You Used Daubert at Trial but Now it’s Frye? Here’s What the Appellate Court Might Do. (UPDATED–IT’S DAUBERT AGAIN!)

***AUTHOR’S NOTE:  We published this article on May 20, 2019.  On May 23, 2019, the Florida Supreme Court did a completely unexpected about-face and adopted Daubert, receding from its prior opinions rejecting Daubert and rejecting the legislature’s amendment of section 90.702.  You can read the full opinion here: https://www.floridasupremecourt.org/content/download/525509/5838164/file/sc19-107.pdf

We’ll follow up with an updated post once we see how the districts change their response to pending appeals on this issue.  In the meantime, the below information will still be helpful for understanding where this all came from, and to make an educated guess as to where your case will end up.  For now, if you’re in the trial court, use Daubert again (sheesh)!

Jared

__________________________________________________________________

 

So you and your trial court relied on the current version of section 90.702, Florida Statutes, and applied the Daubert test to determine the admissibility of a new or novel expert opinion. But now that your case is on appeal, the Florida Supreme Court has said that Daubert never applied and the Frye test applies in Florida. What will happen to your case on appeal? Two decisions from two Florida districts give us some hints.

The Florida Supreme Court building

The supeme court’s recent reaffirmance of Frye is requiring districts to develop methods for handling cases founded on Daubert.

A brief history of the Daubert/Frye issue in Florida

First, some brief background (which you probably already know). Frye v. United States, 298 F. 1013 (D.C. Cir. 1923) has long provided the test for admissibility of expert opinion in Florida and federal courts. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court held that a new test would apply for federal courts. But Florida courts stuck with Frye.

In 2013, the Florida Legislature amended section 90.702, Florida Statutes, to incorporate Daubert. But the Florida Supreme Court remained silent on the amendment for years and, in Florida, only the judiciary can formally adopt procedural rules. So Florida trial and appellate practitioners alike were left uncertain–should we use Daubert or Frye?

The intermediate appellate courts too were left without much guidance. The Fourth District held that it would apply the new statute–Daubert–because “statutes are presumed to be constitutional and are to be given effect until declared otherwise.” Crane Co. v. DeLisle, 206 So. 3d 94, 100 n. 7 (Fla. 4th DCA 2016)[.pdf]. Most of the Fourth DCA’s sister districts also applied Daubert. See id. (listing cases from the First, Second, and Third Districts).

Well, in 2018, the Florida Supreme Court reviewed the Fourth District’s opinion and declared the statutory revision to section 90.702 unconstitutional, thereby reaffirming that Frye is the test to apply in Florida. Delisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018)[.pdf].

What happens to all the pipeline cases on appeal? It depends.

What happens to all the appeals from judgments pre-dating DeLisle, where the trial courts appropriately relied on the statute and the intermediate appellate decisions and applied Daubert?

Shortly after the supreme court issued its Delisle decision, the First District confronted this situation in D.R. Horton, Inc. – Jacksonville v. Heron’s Landing Condo. Ass’n of Jacksonville, Inc., 44 Fla. L. Weekly D109, 2018 WL 6803698 (Fla. 1st DCA Dec. 27, 2018)[.pdf]. Importantly, in Delisle, the supreme court had also reaffirmed that a Frye analysis is only required “when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” Id. at *4. By contrast, in D.R. Horton, “the trial court, albeit in the context of its Daubert analysis, found that Appellee’s experts used a scientifically reliable and peer-reviewed methodology that was the industry standard.” Id. at *4. In other words, there were no new or novel scientific techniques at play. Consequently, the First District held there was no need to remand for a Frye analysis–there was no legal basis for the appellate court to hold that admitting that expert’s opinion was invalid.

