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Expert evidence report - survival of the "fryest": a review of recent state supreme court decisions analyzing frye's general acceptance standard and a 50 state survey of the standards for admissibility of expert testimony.

Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
Volume 2 Number 5
Monday, March 18, 2002
ISSN 1536-190X
Survival of the "Fryest": A Review of Recent State Supreme Court
Decisions Analyzing Frye's General Acceptance Standard and a 50 State
Survey of the Standards for Admissibility of Expert Testimony.
Joseph G. Eaton
Frye/Daubert in the 50 States
Recent state supreme court opinions deciding on a state's admissibility standard--Frye, Daubert, or an idiosyncratic blend--show a trend toward eviscerating Frye's general acceptance standard by creating exceptions. The exceptions, says attorney Joseph G. Eaton in this article, "diminish the rigidity of the Frye standard and seem to create the arbitrary distinctions critics contend are inherent in the Frye standard." Eaton concludes that methods and testimony that are not generally accepted and are unreliable should be excluded as inadmissible, whether the standard used is Frye, Daubert, or a hybrid. Joseph G. Eaton is a partner with Barnes & Thornburg in Indianapolis, Ind., and Co-Chair of the firm's Toxic Torts Practice Group. He specializes in representing clients in litigated matters throughout the United States involving product liability actions, focusing on defending toxic tort and chemical exposure personal injury and property damage cases. He was counsel for Dow AgroSciences LLC in the Goeb case referenced in the text, and is a member of the Board of Advisors for the Expert Evidence Report. Comments or requests for additional information may be directed to [email protected] or call 317-231-7705. The author wishes to acknowledge the assistance of Jennifer C. Suttles of Barnes & Thornburg with the article. The "general acceptance" standard outlined in Frye1
many courts have considered and rejected the Frye approach for the more liberal Daubert2
in those states which still apply Frye, courts have carved out further exceptions to the Frye standard with respect to certain types of evidence. This article analyzes several recent state supreme court decisions addressing application of the Frye general http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (1 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
acceptance standard reflecting the varying approaches courts have taken when considering both Frye and Daubert. A fifty state survey of the applicable standards for determining the admissibility of expert testimony follows the discussion. The Way It Was
Frye predated the Federal Rules of Evidence by half a century and "made 'general acceptance' the exclusive test for admitting expert scientific testimony."3
Frye test has its origin in a short and citation-free 1923 in which the U.S. Court of Appeals for the District of Columbia held, with respect to scientific evidence, that "while Courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle on discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."5
In 1993, the United States Supreme Court in Daubert rewrote the standards for the admissibility of scientific
evidence in federal courts. Considering the implications of Federal Rule of Evidence 702, the court noted that
"[n]othing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility."6
Furthermore, "[t]he drafting history makes no mention of Frye, and a rigid 'general acceptance' requirement would be at odds with the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion testimony.'7
The Daubert court then outlined the now famous list of non-exclusive factors to be utilized at the court's discretion in determining the admissibility of scientific evidence: (1) whether the technique has been tested; (2) whether the technique has been subject to peer review; (3) the technique's known or potential rate of error; and (4) from Frye, whether the technique has been generally accepted in the particular scientific field. The Ninth Circuit on remand in Daubert II added what many practitioners and courts view as the fifth factor: whether the methods utilized are derived from research and work independent of the litigation.8
The Supreme Court's Daubert opinion characterizes Frye as a rigid standard that is "absent from, and incompatible with, the Federal Rules of Evidence." Not all state courts agree. As a result, jurisdictional variations exist concerning whether Frye, Daubert, or a combination of the two govern the admissibility of scientific evidence in state courts. Illinois Rejects "Frye-plus-Reliability" Standard.
