Supreme Court of Florida

____________

No. SC19-107

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IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE.

May 23, 2019

PER CURIAM.

The Court, according to its exclusive rulemaking authority pursuant to 

article V, section 2(a) of the Florida Constitution, adopts chapter 2013-107, 

sections 1 and 2,Laws of Florida (Daubert amendments), which amended sections 

90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts), 

Florida Statutes, of the Florida Evidence Code to replace the Frye1 standard for 

admitting certain expert testimony with the Daubert2 standard, the standard for 

expert testimony found in Federal Rule of Evidence 702. 

 

1. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); see also Bundy 

v. State, 471 So. 2d 9 (Fla. 1985) (applying Frye standard); Stokes v. State, 548 So. 

2d 188, 195 (Fla. 1989) (adopting Frye standard); Hadden v. State, 690 So. 2d 573, 

577-78 (Fla. 1997) (adhering to Frye standard); Marsh v. Valyou, 977 So. 2d 543, 

547 (Fla. 2007) (reaffirming adherence to Frye standard).

2. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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In In re Amendments to Florida Evidence Code, 210 So. 3d 1231, 1239 (Fla. 

2017), at the recommendation of The Florida Bar’s Code and Rules of Evidence 

Committee (Committee), which occurred by a close vote of 16-14, the majority of

this Court previously declined to adopt the Daubert amendments, to the extent that 

they are procedural, solely “due to the constitutional concerns raised” by the 

Committee members and commenters who opposed the amendments. Without 

now readdressing the correctness of this Court’s ruling in DeLisle v. Crane Co., 

258 So. 3d 1221, 1229 (Fla. 2018), we note that the decision determined that 

section 90.702 of the Florida Evidence Code, as amended by section 1 of chapter 

2013-107,

3 is procedural in nature. DeLisle did not address the amendment to 

 

3. Chapter 2013-107, section 1, Laws of Florida, amended section 90.702, 

Florida Statutes (2012), to read as follows:

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; however, the opinion is admissible only if it 

can be applied to evidence at trial.
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section 90.704 made by section 2 of chapter 2013-107.

4

 Therefore, the Court has 

not determined the extent to which that amendment may be procedural. 

As noted by In re Amendments to Florida Evidence Code, 210 So. 3d at 

1236-37, the Daubert amendments were considered by The Florida Bar’s Code and 

Rules of Evidence Committee. The Committee provided majority and minority 

reports against and in favor of the Court’s adoption of the Daubert amendments. 

The Board of Governors of The Florida Bar approved the Committee’s 

recommendation, and extensive comments were received in response to the 

published recommendation. The Court held oral argument in the case. Because of 

the extensive briefing and arguments on this issue previously made to the Court, 

and mindful of the resources of parties, members of The Florida Bar, and the 

 

4. Chapter 2013-107, section 2, Laws of Florida, amended section 90.704, 

Florida Statutes (2012), to read as follows:

The facts or data upon which an expert bases an opinion or 

inference may be those perceived by, or made known to, the expert at 

or before the trial. If the facts or data are of a type reasonably relied 

upon by experts in the subject to support the opinion expressed, the 

facts or data need not be admissible in evidence. Facts or data that are 

otherwise inadmissible may not be disclosed to the jury by the 

proponent of the opinion or inference unless the court determines that 

their probative value in assisting the jury to evaluate the expert’s 

opinion substantially outweighs their prejudicial effect.
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judiciary, we revisit the outcome of the recommendation on the Daubert

amendments without requiring the process to be repeated.

We now recede from the Court’s prior decision not to adopt the 

Legislature’s Daubert amendments to the Evidence Code and to retain the Frye

standard. As Justice Polston has explained, the “grave constitutional concerns”

raised by those who oppose the amendments to the Code appear unfounded:

[T]he United States Supreme Court decided Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), in 1993, and the standard 

has been routinely applied in federal courts ever since. The clear 

majority of state jurisdictions also adhere to the Daubert standard. 

See 1 McCormick on Evidence § 13 (7th ed. June 2016 Supp.). In 

fact, there are 36 states that have rejected Frye in favor of Daubert to 

some extent. See Charles Alan Wright & Victor Gold, 29 Federal 

Practice and Procedure § 6267, at 308-09 n.15 (2016). Has the entire 

federal court system for the last 23 years as well as 36 states denied 

parties’ rights to a jury trial and access to courts? Do only Florida and 

a few other states have a constitutionally sound standard for the 

admissibility of expert testimony? Of course not.

As a note to the federal rule of evidence explains, “[a] review of 

the caselaw after Daubert shows that the rejection of expert testimony 

is the exception rather than the rule.” Fed. R. Evid. 702 advisory 

committee’s note to 2000 amendment. “Daubert did not work a 

‘seachange over federal evidence law,’ and ‘the trial court’s role as 

gatekeeper is not intended to serve as a replacement for the adversary 

system.’” Id. (quoting United States v. 14.38 Acres of Land, 80 F.3d 

1074, 1078 (5th Cir. 1996)).

Furthermore, I know of no reported decisions that have held 

that the Daubert standard violates the constitutional guarantees of a 

jury trial and access to courts. To the contrary, there is case law 

holding that the Daubert standard does not violate the constitution. 

See, 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” 
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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 [the parties’] federal and state 

constitutional rights to a jury trial by infringing upon the jury’s 

inherent authority to assess the credibility of witnesses and the weight 

to be given their testimony”); see also Gen. Elec. Co. v. Joiner, 522 

U.S. 136, 142-43 (1997) (rejecting “argument that because the 

granting of summary judgment in this case was ‘outcome 

determinative,’ it should have been subjected to a more searching 

standard of review” and explaining that, while “disputed issues of fact 

are resolved against the moving party[,] . . . the question of 

admissibility of expert testimony is not such an issue of fact”). 

Accordingly, the . . . “grave constitutional concerns” regarding 

the Daubert standard are unfounded.

 

In re Amends. to Fla. Evidence Code, 210 So. 3d 1231, 1242-43 (Polston, J., 

concurring in part and dissenting in part). While we find Justice Polston’s 

observations instructive in deciding to now adopt the Legislature’s Daubert 

amendments, we do not decide, in this rules case, the constitutional or other 

substantive concerns that have been raised about the amendments. Those issues 

must be left for a proper case or controversy.

5

 

5. See In re Amends. to Fla. Evidence Code, 210 So. 3d 1231, 1239 (stating 

that constitutional concerns about Daubert Amendment must be left for a proper 

case or controversy); In re Amends. to Fla. Rules of Criminal Procedure—Rule 

3.112 Minimum Standards for Attorneys in Capital Cases, 820 So. 2d 185,193 

(Fla. 2002) (stating that substantive concerns about comment to rule are more 

appropriately addressed in a true case or controversy than in a rules case). 
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Additionally, as outlined in the Committee minority report, the Daubert

amendments remedy deficiencies of the Frye standard. Whereas the Frye standard 

only applied to expert testimony based on new or novel scientific techniques and 

general acceptance, Daubert provides that “the trial judge must ensure that any and 

all scientific testimony or evidence admitted is not only relevant, but reliable.” 

Daubert, 509 U.S. at 589 (holding that the Federal Rules of Evidence superseded 

Frye). Moreover, also as argued in the minority report, the Daubert amendments 

will create consistency between the state and federal courts with respect to the 

admissibility of expert testimony and will promote fairness and predictability in the 

legal system, as well as help lessen forum shopping.

Accordingly, in accordance with this Court’s exclusive rule-making 

authority6 and longstanding practice of adopting provisions of the Florida Evidence 

Code as they are enacted or amended by the Legislature,7 we adopt the 

amendments to sections 90.702 and 90.704 of the Florida Evidence Code made by 

chapter 2013-107, sections 1 and 2. Effective immediately upon the release of this 

 

6. See art. V, § 2(a) Fla. Const.

7. See DeLisle, 258 So. 3d at 1223-24 (recognizing that, with very few 

exceptions, the Court has traditionally adopted, to the extent they are procedural, 

provisions of the Evidence Code as they are enacted or amended by the 

Legislature); In re Amends. to Fla. Evidence Code, 210 So. 3d at 1236 (same).
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opinion, we adopt the amendments to section 90.702 as procedural rules of 

evidence and adopt the amendment to section 90.704 to the extent it is procedural.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, LAGOA, and MUÑIZ, JJ., concur. 

LAWSON, J., concurs and concurs specially with an opinion, in which 

CANADY, C.J., and LAGOA and MUÑIZ, JJ., concur.

LABARGA, J., dissents with an opinion.

LUCK, J., dissents with an opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE 

EFFECTIVE DATE OF THESE AMENDMENTS.

LAWSON, J., concurring and concurring specially. 

