and

procedural requirements and “[i]f the procedural requirements conflict with or

interfere with the procedural mechanisms of the court system, they are

unconstitutional under both a separation of powers analysis, and because [they

intrude upon] the exclusive province of the Supreme Court pursuant to the

rulemaking authority vested in it by the Florida Constitution.” Id. at 384 (citing

art. II, § 3, art. V, § 2, Fla. Const.; State v. Garcia, 229 So. 2d 236, 238 (Fla.

1969)). We noted that the copy requirement contained in the rule provided an

extra and unnecessary burden on the operation of this Court. Id. at 386.

In State v. Raymond, 906 So. 2d 1045 (Fla. 2005), we determined that

section 907.041(4)(b), Florida Statutes (2000), providing that a person charged

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with a dangerous crime was prohibited from receiving a nonmonetary pretrial

release, was purely procedural and, therefore, an unconstitutional violation of the

separation of powers clause. “It is a well-established principle that a statute which

purports to create or modify a procedural rule of court is constitutionally infirm.”

Id. at 1048 (citing Markert v. Johnston, 367 So. 2d 1003 (Fla. 1978)). Further,

“where there is no substantive right conveyed by the statute, the procedural aspects

are not incidental; accordingly, such a statute is unconstitutional.” Id. at 1049

(citing Knealing, 675 So. 2d 593).

Further, we determined that the Legislature’s attempt to “specif[y] the

precise moment during the judicial proceeding when a motor vehicle liability

insurer may be formally recognized as the real party in interest” in section

627.7262, Florida Statutes (1977), was “an invasion of this Court’s rulemaking

authority.” Markert, 367 So. 2d at 1005-06. However, in VanBibber v. Hartford

Accident & Indemnity Insurance Co., 439 So. 2d 880 (Fla. 1983), we considered

the revised version of the same statute, and determined that there were “substantial

differences between the two statutes.” Id. at 882. Because of those differences, we

determined that the Legislature substantively pronounced public policy overturning

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this Court’s pronouncement in Shingleton v. Bussey, 223 So. 2d 713 (Fla. 1969),

and was therefore constitutional. VanBibber, 439 So. 2d at 883.2

Section 90.702, Florida Statutes, as amended in 2013, is not substantive. It

does not create, define, or regulate a right. Indeed, while we have stated that the

Florida Evidence Code contains both substantive and procedural rights, this statute

is one that solely regulates the action of litigants in court proceedings. See, e.g.,

Glendening v. State, 536 So. 2d 212, 215 (Fla. 1988) (determining that section

90.803(23), Florida Statutes (1985), concerning out-of-court statements, was

procedural for the purposes of ex post facto analysis).

Our consideration of the constitutionality of the amendment does not end

with our determination that the provision was procedural. For this Court to

determine that the amendment is unconstitutional, it must also conflict with a rule

of this Court. See Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732–

2. We note, however, that in vigorous accompanying opinions, Justices
Shaw and Boyd articulated reasons that public policy, alone, was insufficient to
determine the substantive nature of a statutory provision. Justice Shaw, equally
relevant to the instant case, was concerned with the rights of access to courts and
would have found that the challenged statute denied “rights arising under article I,
sections 9 and 21, of the Constitution of 1968.” Id. at 885 (Shaw, J., concurring in
part and dissenting in part). Justice Boyd would have continued to hold that the
joinder of parties is a procedural matter pursuant to Shingleton. VanBibber, 439
So. 2d at 886 (Boyd, J., dissenting); see also Smith v. Dep’t of Ins., 507 So. 2d
1080, 1092 (Fla. 1987) (finding that statutes addressing the substantive rights of
plaintiffs and defendants in civil litigation actions to recover damages did not
encroach on the rulemaking authority of this Court).

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33 (Fla. 1991) (“Where this Court promulgates rules relating to the practice and

procedure of all courts and a statute provides a contrary practice or procedure, the

statute is unconstitutional to the extent of the conflict.”) (citing Sch. Bd. v.

Surette, 281 So. 2d 481 (Fla. 1973), receded from on other grounds by Sch. Bd. v.