In Donaldson v. Central Illinois Public Service Co.,9
plaintiffs alleged that the cleanup of a manufactured gas plant site caused their children to develop neuroblastoma, a rare form of cancer. The trial court denied the defendants' motions to exclude the plaintiffs' expert testimony and denied summary judgment on the issue of general causation. After a four month jury trial, the jury returned a 3.2 million dollar verdict for plaintiffs. On appeal, the defendant argued that Illinois should adopt a modified Frye standard referred to as the "Frye-plus-reliability" standard which had been followed by some Illinois appellate courts.10
The "Frye-plus-reliability" standard would have allowed the court to consider each of the factors outlined in Daubert and its progeny. Under this http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (2 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
standard, after the court determined that the technique or methodology was generally accepted, the court then considered whether the opinion was reliable.11
In Donaldson, the Illinois Supreme Court rejected the "Frye-plus-reliability" standard and confirmed that "the exclusive test for admission of expert testimony is governed by the standard first expressed in Frye v. United States. .".12
"determination of the reliability of an expert's methodology is naturally subsumed by inquiry into its general acceptance in the scientific community."13
noted the general acceptance of methodologies does not mean "universal" acceptance of methodologies. The issue in determining whether a novel scientific procedure is generally accepted is "consensus versus controversy over a particular technique."14
The Illinois Supreme Court emphasized that the trial judge's role under Frye "is more limited" than the trial judge's role as a "gatekeeper." The trial judge applies the Frye test only if the scientific principle or technique is "new" or "novel." The court at least recognized what many other courts applying Frye have ignored entirely: "[W]e recognize that a 'new' or 'novel' technique is not always easy to identify, especially in light of the constant scientific advances in our modern era. Generally, however, a scientific technique is 'new' or 'novel' if it is 'original or striking' or does 'not resemble something formerly known or used.' Webster's Third New International Dictionary 1546 (1993)."15
The Court noted that the trial judge decides the general acceptance of the technique and a jury decides whether it will accept the expert's conclusion based on that technique.16
The court analyzed the plaintiffs' experts' technique of extrapolation and affirmed the trial court's admission of the plaintiff's expert's extrapolation methodology. The court relied, in part, on the plaintiff's experts own testimony that the method of extrapolating data and conclusions from various studies is a technique that is "generally accepted." Like other courts applying Frye, the Court held that "an expert's conclusion is subject to challenge by traditional efforts such as cross-examination. The general acceptance test should not replace the role of the advocate, who may expose both shaky but admissible evidence by vigorous cross-examination or the presentation of contrary evidence."17
Because the Frye standard does not "demand unanimity, consensus or even a majority to satisfy the general acceptance test," the court found that the extrapolation methodology was sufficiently established to have gained general acceptance under the facts of the case.18
Minnesota Retains the Frye-Mack Reliability
Standard for Novel Scientific Evidence.
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In Goeb v. Tharaldson,19
the plaintiffs claimed various medical ailments including multiple chemical sensitivity, peripheral neuropathy and acute organophosphate poisoning arising from a pesticide application in their home. DowElanco,20
manufacturer of one of the pesticides involved in the case, moved to exclude the plaintiffs' experts' testimony arguing that it was precluded by both Minnesota's Frye- and Daubert. Specifically, DowElanco argued that the methods employed by the experts failed to utilize the generally-accepted methodology for determining toxicological cause and effect and that the experts' specific causation methodologies--including reliance on a temporal relationship between the alleged chemical exposure and the onset of symptoms--were not generally accepted or reliable. The court held an evidentiary hearing and granted DowElanco's motion to exclude finding that the experts' methodologies failed to satisfy either the Frye-Mack or the Daubert standards. The appellate court affirmed,22
and the plaintiffs petitioned the Minnesota Supreme Court asking the court to revisit its Frye-Mack standard. The plaintiffs argued on appeal that a "souped-up" liberal version of Daubert should apply in toxic tort cases. DowElanco argued that the plaintiffs' experts' testimony was inadmissible under both the Frye-Mack and Daubert standards. The court analyzed both standards and foreshadowed its holding by citing its previous description of the Frye-Mack standard as a mechanism that "facilitates more objective and uniform rulings."23
The court compared the Daubert and Frye standards, noting arguments from critics and proponents of each standard. For example, the court addressed criticisms that the stricter Frye standard excludes new, yet reliable, methodologies, and it improperly defers to scientists the legal question of admissibility. However, the court reasoned that "Daubert does not necessarily make admissible expert evidence that was not admissible under Frye."24
takes from scientists and confers upon judges uneducated in science the authority to determine what is scientific."25
On the other hand, the "Frye general acceptance standard ensures that the persons most qualified to assess scientific validity of a technique have the determinative voice."26
The court also noted arguments suggesting that Frye does not address whether the court should look to general acceptance of a technique or the general acceptance of underlying scientific principal; who is the relevant scientific community; whether general acceptance is a majority or a creditable minority.27
The court did not answer these questions but merely noted that they are not unique to the Frye standard given that general acceptance is also one of the Daubert factors. The Minnesota Supreme Court concluded that the "potential for non-uniformity . . under Daubert gives us considerable cause for concern" because cases involving similar facts and similar scientific techniques could have widely disparate results.28
trial judge "defers to the scientific community's assessment of a given technique," the court concluded that the Frye-Mack standard is more "apt to ensure 'objective and http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (4 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
uniform' rulings as to particular scientific methods or techniques."29
Thus, the court retained the Frye-Mack standard in Minnesota and held that the trial court did not abuse its discretion in excluding the plaintiffs' experts' testimony.30
The Minnesota standard of general acceptance and reliability, similar to the one rejected in Donaldson, appears to be the more well-reasoned standard for those jurisdictions adhering to the Frye standard. Practitioners in jurisdictions with similar hybrid approaches to confidently cite case law interpreting both Frye and Daubert since elements of both standards apply. Kansas and Arizona Retain Frye but Create a 'Pure-
Opinion' Exception.
