Why it’s a great thing that HB 243 did not pass

Dan Smith, Esq

Dan Smith, ligitation attorney

Recently the Florida state Senate prevented a change to the way litigation processes are performed that would have had a lasting and rippling impact across the state in more ways than projected. Thank goodness it didn’t pass. The average citizen may not appreciate the effects it would have on every aspect of the legal system, so I’d like to get into a few details with you about what the “Expert Testimony Bill” (HB 243) would have meant for Floridians.

When attorneys call experts to testify in court, they are held to standards to prove to the court that the “expert” is qualified to speak on the subject as an actual expert. Since 1923 Florida has abided by a set of standards for this proof known as the Frye standard, which requires that expert testimony be based on information that is generally accepted in the expert’s field. HB 243 would have changed the requirement of proof to be in line with a standard known as the Daubert standard instead.

The Daubert standard is a more complicated, multi-part test in which every judge has to test the scientific basis for the expert’s opinion before the jury can hear it as evidence. In this situation judges become expected to be intimately familiar with various scientific studies; in effect, turning them into mini-scientists.

There are several problems with the replacement of the Frye test by the Daubert standard. For starters, it would allow companies who choose to be negligent in their responsibilities to injured people to continue eliminating the rights of individuals. Companies with negligent safety procedures or slip-shod policies already try to place the blame for the cost of litigation on the injured victims. Companies go so far as to call the lawsuit of someone who has been injured by their negligence “frivolous.” These irresponsible business practices let companies get away with relying on the assumption that an injured person won’t be able to afford litigation or that the lawsuit can be subdued by the immense cost and settled out of court instead. This means an injured victim will likely receive far less than they could have been awarded in Court.

Under the Daubert standard more stringent regulations for acceptance of expert testimony would have given these large companies another tool in their arsenal to delay litigation, increase its potential cost, or intimidate an injured person with the potential snag that experts called on behalf of the victims may never even be heard by the jury. This underhanded move by large businesses with already questionable policies would have allowed the denial of full justice to many people who receive life-altering injuries after accidents.

Big businesses may have tried to get away with more, and although it seems like it might have been a positive for businesses overall, HB 243 would have increased the cost of litigation for all businesses in the long run. Increased court costs would be detrimental to honest and responsible medium-sized or small businesses throughout the state faced with litigation procedures. Most of these businesses which are sued have little choice in their litigation strategy, and this should be a big consideration toward the justice they will receive as well.

Another more universal and fundamental problem with changing expert testimony requirements across all types of court cases is that power is removed from the jury’s hands and is placed into the hands of judges. When a judge is expected to know whether or not an “expert” is indeed considered an expert in their field by that field’s standards of scientific practice it can prevent the jury from hearing all the potential expert testimony and deciding for themselves based on all the information. If the information is based on general principles accepted in the expert’s field, then the jury should decide which expert they believe, not the judge.

The community will end up suffering from an increased burden of cost for this change as well. If a person cannot afford the litigation process at all, or does not receive a settlement that allows them to be self-sufficient long-term, the person could end up going on social support systems such as Medicare, Medicaid, Social Security disability, or Supplemental Security Income. This displaces the onus of a person’s pain and suffering from the company whose negligent procedures were the cause of the disability, back onto the taxpayers of the community.

Insurance companies and big businesses will continue to make it difficult for those with legitimate claims to seek reimbursement for their injuries. The rippling effect of increased cost, decreased payout, and more difficult burdens during the legislative process for normal citizens and taxpayers would have ended up spreading from the companies themselves, through the court system, and back out into the pockets of other taxpayers. If HB 243 had been allowed to be implemented, regular Floridians may not have noticed an immediate difference, but they certainly would have been affected. Personal liberty, corporate responsibility, and judicial process affects each of us every day, and changes to one will unavoidably cause changes to the others whether we are immediately aware of it or not.