Price, 362 So. 2d 1337 (Fla. 1978)); see also Leapai v. Milton, 595 So. 2d 12, 14

(Fla. 1992) (holding that section 45.061, Florida Statutes (1987), was not

unconstitutional to the extent it did not conflict with Florida Rule of Civil

Procedure 1.442 and stating that “statutes should be construed to effectuate the

express legislative intent and all doubt as to the validity of any statute should be

resolved in favor of its constitutionality” (quoting McKibben v. Mallory, 293 So.

2d 48 (Fla. 1974))). A procedural rule of this Court may be pronounced in

caselaw. See Sch. Bd. of Broward Cty. v. Surette, 281 So. 2d 481, 483 (Fla. 1973),

receded from on other grounds by Sch. Bd. of Broward Cty. v. Price, 362 So. 2d

1337 (Fla. 1978) (“Where rules and construing opinions have been promulgated by

this Court relating to the practice and procedure of all courts and a statutory

provision provides a contrary practice or procedure . . . the statute must fall.”)

While the Legislature purports to have pronounced public policy in overturning

Marsh, we hold that the rule announced in Stokes and reaffirmed in Marsh was a

procedural rule of this Court that the Legislature could not repeal by simple

majority.

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 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. 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.3

We have previously recognized that Frye is inapplicable to the vast majority

of cases because it applies only when experts render an opinion that is based upon

new or novel scientific techniques. Marsh, 977 So. 2d at 547 (citing U.S. Sugar

Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002). Further, we have stated that “a

trial court ‘has broad discretion in determining the range of the subjects on which

an expert can testify, and the trial judge’s ruling will be upheld absent a clear

error.’ ” Davis v. State, 142 So. 3d 867, 872 (Fla. 2014) (quoting Penalver v.

State, 926 So. 2d 1118, 1134 (Fla. 2006)); see Hadden v. State, 690 So. 2d 573,

3. We also note our concern that the amendment would affect access to
courts much in the same way expressed by Justice Shaw in VanBibber by imposing
an additional burden on the courts. The amici in this case have described the
additional length and expense Daubert proceedings create. See, e.g., Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999).

- 19 -
581 (Fla. 1997) (stating that evidence found to be inadmissible under Frye does not

necessarily require reversal because the error may be harmless) (citing Flanagan v.

State, 625 So. 2d 827, 829-30 (Fla. 1993)).

The expert testimony in this case was properly admitted and should not have

been excluded by the Fourth District. As we stated in Marsh, medical causation

testimony is not new or novel and is not subject to Frye analysis. Marsh, 977 So.

2d at 549. Further, we have previously recognized that asbestos products “have

widely divergent toxicities, with some asbestos products presenting a much greater

risk of harm than others.” Celotex Corp. v. Copeland, 471 So. 2d 533, 538 (Fla.

1985). Here, the trial court heeded our caution to “resist the temptation to usurp

the jury’s role in evaluating the credibility of experts and choosing between

legitimate but conflicting scientific views.” Marsh, 977 So. 2d at 549 (citing

Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264, 1275 (Fla.

2003)). The Fourth District erred in disturbing the trial court’s determination.

Next, R.J. Reynolds and Crane both challenged the trial court’s denial of

remittitur. We conclude that the Fourth District’s application of a dissenting

viewpoint4 is inconsistent with our caselaw and, therefore, reject its reasoning.

4. Crane Co., 206 So. 3d at 111 (citing R.J. Reynolds Tobacco Co. v.
Townsend, 90 So. 3d 307, 318 (Fla. 1st DCA 2012) (Wetherell, J., concurring in
part and dissenting in part).

- 20 -
 For the foregoing reasons, we quash the Fourth District’s decision.

Furthermore, because the causation of mesothelioma is neither new nor novel, the

trial court’s acceptance of the expert testimony was proper. We therefore remand

to the Fourth District with instructions to remand to the trial court to reinstate the

final judgment. We decline to address the remaining issues.

It is so ordered.