In Kuhn v. Sandoz Pharmacutical Corp.,31
the plaintiff died after being given Parlodel to prevent postpartum lactation. Subsequently, the decedent's family members instituted litigation against the manufacturer of Parlodel. The plaintiffs' causation experts, relying upon a "differential diagnosis," concluded that Parlodel caused the woman's death. The district court excluded the testimony on the ground that the plaintiffs' expert's general causation methodologies were not generally accepted in the relevant scientific The Kansas Supreme Court confirmed that the Frye standard is applied in circumstances where a new, novel or experimental technique is employed. Although the Kansas Supreme Court began its analysis by reiterating Kansas' adoption of the Frye standard, the court held that Frye was inapplicable because the testimony fell under the "pure opinion" exception.33
based on the expert's experience, observation or research without regard to Frye's general acceptance test.34
The Frye test applies when an expert witness reaches a conclusion by deduction from applying a new or novel scientific principal.35
validity of an opinion is tested by inquiring into general acceptance and the validity of pure opinion is tested by cross-examination.36
The court initially noted that a critical question in deciding if Frye applies to expert testimony relates to the meaning of the term "technique." Relying on several cases from other jurisdictions, the court determined that Frye was not applicable because the testimony was based upon the expert's "experience and training," as opposed to scientific methods or procedures.37
The Kansas Supreme Court reasoned that the distinction between pure opinion testimony and testimony based on scientific methods or procedures is based on a concept that "seeks to limit application of the Frye test to situations where there is the greatest potential for juror confusion."38
application is consistent with Kansas' appellate courts' application of Frye to devices or http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (5 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
The court also reasoned that the distinction promoted the right to a jury trial.40
Specifically, the court stated that the adversary process should "be trusted to sort out reliable from unreliable evidence," thereby leaving "[t]he weight of the evidence . to the The Court concluded that the district court abused its discretion in applying Frye to the expert's testimony.42
One of the cases relied upon by the Kansas Supreme Court was Logerquist v. McVey.43
In that case the Arizona Supreme Court considered whether the Frye standard applies to cases involving repressed memory. The plaintiff alleged that between the ages of 8 and 10, she was sexually abused by her pediatrician and that amnesia prevented her from identifying the abuse until approximately twenty years later when her memory was triggered by a television commercial featuring a pediatrician. At trial, the plaintiff sought to introduce evidence that severe childhood trauma can cause memory repression that can later be recalled with accuracy. The trial court subjected the evidence to a Frye hearing where the plaintiff's expert witness testified that his conclusion was founded on experience, observations and literature on the subject.44
The district court, applying Frye, excluded the plaintiff's expert testimony as including theories not generally accepted within the relevant scientific community.45
In a detailed and lengthy opinion, a divided Arizona Supreme Court reversed and concluded that Frye is inapplicable when a qualified witness testifies based on his or her own experiences and observations. "Although compliance with Frye is necessary when the scientist reaches a conclusion by applying a scientific theory or process based on the work or discovery of others, under Rules 702 and 703 experts may testify concerning their own experimentation and observation and opinions based on their own work without first showing general acceptance."46
Both parties on appeal urged that the Court adopt the Daubert interpretation of Ariz. R. Evid. 702.47
In rejecting Daubert, the court noted that where "Frye required judges to assess the validity of the proffered scientific evidence, Daubert calls upon judges to assess the merits of the scientific research supporting an expert's opinion."48
court criticized the Daubert opinion because it offered no rationale for a special test for the admissibility of expert scientific testimony and was "politically naive about the 'methods and procedures' of both science and evidentiary admissibility."49
the court reasoned that there was nothing in the comments of the court or its commentators indicating that a reliability standard was contemplated by the adoption of Ariz. R. Evid. 702.50
The court concluded that Frye had been strict enough to reject the "truly questionable" while enabling trial judges to admit those principles and techniques based on "generally accepted scientific theory."51
However, the majority went even further and predicted would not prove to be a good antidote to preclude improper junk science in part because trial judges have little or no technical training and would not http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (6 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
have time for evidentiary hearings.53
In the two years since the Logerquist opinion, the bold predictions from Justice Feldman have not come to fruition.54
Colorado Rejects Frye, Relies on Colorado Rule of
Evidence 702.