I fully concur in the majority opinion and write separately to address Justice 

Luck’s contentions that: (1) we lack the authority to adopt this rule amendment 

now, and (2) we should not reconsider whether to codify the Daubert standard into 

our procedural rules until “we have a proper case or controversy,” see dissenting 

op. at 1, in which to reconsider DeLisle v. Crane Co., 258 So. 3d 1219, 1228-30 

(Fla. 2018) (holding that the standard for use in determining the admissibility of 

scientific evidence is procedural and not substantive, such that the standard can 

only be validly adopted by rule of court, and holding the statute adopting the 

Daubert standard to be an unconstitutional encroachment on this Court’s 

rulemaking authority). 

With respect to Justice Luck’s contention that we are only authorized to 

adopt or amend a rule of court pursuant to Florida Rule of Judicial Administration 
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2.140, I respectfully disagree that the majority is not following the multistep 

process set forth in rule 2.140. As explained in the majority’s per curiam opinion, 

that process was followed here, with the result that the Court has had the benefit of 

Florida Bar recommendations, oral argument, and extensive public comments, pro 

and con. All that this Court is doing now is reconsidering its earlier administrative 

(i.e., non-adjudicative) decision not to adopt the proposed Daubert amendments. 

Nothing in the text of rule 2.140 prohibits this Court from doing so. 

Perhaps more fundamentally, rule 2.140 sets forth the procedure “followed 

for consideration of rule amendments generally.” Fla. R. Jud. Admin. 2.140(a) 

(emphasis added). Although this is the rule that others are directed to follow when 

requesting that we adopt or amend one of our rules—and that we generally follow 

as well—our internal operating rules expressly recognize our inherent 

constitutional authority to amend our own rules, on our own motion, at any time, 

providing:

G. Rulemaking.

1. General. At the request of any justice, the Court, on its own 

motion, may adopt or amend rules. When the Court so acts, it 

generally will allow interested persons to file comments by a date 

certain. A specific effective date is usually designated by the Court. 

When the Court adopts or proposes a rule change in conjunction with 

a non-rule-amendment case, it will do so by means of an opinion in a 

separate case addressing only the rule amendment. The two opinions 

will reference each other and will be issued at the same time.
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West’s F.S.A. Sup. Ct. Manual Internal Operating P. § II. This Court has 

repeatedly followed rule II.G.1. in the past, adopting or amending rules on our own 

motion, at the request of a justice, without following the general procedure 

outlined in rule 2.140. See, e.g., In re Amendment to Rule 1-26 of Rules of 

Supreme Court Relating to Admissions to Bar, 165 So. 3d 666, 666-67 (Fla. 2015) 

(amending Rules of the Supreme Court Relating to Admissions to the Bar on this 

Court’s own motion); In re Amendments to the Florida Rules of Civil Procedure—

Mgmt. of Cases Involving Complex Litig., 15 So. 3d 558, 563 (Fla. 2009) (adopting 

an amendment to Florida Rule of Civil Procedure 1.440 on this Court’s own 

motion, relying solely on our constitutional grant of rule-making authority); In re 

Amendments To Florida Rule of Criminal Procedure 3.992—Criminal Punishment 

Code Scoresheets, 972 So. 2d 862, 863 (Fla. 2008) (amending Florida Rule of 

Criminal Procedure 3.992, relying solely on our constitutional grant of rule-making 

authority in article V, section 2(a) of the Florida Constitution).8

 In each of these 

 

8. We have bypassed the rule 2.140 process in numerous other cases, 

instead seeking advice from the Criminal Courts Steering Committee. See, e.g., In 

re Amendments To Florida Rule of Appellate Procedure 9.140, 194 So. 3d 309, 

309-10 (Fla. 2016) (amending Florida Rule of Appellate Procedure 9.140, relying 

solely on our constitutional grant of rule-making authority); In re Amendments To 

Florida Rules of Criminal Procedure—Rule 3.113, 139 So. 3d 292, 293 (Fla. 2014) 

(adopting Florida Rule of Criminal Procedure 3.113, relying solely on our 

constitutional grant of rule-making authority); In re Florida Rules of Civil 

Procedure For Involuntary Commitment of Sexually Violent Predators, 13 So. 3d 

1025, 1027-28 (Fla. 2009) (adopting the Florida Rules of Civil Procedure for 

Involuntary Commitment of Sexually Violent Predators, relying solely on our 
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cases, this Court clearly did not declare an emergency and unequivocally did not 

follow rule 2.140. 

In his dissenting opinion, Justice Luck points out that in these cited cases we 

requested input from groups of lawyers and judges before adopting rule changes. I 

have three responses. First, my point in citing these cases is to demonstrate that 

this Court has repeatedly acted on its own motion to enact or amend rules in the 

past, based solely on its constitutional authority and without following rule 2.140. 

Rule 2.140 requires referral to one of the rule committees listed in subsection 

(a)(3), which we did not do in any of these cases. Second, nothing in the 

constitution or rule II.G.1. states that we must seek input from others before 

exercising our exclusive rulemaking authority. In fact, rule II.G.1. expressly 

contemplates the exercise of our constitutional and exclusive rulemaking authority 

without input from others. Fla. S. Ct. Internal Op. Proc. II(G)(1) (explaining that 

when “the Court, on its own motion . . . adopt[s] or amend[s] rules . . . . it 

generally will allow interested persons to file comments”) (emphasis added). 

Third, the Court has already received exhaustive input on this issue from the 

 

constitutional grant of rule-making authority). Although the opinions in these 

cases do not recount the internal court process that initiated the rule change, our 

internal court records do. In each case, this Court directed a group of its own 

creation to propose language that would accomplish a rule change that this Court 

determined to be necessary or appropriate. 
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bench, bar, and public—explaining why we need not seek additional comment 

now. These cases, therefore, demonstrate how isolated the dissent is reading rule 

2.140 as stripping this Court of its constitutional authority—or as severely selflimiting that authority such that we are powerless to act now without re-consulting 

one of the bar committees that we recognize by rule. Not only does no other 

member of our current court read rule 2.140 in this self-limiting fashion, these 

cases and rule II.G.1. demonstrate that prior courts have not read rule 2.140 as 

displacing the Court’s constitutional power either. 

Given that we have the constitutional authority to adopt or amend these 

rules, art. V, § 2(a), Fla. Const., and that rule II.G.1. expressly recognizes our 

inherent authority to do so sua sponte, there is no reason for (or value in) repeating 

the rule 2.140 process with respect to this particular rule change. 

With respect to Justice Luck’s contention that we should wait for a “proper 

case” to reconsider DeLisle, I would note that this Court routinely adopts evidence 

rules “to the extent that they are procedural”—without deciding whether they are 

procedural. See, e.g., In re Amendments to Fla. Evidence Code, 53 So. 3d 1019, 

1020 (Fla. 2011) (adopting the legislative amendments to the Evidence Code made 

since 2007 to the extent they are procedural); In re Amendments to Fla. Evidence 

Code, 960 So. 2d 762, 763 (Fla. 2007) (adopting the legislative amendments to the 

Evidence Code made since 2005 to the extent they are procedural); In re 
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Amendments to Fla. Evidence Code—Section 90.104, 914 So. 2d 940, 941 (Fla. 

2005) (adopting the 2003 amendment to section 90.104(1)(b), Florida Statutes, to 

the extent it is procedural); In re Amendments to Fla. Evidence Code, 825 So. 2d 

339, 340-41 (Fla. 2002) (adopting the legislative amendments to the Evidence 

Code made since 2000 to the extent they are procedural). This practical approach 

makes sense because it conforms our rules of evidence to the Code and avoids the 

uncertainty that would otherwise be created by years of litigation over the 

substantive/procedural issue. So long as the Legislature has adopted the provision, 

which was done here, no separation of powers concerns can flow from our decision 

to simply adopt the provision to the extent that it is procedural, and thereby avoid 

the uncertainty and attendant costs that we would impose on parties by continued 

litigation of the issue. For these reasons, it makes more sense to me to adopt the 

standard now without readdressing the correctness of this Court’s ruling in 

DeLisle.

CANADY, C.J., and LAGOA and MUÑIZ, JJ., concur.

LABARGA, J., dissenting.

In 2017, following the recommendation of The Florida Bar’s Code and 

Rules of Evidence Committee (Committee), this Court declined to adopt to the 

extent they were procedural the amendments to the Florida Evidence Code (Code) 
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implementing the Daubert9 standard for admissibility of expert testimony. In re 

Amendments to Fla. Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017). In doing 

so, we cited “grave constitutional concerns.” Id. In 2018, we reiterated that Frye10

remains the appropriate standard in Florida state courts for evaluating expert 

testimony. See DeLisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018) (“We 

recognize that Frye and Daubert are competing methods for a trial judge to 

determine the reliability of expert testimony before allowing it to be admitted into 

evidence. Both purport to provide a trial judge with the tools necessary to ensure 

that only reliable evidence is presented to the jury. Frye relies on the scientific 

community to determine reliability whereas Daubert relies on the scientific savvy 

of trial judges to determine the significance of the methodology used.”). Now, less 

than one year later, and without further input from the Committee or the public, 

this Court reverses course and adopts the Daubert amendments for use in Florida 

courts. I dissent because in my view Frye is the superior standard for determining 

the reliability of expert testimony. 

