Expert Testimony & Daubert — Florida and Federal Court

The Evidence Code · Topic Guide

§§ 90.701–90.706, Fla. Stat. · Fed. R. Evid. 701–706 · Phillips, Hunt & Walker

Cases with real expert testimony are won and lost at the Daubert hearing. If your expert’s opinion clears the reliability screen, you get to argue it to a jury. If it doesn’t, you’re often looking at summary judgment on the very claim the expert was hired to prove. Understanding the standard, the factors, and the difference between Florida and federal practice isn’t optional; it’s the ballgame.

This guide covers expert-testimony rules in Florida (Chapter 90, Part VII) and federal court (Article VII of the Federal Rules of Evidence), with links to every rule and every controlling Supreme Court decision.

Florida and federal courts both apply Daubert now

Florida is a Daubert state. The Legislature amended § 90.702, Fla. Stat. effective July 1, 2013 (ch. 2013-107) to import the federal Daubert standard. After a period of uncertainty, the Florida Supreme Court adopted the Daubert language as a rule of procedure in 2019. Florida and federal courts now apply the same reliability screen — with important differences in how it plays out in practice.

The federal standard is Fed. R. Evid. 702, itself amended effective December 1, 2023 to reinforce that the proponent must demonstrate the expert’s opinion reflects reliable methodology by a preponderance of the evidence — resolving a circuit split over how far judges must probe expert reasoning.

Rule 702 / § 90.702 — the reliability screen

An expert may testify in the form of an opinion or otherwise if:

the expert’s scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of the case.

The federal rule also expressly requires the proponent to demonstrate the elements by a preponderance of the evidence (2023 amendment).

The Daubert factors

The reliability inquiry originated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The Supreme Court identified non-exhaustive factors a trial court may consider:

Whether the theory or technique can be, and has been, tested;
Whether it has been subjected to peer review and publication;
The known or potential error rate;
The existence and maintenance of standards controlling the technique’s operation; and
Whether the theory or technique enjoys general acceptance in the relevant scientific community.

The list is flexible, not a checklist. Not every factor fits every discipline; the district court has broad latitude to tailor the analysis to the expert’s field.

Kumho Tire — Daubert covers all experts, not just scientists

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), extended Daubert’s reliability screen to all expert testimony — technical, specialized, or otherwise — not just scientific evidence.

Joiner — abuse-of-discretion on appeal

General Electric Co. v. Joiner, 522 U.S. 136 (1997), established that a district court’s Daubert ruling is reviewed only for abuse of discretion. Practical consequence: the trial court’s ruling almost always sticks. Win at the Daubert hearing or the appellate record is stacked against you.

Frye — the standard Florida used to apply

The pre-Daubert federal standard, from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), asked only whether the technique enjoyed “general acceptance” in the relevant field. Florida applied a Frye variant until the 2013 statute change.

Lay opinion — Rule 701 / § 90.701

A lay (non-expert) witness may give opinion testimony only if it is (1) rationally based on the witness’s perception, (2) helpful to understanding the testimony or determining a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Read: § 90.701, Fla. Stat. · Fed. R. Evid. 701.

The third element prevents parties from evading Daubert by dressing up expert opinion as lay perception.

Ultimate issue — Rule 704 / § 90.703 (watch the numbering flip)

Florida and federal number these differently. Florida’s ultimate-issue provision is § 90.703, Fla. Stat.; the federal counterpart is Fed. R. Evid. 704. Both allow an opinion embracing an ultimate issue.

Federal criminal exception (704(b)): in a criminal case, an expert may not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime or a defense. Florida has no direct counterpart.

Bases of expert opinion — Rule 703 / § 90.704 (numbering flip)

An expert may base an opinion on facts or data the expert has been made aware of or has personally observed. The underlying facts need not be admissible if experts in the field would reasonably rely on them. But inadmissible material cannot be smuggled into evidence — the court gates disclosure of otherwise-inadmissible bases through a Rule 403-style balance. Read: § 90.704, Fla. Stat. · Fed. R. Evid. 703.

Disclosure of underlying facts — Rule 705 / § 90.705

Read: § 90.705, Fla. Stat. · Fed. R. Evid. 705.

Authoritative literature on cross — § 90.706 (Florida)

§ 90.706, Fla. Stat. permits cross-examination of an expert about statements in books, treatises, or other literature the expert relied on or that the court finds authoritative. Federal treatment lives in the learned-treatise hearsay exception, FRE 803(18).

Court-appointed experts — FRE 706

Fed. R. Evid. 706 lets the federal court appoint its own expert. Florida procedure uses compulsory medical examinations and court-appointed experts under Fla. R. Civ. P. 1.360, not an Evidence Code section.

Practical points from the trial bar

Vet your expert like the judge will. Assume every credential and every prior opinion will be scrubbed.
Fit the factors to the field. Match your Daubert brief to the methodology; a boilerplate walk through the four Daubert factors falls flat when the discipline doesn’t fit that mold (Kumho Tire).
Preponderance is now the express standard in federal court. Under the 2023 amendment to Rule 702, draft your Daubert response with that burden in front of you.
Motion in limine, not just a trial objection. Daubert disputes belong in a written motion with an evidentiary hearing. The record you build there is the record the court of appeals reviews for abuse of discretion (Joiner).
Watch the lay-expert line. If the opinion depends on specialized methodology, disclose the witness as an expert.
Ultimate-issue caution in criminal cases. Federal 704(b) bars an expert from opining that a defendant did or did not have the requisite mental state.