In Colorado v. Shreck55
, the Colorado Supreme Court rejected Frye as inconsistent with Colorado Rule of Evidence 702.56
In Shreck, a criminal defendant on trial for rape argued that a newly-developed method of examining DNA could not satisfy the Frye standard, and thus, should be excluded from evidence. By using the DNA analysis, the prosecution demonstrated that there was a 1 in 5.3 quadrillion chance that the defendant did not commit the rape. After reviewing the evidence, rulings from other jurisdictions and scientific literature, the trial court held that the DNA method used by the Colorado Bureau of Investigation did not satisfy Frye because it was not generally accepted in the relevant scientific The Colorado Supreme Court began its evaluation of Frye, Daubert, and Fed. R. Evid. 702 by examining the history of Rule 702 and the progeny of Colorado cases leading from Frye to the adoption of Colo. R. Evid. 702. Like the Court in Goeb, the Shreck court evaluated varying comments and criticisms of the Frye standard. The proponents of Frye argued that it insulates juries from unreliable evidence, provides a method to evaluate whether novel scientific testimony is reliable, excludes novel scientific expert testimony and safeguards against the prejudicial effects of testimony founded on questionable In contrast, the critics of Frye, characterized it as vague and ambiguous leaving to the discretion of judges the definition of "generally accepted," "the relevant scientific community," and "general acceptance." The court agreed with the Frye critics and held that Frye's rigidity is "ill-suited for determining the admissibility of scientific evidence, which, by its nature, is ever- In reaching its conclusion, the court noted that because it takes time for any scientific technique to become generally accepted, "the Frye test restricts the admissibility of reliable evidence that may not yet qualify as 'generally accepted.'"60
Accordingly, the court rejected Frye, and adopted Colo. R. Evid. 702 and Colo. R. Evid. 403 as Colorado's standards for determining the admissibility of scientific evidence. Acknowledging that Colo. R. Evid. 702 contemplates a wide range of considerations and that courts should have the discretion to admit or reject evidence, the court stated that a "totality of the circumstances of each specific case" should be used.61
Consistent with Daubert, the Court also held that Colo. R. Evid. 702 governs all scientific evidence, and not merely novel scientific evidence. 62
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The General Acceptance Standard.
General acceptance was one of the factors outlined by the U.S. Supreme Court in Daubert and decisions interpreting general acceptance under both Frye and Daubert are relevant in addressing the admissibility of expert testimony. Specifically, the U.S. Supreme Court noted that widespread acceptance is an important factor in determining the reliability of expert testimony. 63
Thus, a known technique that attracts minimal support may properly be viewed with skepticism. As evidenced by the decisions summarized above, one of the inherent problems with the general acceptance standard is the lack of a clear mechanism to assist trial courts and practitioners in defining or determining general acceptance. Interestingly, one mechanism for determining reliability under Daubert may be one of the best sources for defining or considering general acceptance as well. Contrary to the Court's reliance on the expert's assurances in Donaldson that his extrapolation method was generally accepted, the U.S. Court of Appeals for the Ninth Circuit on remand in Daubert held that the expert's "bald assurance" that his or her methodology is valid is not sufficient. 64
Rather, the proponent of the expert testimony "must show that the expert's findings are based on sound science, and this . require[s] some objective, independent validation of the expert's methodology." 65
The Daubert II court went on to note that an important consideration in determining admissibility of expert scientific testimony is whether the expert is proposing to testify about matters growing naturally and directly out of research they have conducted independent of litigation, or whether they have developed their opinions expressly for purposes of testifying at trial: If the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on 'scientifically valid principles'. the proponent of expert scientific testimony may attempt to satisfy its burden through the testimony of its own experts. the experts must explain precisely how they went about reaching their conclusions and point to some objective source -- a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal . to show that they have followed the scientific method, as it is practiced by (at least) a recognized majority of scientists in their field. The objective verification required by the court in Daubert II may be a useful tool in identifying and defining general acceptance under both Frye and Daubert. Another problem apparent in the case law interpreting the Frye general acceptance standard is http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (8 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
the application to only "novel scientific techniques or methods."67
Few courts have sufficiently defined what "novel" scientific evidence actually means. The reference to Webster's Dictionary by the Illinois Supreme Court in Donaldson certainly did nothing to assist trial judges in determining what is novel, original or striking. Presumably, courts must initially determine whether the method or technique is generally accepted before they can answer whether it is novel in the first place. Such circular reasoning seems illogical and further establishes that the exception is more artificial than substantive. The recent state supreme court decisions summarized here also seem to demonstrate a trend toward diminishing or eviscerating the application of the Frye general acceptance standard by creating various exceptions. Whether it is the artificial "pure opinion" exception outlined in Kuhn and Logerquist, or the failure to even apply Frye as in Logerquist, these exceptions diminish the rigidity of the Frye standard and seem to create the arbitrary distinctions critics contend are inherent in the Frye standard in the first place. The decisions creating the pure opinion exception based on "experiences and observations" fail to articulate why such testimony and methods are immune to general acceptance scrutiny. Decisions limiting Frye or creating exceptions to Frye place too much emphasis on illuminating deficiencies in the expert's methods and testimony through cross examination. These cases seem to abrogate the trial court's important Frye or gate-keeping role which may improperly burden the jury with the unfair task of determining the scientific reliability and validity of the expert opinion testimony. Conventional means, such as cross-examination, are available to rebut admissible expert testimony. But if the expert is espousing bad science--opinions based upon unreliable scientific principles--then the testimony cannot be admitted in the first place. Indeed, that is the whole point of Frye and Rule 702's threshold requirement that the trial court decide the general acceptance and reliability issues before admitting the expert's testimony. The district court in Porter v. Whitehall, a pre-Daubert opinion, warned about the prejudicial effects of allowing unreliable speculation by an expert: In a highly technical case like this, where a lay trier of fact cannot possibly determine the precise etiology of the injury without guidance from expert opinions there is a risk that the jury would make an irrational finding of causation based upon the siren-like allure of opinions stated by highly qualified experts. Thus, an expert's opinion must have some basis other than hypothesis before the opinion may have the privilege of being assailed by cross-examination. 68
While courts may be concerned about excluding potential medical and scientific breakthroughs that have yet gained general acceptance or reliability, the U.S. Supreme Court in Daubert explained that "[s]cientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. Conjectures that are http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (9 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment."69
As Chief Judge Poser noted in Rosen v. Ciba-Geigy Corp., the "courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not Methods and testimony that are not generally accepted and are unreliable should not be admitted whether the standard utilized is Frye, Daubert, or both. Fifty State Review of the Applicable Standards for
Determining Admissibility Expert Testimony.