Daubert and its progeny drastically expanded the type of expert testimony 

subject to challenge. Whereas Frye is limited to “new or novel scientific 

 

9. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

10. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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evidence,” Brim v. State, 695 So. 2d 268, 271 (Fla. 1997), Daubert applies to “all 

expert testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Of 

course, if a change to the Code furthers justice for the parties, the fact that 

significantly more testimony is subject to challenge and exclusion is irrelevant. 

However, I do not believe the Daubert amendments will have this effect; rather, in 

my view they will negatively impact constitutional rights. Indeed, the Committee, 

in recommending we reject the Daubert amendments, concluded they would 

undermine the constitutional right to a jury trial by precluding pure opinion 

testimony: 

Experts routinely form medical causation opinions 

based on their experience and training. And there is 

always the possibility that two experts may reach 

dissimilar opinions based on their individual experience. 

However, a disagreement among experts does not 

transform an ordinary opinion on medical causation into 

a new or novel principle subject to Frye.

Marsh [v. Valyou], 977 So. 2d [543,] 548 [(Fla. 2007)] (citations 

omitted).

Again citing multiple precedents, the Court explained:

“[P]ure opinion testimony, such as an expert’s opinion 

that a defendant is incompetent, does not have to meet 

Frye, because this type of testimony is based on the 

expert’s personal experience and training. While cloaked 

with the credibility of the expert, this testimony is 

analyzed by the jury as it analyzes any other personal 

opinion or factual testimony by a witness.” 

Id. at 548 (alteration in original) (quoting Flanagan v. State, 625 So. 

2d 827, 828 (Fla. 1993)). 
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The [Florida] Supreme Court addressed the fundamental, 

constitutional reason for its insistence on maintaining the utility of 

legitimate but competing expert opinion testimony to help juries 

decide cases on their merits:

Trial courts must resist the temptation to usurp the jury’s 

role in evaluating the credibility of experts and choosing 

between legitimate but conflicting scientific views. See 

Castillo [v. E.I. Du Pont De Nemours & Co.], 854 So. 2d 

[1264,] 1275 [(Fla. 2003)] (“[I]t is important to 

emphasize that the weight to be given to stated scientific 

theories, and the resolution of legitimate but competing 

scientific views, are matters appropriately entrusted to 

the trier of fact.” (quoting Berry [v. CSX Transp., Inc.], 

709 So. 2d [552,] 589 n.14 [(Fla. 1st DCA 1998)]); 

Rodriguez v. Feinstein, 793 So. 2d 1057, 1060 (Fla. 3d 

DCA 2001) (same). A challenge to the conclusions of 

. . . experts as to causation, rather than the methods used 

to reach those conclusions, is a proper issue for the trier 

of fact. See U.S. Sugar [Corp. v. Henson], 823 So. 2d 

[104,] 110 [(Fla. 2002)]; Castillo, 854 So. 2d at 1270, 

1272, 1276; Rodriguez, 793 So. 2d at 1060 (recognizing 

that “to involve judges in an evaluation of the 

acceptability of an expert’s opinions and conclusions 

would convert judges into fact-finders” to an extent not 

contemplated by Florida’s Frye jurisprudence). 

Marsh, 977 So. 2d at 549-50. Thus, if the Legislature’s stated intent 

were to hold sway, litigants’ constitutional right to trial by jury would 

be diminished.

Code and Rules of Evidence Committee Three-Year Cycle Report at 7-8, In re 

Amends. to Fla. Evidence Code, 210 So. 3d 1231 (Fla. 2017) (No. SC16-181) 

(some alterations in original). I agree with the Committee that the Daubert 

amendments create a significant risk of usurping the jury’s role by authorizing 

judges to exclude from consideration the legitimate but competing opinion 
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testimony of experts. Where evidence is not based upon new or novel science, 

juries should be permitted to hear the testimony of experts, evaluate their 

credibility, and analyze and weigh their opinions and conclusions to reach a just 

determination on the issues presented by the case.

Further, the concurrence in DeLisle, in which I concurred, described how 

Daubert would negatively impact access to Florida courts:

In addition to the constitutional concerns, the Committee 

believed that the amendment “would overburden the courts and 

impede the ability to prove cases on their merits.” Comm. Report at 

10. Citing numerous federal cases, the Committee explained that, 

because Daubert covers more subject areas and involves a multifactorial analysis to determine admissibility, versus Frye’s simple 

“general acceptance” inquiry, “federal courts commonly must conduct 

multi-day Daubert hearings at substantial cost in time and money.” 

Id. The Committee stated further:

Florida’s judges have not been provided the level 

of resources and time available to their federal 

counterparts. The impact of Daubert procedures in 

Florida state courts would only worsen this disparity.

Litigants in all kinds of cases also bear an 

increased burden. Having to provide a lengthy expert 

report or answers to interrogatories, then have an expert 

witness prepare to testify in a deposition and a Daubert

hearing, then defend a Daubert motion, all with the hope 

of being allowed to do it all over again in trial, is very 

expensive. Daubert “represents another procedural 

obstacle, another motion, another hearing, and another 

potential issue on appeal, all causing more delay and 

expense.”

During [Committee] discussions, concerns were 

raised that litigation offering expert testimony under 

Daubert increases litigation costs, a prospect that only 

wealthy litigants can bear. Family and juvenile cases 
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were raised as an example, since these cases often 

involve parties with lesser financial capabilities who 

must somehow participate in Daubert hearings or 

surrender their rights on the merits due to a lack of 

resources to fund these evidentiary fights. Contingency 

cases were mentioned as another example, in cases where 

some litigants will be unable to find counsel to represent 

them due to increased expenses associated with the use of 

experts. A final example was presented in hourly rate 

cases when many litigants may be unable to afford to 

pursue the merits of their claims because of the expense 

of Daubert hearings guaranteed to come.

Comm. Report at 11-12 (citation omitted). [n.9]

[N.9.] A joint comment filed by past presidents of The 

Florida Bar and other members of The Florida Bar 

echoed this concern:

As many of the signers of this comment 

know personally, the Daubert Law has 

overburdened and, if adopted by this Court, 

will continue to overburden our already 

overstrained and overworked court system. 

The Daubert Law has resulted, and will 

result, in unwarranted delays, costs, and 

expenses in the administration of justice in 

every kind of case. These delays, costs, and 

expenses will be borne not only by the 

courts but by the litigants and will tend to 

have the most adverse impact on those who 

lack financial resources.

Joint Comment by Past Presidents of The Fla. Bar & 

Other Members of The Fla. Bar at 5, In re Amends. to 

Fla. Evidence Code, 210 So. 3d 1231 (No. SC16-181).

The concerns raised by the Committee do not merely exist in 

the abstract. Attorney Dan Cytryn, a lawyer with “more than 35 years 

[of experience] almost exclusively in the area of personal injury,” 

urged this Court not to adopt the amendment because Daubert has 
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made “complex and moderately complex cases . . . more expensive to 

try.” Comment by Dan Cytryn at 1, In re Amends. to Fla. Evidence 

Code, 210 So. 3d 1231 (No. SC16-181). Cytryn explained that, after 

Daubert, his law firm “has taken a much closer look at cases that are 

meritorious, and perhaps are worth under $100,000, but require 

litigation. [They] have turned down several meritorious cases because 

of the additional costs and time restraints that Daubert implicates.” 

Id. at 2. While the impact on the workload of the trial courts or the 

difficulty in finding a lawyer should not be the sole consideration for 

determining whether a rule of procedure should be adopted, if 

adoption of the rule is at the expense of litigants’ constitutional right 

to access the courts, then the impact on the workload provides a 

compelling reason to reject the rule.

258 So. 3d at 1233-34 (Pariente, J., concurring) (footnote omitted) (alterations in 

original). Although I recognize that constitutional challenges to Code amendments 

must be reserved for a proper case or controversy, I continue to support the 

compelling reasons articulated in the DeLisle concurrence, as well as the 

significant concerns raised by the Committee, as to why Frye should remain the 

evidentiary standard for admission of expert testimony in Florida courts. In sum, I 

firmly believe Frye more adequately protects the constitutional rights of the 

parties.

Accordingly, I dissent from the decision of the majority to adopt the Daubert 

amendments and recede from our 2017 decision.

LUCK, J., dissenting.

