| 1 | A bill to be entitled |
| 2 | An act relating to testimony of witnesses; providing a |
| 3 | short title; providing standards for opinion testimony by |
| 4 | lay witnesses; providing standards for, bases of, and |
| 5 | limitations on expert testimony; authorizing expert |
| 6 | witness fees; providing requirements for mandatory |
| 7 | pretrial hearings; providing requirements for mandatory |
| 8 | pretrial disclosure of expert testimony; providing for |
| 9 | interpretation and application; providing for |
| 10 | interlocutory appeals; specifying standards of review; |
| 11 | providing severability; providing application; providing |
| 12 | an effective date. |
| 13 |
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| 14 | Be It Enacted by the Legislature of the State of Florida: |
| 15 |
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| 16 | Section 1. (1) SHORT TITLE.--This section may be cited as |
| 17 | the "Junk Science Elimination Act." |
| 18 | (2) OPINION TESTIMONY BY LAY WITNESSES.--If a witness is |
| 19 | not testifying as an expert, the witness's testimony in the form |
| 20 | of opinions or inferences is limited to those opinions or |
| 21 | inferences that are: |
| 22 | (a) Rationally based on the perception of the witness. |
| 23 | (b) Helpful to a clear understanding of the witness's |
| 24 | testimony or the determination of a fact in issue. |
| 25 | (c) Not based on scientific, technical, or other |
| 26 | specialized knowledge within the scope of subsection (3). |
| 27 | (3) TESTIMONY BY EXPERTS.--If scientific, technical, or |
| 28 | other specialized knowledge will assist the trier of fact in |
| 29 | understanding the evidence or determining a fact in issue, a |
| 30 | witness qualified as an expert by knowledge, skill, experience, |
| 31 | training, or education may testify as to the evidence or fact in |
| 32 | the form of an opinion or otherwise if: |
| 33 | (a) The testimony is based upon sufficient facts or data; |
| 34 | (b) The testimony is the product of reliable principles |
| 35 | and methods; and |
| 36 | (c) The witness has applied the principles and methods |
| 37 | reliably to the facts of the case. |
| 38 | (4) BASES OF EXPERT TESTIMONY.--The facts or data in a |
| 39 | specific case upon which an expert bases an opinion or inference |
| 40 | may be those perceived by or made known to the expert at or |
| 41 | before the hearing. If the facts or data are of a type |
| 42 | reasonably relied upon by experts in the particular field in |
| 43 | forming opinions or inferences upon the subject, the facts or |
| 44 | data need not be admissible in evidence in order for the opinion |
| 45 | or inference to be admitted. Facts or data that are otherwise |
| 46 | inadmissible shall not be disclosed to the jury by the proponent |
| 47 | of the opinion or inference unless the court determines that the |
| 48 | probative value of the facts or data in assisting the jury to |
| 49 | evaluate the expert's opinion substantially outweighs the |
| 50 | prejudicial effect of disclosing the facts or data. |
| 51 | (5) LIMITATIONS ON EXPERT TESTIMONY.-- |
| 52 | (a) A witness qualified as an expert by knowledge, skill, |
| 53 | experience, training, or education may offer expert testimony |
| 54 | only with respect to a particular field in which the expert is |
| 55 | qualified. |
| 56 | (b) An expert witness may receive a reasonable and |
| 57 | customary fee for the rendering of professional services; |
| 58 | however, the testimony of an expert witness shall not be |
| 59 | admitted if any such compensation is contingent upon the outcome |
| 60 | of any claim or case with respect to which the testimony is |
| 61 | being offered. |
| 62 | (6) MANDATORY PRETRIAL HEARING.--If a witness is |
| 63 | testifying as an expert, upon motion of a party the court shall |
| 64 | hold a pretrial hearing to determine whether the witness |
| 65 | qualifies as an expert and whether the expert's testimony |
| 66 | satisfies the requirements of subsections (3), (4), and (5). The |
| 67 | court shall allow sufficient time for a hearing and shall rule |
| 68 | on the qualifications of the witness to testify as an expert and |
| 69 | whether the testimony satisfies the requirements of subsections |
| 70 | (3), (4), and (5). The trial court's ruling shall set forth the |
| 71 | findings of fact and conclusions of law upon which the order to |
| 72 | admit or exclude expert evidence is based. Such ruling shall be |
| 73 | issued prior to the commencement of the trial. |
| 74 | (7) MANDATORY PRETRIAL DISCLOSURE OF EXPERT TESTIMONY.-- |
| 75 | (a) Regardless of whether any party elects to request a |
| 76 | pretrial hearing contemplated in subsection (6), each party |
| 77 | shall disclose to all other parties the identity of any person |
| 78 | who may be used at trial to provide expert testimony. |
| 79 | (b) Except as otherwise stipulated or directed by the |
| 80 | court, with respect to a witness who is retained or specially |
| 81 | employed to provide expert testimony in the case or whose duties |