The state supreme court cases summarized in this article mirror the varying approaches utilized by state courts across the country since the Daubert decision was issued in 1993. Because general acceptance is a factor under Daubert, cases interpreting both standards are instructive to the bench and bar. While reliability is the cornerstone of Daubert and arguably Rule 702, the following summary demonstrates that general acceptance and reliability principles are both present in a majority of state admissibility standards. Although numerous states have progressively liberalized standards for the admissibility of scientific evidence, many states have retained the rigid Frye standard making it more difficult for plaintiffs to meet their burden of proof. In addition to the states discussed above, the following states continue to apply Frye or a variation of Frye: Alabama (except for DNA), California, Florida, Nebraska, New Jersey (for criminal cases), New York, Pennsylvania and Washington. Several of these jurisdictions have embraced the narrowness of the general acceptance standard. For example, Pennsylvania, noted as "the most restrictive jurisdiction in the nation,"71
Frye/Topa admissibility test requiring that the plaintiff demonstrate that the proposed causal relationship is generally accepted in the medical community and that the methodology used to reach the expert's conclusion also is generally accepted by the medical community as good science.72
The following states have explicitly adopted the Daubert standard: Alabama (for DNA), Alaska, Arkansas, Connecticut, Delaware, Kentucky, Louisiana, Massachusetts, Montana (for novel evidence), New Mexico, North Carolina, Oklahoma, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming. The following table provides a state-by-state summary of the governing standards for the admissibility of scientific evidence as of March 1, 2002, to assist in determining the standards employed by a particular state. To view omitted text, table, or graphic published here, see print issue, or call BNA PLUS (800-452-7773 or 202-452-4323 in Washington, D.C.). Omitted material will be posted electronically within 24 hours.
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1 Frye v. United States, 293 F. 1013 (1923).
2 Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 588 (1993).
3 Daubert, 509 at 588.
4 Id. at 586.
5 Frye, 293 F. Supp. at 1014.
6 Daubert, 509 U.S. at 588.
7 Id.
8 Daubert v. Merrill Dow Pharms. Inc,., 43 F.3d 1311 (9th Cir.), cert. denied. 116 S.Ct.
189 (Daubert II).
9 2002 Ill. LEXIS 283 (Ill. Feb. 22, 2002), 2 EXER 101, 3/4/02.
10 Id. at *24.
11 Id. at *25.
12 Id. at *19.
13 Id. at *26.
14 Id. at *21 (quoting People v. Dalcollo, 282 Ill. App.3d 944, 957-58, 218 Ill. Dec. 435,
669 N.E.2d 378 (1966).
15 Donaldson, 2002 Ill. LEXIS 283, *23.
16 Id. at *28.
17 Id. at *39-40.
18 Id. at *40.
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19 Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000).
20 DowElanco n/k/a Dow AgroSciences LLC.
21 Minnesota adopted Frye in State v. Kolander, 236 Minn. 209, 221-22, 52 N.W. 2d 48,
465 (1968). In State v. Mack, 291 N.W.2d 764, 768-69 (Minn. 1980), the Minnesota
Supreme Court added a requirement that the testimony have a foundation that is
scientifically reliable.