I wish I could join the majority opinion adopting as a procedural rule of 

evidence the legislature’s Daubert amendment to section 90.702, Florida Statutes. 
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I really do. I think our decision in DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 

2018), finding that the amendments to section 90.702 were an unconstitutional 

encroachment on our exclusive authority to adopt rules for the practice and 

procedure in all courts is wrong, and we should overrule it when we have a proper 

case or controversy. But, for two reasons, I can’t join the majority’s opinion. 

First, the majority opinion adopts the amendments to section 90.702 as procedural 

rules without following our procedure for adopting rules. Second, the majority 

opinion rests on DeLisle’s erroneous holding that the Daubert amendment is a 

procedural rule, rather than a substantive law, that can be adopted by the court. 

Because we must follow our own rules if we expect anyone else to and the 

legislature’s Daubert amendment was a substantive change in the law, I reluctantly 

and respectfully dissent.

We must follow our rules for adopting procedural rules.

Florida Rule of Judicial Administration 2.140 is the rule for “Amending 

Rules of Court,” and it “shall be followed for consideration of rule amendments 

generally.” Fla. R. Jud. Admin. 2.140(a); see also In re Amends. to Fla. Rules of 

Jud. Admin.—New Rule 2.570, No. SC17-1611, 2018 WL 472769, at *1 (Fla. Jan. 

18, 2018) (“Rule 2.140 provides the procedures for amending rules of practice and 

procedure.” (emphasis added)); In re Fla. Rules of Jud. Admin., 389 So. 2d 202, 

204 (Fla. 1980) (noting that the predecessor to rule 2.140 was “entirely rewritten to 
- 20 -

codify the procedures for changes to all Florida rules of procedure” (emphasis 

added)). The majority opinion does not follow it. 

This is how the rule amendment procedure works. An amendment “may be 

made by any person.” Fla. R. Jud. Admin. 2.140(a)(1). The amendment is 

submitted to our clerk, who then refers it to one of the rules committees. Id.

2.140(a)(2). There’s a special committee, called the code and rules of evidence 

committee, that considers amendments to the evidence code. Id. 2.140(a)(3). The 

rules of evidence committee will consider and vote on the proposed amendment. 

Id. 2.140(a)(5). If the committee accepts the amendment, it is part of a three-year 

cycle report that is sent to the bar’s board of governors. Id. 2.140(a)(5), (b)(1)-(2). 

The board of governors solicits comments from the public and then considers and 

makes a recommendation on each proposal. Id. 2.140(b)(2)-(3). The committee 

and the board of governors then file with the court a report of the proposed rule 

changes and their recommendations. Id. 2.140(b)(4). The court considers 

comments to the proposed amendment, and may hear oral argument, before 

deciding whether to adopt it. Id. 2.140(b)(5)-(7).

There are four, and only four, exceptions to this general procedure. Id.

2.140(a) (“The following procedure shall be followed for consideration of rule 

amendments generally other than those adopted under subdivisions (d), (e), (f), and 

(g) . . . .”). 
- 21 -

• Exception one—subdivision (d): We may, with or without notice, “change 

court rules at any time if an emergency exists that does not permit reference 

to the appropriate committee.” Id. 2.140(d). In emergency situations, we

will “fix a date for further consideration of the change,” and, in that time, 

allow any person to “file comments concerning the change, seeking its 

abrogation or a delay in the effective date.” Id.

• Exception two—subdivision (e): If the rules committee and the board of 

governors believe that a proposed amendment “is of an emergency nature,” 

or sufficiently necessary to the administration of justice, they can 

recommend a change to the court outside the normal three-year cycle for 

submitting amendments. Id. 2.140(e)(1)-(2). The committee submits a 

report to the court, the proposed amendment is published, and the court may 

hear oral argument on the rule change. Id.

• Exception three—subdivision (f): For non-emergencies, we “may direct 

special consideration of a proposal” that may be heard at any time outside 

the three-year reporting cycle. Id. 2.140(f). The committee files its report 

with the court, the proposed amendment is published, and the court may hear 

oral argument on the rule change. Id.

• Exception four—subdivision (g): The court may amend at any time and with 

or without notice the rules in part II of the rules of judicial administration, 
- 22 -

and rules 2.310 and 2.320, “without reference to or proposal from the Rules 

of Judicial Administration Committee.” Id. 2.140(g)(1). If the court amends 

part II of the rules of judicial administration, or rules 2.310 or 2.320, without 

notice, then it will set a future date to consider the change and publish the 

proposal for comment by any person. Id. The court may hear oral argument 

on the proposed amendment. Id.

The majority opinion does not follow the general procedure that “shall be 

followed for consideration of rule amendments.” Id. 2.140(a). Since we 

considered and decided this issue two years ago, see In re Amendments to Fla. 

Evidence Code, 210 So. 3d 1231 (Fla. 2017), the code and rules of evidence 

committee has not sent us a report to consider adopting the Daubert amendment as 

a procedural rule. The board of governors has not made a recommendation. And 

we haven’t followed any of the publication and comment requirements in 

rule 2.140(b).

The majority opinion does not invoke any of the exceptions to the general 

procedure; it does not follow any of the special procedures required to invoke an 

exception; and none of the exceptions apply. The Daubert amendment was not an 

emergency when we considered it in 2017. See id. at 1235 (“We have for 

consideration the regular-cycle report of The Florida Bar’s Code and Rules of 

Evidence Committee (Committee), concerning legislative changes to the Florida 
- 23 -

Evidence Code and to section 766.102, Florida Statutes (2012).” (emphasis added) 

(footnote omitted)). The legislature enacted the change five years ago, ch. 13-107, 

§§ 1-2, Laws of Florida, and we have not treated the change as an emergency 

matter in all that time. The code and rules of evidence committee also has not 

submitted the Daubert amendment to us as an emergency matter. We have not 

requested, although it is our right to do so, that the committee reconsider the 

Daubert amendment outside the three-year cycle. And this is not an amendment to 

part II, and rules 2.310 and 2.320, of the rules of judicial administration, where we 

have authority to act on our own.

The majority opinion, instead, says that it is adopting the Daubert

amendment “according to [our] exclusive rulemaking authority pursuant to 

article V, section 2(a)” of the state constitution. Majority op. at 1. Article V, 

section 2(a) certainly requires us to “adopt rules for the practice and procedure in 

all courts” in the state. Art. V, § 2, Fla. Const. To meet our constitutional 

obligation, we have established the procedure in rule 2.140 for the adoption, 

amendment, and abrogation of our procedural rules. We can always change the 

rulemaking procedure—and maybe we should in light of this case—but where we 

have a procedure in place to implement our constitutional obligation, we cannot 

use the same constitutional provision to undermine that very procedure. 
- 24 -

If we could do that, then why have the procedure in the first place? Why go 

through the trouble of establishing a multistep process, appointing lawyers and 

judges to the rules committees, soliciting comments, getting the view of the board 

of governors, and having reports filed, when all we have to do is establish any rule 

we want, at any time, without input or adversarial testing? Having this multistep 

process doesn’t make sense if all we have to do is wave our magic article V, 

section 2(a) wand, ignore rule 2.140, and establish any old rule we want.

Once a procedure for implementing a constitutional mandate is established, 

that procedure must be followed in order to invoke the mandate. Consider, for 

example, citizen initiative petitions. Article XI, section 3 provides that “the 

people” have “[t]he power to propose the revision or amendment of any portion or 

portions of this constitution by initiative.” Art. XI, § 3, Fla. Const. The legislature 

has established procedures for implementing the initiative right. See, e.g., 

§ 101.161, Fla. Stat. (2018). For example, “[w]henever a constitutional 

amendment or other public measure is submitted to the vote of the people, a ballot 

summary of such amendment . . . shall be printed in clear and unambiguous

language on the ballot.” Id. § 101.161(1). “The ballot summary of the amendment 

. . . shall be an explanatory statement, not exceeding 75 words in length, of the 

chief purpose of the measure.” Id. “The ballot summary and ballot title of a 

constitutional amendment proposed by initiative shall be prepared by the sponsor 
- 25 -

and approved by the Secretary of State . . . .” Id. § 101.161(2). If an initiative 

sponsor did not comply with the established procedures for initiative petitions, it 

would not be enough to cite the right in article XI, section 3. See Browning v. Fla. 

Hometown Democracy, Inc., 29 So. 3d 1053, 1067 (Fla. 2010) (explaining that 

“[a]dditional explicit or implicit requirements provided by article XI, section[] 3” 

include those found in section 101.161 (footnote omitted)). Having the right is not 

enough if one does not follow the established neutral and generally applicable 

procedures for exercising that right. 

