Daubert standard in Florida

2025It argues the Judge of Compensation Claims (“JCC”) reversibly erred by: (1) denying its Daubert 1 objection to the 1 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and codified in section 90.702, Florida Statutes. admissibility of the report and opinions of the expert medical advisor (“EMA”); and (2) relying upon the EMA opinion to determine a compensable accident occurred. 2 We affirm the JCC’s order but write to address a matter of first impression—whether section 440.25(4)(d), Florida Statutes (2020), governing procedures for workers’ compensation mediation and hearings, preclude

2025It argues the Judge of Compensation Claims (“JCC”) reversibly erred by: (1) denying its Daubert 1 objection to the 1 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and codified in section 90.702, Florida Statutes. admissibility of the report and opinions of the expert medical advisor (“EMA”); and (2) relying upon the EMA opinion to determine a compensable accident occurred. 2 We affirm the JCC’s order but write to address a matter of first impression—whether section 440.25(4)(d), Florida Statutes (2020), governing procedures for workers’ compensation mediation and hearings, preclude

2025Daubert’s test of reliability is “flexible” and the “specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire Co., 526 U.S. at 141 ; see also 7 Vitiello, 281 So. 3d at 560.

2021Co. v. Joiner, 522 U.S. 136, 146 (1997). 12 As stated earlier, the jury asked, “How much would it cost for Royal Caribbean to modify the door, and why wasn’t it done[?]” 13 The Daubert standard is derived from Daubert, Joiner, and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 26 Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015).

2017This court specifically held in Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 388 (Fla. 1st DCA 2014), that the Daubert test now applies in workers’ compensation proceedings.

2017This court specifically held in Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 388 (Fla. 1st DCA 2014), that the Daubert test now applies in workers’ compensation proceedings.

2025See, e.g., Booker, 166 So. 3d at 192 ; Cortina v. State, Dep’t of HRS, 901 So. 2d 273, 274 (Fla. 1st DCA 2005) (holding section 440.13(5)(e)’s limit on admissible medical witnesses to authorized treating IME or EMA does not violate separation of powers because “this court has consistently recognized and upheld the Legislature's prerogative as to evidentiary issues in workers' compensation cases”). 14 jurisdiction over rules of procedure in workers’ compensation proceedings; 2013: The Florida Legislature modified section 90.702, Florida Statutes, to adopt the Daubert standard for expert testimo

2025See, e.g., Booker, 166 So. 3d at 192 ; Cortina v. State, Dep’t of HRS, 901 So. 2d 273, 274 (Fla. 1st DCA 2005) (holding section 440.13(5)(e)’s limit on admissible medical witnesses to authorized treating IME or EMA does not violate separation of powers because “this court has consistently recognized and upheld the Legislature's prerogative as to evidentiary issues in workers' compensation cases”). 14 jurisdiction over rules of procedure in workers’ compensation proceedings; 2013: The Florida Legislature modified section 90.702, Florida Statutes, to adopt the Daubert standard for expert testimo

2026See generally In re Amends. to Fla. Evidence Code, 278 So. 3d 551 (Fla. 2019) (adopting sua sponte the Daubert standard for admissible expert opinion testimony via amendments to evidentiary rules in an opinion); see also id. at 554– 55 & n.8 (Lawson, J., concurring) (cataloging instances when the court has “adopt[ed] or amend[ed] rules on our own motion . . . without following the general procedure outlined in rule 2.140”); DeLisle, 258 So. 3d at 1229 (noting that this court may pronounce - 17 - a procedural rule as part of an opinion).

2026See generally In re Amends. to Fla. Evidence Code, 278 So. 3d 551 (Fla. 2019) (adopting sua sponte the Daubert standard for admissible expert opinion testimony via amendments to evidentiary rules in an opinion); see also id. at 554– 55 & n.8 (Lawson, J., concurring) (cataloging instances when the court has “adopt[ed] or amend[ed] rules on our own motion . . . without following the general procedure outlined in rule 2.140”); DeLisle, 258 So. 3d at 1229 (noting that this court may pronounce - 17 - a procedural rule as part of an opinion).

2025See In re Amend. to Fla. Evidence Code, 210 So. 3d 1231 , 1239 (Fla. 2017); Delisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018); 2019: In In Re.

2025See In re Amend. to Fla. Evidence Code, 210 So. 3d 1231 , 1239 (Fla. 2017); Delisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018); 2019: In In Re.

