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The post below was published on Friday, December 24th, 2010 at 1:32 PM.

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Fourth District: Frye

As all Florida trial lawyers will tell you, Florida utilizes the Frye standard to govern the admissibility of new or novel scientific evidence. Nearly two decades ago, the federal courts abandoned that standard in favor of a more focused, court-based examination into the reliability of expert testimony. Florida has stuck with Frye, more or less.

The potential for different outcomes under the two standards is highlighted by this decision from the Fourth District. The underlying case is a products liability action asserting that Zicam nasal gel caused the plaintiff to lose his sense of smell. The trial court entered a summary judgment for the defendants, and the plaintiff appealed. He argued that the trial court erred in excluding his expert’s testimony under Frye. The district court reversed. It essentially held that the expert’s testimony was largely opinion not subject to Frye, and with the exception of some personal experimentation the expert had performed, was not “new or novel” so as to be subject to Frye.

The district court acknowledged that numerous federal courts had considered the same expert’s testimony under the federal standard and had uniformly excluded it. Florida law differs.

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