PARIENTE, LEWIS, and LABARGA, JJ., concur.
PARIENTE, J., concurs with an opinion, in which LABARGA, J., concurs.
LABARGA, J., concurs with an opinion, in which PARIENTE, J., concurs.
CANADY, C.J., dissents with an opinion, in which POLSTON and LAWSON, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

PARIENTE, J., concurring.

I fully concur with the majority’s decision to remand for reinstatement of the

final judgment and its conclusion that the 2013 legislative amendments to section

90.702, Florida Statutes (“the Daubert amendment”), infringe on this Court’s

rulemaking authority. I write separately to express my belief that the Daubert5

amendment also has the potential to unconstitutionally impair civil litigants’ right

to access the courts. See art. I, § 21, Fla. Const.6

5. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
6. Our state constitution provides that “courts shall be open to every person
for redress of any injury, and justice shall be administered without sale, denial, or

- 21 -
 Determining the admissibility of evidence in a civil or criminal case is a

quintessentially judicial function. See Johnston v. State, 863 So. 2d 271, 278 (Fla.

2003) (“A trial judge’s ruling on the admissibility of evidence will not be disturbed

absent an abuse of discretion.”); Cantore v. W. Boca Med. Ctr., Inc., 2018 WL

4235334, *3 (Fla. Apr. 26, 2018). This includes the admission of expert opinion

testimony.

In deciding whether a particular expert’s testimony is admissible, the trial

court is guided by the rules of evidence, which require that the expert testimony

“assist the trier of fact.” § 90.702, Fla. Stat. (2017). Further, as part of its

gatekeeping function, the trial court must, if challenged by a party, determine

whether the probative value of the evidence is “substantially outweighed by the

delay.” Art. I, § 21, Fla. Const. We have explained that “[t]his ‘openness’ and
necessity that access be provided ‘without delay’ clearly indicate that a violation
occurs if the statute obstructs or infringes that right to any significant degree.”
Mitchell v. Moore, 786 So. 2d 521, 527 (Fla. 2001). Additionally, because the
“right to access is specifically mentioned in Florida’s constitution . . . it deserves
more protection than those rights found only by implication.” Id.
Under this provision, this Court has concluded that certain statutes are
unconstitutional because they restrict litigants’ access to courts. See, e.g.,
Westphal v. City of St. Petersburg, 194 So. 3d 311, 327 (Fla. 2016); Mitchell, 786
So. 2d 521. Justice Shaw reached this conclusion regarding a statute that provided
“that an injured party has no beneficial interest in a liability policy until that person
has first obtained a judgment against an insured.” VanBibber v. Hartford Accident
& Indem. Ins. Co., 439 So. 2d 880, 882 (Fla. 1983). Justice Shaw believed the
statute was unconstitutional, in part, because it “denie[d] or delay[ed] the rights of
access to the courts” under the Florida Constitution. Id. at 883 (Shaw, J.,
concurring in part and dissenting in part).

- 22 -
danger of unfair prejudice.” Id. § 90.403. However, once the trial court

determines that expert testimony will assist the trier of fact and is not unduly

prejudicial, the jury is entitled to hear the expert testimony. Any other approach, in

my view, reflects a mistrust of the jury system and the ability of jurors to weigh the

evidence.

BACKGROUND

As the majority explains, Frye7 has been the standard for determining the

admissibility of expert testimony in Florida for decades. See majority op. at 9.

Under Frye, “the burden is on the proponent of the evidence to prove the general

acceptance of both the underlying scientific principle and the testing procedures

used to apply that principle to the facts of the case at hand.” Ramirez v. State, 651

So. 2d 1164, 1168 (Fla. 1995). Significantly, Frye applies only to “new or novel

scientific evidence.” Brim v. State, 695 So. 2d 268, 271 (Fla. 1997).

In 1993, the United States Supreme Court held that the Federal Rules of

Evidence superseded the Frye “general acceptance” test for the admission of expert

testimony in federal trials. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 588-89 (1993). Under the federal rules, instead of determining whether the

basis for an expert’s opinion was generally accepted in the relevant scientific

7. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

- 23 -
community, the Court explained that “the trial judge must ensure that any and all

scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at

589. The Court noted that this new standard was intended to be flexible. See id. at

594 (“The inquiry envisioned by [the federal rules] is, we emphasize, a flexible

one.”); see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311 (11th Cir.