2021Co. v. Joiner, 522 U.S. 136, 146 (1997). 12 As stated earlier, the jury asked, “How much would it cost for Royal Caribbean to modify the door, and why wasn’t it done[?]” 13 The Daubert standard is derived from Daubert, Joiner, and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 26 Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015).

2021Co. v. Joiner, 522 U.S. 136, 146 (1997). 12 As stated earlier, the jury asked, “How much would it cost for Royal Caribbean to modify the door, and why wasn’t it done[?]” 13 The Daubert standard is derived from Daubert, Joiner, and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 26 Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015).

2019See, e.g., Junk v. Terminix Int’l Co., 628 F.3d 439, 450 (8th Cir. 2010) (rejecting legal merit of the constitutional claim “that the district court violated [appellant’s] Seventh Amendment right to a jury trial by improperly weighing evidence in the course of its Daubert rulings” -4- and explaining that “Junk does not cite any case for the notion that a proper Daubert ruling violates a party’s right to a jury trial”); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (rejecting claim “that allowing the trial judge to assess the reliability of expert testimony violates

2019See, e.g., Junk v. Terminix Int’l Co., 628 F.3d 439, 450 (8th Cir. 2010) (rejecting legal merit of the constitutional claim “that the district court violated [appellant’s] Seventh Amendment right to a jury trial by improperly weighing evidence in the course of its Daubert rulings” -4- and explaining that “Junk does not cite any case for the notion that a proper Daubert ruling violates a party’s right to a jury trial”); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (rejecting claim “that allowing the trial judge to assess the reliability of expert testimony violates

2019See, e.g., Junk v. Terminix Int’l Co., 628 F.3d 439, 450 (8th Cir. 2010) (rejecting legal merit of the constitutional claim “that the district court violated [appellant’s] Seventh Amendment right to a jury trial by improperly weighing evidence in the course of its Daubert rulings” -4- and explaining that “Junk does not cite any case for the notion that a proper Daubert ruling violates a party’s right to a jury trial”); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (rejecting claim “that allowing the trial judge to assess the reliability of expert testimony violates

2019See, e.g., Junk v. Terminix Int’l Co., 628 F.3d 439, 450 (8th Cir. 2010) (rejecting legal merit of the constitutional claim “that the district court violated [appellant’s] Seventh Amendment right to a jury trial by improperly weighing evidence in the course of its Daubert rulings” -4- and explaining that “Junk does not cite any case for the notion that a proper Daubert ruling violates a party’s right to a jury trial”); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (rejecting claim “that allowing the trial judge to assess the reliability of expert testimony violates

2018Second, 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 .

2018Second, 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 .

2015Background In Giaimo v. Florida Autosport, Inc., 154 So.3d 385, 387-88 (Fla. 1st DCA 2014), we addressed the Daubert test and outlined Florida’s adoption of that standard: In 2013, the Florida Legislature modified section 90.702 “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), General Electric Co. v. Joiner, 522 U.S. 136 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999)

2015Background In Giaimo v. Florida Autosport, Inc., 154 So.3d 385, 387-88 (Fla. 1st DCA 2014), we addressed the Daubert test and outlined Florida’s adoption of that standard: In 2013, the Florida Legislature modified section 90.702 “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), General Electric Co. v. Joiner, 522 U.S. 136 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999)

2017See ch. 2013-107, §§ 1-2, Laws of Fla. The Frye test only applies to expert testimony based upon new or novel scientific evidence, and “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan v. State, 625 So.2d 827, 828 (Fla. 1993) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C.

2017See ch. 2013-107, §§ 1-2, Laws of Fla. The Frye test only applies to expert testimony based upon new or novel scientific evidence, and “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan v. State, 625 So.2d 827, 828 (Fla. 1993) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C.

2020A similar argument, regarding the reliability of dog scent-tracking evidence, was rejected by the First District in Gear v. State, 257 So. 3d 1243, 1245 (Fla. 1st DCA 2018).

2020A similar argument, regarding the reliability of dog scent-tracking evidence, was rejected by the First District in Gear v. State, 257 So. 3d 1243, 1245 (Fla. 1st DCA 2018).

2020See Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016).

2020See Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016).