More recently, in Kemp v. State, 4D15-3472, 2019 WL 2083045 (Fla. 4th DCA May 8, 2019)[.pdf], on rehearing, the Fourth District held that use of the Daubert standard required remand for a Frye hearing. There, the State sought to introduce an expert that asserted he could determine whether a car was braking at the time of an accident based on the location and “arc[ing]” character of damage on the cars involved.

The trial court never considered whether this was “new or novel” under the Frye test because Daubert applied at that time. However, because the appeal was in “the pipeline” when DeLisle issued, the Fourth District was to apply Frye–if Frye applied at all to the facts of the case before it.

The Fourth District recognized that Frye would only apply if the scientific principles were new or novel, but unlike in D.R. Horton, the appellate court could not tell from the record. Hence, it remanded for the trial court to determine the matter. The court also ruled that, even if the trial court found the matter was “pure opinion” testimony and Frye did not apply, the trial court should still determine “whether the expert had training and experience in the specific method he used to reach his conclusions.” The court ruled that if the State failed its burden to prove the admissibility of the expert’s opinions, the court should grant a new trial for the defendant. If the State prevailed on proving the opinions admissible, the court should reinstate the defendant’s convictions and sentences.

The legal battleground for appeal will be whether or not the type of expert opinion provided is subject to Frye.

What we can gather from these opinions is that a case impacted by an expert opinion admitted under the Daubert standard will probably be reversed for further proceedings to determine admissibility under Frye, unless the opinion is of a type not subject to a Frye standard or the record already reveals the answer under Frye.

Thus, the argument for an appellee seeking to uphold a judgment based in part on testimony admitted under Daubert is that either the scientific principles upon which the expert’s opinion was based were not new or novel, or that the trial court made sufficient findings to demonstrate the Frye test was satisfied (even if not explicitly referenced). Both of these arguments are effectively identical to a harmless error analysis–even though the trial court applied Daubert, the application of that test had no impact on the outcome of the case.

Meanwhile, an appellant seeking reversal should argue that the expert’s opinion is based on new or novel scientific principles–so Frye applies–and the record does not demonstrate that the expert’s opinion satisfies the Frye test. And, as in most appeals of both civil and criminal appeals, the appellant should argue that it is the appellee’s burden to prove the error did not have an effect on the verdict (read more about this here).

Old cartoon of man with bike quarreling with another man over a stone in the roadway.

Now You Can Appeal Two More Types of Nonfinal Orders

 

Old cartoon of man with bike quarreling with another man over a stone in the roadway.

Are these two gentlemen arguing over
whether they have a settlement?
Now they can let the appellate courts figure it out.

Today is the day that a myriad of changes to the Florida Rules of Appellate Procedure go into effect. We’ve previously outlined all of the changes, but in our first post of 2019 we’ll focus in on the changes to Rule 9.130, which governs what kind of nonfinal orders you can immediately appeal to Florida District Courts.

Orders that decline to enforce a settlement agreement.

Rule 9.130 contains the exclusive list of non-final orders that are reviewable by appeal in the district courts.  As of January 1, parties will be able to obtain an immediate appeal from an order that determines “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed.”

This change appears to have been inspired by a law review article I co-authored with Anthony Russo and Ezequiel Lugo in 2013.  In the midst of investigating a proposed “functional restatement” to certiorari review, we looked into review of orders denying a motion to enforce settlement (see pages 417-424 of the linked article).  No avenue for review existed at the time, but as we discussed the matter we reasoned that immediate review of such an order would further the interests in judicial economy and support the long-established public policy favoring settlements.  The Appellate Court Rules Committee considered our article and also thought that immediate review of such an order would be worthwhile.  They made the recommendation to the Florida Supreme Court, and in this recent wave of amendments, the supreme court adopted this provision into the rules.

This rule will be useful when one party thinks that a settlement has been reached, but the other party either denies the same or refuses to comply with the settlement.  The party seeking to enforce the settlement may file a “motion to enforce settlement” in the trial court, attempting to either confirm the settlement or force the other party to comply.  Should the trial court deny the motion for whatever reason, that order would now be immediately appealable.