Because we established mandatory procedures for exercising our rulemaking 

authority under article V, section 2(a), we are as required to follow them as 

everyone else. There is no exception for administrative ease, and there is no 

proviso for we’ve-heard-it-all-before. See Majority op. at 3-4 (“Because of the 

extensive briefing and arguments on this issue previously made to the Court, and 

mindful of the resources of parties, members of the Florida Bar, and the judiciary, 

we revisit the outcome of the recommendation of the Daubert amendments without 

requiring the process to be repeated.”). We can refer the matter to the code and 

rules of evidence committee for out-of-cycle consideration; we can change the 

procedures by allowing summary consideration for repeat rules; and, in emergency 

situations, we can even act on our own and ask for comment; but we can’t do what 

the majority opinion does here and ignore rule 2.140 altogether.
- 26 -

The concurring opinion gives two reasons for why we can ignore rule 2.140 

altogether. First, the concurring opinion says that, although “others are directed to 

follow” rule 2.140 when requesting to amend the rules, we need not follow the rule 

because “our internal operating rules expressly recognize our inherent 

constitutional authority to amend our own rules, on our own motion, at any time.” 

Concurring op. at 8. Like the little-known codicil in the Faber College 

constitution, the concurring opinion cites section II.G.1. of our internal operating 

procedures, which provides that “the Court, on its own motion, may adopt or 

amend rules.” Id. (quoting Fla. S. Ct. Internal Op. Proc. II.G.1.). According to 

Westlaw, no court, including ours, has ever cited this language or any part of 

section II. Ever.

Also, section II.G.1., which is quoted in full in the concurring opinion, does 

not “expressly recognize our inherent constitutional authority to amend our own 

rules.” Concurring op. at 8. It does not discuss, mention, cite, or refer to article V, 

section 2(a) or say anything about “inherent constitutional authority.” 

And even if our internal operating procedures could excuse our compliance 

with rule 2.140, they don’t. We were careful to explain that the internal operating 

procedures “neither supplant[] any of the Florida rules of court procedure nor 

create[] any substantive or procedural rights.” Fla. S. Ct. Internal Op. Proc. Intro. 

We have said that our internal operating procedures do not take the place of the 
- 27 -

procedural rules, including rule 2.140, and do not create a procedural right to 

rulemaking that does not exist elsewhere. 

In any event, there would be no need for rule 2.140 to write in exceptions to 

the general procedure for the supreme court if, as the concurring opinion suggests, 

we are not required to follow it. Rule 2.140(d) allows the court, “with or without 

notice,” to “change court rules at any time if an emergency exists that does not 

permit reference to the appropriate committee.” Fla. R. Jud. Admin. 2.140(d). 

Rule 2.140(f) allows us to “direct special consideration of a proposal” outside the 

three-year cycle. Id. 2.140(f). And rule 2.140(g) allows us to change some of the 

rules of judicial administration “without reference to or proposal from the Rules of 

Judicial Administration Committee.” Id. 2.140(g)(1). Why write in these 

exceptions to the rulemaking procedure if rule 2.140 is only a suggestion for us to 

follow? Why would we create exceptions to a rule that wasn’t mandatory? We 

wouldn’t—it wouldn’t make sense to do that—which is why we are not exempt 

from the command in rule 2.140 that the “procedure shall be followed.” 

Second, the concurring opinion, citing six cases,11 says that we have 

“repeatedly followed rule II.G.1. in the past, adopting or amending rules on our 

 

11. In re Amends. to Fla. Rules of App. P. 9.140, 194 So. 3d 309 (Fla. 

2016); In re Amend. to Rule 1-26 of Rules of S. Ct. Relating to Admissions to Bar, 

165 So. 3d 666 (Fla. 2015); In re Amends. to Fla. Rules of Crim. P.—R. 3.113, 

139 So. 3d 292 (Fla. 2014); In re Fla. Rules of Civ. P. for Involuntary Commitment 

of Sexually Violent Predators, 13 So. 3d 1025 (Fla. 2009); In re Amends. to the 
- 28 -

own motion, at the request of a justice, without following the general procedure 

outlined in rule 2.140. . . . [T]his Court has repeatedly acted on its own motion to 

enact or amend rules in the past, based solely on its constitutional authority and 

without following rule 2.140.” Concurring op. at 9, 10. 

I read these six cases differently. None of them follow, discuss, mention, or 

even cite section II.G.1.12 None of them adopt or amend a rule on our own motion, 

and none of them adopt or amend a rule at the request of a justice. See Amends. to 

Fla. Rules of App. P. 9.140, 194 So. 3d at 309-10 (“The Florida Supreme Court’s 

Criminal Court Steering Committee (Steering Committee) filed a petition

proposing amendments to rule 9.140(g) (Appeal Proceedings in Criminal Cases; 

Briefs).”); Amends. to Fla. Rules of Crim. P.—R. 3.113, 139 So. 3d at 293 (“[T]he 

Supreme Court’s Criminal Court Steering Committee (Steering Committee) filed 

its petition in this case, proposing adoption of a new rule of criminal procedure, 

 

Fla. Rules of Civ. P.—Mgmt. of Cases Involving Complex Litig., 15 So. 3d 558 

(Fla. 2009); In re Amends. to Fla. Rules of Crim. P. 3.992—Crim. Punishment 

Code Scoresheets, 972 So. 2d 862 (Fla. 2008).

12. One of the cases cited by the concurring opinion has nothing to do with 

procedural rules. In Amendment to Rule 1-26 of Rules of Supreme Court Relating 

to Admissions to Bar, we amended a bar rule under our “exclusive jurisdiction to 

regulate the admission of persons to the practice of law and the discipline of 

persons admitted” under article V, section 15 of the Florida Constitution. 165 

So. 3d at 667. Because we did not amend a procedural rule, the case did not 

implicate rule 2.140 or our procedural rulemaking authority under article V, 

section 2(a). See id. (“We have jurisdiction. See art. V, § 15, Fla. Const.”).
- 29 -

rule 3.113 (Minimum Standards for Attorneys in Felony Cases).”); Fla. Rules of 

Civ. P.—S.V.P., 13 So. 3d at 1025 (“This matter is before the Court for 

consideration of a proposal by the Florida Supreme Court Criminal Court Steering 

Committee (Committee) to adopt the Florida Rules of Civil Procedure for 

Involuntary Commitment of Sexually Violent Predators.”); Amends. to the Fla. 

Rules of Civ. P.—Mgmt. of Cases Involving Complex Litig., 15 So. 3d at 558-59 

(“The Task Force on the Management of Cases Involving Complex Litigation 

(Task Force) has submitted proposed amendments to the Florida Rules of Civil 

Procedure for our consideration.”); Amends. to Fla. Rules of Crim. P. 3.992—

Crim. Punishment Code Scoresheets, 972 So. 2d at 863 (“The Supreme Court 

Criminal Court Steering Committee (Committee) has filed a petition proposing 

amendments to Florida Rule of Criminal Procedure 3.992.”). None of them 

expressly hold that we can bypass the rule 2.140 process. 

These cases cite the constitution as establishing our jurisdiction to hear the 

matter, not as the basis of our authority to amend the rules. See Amends. to Fla. 

Rules of App. P. 9.140, 194 So. 3d at 309 (“We have jurisdiction. See art. V, § 

2(a), Fla. Const.”); Amends. to Fla. Rules of Crim. P.—R. 3.113, 139 So. 3d at 293 

(same); Fla. Rules of Civ. P.—S.V.P., 13 So. 3d at 1025 (same); Amends. to Fla. 

Rules of Crim. P. 3.992—Crim. Punishment Code Scoresheets, 972 So. 2d at 863 

(same). Acknowledging that we have jurisdiction to hear a rules case doesn’t 
- 30 -

translate to a holding that we are amending a rule based solely on our inherent 

constitutional authority. These cases did not meaningfully address our rulemaking 

authority, and thus the concurring opinion’s reliance on them is misplaced. 

The concurring opinion calls my reading of rule 2.140 “self-limiting” and 

“isolated.” Concurring op. at 11. But it wasn’t me who limited our authority to 

make procedural rules under article V, section 2(a). We did so when we created 

the rulemaking process in rule 2.140 “to codify the procedures for changes to all 

Florida rules of procedure,” and “to update those procedures based on current 

practice.” Fla. Rules of Jud. Admin., 389 So. 2d at 204. All I’ve said is that once 

we codified the process of how we change our procedural rules, we have to stick to 

it or update the process again to catch up with current practice. But we can’t 

ignore the process altogether and do whatever we want, whenever we want to do it, 

as the concurring opinion suggests.

Look at the procedure for invoking our jurisdiction to review a decision of a 

district court of appeal. Article V, section 3(b)(3) says that we may review any 

decision of a district court of appeal “that expressly and directly conflicts with a 

decision of another district court of appeal or of the supreme court on the same 

question of law,” art. V, § 3(b)(3), Fla. Const, but the constitution does not put a 

time limit on our review. The rules of appellate procedure do when they provide 

that, to invoke our discretionary jurisdiction, a notice must be filed “within 30 days 
- 31 -

of rendition of the order to be reviewed.” Fla. R. App. P. 9.120(b). We haven’t 

read rule 9.120(b) as displacing our discretionary authority to review express and 

direct conflicts; we have read it as a procedural rule governing how our power is to 

be exercised. See Jackson v. Jones, No. SC18-1743, 2018 WL 6571192, at *1 

(Fla. Dec. 13, 2018) (“To the extent petitioner is seeking discretionary review, this 

petition is dismissed because petitioner failed to timely file a notice with the 

district court to invoke this Court’s discretionary jurisdiction. See Fla. R. App. P. 