1999) (“The gatekeeper role [under Daubert] is not intended to supplant the

adversary system or the role of the jury.”); Martin L.C. Feldman, May I Have the

Next Dance, Mrs. Frye?, 69 Tul. L. Rev. 793, 802-03 (1995) (“The Court declared

that the Frye test was superseded by the Federal Rules of Evidence, and thereby

outwardly relaxed the standard for admission of scientific evidence.”).

Several years after Daubert, the United States Supreme Court concluded that

a trial judge may consider additional factors when determining whether expert

testimony meets the Daubert standard, including whether a particular theory or

technique had been or could be tested, whether it had been subjected to peer

review, and whether a particular technique had a known or potential rate of error.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). Consistent with its

intention that the Daubert standard be flexible, the Court explicitly emphasized the

word “may.” Id.

Despite the Supreme Court’s intention that Daubert be applied flexibly, it

has been observed that, in actuality, “[t]he gatekeeping role bestowed upon the

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judiciary has blocked more court access than it has enabled.” Allan Kanner & M.

Ryan Casey, Daubert and the Disappearing Jury Trial, 69 U. Pitt. L. Rev. 281, 283

(2007). Particularly relevant in this case, defendants often exploit the requirements

of Daubert as a sword against plaintiffs’ attorneys. See id. at 283-84. Others have

written that Daubert has “produced a minefield clogged with ‘Daubert hearings’

that are more lengthy, technical, and diffuse than anything that preceded them.”

David Crump, The Trouble with Daubert-Kumho: Reconsidering the Supreme

Court’s Philosophy of Science, 68 Mo. L. Rev. 1, 1 (2003).

Daubert has limited access to courts in two significant ways. First, Daubert

applies in substantially more cases than Frye. As stated previously, unlike Frye,

which applies only to testimony which is predicated on new or novel scientific

evidence, Daubert applies to all expert testimony. Kumho, 526 U.S. at 147 (stating

that Daubert “applies to all expert testimony”). Therefore, more litigants are

exposed to the risk of exclusion of their experts’ testimony under Daubert.

Second, in addition to expanding the areas of expert testimony that are

subject to challenge, the Daubert analysis involves more than just the Frye

consideration of whether “the basic underlying principles of scientific evidence

have been sufficiently tested and accepted by the relevant scientific community.”

Brim, 695 So. 2d at 272. Under Daubert, it is the trial judge who must ensure “that

an expert’s testimony both rests on a reliable foundation and is relevant to the task

- 25 -
at hand.” 509 U.S. at 597. As explained previously, this is a multi-factor

consideration. Id. at 593-94. In other words, as the majority states, “Frye relies on

the scientific community to determine reliability whereas Daubert relies on the

scientific savvy of trial judges . . . .” Majority op. at 19. The difference as to who

makes this reliability determination is not inconsequential, as trial judges, who

typically do not possess the requisite training or experience in the expert’s field,

must fully understand the science before they can even attempt to determine

whether it is admissible under Daubert.

THE DAUBERT AMENDMENT

In 2013, the Legislature formally adopted the Daubert standard. See ch.

2013-107, Laws of Fla. The Florida Bar’s Code and Rules of Evidence Committee

(“the Committee”) recommended that we reject the amendment to the extent it was

procedural when we considered the Committee’s regular-cycle report last year,

citing “grave constitutional concerns,” in particular, that the adoption of the

Daubert amendment would “deny[] access to the courts.” In re Amends. to Fla.

Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017).