22 See Goeb v. Tharaldson, 1999 Minn. App. Lexis 900 (August 3, 1999).
23 Goeb, 615 N.W.2d at 810.
24 Id. at 812.
25 Id.
26 Id. at 813.
27 Id.
28 Id. at 814.
29 Id.
30 More recently, the Alabama Supreme Court also declined to adopt the Daubert
standard in favor of Frye. In Slay v. Keller Industries, Inc., No. 1001091, 2001 Ala. LEXIS
439 (Ala. Dec. 7, 2001) 2 EXER 22, 1/7/02, the Alabama Supreme Court reiterated that
Alabama had "'not abandoned the 'general acceptance' test stated in Frye,'". and it
[had] not adopted the Daubert standard in civil cases (citation omitted)." Notwithstanding
this finding, the court appeared to apply both standards in determining that the trial did
not err in granting summary judgment. "Mere assertions of belief, without any supporting
research, testing, or experiments cannot qualify as proper expert testimony under either
the 'general acceptance' standard enunciated in Frye or the 'scientifically reliable'
standard of Daubert." Id. at *7-8.
31 Kuhn v. Sandoz Pharmacutical Corp., 14 P.3d 1170 (Kan. 2000).
32 Id. at 1178.
33 Id.
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34 Id.
35 Id. at 457.
36 Id. at 1179.
37 Id. at 1180.
38 Id. at 1192.
39 Id.
40 Id.
41 Id. at 1185.
42 Without citation to any compelling authority and contrary to generally accepted
epidemiological and scientific principles, the Court also determined that the district court
abused its discretion in requiring that the plaintiff demonstrate both general and specific
causation. Id. at 1184.
43 Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000).
44 Id. at 115.
45 Id.
46 Logerquist, 1 P.3d at 123 (quoting State v. Hummert, 188 Ariz. 119, 127, 933 P.2d
1187 [1997]).
47 Id. at 482.
48 Id.
49 Id. at 483
50 Id. at 485
51 Id.
52 Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999). In Kumho,
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the Supreme Court applied Daubert's gatekeeper concept to all expert opinion evidence. 53 1 P.3d at 486.
54 See e.g. Dixon, Lloyd, Gill, Brian, "Changes in the Standards for Admitting Expert
Evidence in Federal Civil Cases Since the Daubert Decision," RAND Institute for Civil
Justice (2001)(Analysis of district court opinions since Daubert suggests that judges
scrutinized reliability more carefully and applied stricter standards in deciding whether to
admit expert evidence).
55 Colorado v. Shreck, 22 P.3d 68 (Colo. 2001).
56 Colorado Rule of Evidence 702 provides that "[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise."
57 Shreck, 22 P.3d at 70.
58 Id. at 76.
59 Id. at 77.
60 Id. at 76.
61 Id. at 77.
62 Recently, Nebraska rejected Frye for the Daubert standard. Schafersman v. Agland
Coop., 631 N.W. 2d 862 (Neb. 2001).
63 509 U.S. at 594.
64 Daubert v. Merrell Dow Pharmaceuticals Inc., 43 F.3d 1311, 1316 (9th Cir.), cert.
denied, 116 S. Ct. 189 ("Daubert II").
65 43 F.3d at 1316.
66 at 1318-1319 (emphasis added).
67 See Donaldson, supra, Goeb, supra. See also Hulse v. State of Montana, 961 P.2d
75, 91 (Mont. 1998)(applying Daubert only to "novel scientific evidence.")
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68 Porter v. Whitehall Laboratories Inc., 791 F. Supp. 1335, 348 (S.D. Ind. 1992), aff'd 9
F.3d 607 (7th Cir. 1993)(emphasis added).
69 509 U.S. at 597.
70 Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996), cert. denied, 117 S. Ct.
73 (1996).
71 Thomas, 760 A.2d at 1178.
72 Blum v. Merrell Dow Pharmaceuticals, 705 A.2d 1314, 1322 (Pa. Super. 1997), aff'd,
764 A.2d 1 (Pa. 2000).
Summary of State Standards For the Admissibility of Expert Testimony.
Daubert for DNA; Frye for all other Turner v. State, 746 So. 2d 355 (Ala. scientific evidence. 1998). S. Energy Homes, Inc. v. Washington, 774 So. 2d 505 (Ala. 2000). See also Slay v. Keller Indus., 2001 Ala. LEXIS 439 (Ala. 2001). State v. Coon, 974 P.2d 386 (Alaska 1999).
Frye is used for opinions based on Logerquist v. McVey, 1 P.3d 113 the application of novel scientific principles or techniques formulated by another. However, Arizona Rules of Evidence 702 and 703 are used for evidence based on an expert's own experience, observation and study.
Farm Bureau Mut. Ins. Co. v. Foote, 14 S.W.3d 512 (Ark. 2000).
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Kelly/Frye Test 1. Frye standard, plus People v. Leahy, 882 P.2d 321 (Cal. 2. reliability of method established; 3. 1994). People v. Kelly, 549 P.2d witness is qualified; and 4. correct 1240 (Cal. 1976). See also Byrum v. procedures used.