9.120(b).”); Curry v. State, 36 So. 3d 655, 655 (Fla. 2010) (“Petitioner neither 

moved for rehearing of the August 12th opinion nor filed a notice to invoke this 

Court’s discretionary review within 30 days of that opinion. As such, it appears to 

the Court that the notice was not timely filed. See Fla. Rs. App. P. 9.020(i) & 

9.120(b). It is therefore ordered that the cause is dismissed on the Court’s own 

motion, subject to reinstatement if timeliness is established on proper motion filed 

within 15 days from the date of this order.”). 

Rule 2.140 is no different. It doesn’t displace our article V, section 2(a) 

procedural rulemaking authority; it is the procedural mechanism for exercising our 

constitutional authority.

This reading of rule 2.140 is hardly isolated. Since we created the rule 2.140 

process, we have used it at least 284 times to consider new or amended procedural 

rules. That includes the ten times we used the rule 2.140 process to consider 
- 32 -

adopting amendments to the evidence code.13 If any reading of rule 2.140 is

isolated, it is the concurring opinion’s. The concurring opinion believes we can 

 

13. See Amends. to Fla. Evid. Code, 210 So. 3d at 1235 (“We have for 

consideration the regular-cycle report of The Florida Bar’s Code and Rules of 

Evidence Committee (Committee), concerning legislative changes to the Florida 

Evidence Code and to section 766.102, Florida Statutes (2012).” (footnote 

omitted)); In re Amends. to Fla. Evid. Code, 144 So. 3d 536, 536 (Fla. 2014) (“We 

have for consideration the regular-cycle report filed by the Florida Bar Code and 

Rules of Evidence Committee (Committee) concerning recent legislative changes 

to the Florida Evidence Code (Code), see ch. 2011–183, § 1, Laws of Fla.; 

ch. 2012–152, § 1, Laws of Fla.; and to section 766.102(12) of the Florida Statutes, 

see ch. 2011–233, § 10, Laws of Fla.”); In re Amends. to the Fla. Evid. Code, 53 

So. 3d 1019, 1019 (Fla. 2011) (“We have for consideration the regular-cycle report 

filed by the Florida Bar Code and Rules of Evidence Committee (Committee) 

concerning recent legislative changes to the Florida Evidence Code (Evidence 

Code).”); In re Amends. to the Fla. Evid. Code, 960 So. 2d 762, 762 (Fla. 2007) 

(“We have for consideration the regular-cycle report of The Florida Bar Code and 

Rules of Evidence Committee (Committee), concerning recent legislative changes 

to the Florida Evidence Code made in chapter 2005-46, sections 1-2, and chapter 

2006-204, section 1, Laws of Florida.” (footnote omitted)); In re Amends. to the 

Fla. Evid. Code—Section 90.104, 914 So. 2d 940, 941 (Fla. 2005) (“We have for 

consideration a supplemental report of the Florida Bar Code and Rules of Evidence 

Committee (the Committee) concerning a recent amendment to section 

90.104(1)(b) of the Florida Evidence Code made by chapter 2003-259, section 1, 

Laws of Florida. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. 

Admin. 2.130(c).”); Amends. to the Fla. Evid. Code, 891 So. 2d 1037, 1037 (Fla. 

2004) (“We have for consideration the regular-cycle report of The Florida Bar 

Code and Rules of Evidence Committee (the committee), concerning recent 

legislative changes to the Florida Evidence Code made in chapters 2002-22, 

section 18; 2002-246, section 1; and 2003-259, sections 1, 2, and 3, Laws of 

Florida. See Fla. R. Jud. Admin. 2.130(c).”); In re Amends. to the Fla. Evid. Code, 

825 So. 2d 339, 339 (Fla. 2002) (“We have for consideration the regular-cycle 

report of The Florida Bar Code and Rules of Evidence Committee (the committee), 

concerning recent legislative changes to the Florida Evidence Code made in 

chapters 2000-316, sections 1 and 2; 2001-132, section 1; and 2001-221, section 1, 

Laws of Florida. See Fla. R. Jud. Admin. 2.130(c).”); In re Amends. to the Fla. 

Evid. Code, 782 So. 2d 339, 339 (Fla. 2000) (“We have for consideration the 
- 33 -

adopt or amend whatever procedural rule we want, on our own, at any time, and 

without publication, comment, or input from the bench and bar. But the cases 

relied on by the concurring opinion do not support such a reading. In them, we did 

not amend the rules on our own motion. We did so based on recommendations 

from committees made up of the bench and bar. The rules committees were 

involved in the amendment process. The concurring opinion’s cases gave notice 

that we were thinking of amending the rules; asked for comments; and considered 

the comments before adopting or amending the rules. See Amends. to Fla. Rules of 

App. P. 9.140, 194 So. 3d at 309 (“The Florida Supreme Court’s Criminal Court 

Steering Committee (Steering Committee) filed a petition proposing amendments 

to rule 9.140(g) (Appeal Proceedings in Criminal Cases; Briefs). . . . In 

considering the Court’s referral, the Steering Committee included liaisons from the

Criminal Procedure Rules Committee and the Appellate Court Rules Committee. 

. . . The Steering Committee first published its proposed amendment to rule 

9.140(g) in the September 15, 2015, edition of The Florida Bar News. The Steering 

 

quadrennial report of The Florida Bar Code and Rules of Evidence Committee (the 

Committee), concerning amendments to the Florida Evidence Code which were 

made by the Legislature over the past four years.”); In re Fla. Evid. Code, 675 

So. 2d 584, 584 (Fla. 1996) (“The Florida Bar has petitioned this Court to amend 

the Rules of Evidence to conform to statutory changes in the Evidence Code.”); In 

re Fla. Evid. Code, 638 So. 2d 920, 920 (Fla. 1993) (“The Florida Bar has 

petitioned this Court to amend the Rules of Evidence to conform to statutory 

changes in the Evidence Code.”).
- 34 -

Committee received two comments, and made changes to its proposal accordingly. 

. . . Upon consideration of the Steering Committee’s report and the comments 

received by the Steering Committee, the Court amends rule 9.140(g) as follows.”); 

Amends. to Fla. Rules of Crim. P.—R. 3.113, 139 So. 3d at 293 (“[T]he Supreme 

Court’s Criminal Court Steering Committee (Steering Committee) filed its petition 

in this case, proposing adoption of a new rule of criminal procedure, rule 3.113 

(Minimum Standards for Attorneys in Felony Cases). . . . Following publication of 

the proposed new rule by the Court, comments were filed by the Criminal 

Procedure Rules Committee and the Florida Public Defender Association. . . . 

[H]aving considered the Steering Committee’s petition and the comments filed, we 

adopt Florida Rule of Criminal Procedure 3.113, as proposed by the Steering 

Committee.”); Fla. Rules of Civ. P.—S.V.P., 13 So. 3d at 1025 (“This matter is 

before the Court for consideration of a proposal by the Florida Supreme Court 

Criminal Court Steering Committee (Committee) to adopt the Florida Rules of 

Civil Procedure for Involuntary Commitment of Sexually Violent Predators.”); In 

re Amends. to the Fla. Rules of Civ. P.—Mgmt. of Cases Involving Complex Litig., 

15 So. 3d at 558-60 (“The Task Force on the Management of Cases Involving 

Complex Litigation (Task Force) has submitted proposed amendments to the 

Florida Rules of Civil Procedure for our consideration. . . . The Task Force . . . 

consisted of twenty members, including judges and lawyers from throughout 
- 35 -

Florida with experience in handling and managing complex litigation. . . . The 

proposed amendments were published in The Florida Bar News. The Court 

specifically asked the Florida Bar Civil Procedure Rules Committee (Civil Rules 

Committee) and the Family Law Rules Committee (Family Rules Committee) to 

comment on the proposed amendments. The Court received ten comments, 

including comments by the rules committees.” (footnotes omitted)); Amends. to 

Fla. Rules of Crim. P. 3.992—Crim. Punishment Code Scoresheets, 972 So. 2d at 

863 (“The Supreme Court Criminal Court Steering Committee (Committee) has 

filed a petition proposing amendments to Florida Rule of Criminal Procedure 

3.992.”).14 None of that happened here.

