April 1, 2016 Via email: e‐[email protected] Florida Supreme Court Office of the Clerk 500 S. Duvall Street Tallahassee, FL 32399‐1925 Re: Case File SC 16‐181: Comments concerning the adoption of the Daubert standard of evidence Dear Justices of the Florida Supreme Court: On behalf of the Alliance of Automobile Manufacturers (Alliance) and the Association of Global Automakers (Global Automakers), we are writing to comment on the Florida Bar’s recommendation that the Court retain the Frye standard of admissibility for expert witness testimony rather than adopt the Daubert standard, despite the 2013 revisions to §§90.702 and 90.704, Florida Statutes. The Alliance represents BMW, FCA US LLC, Ford Motor Company, General Motors, Jaguar Land Rover, Mazda, Mercedes‐Benz USA, Mitsubishi Motors, Porsche, Toyota Motor North America, Inc., Volkswagen Group of America, and Volvo Cars of North America. Global Automakers’ members include American Honda Motor Co., Aston Martin Lagonda of North America, Inc., Ferrari North America, Inc., Hyundai Motor America, Isuzu North America Corp., Kia Motors America, Inc., Maserati North America, Inc., McLaren Automotive Ltd., Nissan North America, Inc., Subaru of America, Inc., Suzuki Motor of America, Inc., and Toyota Motor North America, Inc. Our members collectively produce nearly every automobile sold in the United States. The Alliance and Global Automakers strongly support the Daubert standard for admissibility of expert witness testimony. Our members have been and will in all likelihood continue to be frequent litigants in the State of Florida. As such, they have an interest in Florida courts using rules of evidence that are fair to all parties, usable, predictable, and that ultimately provide fact finders with probative and reliable information. The Daubert standard does exactly that. Litigation that involves automobile manufacturers frequently pertains to complex issues including design and production of complex products, alternative design, and accident reconstruction. Fact finders can be expected to need expert witnesses to help them understand and decide these issues. Those fact finders are not helped by so‐called expert opinions that are not supported by testing, analysis, or some other reliable foundation—opinions which in some cases are allowed under the older Frye standard. Daubert is the better standard to help courts hear probative information while protecting juries from speculation couched as expert testimony. The Florida Bar Code and Rules of Evidence Committee’s “Three Year Cycle Report” recommends that this Court not adopt Chapter 2013‐107, sections 1 and 2, Laws of Florida (i.e., Daubert) to the extent it is procedural.1 Complex products liability cases often hinge on expert witness testimony. Allowing an expert witness to testify as to whether an alternative design would have avoided or lessened an injury or as to how an accident took place—without requiring that testimony to be based on testing, data, or anything more rigorous than general impressions—will have a significant impact on the outcome of a lawsuit. Thus, while the application of the Daubert standard may be “procedural” as a technical matter, in reality it provides a substantive rule that often will be dispositive of the outcome. In many cases, a party cannot meet its burden of proof without expert testimony, and the exclusion of the party’s expert will result in a judgment against it. And when the expert’s testimony is allowed, it weighs heavily upon juries’ minds in determining duty, breach, causation, and damages. We ask the Court to either not consider Daubert to be procedural, or in the alternative, to adopt the Daubert standard in determining whether expert or scientific evidence has the hallmarks of reliability so as to warrant consideration by the trier of fact. The Alliance and Global Automakers also urge the Court to give deference to the democratic process. The Florida Legislature passed a bill to move the state to Daubert, and Governor Scott signed it into law in 2013.2 In doing so, the legislative and executive branches—those closest to the citizens of Florida—
signaled their desire and intention to join the approximately 40 states and the Federal Courts in adopting the more modern Daubert standard.3 Indeed, one of the legislature’s express purposes in its adoption of the Daubert standard was to express its disapproval of the uncritical acceptance of expert testimony in Marsh v. Valyou,4 in which the plaintiff alleged that her fibromyalgia was caused by four car accidents.5 The number of states that have adopted Daubert is also relevant in examining the “Three Year Cycle Report.” The report argues that switching from Frye to Daubert would consume more time and resources than Florida courts spend now on expert witness admissibility decisions.6 There is no reason to believe that state courts across the country do not face similar budget challenges to Florida courts. Yet a clear majority of states have made the switch to Daubert, and we are unaware of any state that has changed its mind and reverted back to Frye. Indeed, courts have routinely found that applying the Daubert standard results in a more streamlined and efficient judicial process because it allows for the 1