Orders that grant or deny a motion to disqualify counsel.

Similarly, parties may now also receive immediate review of orders that “grant or deny a motion to disqualify counsel.”  This type of motion has always been reviewable by certiorari, but given that higher standard of review, was not likely to provide any immediate relief.  Now, parties may seek immediate review regarding disqualification, and avoid the likelihood that the trial would have to proceed all the way through conclusion and then ultimately be invalidated on appeal just to send the parties back to the beginning.

Another consideration–a stay.

An appeal of either of these orders will not automatically delay the trial court proceedings while the appellate court considers the appeal.  Consequently, either party may want to move the trial court to stay the proceedings pending the appellate court’s ruling on the matter.  Doing so would avoid the risk of wasted effort and resources should the appellate court ultimately determine that there was an enforceable settlement agreement, or that the trial court erred in either disqualifying or refusing to disqualify counsel.

Motions for stay are governed by rule 9.310 and initially filed in the trial court in most cases.  Review of an order granting or denying a stay is by motion in the appellate court.  Both involve an in-depth analysis of the likelihood of prevailing on appeal and the risk of irreparable harm should a stay not be granted.

Can you use these new rules to your advantage?  Call us!

Non-final review jurisdictional issues and stays pending appeal are sometimes simple, but in our experience will often become complex issues that can determine the course of all future litigation.  We often handle these situations on behalf of clients or in cooperation with trial attorneys as part of our regular practice.  Feel free to contact us if you have any questions involving these or any other issues regarding non-final appeals, certiorari review, or stays pending appeal.

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Almost Every Florida Appellate Rule Changes on New Years’ Day 2019

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Get your pencils ready–your filings and your calendar will need some adjustment!

The Florida Supreme Court has substantially amended the Florida Rules of Appellate Procedure, changing language in nearly every rule in the book along with related rules from the Florida Rules of Judicial Administration.  It accomplished this through issuing three separate opinions: SC17-152 [.pdf]; SC17-882[.pdf], and SC17-999 [.pdf].  The amendments change, well, almost everything!

The amendments become effective on January 1, 2019.

All the amendments become effective on January 1, 2019, but at two different times: SC17-152 and SC17-999 go into effect at 12:01 a.m., while SC17-882 goes into effect as of 12:02 a.m.

The biggest trap for everyone?  The time periods and mailing issues.

We’ll talk about this again in-depth in the near future, but the elimination of mailing days for every electronically-served document in Florida courts, and then the lengthening of many appellate deadlines to compensate, will require everyone’s calendaring procedures to change significantly. Spoiler alert — in most instances you will actually have more time under the new rules than you did under the old rules.

This post, Part I of a multi-part series, provides a brief summary of every substantive amendment organized by rule.  Following posts will investigate and elaborate on different aspects of the numerous changes.

Summary of appellate-related rule changes (with links)

Before we dive into the analysis though, let’s just get the big picture. Here’s our summary of the changes, with links for your review.
*All links to Supreme Court opinions are to the .pdfs of those opinions.

Rule

Change

Source

Fla. R. Jud. Admin 2.514 [.pdf, entire rule set]

  • When a period is stated in days or a longer unit of time, “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.”
  • 5 days added for only traditional mailing.  No more days for
    electronic service.

SC17-882, p. 9

Fla. R. Jud. Admin 2.516 [.pdf, entire rule set]

  • E-Mail service no longer treated as mail service for computation of time.

SC17-882, p. 10

Fla. R. App. P. 9.010

  • Added applicability of Fla. R. Jud. Admin (formerly in 9.020(h)).

SC17-152, p. 22

Fla. R. App. P. 9.020

  • Removes section regarding Fla. R. Jud. Admin.
  • Reorganizes subsection on motions tolling rendition (without substantive change).
  • Defines “conformed copy.”
  • Other format changes, renumbering of subsections.

