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In a major victory for civil justice advocates, the Florida Supreme Court has declined to adopt, to the extent they are procedural, the changes to the Florida Evidence Code and statutes created by the 2013 passage of the Daubert and “Same Specialty” legislation. In its declination of both Daubert and “Same Specialty” the Court wrote:

It has been this Court’s policy to adopt, to the extent they are procedural, provisions of the Florida Evidence Code as they are enacted and amended by the Legislature. However, on occasion the Court has declined to adopt legislative changes to the Evidence Code because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.

In its opinion, the Court cited the concerns raised by civil justice advocates about the undermining the fundamental right to a jury trial, the denial of access to the courts for redress, and prejudice to the administration of justice. It is still critical to have Daubert and “Same Specialty” ruled unconstitutional which will likely only occur through a case and controversy coming before the Court. If Daubert or “Same Specialty” are used in a case you are litigating, please remember to raise the Separation of Powers constitutionality argument based on Daubert and “Same Specialty” as a procedural law, as well as any other constitutional arguments.

Many thanks to all the FJA members who served on the Florida Bar’s Code and Rules of Evidence Committee [CREC] (which recommended against the adoption of Daubert and “Same Specialty” in its Three-Year Cycle Report) or the Florida Bar Board of Governors (which adopted CREC’s recommendations on “Same Specialty” and Daubert). Those two votes are tangible examples of how being involved in the Florida Bar can, and often does, affect your practice. Thanks, in particular, to Wayne Hogan, who authored the majority report on Daubert for CREC and testified at oral argument, Andy Hamilton, who authored the majority report on “Same Specialty” for CREC and testified at oral argument, Peter Sartes, the Chair of CREC at the time of the deliberations and reports, Howard Coker and Dan Cytryn who also testified at oral argument, and FJA Deputy General Counsel, G.C. Murray, Jr., who served as Staff Lead on these major issues. Special thanks to the FJA Florida Bar/Judicial Liaison Committee, especially Chris Searcy, Neal Roth, Phil Freidin, Thomas Hall, Bryan Gowdy, John Mills, and Scott McMillen, who served as Chair of the committee.

Many thanks to those who have fought in the trenches and have battled against these issues on behalf of FJA, especially Troy Rafferty, who chaired the FJA Daubert Committee, Rich Newsome, Tom Edwards, Leslie Kroger, Wayne Hogan, and Bard Rockenbach who consistently, along with Troy Rafferty, testified against Daubert, and Ken Sobel, who chaired the FJA Medical Malpractice Committee, Jimmy Gustafson, Maria Tejedor, Dana Brooks and the multitude of members who consistently testified against the “Same Specialty” legislation. Thank you to our Legislative team who fought against Daubert and “Same Specialty” in the legislative process for nearly a decade.

Please click HERE to read this important decision.

This is a great victory for Florida’s citizens who are attempting to get their day in court!

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