In addition to the constitutional concerns, the Committee believed that the

amendment “would overburden the courts and impede the ability to prove cases on

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their merits.” Comm. Report at 10.8 Citing numerous federal cases, the

Committee explained that, because Daubert covers more subject areas and

involves a multi-factorial analysis to determine admissibility, versus Frye’s simple

“general acceptance” inquiry, “federal courts commonly must conduct multi-day

Daubert hearings at substantial cost in time and money.” Id. The Committee

stated further:

Florida’s judges have not been provided the level of resources
and time available to their federal counterparts. The impact of
Daubert procedures in Florida state courts would only worsen this
disparity.
Litigants in all kinds of cases also bear an increased burden.
Having to provide a lengthy expert report or answers to
interrogatories, then have an expert witness prepare to testify in a
deposition and a Daubert hearing, then defend a Daubert motion, all
with the hope of being allowed to do it all over again in trial, is very
expensive. Daubert “represents another procedural obstacle, another
motion, another hearing, and another potential issue on appeal, all
causing more delay and expense.”
During [Committee] discussions, concerns were raised that
litigation offering expert testimony under Daubert increases litigation
costs, a prospect that only wealthy litigants can bear. Family and
juvenile cases were raised as an example, since these cases often
involve parties with lesser financial capabilities who must somehow
participate in Daubert hearings or surrender their rights on the merits
due to a lack of resources to fund these evidentiary fights.
Contingency cases were mentioned as another example, in cases
where some litigants will be unable to find counsel to represent them
due to increased expenses associated with the use of experts. A final

8. Code & Rules of Evidence Comm. Three-Year Cycle Report, In re
Amends. to Fla. Evidence Code, 210 So. 3d 1231 (Fla. 2017) (No. SC16-181)
(cited herein as “Comm. Report”).

- 27 -
 example was presented in hourly rate cases when many litigants may
be unable to afford to pursue the merits of their claims because of the
expense of Daubert hearings guaranteed to come.

Comm. Report at 11-12 (citation omitted).9

The concerns raised by the Committee do not merely exist in the abstract.

Attorney Dan Cytryn, a lawyer with “more than 35 years [of experience] almost

exclusively in the area of personal injury,” urged this Court not to adopt the

amendment because Daubert has made “complex and moderately complex cases

. . . more expensive to try.” Comment by Dan Cytryn at 1, In re Amends. to Fla.

Evidence Code, 210 So. 3d 1231 (No. SC16-181). Cytryn explained that, after

Daubert, his law firm “has taken a much closer look at cases that are meritorious,

and perhaps are worth under $100,000, but require litigation. [They] have turned

down several meritorious cases because of the additional costs and time restraints

9. A joint comment filed by past presidents of The Florida Bar and other
members of The Florida Bar echoed this concern:
As many of the signers of this comment know personally, the Daubert
Law has overburdened and, if adopted by this Court, will continue to
overburden our already overstrained and overworked court system.
The Daubert Law has resulted, and will result, in unwarranted delays,
costs, and expenses in the administration of justice in every kind of
case. These delays, costs, and expenses will be borne not only by the
courts but by the litigants and will tend to have the most adverse
impact on those who lack financial resources.

Joint Comment by Past Presidents of The Fla. Bar & Other Members of The Fla.
Bar at 5, In re Amends. to Fla. Evidence Code, 210 So. 3d 1231 (No. SC16-181).

- 28 -
that Daubert implicates.” Id. at 2. While the impact on the workload of the trial

courts or the difficulty in finding a lawyer should not be the sole consideration for

determining whether a rule of procedure should be adopted, if adoption of the rule

is at the expense of litigants’ constitutional right to access the courts, then the

impact on the workload provides a compelling reason to reject the rule.

The National Association of Criminal Defense Lawyers (“NACDL”) raised

competing concerns in the battle between Frye and Daubert when we considered

the Daubert amendment last year. The NACDL urged this Court to adopt the

amendment, arguing that the Frye standard often permits the admission of “flawed

scientific evidence.” Comment by the NACDL at 2, In re Amends. to Fla.

Evidence Code, 210 So. 3d 1231 (No. SC16-181). The NACDL contended that

under Daubert, “the trial court can truly fulfill its critical role as a gatekeeper to

ensure that expert testimony is the product of reliable scientific principles and

methodology.” Id. While I understand the concerns articulated by the NACDL, I

am not persuaded that the proper application of the Frye standard is unable to

sufficiently guard against these concerns.

As this Court explained in Ramirez v. State, 810 So. 2d 836 (Fla. 2001),

when applying Frye, a court is not required to determine that evidence is

“generally accepted” on the basis of a mere “nose count” of experts in the field.

