MIAMI BUSINESS LITIGATION: ADMISSION OF EXPERT TESTIMONY AT TRIAL

In many business litigation cases, the issue of damages is an important issue at trial. For many cases, the parties will have expert witness on the issue of damages. Precedent from the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993), held that the “Frye standard,” i.e., the long dominant legal standard that “expert” testimony must have “general acceptance” in the scientific community or other relevant areas of knowledge, was no longer the legal standard for admitting expert testimony in evidence. The Supreme Court stated in pertinent part: “The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. Petitioners’ primary attack, however is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree…The drafting history makes no mention of Frye, and a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules of Evidence…Frye made ‘general acceptance’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.” Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration. Florida law has codified the Daubert legal standard in the Florida evidence code. Section 90.702, Florida Statutes, allows expert testimony when “scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.” Florida’s First District Court of Appeal, in May v. State, 326 So.3d 188 (Fla. 1st DCA 2021), explained that “Florida courts allow expert testimony if it will help the factfinder understand evidence or determine a fact in issue, but only if: ‘(1) The testimony is based upon sufficient facts or data; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case.'” In Vitiello v. State, 281 So.2d 554 (Fla. 5th DCA 2019), Florida’s Fifth District Court of Appeal explained that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence…These tools remain the ‘appropriate safeguards,’ and not ‘wholesale exclusion,’ where the basis for expert testimony meets the standards set forth by the rules of evidence.” Trial judges play the role of an evidentiary “gatekeeper” along with advocacy by legal counsel for the parties. Florida appellate courts are deferential to the decisions of trial judges concerning the admission or rejection of expert testimony. The Supreme Court of Florida, in Salazar v. State, 991 So.2d 365 (Fla. 2008), explained that appellate courts will affirm their decisions “unless no reasonable person would adopt the trial court’s view.” For example, in May v. State, the appellate court affirmed the trial Judge’s decision to exclude an expert witness’ testimony based, in part, on the defendant’s failure to satisfy the “reliable method” prong of the Daubert standard: “Magill did not use a reliable method…Magill created his own method. He applied GAAP and a ‘reasonableness’ test…Yet Magill never explained what this reasonableness test was or why it negated Bryant’s analysis…[T]he trial court repeatedly pressed Magill to clarify his methodology, yet those explanations led to less clarity and more confusion. May cites no authority for Magill’s method, and we have found none either. Plus, if the parties needed accounting training just to understand Magill’s method, it follows that his testimony would not ‘assist the trier of fact in understanding the evidence or in determining a fact in issue’ [under Florida Statutes Section 90.702]…At bottom, we affirm because the trial court correctly performed its gatekeeping function in barring Magill’s testimony.” Peter Mavrick is a Miami business litigation lawyer, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.