 

14. The rules in each case were proposed by either the criminal court 

steering committee or the task force on management of cases involving complex 

litigation. Both the steering committee and the task force were directed and 

encouraged to work with the bar committees in amending the rules. See In re 

Crim. Ct. Steering Cmte., Fla. Admin. Order No. AOSC12-33 (July 9, 2012) (“The 

Steering Committee is directed to establish the necessary liaison relationships with 

the appropriate Florida Bar and other Supreme Court committees. The Steering 

Committee is authorized to pursue such proposed rule amendments jointly with the 

appropriate Florida Bar procedural rules committees and jointly review any 

amendments or proposals and indicate whether the Bar committee concurs; 

disagrees; or recommends modifications, further study, or other action with regard 

to the proposed rule amendments, and thereafter file any proposed amendments 

and comments in petition form with the Clerk of the Florida Supreme Court.”); In 

re Task Force on Mgmt. of Cases Involving Complex Litig., Fla. Admin. Order No. 

AOSC06-53 (Sept. 19, 2006) (“The Task Force is also encouraged to seek advice 

and information from chief judges and other judicial officers, Bar rules 

committees, attorneys, and others, as appropriate. If the Task Force determines 

that amendments to existing rules or other development of new rules of court 

procedure are necessary, the Task Force is authorized to coordinate with any 
- 36 -

After arguing that the majority opinion properly disregards rule 2.140 

because of our internal operating procedures and past cases, the concurring opinion 

does a 180-degree turn and argues that the majority opinion follows the rulemaking 

process in rule 2.140 because more than two years ago, in February 2017, the court 

“had the benefit of Florida Bar recommendations, oral argument, and extensive 

public comments, pro and con.” Concurring op. at 8. The court, the concurring 

opinion says, is merely “reconsidering” its February 2017 decision declining to 

adopt the Daubert amendments. Id. at 8. Nothing in the text of rule 2.140, 

according to the concurring opinion, prohibits us from revisiting a two-year-old 

decision, as long as the process was followed some time in the past. Id. at 8. 

This is wrong for four reasons. First, the text of rule 2.140 says that 

opinions adopting proposals, as the majority opinion does here, “should be issued 

in sufficient time for the rule changes to take effect on January 1 of the year 

following the reporting year.” Fla. R. Jud. Admin. 2.140(b)(7). Here, the code and 

rules of evidence committee submitted its report in February 2016 as part of the 

2016 three-year cycle. That means the opinion adopting the proposal should have 

been issued within the year so that the rule could take effect on January 1, 2017. 

 

applicable rules committees.”). And indeed, as quoted in the string cite above, the 

rules committees participated in the rulemaking process.
- 37 -

Rule 2.140 does not contemplate a three-year opinion-writing process, as the 

concurring opinion proposes.

Second, the text of rule 2.140 does have a procedure for reconsidering 

decisions. “The supreme court may permit motions for rehearing to be filed on 

behalf of any person who filed a comment, The Florida Bar, any bar association, 

and the affected committee.” Id. We have used the rehearing process to 

reconsider rules decisions in the past, see, e.g., In re Amends. to Fla. Evid. Code, 

144 So. 3d 536, 536 (Fla. 2014) (“The case is before the Court upon the motion for 

rehearing filed by the Florida Bar Code and Rules of Evidence Committee.”), but 

no motion for rehearing was filed in this case.

Third, even if rule 2.140 allowed for opinions adopting rules three years 

after the cycle report was filed and authorized the court to reconsider rules cases 

two years after a decision was already made, we may only rehear cases where a 

motion has been filed within fifteen days of our order or decision. Fla. R. App. P. 

9.330(a)(1). And we may reconsider an order or decision under narrow 

circumstances “but not more than 120 days after its issuance.” Id. 9.340(a). Here, 

no rehearing motion was filed, and it has been more than 120 days since our order 

in In re Amendments to the Florida Evidence Code became final. 

Fourth, the text of rule 2.140 requires that we have a fresh—rather than a 

three-year-old—report about proposed rule amendments from lawyers, judges, and 
- 38 -

the public. The committee considering the rule change must submit its report to 

the board of governors no later than June 15 of the year prior to the end of the 

three-year cycle, and publish the recommended amendments. Fla. R. Jud. Admin. 

2.140(b)(2). The public submits its comments about the proposed changes no later 

than August 1, and the committee must respond to the comments no later than 

October 31. Id. The board of governors has to consider each proposal and vote 

whether to recommend it by December 15. Id. 2.140(b)(3). The committee’s 

report must then be filed with the court no later than February 1 of the last year of 

the cycle. Id. 2.140(b)(4). If oral argument is necessary, the court is directed to set 

it in May or June. Id. 2.140(b)(5). The court is directed to issue its order adopting 

the proposed changes by January 1, the day after the last day of the three-year 

cycle. Id. 2.140(b)(7). 

It has been more than three years since the code and rules of evidence 

committee sent its cycle report on the Daubert amendment to the court. In that 

time, lawyers, litigants, and judges have had another year of Daubert and two 

years of Frye. Understanding their on-the-ground experience is critical to deciding 

whether we should adopt the Daubert amendment. The concurring opinion sees no 

“value in” this. Concurring op. at 11. I do. 

We created rule 2.140 so that we can have as much current feedback as 

possible from the lawyers, judges, and members of the public who will be affected 
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by the rules. By short-circuiting the strict timeframes in the rulemaking process, 

and relying on a stale committee report from two Olympics ago, we do ourselves, 

the branch, and the bar a disservice.

If time is of the essence, or there’s a concern for the administration of 

justice, as the concurring opinion suggests, we can refer rule amendments directly 

to a committee, they can be considered out-of-cycle, and they can even be treated 

as an emergency. Fla. R. Jud. Admin. 2.140(d)-(f). But there is no basis in 

rule 2.140 to ignore this process because we decided not to adopt the rule years 

earlier. 

Following the concurring opinion’s logic, rules cases are never final. We 

can reconsider any evidentiary rule that we declined to adopt, so long as, at some 

point in the past, the proposed rule went through the rule 2.140 process. In 2000, 

for example, the code and rules of evidence committee sent us its cycle report 

recommending that we adopt as procedural, among other rules, a recent legislative 

amendment that expanded the former-testimony hearsay exemption. In re Amends. 

to the Fla. Evid. Code, 782 So. 2d 339, 339-40 (Fla. 2000). The court declined to 

adopt the amendment to the extent it was procedural because of “grave concerns 

about the constitutionality of the amendment.” Id. at 342. Can we go back, 

nineteen years later, and reconsider our earlier decision not to adopt the expanded 
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hearsay exemption without going through the rule 2.140 process, as the concurring 

opinion suggests we can with the Daubert amendment?

Another example: In 2014, the code and rules of evidence committee 

recommended in its regular-cycle report that we adopt as procedural the 

legislature’s creation in section 90.5021 of a “fiduciary lawyer-client privilege.” 

Amends. to Fla. Evid. Code, 144 So. 3d at 536. “We decline[d] to follow the 

Committee’s recommendation to adopt the new provision of the Code because we 

question[ed] the need for the privilege to the extent that it [was] procedural.” Id. at 

537. Can we go back, five years later, and reconsider our decision to not adopt the 

fiduciary lawyer-client privilege without input from anybody? 

We did reconsider the fiduciary lawyer-client privilege in 2018, but we did it 

the way it is supposed to be done. The code and rules of evidence committee sent 

us a recommendation, with the approval of the board of governors, that our 2014 

decision “led to confusion for lawyers who represent fiduciaries, such as personal 

representatives, as well as for circuit court judges,” and “ask[ed] this Court to 

reconsider its 2014 decision.” In re Amends. to Fla. Evid. Code—2017 Out-ofCycle Report, 234 So. 3d 565, 565-66 (Fla. 2018) (“We have for consideration the 

joint out-of-cycle report filed by the Florida Bar’s Probate Rules Committee (FPR 

Committee) and the Code and Rules of Evidence Committee (CRE Committee) 

(collectively Committees) asking this Court to reconsider its 2014 decision not to 
- 41 -

adopt, to the extent it is procedural, chapter 2011–183, section 1, Laws of Florida, 

which created section 90.5021, Florida Statutes (2017), (Fiduciary lawyer-client 

privilege) of the Florida Evidence Code.”). Only “[a]fter considering the 

Committees’ report, the comments submitted to the Committees and filed with the 

Court, and the Committees’ response,” did we change our mind and adopt the 

fiduciary lawyer-client privilege. Id. at 566. 

What we didn’t do was act on our own without notice or an opportunity for 

public comment, and we didn’t rely on years-old stale information from rules 

committees. We have never done that before, and we shouldn’t do it here without 

complying with the rules of judicial administration and appellate procedure.

The legislature’s Daubert amendment is not

procedural, so it cannot be adopted by us as a procedural rule.

I also must dissent because the majority opinion uses our article V, 

section 2(a) rulemaking authority to adopt the Daubert amendment based on the 

faulty premise that it “is procedural in nature.” Majority op. at 2. It is not 

procedural. Section 90.702 is substantive, and we do not have the constitutional 

authority to adopt substantive laws as procedural rules. 

