On June 26, 2019, the Sun Sentinel published an editorial: “The Florida Supreme Court’s new evidence rule makes it harder to sue,” which is one of the many recent articles providing commentary on the Florida Supreme Court’s May 23, 2019 ruling, which changed the standard in Florida cases for evaluating and admitting expert testimony. This ruling replaced the more lenient, Frye standard for admissibility of expert witness testimony in Florida cases with the more stringent Daubert standard, which is applied in federal courts. For claimants in construction defect cases, the Frye standard generally provided for a more cost effective process. The following highlights how the change to Daubert will likely increase the cost of litigation and pose additional burdens in construction defect cases:

• Trial Courts are the “Gatekeepers.” 

The Daubert standard relies on trial courts, as “gatekeepers,” to determine the standards regarding reliability of expert testimony. Under Frye, a plaintiff was required to demonstrate that its expert was using methods that were “generally accepted” by the community of similarly situated professionals.  Now, under Daubert, the expert’s methods must be “scientifically reliable,” based on literature, and will be analyzed by trial courts  based on a multi-factor test. Thus, Frye relied on the “scientific community” to determine the reliability of an expert, whereas Daubert relies on “the scientific savvy of judges.”   

• Additional Destructive Testing and Expert Costs

The Daubert standard may potentially require additional rounds of destructive testing and/or investigation, which is more costly for claimants. To satisfy Daubert, construction defect plaintiffs may be required to: (a) hire an expert statistician to determine how much testing is required and what locations are to be tested by the engineering experts; and (b) comply with the statistician’s methodology and percentage of the building, areas, or components at issue. Thus, a statistician may now be required to determine the “error rate” of any testing or investigation, the reliability of data gathered, and even the randomness of the areas that were tested on a particular project.  The purpose of such requirement is to ensure that a “scientifically reliable” statistical sampling is used in order for engineering experts to reach conclusions, including any conclusion that a defect is systemic.  

• Pre-Trial Hearings on Daubert Motions. 

The adoption of Daubert will likely require more pre-trial hearings on motions challenging the methodologies and admissibility of expert testimony and/or seeking to strike experts — at great expense to all parties involved. Daubert motions usually involve heavy briefing with supporting testimony and evidence. Hearings on such motions are basically mini trials in a case, and are often evidentiary in nature, lengthy (even lasting multiple days), and highly technical and complex. The anticipated influx of Daubert hearings will, in turn, likely impact case dockets and increase the need for judicial administration over cases.

In a multi-party construction defect case, the plaintiff may face Daubert motions as to one or more of plaintiff’s experts from each defendant. This could mean a plaintiff may possibly face, and have to respond to, as many as 20-50 Daubert motions. The expense associated with litigating Daubert motions is one of many reasons that opponents of Daubert fear that it may impede the ability of litigants to be able to afford to pursue their claims and impair access to the courts. Plaintiffs should also now expect to file reciprocal motions against defendants’ experts in the event they do not meet the heightened Daubert standard, which also increases litigation costs. If Daubert Motions are granted, experts could be limited in the scope of their testimony and/or results or they could be excluded from testifying at trial. 

In light of this change in Florida law, it is critical for construction defect claimants to consult with experienced construction attorneys who understand, and are prepared to navigate, the hurdles of Daubert. The construction team at Haber Law routinely represents condominium associations and property owners in multi-party construction defect claims, including construction cases where the Daubert standard has applied. Please contact Haber Law for more information or to schedule a consultation.