SC17-152, pp. 22-24

Fla. R. App. P. 9.030

  • Non-substantive changes only.

SC17-152, pp. 25-27

Fla. R. App. P. 9.040

  • Non-substantive changes only.

SC17-152, pp. 27-28

Fla. R. App. P. 9.100

  • Non-substantive changes only.
  • A reply is due within 30 days of the response.

SC17-152 pp. 29-30

SC17-882, p. 16

Fla. R. App. P. 9.110

  • Clarifies that scope of review in partial final judgments limited to any matter or ruling prior to filing of notice that is directly related to the aspect of the
    judgment under review.
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 30-32

SC17-882, pp. 16-17

Fla. R. App. P. 9.120

  • Omits requirement of appendix for initial brief on the merits in discretionary review over district court decisions.
  • Respondent’s brief on jurisdiction must be served within 30 days of service of petitioner’s brief.

SC17-152, pp. 32-33

SC17-882, p. 17

Fla. R. App. P. 9.125

  • Omits specific format for signature block on certification in form for pass-through appeals to supreme court.

SC17-152, pp. 33-34

Fla. R. App. P. 9.130

  • Adds two new categories to the list of nonfinal appealable orders: “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed;” and “grant or deny a motion to disqualify counsel.”
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 35-36

SC17-882, p. 18

Fla. R. App. P. 9.140

  • Attorney of record for appellant must serve designations to be served on the court reporter, and service must occur before attorney of record will be allowed to withdraw from representation on appeal.
  • Modifies the return of the record rule to require return of only non-electronically filed parts of the record after final disposition of the appeal.
  • When a 3.800(b)(2) motion is filed, the clerk must supplement the appellate record with the motion, any response, any resulting order, and any motion for rehearing, response, and order on the motion. The supplement must be filed within 20 days after filing of the order disposing of the motion.  If no order is filed within 60 days, the 20 days runs from the end of the 60-day period and requires a statement in the supplement that no order was timely filed.  If a motion for rehearing is filed, the clerk must transmit the supplement within 5 days of the order disposing of the rehearing. If no order issues within 40 days, the 5-day period runs from the end of the 40-day period, and the supplement must include a statement that no order was timely filed.
  • “A defendant may cross-appeal by serving a notice within 15 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).”
  • “[I]n an appeal by the state under rule 9.140(c)(1)(K), the state’s notice of cross-appeal shall be filed within 15 days of service of defendant’s notice or service
    of an order on a motion pursuant to Florida Rule of Criminal Procedure
    3.800(b)(2).”

SC17-152, pp. 38-39

SC17-882, p. 19

Fla. R. App. P. 9.141

  • Requires the clerk to index, paginate, and send to parties the record on collateral and postconviction cases.
  • Allows for directions to clerk within 10 days of notice of appeal.
  • A reply may be served within 30 days after service of the response.

SC17-152, pp. 42-43

SC17-882, p. 20

Fla. R. App. P. 9.142

  • Non-substantive changes.
  • The briefing schedule allows that the state has 50 days from the date the defendant’s brief is served, and the defendant has 40 days from the date the state’s brief is served.
  • In petitions seeking review of nonfinal orders in death penalty postconviction proceedings, the petitioner may serve a reply within 30 days of the State’s response.

SC17-152, pp. 44-46

SC17-882, pp. 20-21

Fla. R. App. P. 9.145

  • Non-substantive changes
    only.

SC17-152, pp. 47-48

Fla. R. App. P. 9.146

  • In juvenile dependency, TPR, and cases involving families and children in need of services, mandates that review of trial court orders on motions seeking a stay pending appeal shall be by motion.
  • Adds detail for briefing schedule in cases in which more than 1 initial or answer brief is authorized.
  • When an order issues allowing counsel to withdraw, counsel must within 5 days certify that counsel has forwarded the record and transcripts to the parent or is
    unable to do so after making diligent efforts to find the parent.
  • In Dependency and TPR appeals, the initial brief shall be served within 30 days of service of the record or index.  The answer brief shall be served within 30 days of the initial brief. The reply brief shall be served within 15 days of the answer brief.