While the burden is on us to “adopt rules for the practice and procedure in 

all courts,” art. V, § 2(a), Fla. Const., the power to enact substantive laws rests 

with the legislature. Id. art. III, § 1 (“The legislative power of the state shall be 

vested in a legislature of the State of Florida . . . .”). Neither branch is allowed to 
- 42 -

exercise the powers of the other, id. art. II, § 3 (“No person belonging to one 

branch shall exercise any powers appertaining to either of the other branches 

unless expressly provided herein.”), so we cannot use our rulemaking power to 

adopt substantive laws, and the legislature (with some exceptions) cannot adopt 

procedural rules. See Caple v. Tuttle’s Design-Build, Inc., 753 So. 2d 49, 53 (Fla. 

2000) (“In order to ascertain whether there is an infringement on this Court’s 

rulemaking authority, we must first determine whether the statute is substantive or 

procedural. If we find that the statute is ‘substantive and that it operates in an area 

of legitimate legislative concern,’ then we are precluded from finding it 

unconstitutional.” (quoting VanBibber v. Hartford Accident & Indem. Ins. Co., 439 

So. 2d 880, 883 (Fla. 1983)); Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 

1975) (“The responsibility to make substantive law is in the legislature within the 

limits of the state and federal constitutions . . . . Procedural rules concerning the 

judicial branch are the responsibility of this Court, subject to repeal by the 

legislature in accordance with our constitutional provisions.”). Although “[t]he 

distinction between substantive and procedural law is neither simple nor certain,” 

Caple, 753 So. 2d at 53, we have said that “[s]ubstantive law prescribes the duties 

and rights under our system of government,” while “[p]rocedural law concerns the 

means and method to apply and enforce those duties and rights.” Benyard, 322 

So. 2d at 475. 
- 43 -

Section 90.702 establishes the right of litigants to introduce expert testimony 

in the courts. See § 90.702 (“[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” certain conditions are met.). The Daubert amendment 

establishes the right and sets out the litigant’s duties in seeking to introduce the 

expert testimony. See ch. 13-107, § 1, Laws of Fla. (allowing expert testimony if 

“(1) [t]he testimony is based upon sufficient facts or data; (2) [t]he testimony is the 

product of reliable principles and methods; and (3) [t]he witness has applied the 

principles and methods reliably to the facts of the case”). The Daubert amendment 

tells us what kinds of expert evidence a party has the right to introduce at trial and 

defines the scope of that right. We have recognized that evidentiary rules may “be 

substantive law and, therefore, the sole responsibility of the legislature.” In re Fla. 

Evid. Code, 372 So. 2d 1369, 1369 (Fla. 1979), clarified, 376 So. 2d 1161 (Fla. 

1979).

Unsurprisingly, then, our courts have held that similar statutes establishing 

and defining the right of a party to introduce evidence at trial are substantive. 

Section 921.141(7), for example, gives the prosecution in a death-penalty case the 

right to introduce “victim impact evidence . . . designed to demonstrate the 

victim’s uniqueness as an individual human being and the resultant loss to the 

community’s members by the victim’s death.” In Burns v. State, we rejected the 
- 44 -

defendant’s argument that section 921.141(7) is a procedural rule that “improperly 

regulates practice and procedure.” 699 So. 2d 646, 653 (Fla. 1997); see also

Looney v. State, 803 So. 2d 656, 675 (Fla. 2001) (plurality opinion) (“Looney next 

argues that section 921.141(7), Florida Statutes (Supp. 1996), allowing the 

admission of victim impact evidence, is a usurpation of this Court’s rulemaking 

authority vested in it by the Florida Constitution. We find Looney’s argument is 

without merit.” (footnote omitted) (citation omitted)); Booker v. State, 397 So. 2d 

910, 918 (Fla. 1981) (“[W]e have held that section 921.141, Florida Statutes 

(1977), does not violate the requirements of article V, section 2(a), Florida 

Constitution, because it attempts to govern practice and procedure.”); Dobbert v. 

State, 375 So. 2d 1069, 1071-72 (Fla. 1979) (“Dobbert argues that the death 

penalty statute is unconstitutionally violative of article V, section 2(a), Florida 

Constitution, because it attempts to govern practice and procedure . . . . We have 

considered each of these arguments and find them to be without merit.”).

Also, in civil commitment proceedings for sexually violent predators, the 

parties have the right to admit “[h]earsay evidence, including reports of a member 

of the multidisciplinary team or reports produced on behalf of the multidisciplinary 

team . . . unless the court finds that such evidence is not reliable.” § 394.9155(5), 

Fla. Stat. (2000). In Cartwright v. State (In re Commitment of Cartwright), 870 

So. 2d 152 (Fla. 2d DCA 2004) (Canady, J.), the committed party argued that the 
- 45 -

right to admit hearsay evidence violated “the provision of the Florida Constitution 

vesting the supreme court with the authority to adopt procedural rules.” Id. at 156. 

The district court concluded that the argument “that section 394.9155(5) violates 

article V, section 2(a), must be rejected.” Id. at 161. “Just as the legislative 

authorization of the consideration of hearsay testimony in capital sentencing 

proceedings does not violate article V, section 2(a), so the legislative authorization 

of the consideration of hearsay testimony in Ryce Act proceedings does not violate 

that constitutional provision.” Id. 

The Daubert amendment is no different than the statutes allowing victim

impact evidence in death-penalty cases and hearsay reports in Jimmy Ryce Act 

cases. Section 90.702, like the other two statutes, establishes the right of parties to 

introduce evidence in our courts by abrogating the common law prohibition against 

such evidence. See Leslie A. Lunney, Protecting Juries from Themselves: 

Restricting the Admission of Expert Testimony in Toxic Tort Cases, 48 SMU L. 

Rev. 103, 105 (1994) (“Because of these risks, the common law imposed a number 

of constraints on the admissibility of expert witness testimony, thus limiting the 

issues and the bases on which an expert would be permitted to testify.”); Julie A. 

Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of 

Expert Opinion Testimony, 96 Geo. L.J. 827, 832 (2008) (“The Federal Rules of 

Evidence, enacted in 1975, facilitated this explosion of expert influence by 
- 46 -

loosening the strict common law rules that had restricted expert witness testimony 

both in substance and in the procedures mandated for eliciting it.”). The Daubert

amendment, like the other two statutes, lays out the duties of the parties in 

introducing such evidence. If the death-penalty victim impact statute and the 

Jimmy Ryce Act hearsay statute are substantive, then so is section 90.702. It fits 

within our definition of substantive law and is consistent with our case law holding 

similar evidentiary statutes as substantive.

I understand we held in DeLisle that section 90.702 “is not substantive” and 

“does not create, define, or regulate a right.” 258 So. 3d at 1229. But we were 

wrong15 and acted without jurisdiction16 in DeLisle, and I look forward to the day 

we have a proper case or controversy so we can revisit our holding. While DeLisle

is our precedent until that day, I would not build upon its shaky foundation by 

relying on its erroneous holding so we can adopt a new procedural rule. We 

 

15. As just one example of how wrong our DeLisle opinion was, we didn’t 

cite, discuss, quote, or acknowledge Booker, Burns, Dobbert, Looney, or Cartwright, 

even though they were quoted and discussed at length by the respondent and amici 

and are the prior decisions of this court and others most on point in deciding whether 

a rule of evidence is procedural or substantive. The court, instead, relied on nonevidentiary rules cases and Glendening v. State, 536 So. 2d 212 (Fla. 1988), which 

discussed the procedural/substantive divide for retroactivity purposes, but said 

nothing about our rulemaking authority under article V, section 2(a). Only by 

ignoring what was in front of us were we able to reach the conclusion that we did. 

16. See DeLisle, 258 So. 3d at 1236-37 (Canady, C.J., dissenting).
- 47 -

shouldn’t compound one error by, on our own initiative, shoveling another case on 

top of it.

The concurring opinion responds that we “routinely adopt[] evidence rules 

‘to the extent they are procedural’—without deciding whether they are 

procedural,” and cites four cases to support the proposition. Concurring op. at 11. 

I agree.

But the majority opinion does more than adopt the amendments to section 

90.702 to the extent they are procedural. The majority opinion “adopt[s] the 

amendments to section 90.702 as procedural rules of evidence.” Majority op. at 7 

(emphasis added). Not “to the extent they are procedural,” but “as procedural rules 

of evidence.” Id.

The concurring opinion, in “fully concur[ring] in the majority opinion,” 

Concurring op. at 7, is willing to double down on our mistake in DeLisle by 

treading on the legislature’s turf and adopting a substantive rule as procedural. I 

am not. I’d rather fold and wait to play another hand.

Original Proceedings – Florida Evidence Code