See In Re: Amendments to the Florida Rules of Evidence; Code and Rules of Evidence Committee Three Year Cycle Report (Feb. 1, 2016) (the “Three Year Cycle Report”) at 1. 2
FLA. STAT. § 90.702 (2013); 2013 Fla. Laws ch. 107. 3
See Patrick McGlone, Taking the Stand: Time to Retire the Frye Test, Washington Lawyer, June 2015, at n. 6 (explaining that “[g]iven some of the nuances in various states’ approaches, a precise count of the Daubert states is impossible, but they are a clear majority.” (citing Murray v. Motorola, Inc., Case No. 2001 CA 008479 B, 2014 WL 5817891, at *26 n.29 (D.C. Super. Aug. 8, 2014) (explaining that “Approximately forty states have adopted the federal rules of evidence, which incorporate Daubert in Rule 702, or have explicitly decided to follow the Daubert rule. Some of those jurisdictions have hybrid regimes and others have adopted Daubert, but not necessarily its successors, Joiner and Kumho Tire. Scientific Evidence, §1.11.”)). 4
977 So.2d 543 (Fla. 2007). 5
See 2013 Fla. Laws ch. 107 (declaring that “by amending s. 90.702, Florida Statutes, the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)”). 6
Three Year Cycle Report at 10. quick resolution of claims that are not supported by reliable expert testimony.7 In addition, the argument that Daubert would require more resources than Frye rests on the assumption that the judiciary would need to hear the same number of cases, when in fact the opposite may be true. Early Daubert motions can encourage early settlements as litigants can better understand the strength of their case relative to their opponents’ case earlier in a trial.8 Daubert may also discourage plaintiffs from filing speculative cases that rely on unsubstantiated opinion rather than testable results. Florida courts may even find themselves burdened with more litigation under Frye if the shrinking minority of states that use that standard become the preferred venue for suits that rely heavily on unreliable opinion testimony from expert witnesses. The Alliance and Global Automakers ask the Court to adopt the Daubert standard and reject the Bar’s recommendation to not adopt it to the extent that it is procedural. Daubert is fair, reasonable, and the most effective way to filter unreliable testimony from evidence. Thank you for the opportunity to comment on this important issue. Respectfully Submitted, David E. Bright Attorney Alliance of Automobile Manufacturers 803 7th Street, NW, Suite 300 Washington, DC 20001 Charles H. Haake Director & Assistant General Counsel Association of Global Automakers 1050 K Street, NW, Suite 650 Washington, DC 20001 7
See, e.g., Braun v. Lorillard Inc., 84 F.3d 230, 233 (7th Cir. 1996) (observing that the “gatekeeping” role of the of the court under Daubert is “a generally successful effort to prevent litigation from getting out of hand in point of delay or expense, or from being degraded by ‘junk science’, appeals to prejudice, runaway jury verdicts, and other justly reprobated abuses of the legal process.”); Eve v. Sandoz Pharm. Corp., No. IP 98‐1429‐C‐Y/S, 2001 U.S. Dist. LEXIS 4531 (S.D. Ind., March 7, 2001) at *42 (noting that “[t]he Seventh Circuit encourages the use of Daubert hearings as a way to promote judicial efficiency and prevent excessively costly litigation”). 8
See Sharp v. Chase Manhattan Bank USA, N.A. (In Re: Commercial Financial Services, Inc.), 350 B.R. 559, 565 n.1 (Bankr. N.D. Okla. 2005) (finding that the application of Daubert allows a court to “appropriately determine the relevance of evidence and the competency of witnesses in advance of trial in order to streamline the trial (or in the case of exclusion of critical evidence, to avoid a trial altogether), and to aid the parties in assessing the strengths or weaknesses of their positions for settlement purposes”); see also Victor E. Schwartz & Cary Silverman, The Draining of Daubert and the Recidivism of Junk Science in Federal and State Courts, 35 HOFSTRA L. REV. 217, 259 (2006). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing document was served via email to the following on April 1, 2016: Peter Anthony Sartes, II Gregory A. Zhelesnik Chair Staff Liaison to the Committee Florida Bar Code and Rules of Evidence Committee Florida Bar [email protected] [email protected] David E. Bright Attorney Alliance of Automobile Manufacturers