Superior Ct. of Los Angeles, 2002 Cal. App. LEXIS 1786 (February 20, 2002), in which the court held that Kelly-Frye does not apply to expert medical opinions. Rejects Frye in favor of CRE 702 and People v. Shreck, 22 P.3d 68 (Colo. 403 analysis for all scientific State v. Porter, 698 A.2d 739 (Conn. 1997).
M.G. Bancorporation v. Le Beau, 737 A.2d 513 (Del. 1999).
Dyas 3 prong test: 1. subject matter Taylor v. United States, 661 A.2d 636 distinctively related to science, (D.C. 1995). Dyas v. United States, profession, business or occupation 376 A.2d 827 (D.C. 1977).
as to be beyond key of average layman; 2. the witness has sufficient skill, knowledge, or experience in that field to aid the trier of fact; and 3. expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.
Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). Brim v. State, 695 So. 2d 268 (Fla. 1997). E.I. Du Pont De Nemours & Co. v. Castillo, 748 So. 2d 1108 (Fla. Dist Ct. App. 2000).
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OCGA §§24-9-67 (FRE 702 has not Norfolk S. Ry. Co. v. Baker, 514 been adopted) Trial judge determines S.E.2d 448 (Ga. Ct. App. 1999). whether procedure has reached a Harper v. State, 292 S.E.2d 389 (Ga. scientific stage of verifiable certainty 1982).
based on the evidence. Harper.
Daubert-type "relevant and reliable" State v. Maelega, 907 P.2d 758 analysis. However, "[t]o date, this (Haw. 1995). State v. Fukusaku, 946 court has neither expressly approved P.2d 32 (Haw. 1997). Acoba v. Gen. nor rejected the Daubert criteria." Tire, Inc., 986 P.2d 288, 300 (Haw. State v. Gleason, 844 P.2d 691 (Idaho 1992). Walker v. Am. Cynamid Corp., 948 P.2d 1123 (Idaho 1997). Donaldson v. Central Illinois Public Service Co., 2002 Ill. LEXIS 283 (Ill. Feb. 22, 2002); Turner v. Williams, 762 N.E. 2d 70 (Ill. App. 2000).
Courts apply IRE 702, which is McGrew v. State, 682 N.E.2d 1289 broader than Frye and includes a (Ind. 1997); Sears Roebuck & Co. v. reliability component from Daubert; Manuilov, 742 N.E.2d 453 (Ind. Daubert is helpful, but not controlling. 2001). Courts are encouraged to use Leaf v. Goodyear Tire & Rubber Co., portions of the Daubert analysis in 590 N.W.2d 525 (Iowa 1999). applying IRE 702, but Supreme Court declined to mandate Daubert analysis for scientific testimony.
Frye for expert testimony based on Kuhn v. Sandoz Pharm. Co., 14 P.3d scientific techniques or procedures, 1170 (Kan. 2000). but not for pure opinion testimony.
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Daubert for all scientific, Mitchell v. Commonwealth, 908 technological or specialized S.W.2d 100 (Ky. 1995) (overruled on other grounds). Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000).
State v. Foret, 628 So. 2d 1116 (La. 1993). Independent Fire Ins. Co. v. Sunbeam Corp., 755 So. 2d 226 (La. 2000).
MRE 702 /Daubert State v. McDonald, 718 A.2d 195 (Me. 1998).
Maryland Rule 5-702: Whether the Burral v. State, 724 A.2d 65 (Md. expert testimony will assist the trier of 1999). Reed v. State, 391 A.2d 364 fact to understand the evidence or (Md. 1978). Hutton v. State, 663 A.2d determine a fact in issue. Focuses on 1289 (Md. 1995).
following factors: 1. witness is qualified as an expert by knowledge, skill, experience, training or education; 2. appropriateness of the expert testimony on the subject; and 3. whether a sufficient factual basis exists to support the testimony. Massachusetts Adopted Daubert's "[b]asic Commonwealth v. Lanigan, 641 reasoning." However, general N.E.2d 1342 (Mass. acceptance continues to be the 1994).Commonwealth v. Senior, 744 significant and often the only issue.
N.E.2d 614 (Mass. 2001).
MRE 702 (Not identical to FRE 702); People v. Haywood, 530 N.W.2d 497 Frye/Davis applied to novel scientific (Mich. Ct. App. 1995). Anton v. State techniques or principles.
Farm Mut. Auto. Ins. Co., 607 N.W.2d 123 (Mich. Ct. App. 1999). Frye/Mack standard - general Goeb v. Thoraldson, 615 N.W.2d 800 acceptance plus reliability (Minn. 2000); State v. Mack, 292 N.W.2d 764 (Minn. 1980).
