In August, the New Jersey Supreme Court released its opinion in In Re: Accutane Litigation, which as fans of expert-admissibility standards will know essentially moved New Jersey into the column of states that apply a Daubert-based test, rather an a Frye-based test, in evaluating the admissibility of scientific and expert testimony. For anyone who has not yet seen the opinion, a copy can be found here. (Note – it is lengthy, so get a full cup of coffee before you sit down to digest it.)

Last week, however, the Supreme Court of Florida took the opposite step, and declared – contrary to the will of the Florida Legislature – the courts in Florida would not follow a Daubert-based test, but would instead follow Frye. A copy of that opinion – in a case called Delisle v. Crane – can be found here. (This one is shorter – so you probably only need a half-cup of coffee.)

In 2013, the Florida Legislature passed amendments to the rules of evidence that adopted a Daubert standard for expert admissibility in lieu of the prior Frye standard. In rejecting the Florida Legislature’s actions, the Florida Supreme Court characterized the change as “procedural,” rather than “substantive,” and thus an infringement on the Court’s authority. The Florida Supreme Court also expressed concerns that expert-admissibility challenges under Daubert might disfavor plaintiffs and restrict access to jury trials.

While many life sciences companies, and the attorneys that represent them, often speak in shorthand of “Daubert challenges” when it comes to issues of expert opinion testimony, it is good to remember that not everyone actually follows Daubert. Some jurisdictions – like Florida for example – may only apply Frye in the limited circumstance of new or novel scientific evidence – which of course may significantly limit the scope of potential challenges to unfavorable expert testimony. So, before you embark on a strategic challenge to expert testimony, make sure you know which gate you need to enter.