Id. at 844. To the contrary, we explained that the court “may peruse disparate

- 29 -
sources—e.g., expert testimony, scientific and legal publications, and judicial

opinions—and decide for itself whether the theory in issue has been ‘sufficiently

tested and accepted by the relevant scientific community.’ ” Id. (emphasis added)

(footnote omitted) (quoting Brim, 695 So. 2d at 272). We further explained that

“[a] bald assertion by the expert that his deduction is premised upon well-

recognized scientific principles is inadequate to establish its admissibility if the

witness’s application of these principles is untested and lacks indicia of

acceptability.” Id.

In that case, although several of the State’s experts testified that the

underlying principle of a particular method concerning knife mark evidence was

generally accepted in the field, we concluded that such testimony “standing alone

is insufficient to establish admissibility under Frye in light of the fact that [the

method’s] testing procedure possesse[d] none of the hallmarks of acceptability that

apply in the relevant scientific community to [that] type of evidence.” Id. at 849.

Likewise, in Hadden v. State, 690 So. 2d 573 (Fla. 1997), we concluded that a

psychologist’s opinion “that a child exhibits symptoms consistent with what has

come to be known as ‘child sexual abuse accommodation syndrome,’ ” which the

State sought to admit, “may not be used in a criminal prosecution for child abuse”

because it was not generally accepted by a majority of experts in the field. Id. at

575.

- 30 -
 I acknowledge that neither Frye nor Daubert is a perfect standard that will

seem fair to all litigants in every proceeding. However, this 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.

In addition to the time-consuming and potentially cost-prohibitive expense created

by Daubert hearings, as well as the onerous barriers to admitting expert testimony,

the jury’s role in evaluating the merits of the case may nevertheless be usurped

even after the trial court has concluded that expert testimony is admissible by an

appellate court’s overly burdensome application of Daubert, as evidenced by the

facts of this case. Accordingly, I do not agree that Daubert is preferable to Frye.

THIS CASE

In this case, after holding Daubert hearings on the plaintiff’s experts’

testimony, the trial court allowed the experts to testify regarding whether the

products of three defendants, which contained asbestos, were a substantial

contributing cause of the plaintiff’s mesothelioma. Crane Co. v. DeLisle, 206 So.

3d 94, 99 (Fla. 4th DCA 2016). The jury asked numerous probative questions

during the trial and deliberated for three days before rendering a verdict, in which

- 31 -
it apportioned fault against all three named defendants, in addition to a Fabre10

defendant. Crane, 206 So. 3d at 100.

Despite the jury’s careful consideration of the case, the Fourth District Court

of Appeal reversed for a new trial, concluding that the trial court abused its

discretion in admitting three of the plaintiff’s expert witnesses who testified

regarding causation. Id.; see majority op. at 20. As the majority explains, the

causation testimony in this case would not have even been subject to a Frye

challenge because “medical causation testimony is not new or novel.” Majority

op. at 20 (citing Marsh v. Valyou, 977 So. 2d 543, 549 (Fla. 2007)). Similarly, as

also noted by the majority, this Court has, for decades, understood that asbestos

products “have widely divergent toxicities, with some asbestos products presenting

a much greater risk of harm than others.” Majority op. at 20 (quoting Celotex

Corp. v. Copeland, 471 So. 2d 533, 538 (Fla. 1985)).

In other words, before Daubert, the testimony of the plaintiffs’ causation

experts would not have been subject to challenge. Under Daubert, however, an

appellate court can usurp both the function of the trial court in ruling on the

admissibility of evidence that is neither new nor novel, and the role of the jury in

weighing the evidence and rendering a verdict.

10. Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).

- 32 -
 CONCLUSION

For the reasons stated, in addition to the majority’s conclusion that the

Daubert amendment unconstitutionally infringes on this Court’s rulemaking

authority, I would also conclude that the Daubert amendment has the potential to

unconstitutionally impair litigants’ right to access the courts in civil cases. The

amendment does nothing to enhance the factfinding process, and instead, displays

a gross mistrust of the jury system.

LABARGA, J., concurs.

LABARGA, J., concurring.