SC17-152, pp. 48-50

SC17-882, p. 22

Fla. R. App. P. 9.150

  • Non-substantive changes only.

SC17-152, p. 50

Fla. R. App. P. 9.160

  • Non-substantive changes only.

SC17-152, pp. 50-51

Fla. R. App. P. 9.170

  • A party choosing the “alternative appendix” method must serve a copy of the direction to the appellate court as well as the lower tribunal.
  • If another party directs the preparation of record, that direction must be served on the appellate court when served on the lower tribunal.

SC17-152, pp. 51-52

Fla. R. App. P. 9.180

  • Requires a judge of compensation claims to select an approved court reporter and transcriptionist.
  • Deposit of estimated costs due within 20 days of service of notice of estimated costs.
  • Written objections to selected court reporter or transcript due within 20 days of service of notice of selection.
  • Verified petition to be relieved of costs must be filed within 20 days after service of the notice of estimated costs.
  • Lower tribunal may enter an order on the merits of a petition to be relieved of costs without an objection filed after 30 days following the service of the petition.

SC17-152, pp. 53-57

SC17-882, pp. 23-24

Fla. R. App. P. 9.190

  • Removes reference to section 120.56 (rule challenges) in procedures for proceedings involving disputed issue of fact.
  • Creates new subsection for procedures for appeal from rule challenge proceedings under section 120.56.

SC17-152, pp. 57-61

Fla. R. App. P. 9.200

  • Requires service of designations to court reporter upon the court reporter or
    transcriptionist.
  • Reorganizes requirements of court reporter upon receipt of designation, moves to different subsection.
  • Moves requirements for organization of transcripts in the record to its own subsection.
  • Objections or amendments to proposed statement of evidence or proceedings must be served within 15 days of service of the proposed statement.
  • The cross-appellee has 15 days to direct the clerk to include additional documents, exhibits, or transcripts from the service of the cross-directions.

SC17-152, pp. 61-63

SC17-882, p. 25

Fla. R. App. P. 9.210

  • Clarifies that briefs filed in electronic version need not be also filed in paper.
  • Cover sheet of brief now requires email address of attorney filing the brief.
  • Formalizes the “one attorney, one brief” rule.
  • If more than one initial or answer brief is filed, the responsive brief is due to be served within 20 days after the last prior brief.  If the last brief is never served, the time runs from the date on which it was due to be served.
  • “Unless otherwise required shall be served within 30 days after service of the initial brief; the reply brief, if any shall be served within 30 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 30 days thereafter.”

SC17-152, pp. 64-65

SC17-882, pp. 25-26

Fla. R. App. P. 9.225

  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.310

  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.320

  • Request for oral argument due 15 days after the last brief (or the reply in a petition proceeding) is due to be served.

SC17-882, pp. 26-27

Fla. R. App. P. 9.330

  • Adds “written opinion” to the title of the rehearing and clarification rule.
  • Details requirements for a motion for certification.
  • Details and outlines requirements for a motion for written opinion.
  • Eliminates the requirement for a certification for a motion for a written opinion.
  • “All motions filed under this rule with respect to a particular order or decision must be combined in a single document.”
  • Clarifies that rule only applies to orders that resolve appeals, original proceedings, or motions for appellate proceedings.  Does not limit inherent authority to reconsider nonfinal appellate orders.
  • “A response may be served within 15 days of service of the motion.”
  • In bond validation proceedings, a “reply may be served within 10 days of service of the motion.”

SC17-152, pp. 66-69

SC17-882, p. 27

Fla. R. App. P. 9.331

  • Court will now notify parties once it decides to determine a proceeding en
    banc.
  • Signature block under required statement for rehearing en banc omitted.
  • “A response may be served within 15 days of service of the motion.”

