Senate Bill sb1960

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    Florida Senate - 2007                                  SB 1960

    By Senator Wise





    5-1412A-07

  1                      A bill to be entitled

  2         An act relating to the testimony of witnesses;

  3         providing a short title; providing standards

  4         for opinion testimony by lay witnesses;

  5         providing standards for, bases of, and

  6         limitations on expert testimony; authorizing

  7         expert witness fees; providing requirements for

  8         mandatory pretrial hearings; providing

  9         requirements for mandatory pretrial disclosure

10         of expert testimony; providing for

11         interpretation and application; providing for

12         interlocutory appeals; specifying standards of

13         review; providing for severability; providing

14         application; providing an effective date.

15  

16  Be It Enacted by the Legislature of the State of Florida:

17  

18         Section 1.  (1)  SHORT TITLE.--This act may be cited as

19  the "Junk Science Elimination Act."

20         (2)  OPINION TESTIMONY BY LAY WITNESSES.--If a witness

21  is not testifying as an expert, the witness's testimony in the

22  form of opinions or inferences is limited to those opinions or

23  inferences that are:

24         (a)  Rationally based on the perception of the witness;

25         (b)  Helpful to a clear understanding of the witness's

26  testimony or the determination of a fact in issue; and

27         (c)  Not based on scientific, technical, or other

28  specialized knowledge within the scope of subsection (3).

29         (3)  TESTIMONY BY EXPERTS.--If scientific, technical,

30  or other specialized knowledge will assist the trier of fact

31  in understanding the evidence or determining a fact in issue,

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    Florida Senate - 2007                                  SB 1960
    5-1412A-07




 1  a witness who is qualified as an expert by knowledge, skill,

 2  experience, training, or education may testify as to the

 3  evidence or fact in the form of an opinion or otherwise if:

 4         (a)  The testimony is based upon sufficient facts or

 5  data;

 6         (b)  The testimony is the product of reliable

 7  principles and method; and

 8         (c)  The witness has applied the principles and methods

 9  reliably to the facts of the case.

10         (4)  BASES OF EXPERT TESTIMONY.--The facts or data in a

11  specific case upon which an expert bases an opinion or

12  inference may be those perceived by or made known to the

13  expert at or before the hearing. If the facts or data are of a

14  type reasonably relied upon by experts in the particular field

15  in forming opinions or inferences upon the subject, the facts

16  or data need not be admissible in evidence in order for the

17  opinion or inference to be admitted. Facts or data that are

18  otherwise inadmissible shall not be disclosed to the jury by

19  the proponent of the opinion or inference unless the court

20  determines that the probative value of the facts or data in

21  assisting the jury to evaluate the expert's opinion

22  substantially outweighs the prejudicial effect of disclosing

23  the facts or data.

24         (5)  LIMITATIONS ON EXPERT TESTIMONY.--

25         (a)  A witness qualified as an expert by knowledge,

26  skill, experience, training, or education may offer expert

27  testimony only with respect to a particular field in which the

28  expert is qualified.

29         (b)  An expert witness may receive a reasonable and

30  customary fee for the rendering of professional services.

31  However, the testimony of an expert witness may not be

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    Florida Senate - 2007                                  SB 1960
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 1  admitted if any such fee is contingent upon the outcome of any

 2  claim or case with respect to which the testimony is being

 3  offered.

 4         (6)  MANDATORY PRETRIAL HEARING.--If a witness is

 5  testifying as an expert, upon motion of a party the court

 6  shall hold a pretrial hearing to determine whether the witness

 7  qualifies as an expert and whether the expert's testimony

 8  satisfies the requirements of subsections (3), (4), and (5).

 9  The court shall allow sufficient time for a hearing and shall

10  rule on the qualifications of the witness to testify as an

11  expert and whether the testimony satisfies the requirements of

12  subsections (3), (4), and (5). The trial court's ruling shall

13  set forth the findings of fact and conclusions of law upon

14  which the order to admit or exclude expert evidence is based.

15  The ruling shall be issued before the commencement of the

16  trial.

17         (7)  MANDATORY PRETRIAL DISCLOSURE OF EXPERT

18  TESTIMONY.--

19         (a)  Regardless of whether any party elects to request

20  a pretrial hearing contemplated in subsection (6), each party

21  shall disclose to all other parties the identity of any person

22  who may be used at trial to provide expert testimony.