I fully concur with the majority opinion, but write separately to express why

jurisdiction is proper in this case on the basis of express and direct conflict. In the

decision below, the Fourth District Court of Appeal evaluated the admissibility of

the experts’ testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993). However, as noted by the majority, this Court has repeatedly

stated that Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), is the applicable

standard for admissibility of expert testimony in Florida. For example, in Marsh v.

Valyou, 977 So. 2d 543 (Fla. 2007), we explained:

Despite the Supreme Court’s decision in Daubert, we have
since repeatedly reaffirmed our adherence to the Frye standard for
admissibility of evidence. See, e.g., Ibar v. State, 938 So. 2d 451, 467
(Fla. 2006) (“Florida courts do not follow Daubert, but instead follow
the test set out in Frye.”), cert. denied, 549 U.S. 1208, 127 S. Ct.
1326, 167 L. Ed. 2d 79 (2007); Brim v. State, 695 So. 2d 268, 271-72

- 33 -
 (Fla. 1997) (“Despite the federal adoption of a more lenient standard
in [Daubert], we have maintained the higher standard of reliability as
dictated by Frye.”); Hadden v. State, 690 So. 2d 573, 578 (Fla. 1997)
(“Our specific adoption of that test after the enactment of the evidence
code manifests our intent to use the Frye test as the proper standard
for admitting novel scientific evidence in Florida, even though the
Frye test is not set forth in the evidence code.”); Flanagan v. State,
625 So. 2d 827, 829 n.2 (Fla. 1993) (“We are mindful that the United
States Supreme Court recently construed Rule 702 of the Federal
Rules of Evidence as superseding the Frye test. However, Florida
continues to adhere to the Frye test for admissibility of scientific
opinions.”).

Id. at 547 (alteration in original).

Thus, the decision in DeLisle, which applied the Daubert standard, conflicts

with earlier decisions by this Court that conclude Frye is the appropriate test.

Although the Legislature amended the Evidence Code in 2013, this Court has

never held that Daubert is the appropriate standard for admission of expert

testimony in Florida. In fact, in 2017—after the issuance of DeLisle—we

expressly declined to adopt the amendments to the Evidence Code implementing

Daubert to the extent they were procedural due to “grave constitutional concerns.”

In re Amendments to Fla. Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017).

Accordingly, despite the change in the Evidence Code, conflict between DeLisle

and Marsh, Ibar, and other decisions articulating Frye as the applicable standard in

Florida remains, and resolution as to which standard applies is critical to resolve

uncertainty in Florida law. For this reason, we absolutely possess jurisdiction to

address and determine whether the lower court properly applied Daubert.

- 34 -
PARIENTE, J., concurs.

CANADY, C.J., dissenting.

The majority grounds its exercise of jurisdiction on express and direct

conflict, asserting that the decision on review, Crane Co. v. DeLisle, 206 So. 3d 94

(Fla. 4th DCA 2016)—which applies the Daubert11 standard codified in revised

section 90.702, Florida Statutes—is in conflict with Marsh v. Valyou, 977 So. 2d

543 (Fla. 2007), and other cases applying legal principles based on the Frye12

standard. Under article V, section 3(b)(3) of the Florida Constitution, such

jurisdiction exists only if the decision on review “expressly and directly conflicts

with a decision of another district court of appeal or of the supreme court on the

same question of law.” Because Marsh and similar cases do not address “the same

question of law” addressed in DeLisle, there is no express and direct conflict

jurisdiction.

We have long recognized that a case decided on the basis of a statutory

provision cannot be in conflict with an earlier case that pre-dated the effective date

of that statutory provision. See In re Interest of M.P., 472 So. 2d 732, 733 (Fla.

1985) (denying review on the ground that the asserted conflict case “arose prior to

11. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
12. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

- 35 -
the effective date” of the controlling statute in the case on review and therefore

was “clearly distinguishable”). This follows from the self-evident proposition that

one case decided on the basis of a statute and another case decided prior to the

effective date of the statute on the basis of previous governing law do not—and

could not—address “the same question of law.” The new statute changes the legal

landscape and presents an entirely novel legal question—namely, what does the

new statute provide?