| 82 | as an employee of the party regularly involve providing expert |
| 83 | testimony, a disclosure provided under paragraph (a) shall be |
| 84 | accompanied by a written report prepared and signed by the |
| 85 | witness. The report shall contain a complete statement of all |
| 86 | opinions to be expressed and the basis and reasons for such |
| 87 | opinions; the data or other information relied upon by the |
| 88 | witness in forming the opinions; any exhibits to be used as a |
| 89 | summary of or support for the opinions; the qualifications of |
| 90 | the witness, including a list of all publications authored by |
| 91 | the witness within the preceding 10 years; the compensation to |
| 92 | be paid for the study and testimony; and a listing of any other |
| 93 | cases in which the witness has testified as an expert at trial |
| 94 | or by deposition within the preceding 4 years. |
| 95 | (c) The disclosure required under paragraph (a), including |
| 96 | the report required under paragraph (b), shall be made at the |
| 97 | times and in the sequence directed by the court. In the absence |
| 98 | of other directions from the court or stipulation by the |
| 99 | parties, the disclosure and report shall be made at least 90 |
| 100 | days before the trial date or the date the case is to be ready |
| 101 | for trial or, if the evidence is intended solely to contradict |
| 102 | or rebut evidence on the same subject matter identified by |
| 103 | another party under paragraph (b), within 30 days after the |
| 104 | disclosure and report made by the other party. |
| 105 | (d) A party may depose any person who has been identified |
| 106 | as an expert whose opinions may be presented at trial. If a |
| 107 | report from the expert is required under paragraph (b), the |
| 108 | deposition shall not be conducted until after the report is |
| 109 | provided. |
| 110 | (8) INTERPRETATION.--In interpreting and applying this |
| 111 | section: |
| 112 | (a) The courts of this state shall follow the opinions of |
| 113 | the United States Supreme Court in Daubert v. Merrell Dow |
| 114 | Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. |
| 115 | v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. |
| 116 | Carmichael, 526 U.S. 137 (1999); Weisgram v. Marley, 528 U.S. |
| 117 | 440 (2000); and their progeny. |
| 118 | (b) The courts of this state may also draw from other |
| 119 | precedents binding in the federal courts in this state applying |
| 120 | the standards announced by the United States Supreme Court in |
| 121 | the cases specified in paragraph (a). |
| 122 | (9) INTERLOCUTORY APPEAL.--Interlocutory appeal of a |
| 123 | ruling on the admissibility of expert evidence shall be |
| 124 | available at the discretion of the appellate court. In deciding |
| 125 | whether to grant an interlocutory appeal, the court shall |
| 126 | consider whether the ruling involved any challenge to the |
| 127 | constitutionality of this section, will help prove or disprove |
| 128 | criminal liability, or will help establish civil liability at or |
| 129 | above $75,000 if the testimony may be determinative in |
| 130 | establishing liability or determining damages. A party's failure |
| 131 | to seek interlocutory appeal or an appellate court's decision to |
| 132 | deny a motion for interlocutory appeal does not waive a party's |
| 133 | right to appeal a ruling on the admissibility of expert evidence |
| 134 | after an entry of judgment in the case. |
| 135 | (10) STANDARD OF REVIEW.--For purposes of this section: |
| 136 | (a) The proper construction of the provisions for |
| 137 | admissibility of expert evidence prescribed by this section is a |
| 138 | question of law, and a court of appeals shall apply a de novo |
| 139 | standard of review in determining whether the trial court fully |
| 140 | applied the proper legal standard in considering the |
| 141 | admissibility of expert evidence. |
| 142 | (b) The application of this section to determine the |
| 143 | admissibility of expert testimony is a question of fact, and a |
| 144 | court of appeals shall apply an abuse of discretion standard in |
| 145 | determining whether the trial court properly admitted or |
| 146 | excluded particular expert evidence. |
| 147 | (11) SEVERABILITY.--The provisions of this section are |
| 148 | severable. If any portion of this section is declared |
| 149 | unconstitutional or the application of any part of this section |
| 150 | to any person or circumstance is held invalid, the remaining |
| 151 | portions of the section and their applicability to any person or |
| 152 | circumstance shall remain valid and enforceable. |
| 153 | Section 2. This act shall take effect upon becoming a law |
| 154 | and shall apply to all actions commenced on or after the |
| 155 | effective date and to all actions pending on the effective date |
| 156 | for which a trial has not been scheduled or for which a trial |
| 157 | has been scheduled to take place at least 90 days after the |
| 158 | effective date. |