2019See United States v. Hicks , 389 F.3d 514 , 526 (5th Cir. 2004) (finding expert firearm comparison testing methodology reliable under Daubert standard and thus, admissible); Foster v. State , 132 So.3d 40 , 69 (Fla. 2013) (holding that because tool-mark examination in ballistics was not new or novel methodology, trial counsel was not deficient in failing to demand Frye hearing before admission of expert's testimony); King , 89 So.3d at 229 (finding that trial court did not err in declining to conduct Frye hearing based on "well-documented history of tool-mark identification over the last centu

2019See United States v. Hicks , 389 F.3d 514 , 526 (5th Cir. 2004) (finding expert firearm comparison testing methodology reliable under Daubert standard and thus, admissible); Foster v. State , 132 So.3d 40 , 69 (Fla. 2013) (holding that because tool-mark examination in ballistics was not new or novel methodology, trial counsel was not deficient in failing to demand Frye hearing before admission of expert's testimony); King , 89 So.3d at 229 (finding that trial court did not err in declining to conduct Frye hearing based on "well-documented history of tool-mark identification over the last centu

2019See United States v. Hicks , 389 F.3d 514 , 526 (5th Cir. 2004) (finding expert firearm comparison testing methodology reliable under Daubert standard and thus, admissible); Foster v. State , 132 So.3d 40 , 69 (Fla. 2013) (holding that because tool-mark examination in ballistics was not new or novel methodology, trial counsel was not deficient in failing to demand Frye hearing before admission of expert's testimony); King , 89 So.3d at 229 (finding that trial court did not err in declining to conduct Frye hearing based on "well-documented history of tool-mark identification over the last centu

2019See United States v. Hicks , 389 F.3d 514 , 526 (5th Cir. 2004) (finding expert firearm comparison testing methodology reliable under Daubert standard and thus, admissible); Foster v. State , 132 So.3d 40 , 69 (Fla. 2013) (holding that because tool-mark examination in ballistics was not new or novel methodology, trial counsel was not deficient in failing to demand Frye hearing before admission of expert's testimony); King , 89 So.3d at 229 (finding that trial court did not err in declining to conduct Frye hearing based on "well-documented history of tool-mark identification over the last centu

2016Assn. v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court if it is to be .considered preserved.” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985))); see also Rojas v. Rodriguez, 185 So.3d 710, 711-12 (Fla. 3d DCA 2016) (finding that'failure to raise a Daubert objection or request a Daubert hearing prior to conclusion *338 of trial -prohibits raising such claim after the trial (citing Booker v. Sumter County Sheriff's Office/N. Am.

2016Assn. v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court if it is to be .considered preserved.” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985))); see also Rojas v. Rodriguez, 185 So.3d 710, 711-12 (Fla. 3d DCA 2016) (finding that'failure to raise a Daubert objection or request a Daubert hearing prior to conclusion *338 of trial -prohibits raising such claim after the trial (citing Booker v. Sumter County Sheriff's Office/N. Am.

2016See also Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir.2001) (explaining that “because Daubert generally contemplates a ‘gatekeeping’ function, not a ‘gotcha’ junction [sic],” untimely Dau-bert motions should be considered “only in rare circumstances”); Club Car, Inc. [v. Club Car (Quebec) Import, Inc.], 362 F.3d [775] at 780 (“A Daubert objection not raised' before trial may be rejected as untimely.”).

2015See also Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir.2001) (explaining that “because Daubert generally contemplates a ‘gatekeeping 1 function, not a ‘gotcha’ junction [sic],” untimely Daubert motions should be considered “only in rare circumstances”); Club Car, Inc., 362 F.3d at 780 (“A Daubert objection not raised before trial may be rejected as untimely.”).

2016See Feliciano-Hill v. Principi, 439 F.3d 18, 24 (1st Cir.2006) (explaining “parties have an obligation to object to an expert’s testimony in a timely fashion, so that the expert’s proposed testimony can be 'evaluated with care”).

2016See Feliciano-Hill v. Principi, 439 F.3d 18, 24 (1st Cir.2006) (explaining “parties have an obligation to object to an expert’s testimony in a timely fashion, so that the expert’s proposed testimony can be 'evaluated with care”).

2014As amended, sfection 90.702 now provides: 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. The Legis

2014As amended, sfection 90.702 now provides: 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. The Legis

2021Our reversal is without prejudice to the lower court considering Ms. Johnson’s expert opinion testimony under the Daubert standard. 7 Cf. Perez v. Bell S. Telecommc’ns, Inc., 138 So. 3d 492, 499 (Fla. 3d DCA 2014) (“Subjective belief and unsupported speculation are henceforth inadmissible.” (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993))). 8 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

2021Our reversal is without prejudice to the lower court considering Ms. Johnson’s expert opinion testimony under the Daubert standard. 7 Cf. Perez v. Bell S. Telecommc’ns, Inc., 138 So. 3d 492, 499 (Fla. 3d DCA 2014) (“Subjective belief and unsupported speculation are henceforth inadmissible.” (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993))). 8 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

2021Co. v. Joiner, 522 U.S. 136, 146 (1997). 12 As stated earlier, the jury asked, “How much would it cost for Royal Caribbean to modify the door, and why wasn’t it done[?]” 13 The Daubert standard is derived from Daubert, Joiner, and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 26 Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015).