Marsh and similar cases based on Florida’s Frye jurisprudence do not

address the “same question of law” as the question addressed in DeLisle, which

was controlled by and applied amended section 90.702, a statute that became

effective after Marsh and similar cases were decided and that was specifically

designed to displace Florida’s Frye jurisprudence.

To exercise jurisdiction here, the majority sets aside fundamental

constitutional principles of conflict jurisdiction. Never before have we exercised

conflict jurisdiction on the ground that a case applies a statute that displaces

previously existing law. The majority thus charts an unprecedented and ill-advised

course that would expand this Court’s conflict jurisdiction to encompass every case

in which a district court applies a statute that has changed a legal rule in any area

of the law. This is a very serious error.

- 36 -
 The constitutionality of amended section 90.702 is unquestionably an

important issue that is worthy of consideration by this Court. 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. Of course,

this case might well have presented a basis for jurisdiction. If DeLisle had made

an argument to the district court challenging the constitutionality of amended

section 90.702, the district court most likely would have addressed that argument

in its opinion. And then—depending on the district court’s ruling—this Court

would have had either mandatory jurisdiction based on a declaration of invalidity,

art. V, § 3(b)(1), Fla. Const., or discretionary jurisdiction based on a declaration of

validity, art. V, § 3(b)(3), Fla. Const. Yet for some reason, such an argument was

not presented to the district court. Parties every day make choices in litigating

cases that limit their options for review. And parties ordinarily must live with the

choices they make. This Court should not rescue a party from a poor choice by

exercising jurisdiction where none exists.

This case should be discharged. I dissent.

POLSTON and LAWSON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

Fourth District - Case Nos. 4D13-4351 and 4D14-146

- 37 -
 (Broward County)

James L. Ferraro, David A. Jagolinzer, and Paulo R. Lima of The Ferraro Law
Firm, P.A., Miami, Florida,

for Petitioner

Elliot H. Scherker, Julissa Rodriguez, Brigid F. Cech Samole, Sabrina F. Gallo,
and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, Florida,

for Respondent R.J. Reynolds Tobacco Company, as successor-by merger
to Lorillard Tobacco Company, and Hollingsworth & Vose Company

Paul F. Hancock and William J. Simonitsch of K & L Gates, LLP, Miami, Florida;
and Richard E. Doran of Ausley McMullen, Tallahassee, Florida,

for Respondent Crane Co.

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; and Howard C.
Coker of Coker, Schickel, Sorenson, Posgay, Camerlongo & Iracki, Jacksonville,
Florida,

for Amicus Curiae Counsel for Florida Justice Association

Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, Florida,

for Amicus Curiae Florida Defense Lawyers Association

Wesley A. Bowden of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor,
P.A., Pensacola, Florida,

for Amicus Curiae Concerned Physicians, Scientists and Scholars Regarding
Causation of Asbestos-Related Disease

Cory L. Andrews of Washington Legal Foundation, Washington, District of
Columbia,

for Amicus Curiae Washington Legal Foundation

- 38 -
Martin S. Kaufman of Atlantic Legal Foundation, Harrison, New York; and Joseph
H. Varner, III of Holland & Knight, LLP, Tampa, Florida,

for Amici Curiae John Henderson Duffus, Ph.D., Ronald E. Gots, M.D., Dr.
A. Alan Moghissi, Professor Robert Nolan, Gordon L. Nord, Ph.D., and
Professor Emanuel Rubin

Andy Bardos and George N. Meros, Jr., of GrayRobinson, P.A., Tallahassee,
Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee,
Florida,

for Amicus Curiae Florida Justice Reform Institute

William N. Shepherd, Jason D. Lazarus, and Tiffany Roddenberry of Holland &
Knight, LLP, West Palm Beach, Florida; and H. Eugene Lindsey III, Miami,
Florida,

for Amicus Curiae The National Association of Criminal Defense Lawyers

Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor General, Edward M.
Wenger, Chief Deputy Solicitor General, and Jordan E. Pratt, Deputy Solicitor
General, Tallahassee, Florida,

for Amicus Curiae State of Florida

- 39 -