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Arnstein & Lehr Partners Mary Hoelle and Jeffrey Shapiro Publish Commercial Litigation Article for DRI Magazine

August 7, 2017

Arnstein & Lehr Miami attorneys Mary Hoelle and Jeffrey Shapiro were co-authors of a July 2017 commercial litigation article for DRI’s For The Defense magazine. “Daubert or Frye: Does It Really Matter?” discusses how two recent court decisions demonstrate that articulating and adopting an up-to-date “scientific reliability” standard continues to confound state courts.

The article states, “The use of expert testimony in litigation has proliferated over the past decades as has the debate over the standards for admission of such testimony in state courts.” It further specifies:

In 1994, the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1994), held that the Federal Rules of Evidence superseded the Frye “general acceptance” standard for admissibility of expert evidence in federal courts. Arguably, new scientific evidence that was not yet widely accepted but was nonetheless reliable and relevant was excluded under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In 2000, the Federal Rules of Evidence were amended to incorporate the Supreme Court’s guidance as reflected in Daubert and its progeny, General Electric v. Joiner, 522 U.S.136 (1997), and Kumho Tire Co. v. Carmichael, 526 US 137 (1999). Fed. R. Evid. 702. Since this amending, the admissibility of scientific evidence in federal courts rests on a determination that it is reliable and relevant by the trial judge and is not preconditioned on a “general acceptance” standard.

A majority of states have adopted the Daubert approach, although others continue to adhere to Frye, or to a hybrid approach. Notably, the District of Columbia, in Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016), rescinded from its decision in Frye, adopting Federal Rule of Evidence 702, as amended in 2000, to reflect the Daubert standard for the admission of expert testimony in civil and criminal cases in the District of Columbia. However, in February of 2017, the Florida Supreme Court reversed the state’s adoption of Federal Evidence Rule 702 and reinstated Frye as the standard for admission of scientific and technical evidence in its state courts. In re Amendments to Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017).

The ongoing debate since Daubert’s adoption in the federal court system has been whether Daubert or Frye is more restrictive in practice as they pertain to the admissibility of evidence. Does the Frye standard place more power in the hands of the scientific community? Does the Daubert standard give more control to the courts to determine the admissibility of evidence? Is the “generally accepted” standard of Frye necessarily at odds with Daubert? This article will address these two recent, divergent decisions in Florida and in the District of Columbia and endeavor to address these questions.

Ms. Hoelle and Mr. Shapiro offer more in-depth information about the following areas:

  • Historical Overview of Frye and Daubert
  • Amendments to Federal Rule of Evidence 702
  • Florida Supreme Court Recedes from Daubert
  • District of Columbia Adopts Daubert Standard
  • Can Frye’s “Generally Accepted” Standards Comport with Daubert?

DRI’s flagship publication, For The Defense™ (FTD), is the only national monthly magazine specifically written for and distributed to DRI lawyers and in-house defense counsel members. Each issue contains in-depth, full-length, feature articles addressing crucial developments in the law and litigation practice. Articles are penned by top defense practitioners and experts from across the country on a variety of topics of interest to defense lawyers and others concerned with the defense of civil actions.