23         (b)  Except as otherwise stipulated or directed by the

24  court, with respect to a witness who is retained or specially

25  employed to provide expert testimony in the case or whose

26  duties as an employee of the party regularly involve providing

27  expert testimony, a disclosure provided under paragraph (a)

28  shall be accompanied by a written report prepared and signed

29  by the witness. The report shall contain a complete statement

30  of all opinions to be expressed and the basis and reasons for

31  such opinions; the data or other information relied upon by

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    Florida Senate - 2007                                  SB 1960
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 1  the witness in forming the opinions; any exhibits to be used

 2  as a summary of or support for the opinions; the

 3  qualifications of the witness, including a list of all

 4  publications authored by the witness within the preceding 10

 5  years; the compensation to be paid for the study and

 6  testimony; and a listing of any other cases in which the

 7  witness has testified as an expert at trial or by deposition

 8  within the preceding 4 years.

 9         (c)  The disclosures provided under paragraphs (a) and

10  (b) shall be made at the times and in the sequence directed by

11  the court. In the absence of other directions from the court

12  or stipulation by the parties, the disclosures shall be made

13  at least 90 days before the trial date or the date the case is

14  to be ready for trial or, if the evidence is intended solely

15  to contradict or rebut evidence on the same subject matter

16  identified by another party under paragraph (b), within 30

17  days after the disclosure made by the other party.

18         (d)  A party may depose any person who has been

19  identified as an expert whose opinions may be presented at

20  trial. If a report from the expert is required under paragraph

21  (b), the deposition may not be conducted until after the

22  report is provided.

23         (8)  INTERPRETATION.--In interpreting and applying this

24  act:

25         (a)  The courts of this state shall follow the opinions

26  of the United States Supreme Court in Daubert v. Merrell Dow

27  Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric

28  Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v.

29  Carmichael, 526 U.S. 137 (1999); Weisgram v. Marley, 528 U.S.

30  440 (2000); and their progeny.

31  

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    Florida Senate - 2007                                  SB 1960
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 1         (b)  The courts of this state may also draw from other

 2  precedents binding in the federal courts in this state

 3  applying the standards announced by the United States Supreme

 4  Court in the cases specified in paragraph (a).

 5         (9)  INTERLOCUTORY APPEAL.--Interlocutory appeal of a

 6  ruling on the admissibility of expert evidence is permitted at

 7  the discretion of the appellate court. In deciding whether to

 8  grant an interlocutory appeal, the court shall consider

 9  whether the ruling involved any challenge to the

10  constitutionality of this act, will help prove or disprove

11  criminal liability, or will help establish civil liability at

12  or above $75,000 if the testimony may be determinative in

13  establishing liability or determining damages. A party's

14  failure to seek interlocutory appeal or an appellate court's

15  decision to deny a motion for interlocutory appeal does not

16  waive a party's right to appeal a ruling on the admissibility

17  of expert evidence after an entry of judgment in the case.

18         (10)  STANDARD OF REVIEW.--For purposes of this act:

19         (a)  The proper construction of the provisions for

20  admissibility of expert evidence prescribed by this act is a

21  question of law, and a court of appeals shall apply a de novo

22  standard of review in determining whether the trial court

23  fully applied the proper legal standard in considering the

24  admissibility of expert evidence.

25         (b)  The application of this act to determine the

26  admissibility of expert testimony is a question of fact, and a

27  court of appeals shall apply an abuse of discretion standard

28  in determining whether the trial court properly admitted or

29  excluded particular expert evidence.

30         (11)  SEVERABILITY.--The provisions of this act are

31  severable. If any portion of this act is declared

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    Florida Senate - 2007                                  SB 1960
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 1  unconstitutional or the application of any part of this act to

 2  any person or circumstance is held invalid, the remaining

 3  portions of the act and their applicability to any person or

 4  circumstance shall remain valid and enforceable.

 5         Section 2.  This act shall take effect upon becoming a

 6  law and shall apply to all actions commenced on or after the

 7  effective date and to all actions pending on the effective

 8  date for which a trial has not been scheduled or for which a

 9  trial has been scheduled to take place at least 90 days after

10  the effective date.

11  

12            *****************************************

13                          SENATE SUMMARY

14    Provides standards for opinion testimony by lay
      witnesses. Provides standards for, bases of, and
15    limitations on expert testimony. Authorizes expert
      witness fees. Provides requirements for mandatory
16    pretrial hearings. Provides requirements for mandatory
      pretrial disclosure of expert testimony. Provides for
17    interlocutory appeals. Specifies standards of review.

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