2021Co. v. Joiner, 522 U.S. 136, 146 (1997). 12 As stated earlier, the jury asked, “How much would it cost for Royal Caribbean to modify the door, and why wasn’t it done[?]” 13 The Daubert standard is derived from Daubert, Joiner, and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 26 Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015).

2018Under section 90.791 and Daubert, the trial courts must “act as gatekeepers, excluding evidence unless it is reliable and relevant.” Crane Co. v. DeLisle, 206 So. 3d 94, 101 (Fla. 4th DCA 2016).

2018Under section 90.791 and Daubert, the trial courts must “act as gatekeepers, excluding evidence unless it is reliable and relevant.” Crane Co. v. DeLisle, 206 So. 3d 94, 101 (Fla. 4th DCA 2016).

2007Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir.1999); cf. McClain v. Metabolife Int'l Inc., 401 F.3d 1233, 1239 (11th Cir. 2005) (noting that in toxic tort cases where the medical community does not generally recognize an agent as both toxic and capable of causing the injury alleged, "the Daubert analysis covers not only the expert's methodology for the plaintiff-specific questions about individual causation but also the general question of whether the drug or chemical can cause the harm plaintiff alleges").

2007Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir.1999); cf. McClain v. Metabolife Int'l Inc., 401 F.3d 1233, 1239 (11th Cir. 2005) (noting that in toxic tort cases where the medical community does not generally recognize an agent as both toxic and capable of causing the injury alleged, "the Daubert analysis covers not only the expert's methodology for the plaintiff-specific questions about individual causation but also the general question of whether the drug or chemical can cause the harm plaintiff alleges").

2026“Such discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Sanchez v. Cinque, 238 So. 3d 817, 822 (Fla. 4th DCA 2018) (quoting Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012)).

2026“Such discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Sanchez v. Cinque, 238 So. 3d 817, 822 (Fla. 4th DCA 2018) (quoting Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012)).

2026“Such discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Sanchez v. Cinque, 238 So. 3d 817, 822 (Fla. 4th DCA 2018) (quoting Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012)).

2026“Such discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Sanchez v. Cinque, 238 So. 3d 817, 822 (Fla. 4th DCA 2018) (quoting Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012)).

2025See, e.g., Booker, 166 So. 3d at 192 ; Cortina v. State, Dep’t of HRS, 901 So. 2d 273, 274 (Fla. 1st DCA 2005) (holding section 440.13(5)(e)’s limit on admissible medical witnesses to authorized treating IME or EMA does not violate separation of powers because “this court has consistently recognized and upheld the Legislature's prerogative as to evidentiary issues in workers' compensation cases”). 14 jurisdiction over rules of procedure in workers’ compensation proceedings; 2013: The Florida Legislature modified section 90.702, Florida Statutes, to adopt the Daubert standard for expert testimo

2025See, e.g., Booker, 166 So. 3d at 192 ; Cortina v. State, Dep’t of HRS, 901 So. 2d 273, 274 (Fla. 1st DCA 2005) (holding section 440.13(5)(e)’s limit on admissible medical witnesses to authorized treating IME or EMA does not violate separation of powers because “this court has consistently recognized and upheld the Legislature's prerogative as to evidentiary issues in workers' compensation cases”). 14 jurisdiction over rules of procedure in workers’ compensation proceedings; 2013: The Florida Legislature modified section 90.702, Florida Statutes, to adopt the Daubert standard for expert testimo

2025Florida Administrative Code Rule 69L-30.003 requires that an EMA must correctly answer 95% of EMA Tutorial review questions, hold valid licensure issued by Florida Department of Health with “clear active” status, be board certified or board eligibility applicable to the specialty, demonstrate experience in assignment of permanent impairment ratings within two years of application, have experience in performing IMEs with documented proof, and have completed twenty hours of continuing medical education within two years of application, among others. 5 The E/C asserts that the question was previou

2025In Junod, this Court commented that “an EMA opinion also must comply with the Florida Evidence Code, including Daubert.” Id.