SC17-152, pp. 69-70

SC17-882, p. 28

Fla. R. App. P. 9.350

  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 10 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b)
  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 15 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b).

SC17-152, pp. 71-72

SC17-882, p. 28

Fla. R. App. P. 9.360

  • Clarifies that joinder is only realignment of existing parties to appeal; it does not allow addition of new parties parties.  Rephrases procedures for joinder as seeking realignment from appellee or respondent to appellant or petitioner.
  • The body of the notice shall reflect a new proposed caption.  Clerk will change the caption upon receipt of notice and payment of fee.

SC17-152, pp. 72-73

Fla. R. App. P. 9.370

  • Leave of court is required to serve an amicus brief in regards to rehearing, rehearing en banc, or certification to the supreme court.
  • Notice of joinder must be served within 15 days of the notice of appeal or petition.

SC17-152, pp. 72-73

SC17-882, p. 290

Fla. R. App. P. 9.380

  • NEW RULE – Notices of related case or issue are now required to be filed.  No argument allowed.

SC17-152, p. 74

Fla. R. App. P. 9.400

  • Adds time limits for filing a motion for fees in discretionary proceedings under rules 9.030(a)(2)(A) and 9.030(a)(2)(A)(v).
    • 9.030(a)(2)(A) – no later than time for serving the respondent’s brief on jurisdiction, or if jurisdiction is accepted, the time for serving the reply brief.
    • 9.030(a)(2)(A)(v) – no later than 5 days after filing of the notice, or if jurisdiction is accepted, the time for serving the reply brief.

SC17-152, pp. 74-75

Fla. R. App. P. 9.410

  • Omits signature requirement following the certification of service.
  • Initial service of the motion must be no later than the time for serving a permitted response to the challenged document or, if no response is permitted, within 20 days after the service of the challenged document or the presentation of argument at oral argument.
  • Respondent has 15 days from final service of a motion to serve response.

SC17-152, pp. 74-76

SC17-882, p. 30

Fla. R. App. P. 9.420

  • Clarifies that service of petitions invoking original jurisdiction shall be by both e-mail and paper format.

SC17-152, pp. 77-78

Fla. R. App. P. 9.430

  • Non-substantive changes only.

SC17-152, pp. 78-79

Fla. R. App. P. 9.500

  • Clarifies governing provision of Florida Constitution, requires court to allow interested persons to be heard once request is determined to be within the purview of the applicable provision.
  • The justices must file their opinions not less than 10 days from date of request unless delay would cause public injury.
  • The governor shall be advised in writing.

SC17-152, pp. 79-80

Fla. R. App. P. 9.510

  • Procedures for advisory opinions to attorney general modified.
  • Requires justices to render their opinions no later than April 1 of the year in which an initiative is to be submitted to the voters pursuant to article XI, section 5 of the Florida Constitution.

SC17-152, pp. 80-81

Fla. R. App. P. 9.700

  • Non-substantive changes only.

SC17-152, p. 81

Fla. R. App. P. 9.710

  • Non-substantive changes only.

SC17-152, pp. 81-82

Fla. R. App. P. 9.720

  • Non-substantive changes only.

SC17-152, pp. 82-83

Fla. R. App. P. 9.800

  • Numerous amendments to the citation rule.

SC17-999

These rule changes follow on the heels of last year’s amendments to the appendix rules and some other substantive amendments.  At this point, almost every appellate rule has been changed in the last year, so best practice would require looking up every rule and not relying on memory.

Stay tuned for more analysis.

We’ll go further in-depth into the time changes, the newly-appealable non-final orders, and other facets of these rule changes in future blog posts.  Enter your e-mail address in the box to the right to get up-to-date news and analysis on these topics and other news and events as they relate to appellate practice in Florida.