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Gleeton v. State, 716 So. 2d 1083 (Miss. 1998). Kansas City S. Ry. Co. v. Johnson, 798 So. 2d 374 (Miss. 2001). Mo. Rev. Stat. §490.065: will the Mo. Rev. Stat. §490.065; see Long v. scientific, technical or other Missouri Delta Medical Center, 33 specialized knowledge assist the trier S.W.2d 629, 642-643 (stating that of fact to understand the evidence or while Missouri has codified Fed. R. to determine a fact in issue, a Evid. 702, Missouri continues to witness qualified as an expert by apply Frye to novel scientific knowledge, skill, experience, training, evidence.)or education; and is the type of evidence reasonably relied upon by experts in the field.
Daubert only for "novel scientific State v. Moore, 885 P.2d 457 (Mont. evidence." Applies Barmeyer for 1994) (overruled on other grounds). "scientific evidence." Scientific Barmeyer v. Mont. Power Co., 657 evidence is treated just like other P.2d 594 (Mont. 1983) (overruled on expert testimony—its weight is other grounds). Hulse v. Dep't. of attacked by cross-examination.
Justice, Motor Vehicle Div., 961 P.2d 75 (Mont. 1998).
Scafersman v. Ag-land Coop., 631 N.W. 2d 862 (Neb. 2001). "Daubert-like." Follows NRS 50.275 Yamaha Motor Co. v. Arnoult, 955 (mirroring FRE 702); Supreme Court P.2d 661 (Nev. 1998). Dow Chem. has found no need to adopt Daubert Co. v. Mahlum, 970 P.2d 98 (Nev. and has declined to do so to date. NHRE 702. Expert testimony must State v. Cressey, 628 A.2d 696 (N.H. meet a threshold level of reliability to 1993).State v. Cort, 766 A.2d 260 be admissible (like Daubert). Supreme Court declined to address whether adoption of 702 superseded Frye as in Daubert. http://bna-pub2.bna.com/LNNPUBS/exr.nsf/10a9.e5db42fb940e46985256b7d0075d807?OpenDocument (19 of 23) [4/23/2002 2:30:52 PM] Expert Evidence Report - Survival of the "Fryest": A Review of Recent State.d a 50 State Survey of the Standards for Admissibility of Expert Testimony.
Frye for criminal cases. New Jersey State v. Harvey, 699 A.2d 596 (N.J. Rule 702 for civil: 1. intended testimony concerns subject matter beyond the ken of the average juror; 2. subject of testimony is at state of the art such that expert's testimony could be sufficiently reliable; and 3. witness has sufficient expertise to explain the testimony. State v. Alberico, 861 P.2d 192 (N.M. 1993).State v. Torres, 976 P.2d 20 (N.M. 1999).
People v. Wesley, 633 N.E.2d 451 (N.Y. 1994).
North Carolina Daubert State v. Goode, 461 S.E.2d 631 (N.C. 1995).
Refers to the Frye standard, but City of Fargo v. McLaughlin, 512 footnotes NDRE 702 (same as FRE N.W.2d 700 (N.D. 1994).
702). However, the court did not decide the issue. Instead, it held that sobriety tests and officer testimony are not subject to requirements of scientific expert testimony.
Ohio Evid. R. 702, essentially Ohio v. Hartman, 754 N.E.2d 1150. adopting Daubert. State v. Nemeth, 694 N.E.2d 1332 (Ohio 1998).
Daubert (Adopted by Court of Taylor v. State, 889 P.2d 319 (Okla. Criminal Appeals, applied by Crim. App. 1995). Cities Serv. Co. v. Supreme Court).
Gulf Oil Corp., 980 P.2d 116 (Okla. 1999).
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Oregon Rules 401, 403, and 702: 1. State v. Lyons, 924 P.2d 802 (Or. technique generally accepted in the field; 2. expert's qualifications and stature; 3. use which has been made of the technique; 4. potential rate of error; 5. existence of specialized literature; 6. novelty of the invention; and 7. extent to which technique relies on the subjective interpretation of the expert. Frye (declined to adopt Daubert) Blum v. Merrell Dow Pharmaceuticals, 705 A.2d 1314, 1323 (Pa. Super. 1997), aff'd, 764 A.2d 1 (Pa. 2000); Commonwealth v. Blasioli, 713 A.2d 1117 (Pa. 1998).
DiPetrillo v. Dow Chem. Co., 729 A.2d 677 (R.I. 1999).
South Carolina Declines to adopt Daubert, but uses State v. Council, 515 S.E.2d 508 SCRE 702 based on FRE 702 and (S.C. 1999). State v. Ford, 392 Jones factors: 1. publications and S.E.2d 781 (S.C. 1990). State v. peer review of the technique; 2. prior Jones, 259 S.E.2d 120 (S.C. 1979).
application of the method to the type of evidence involved in the case; 3. quality control procedures used to ensure reliability; and 4. consistency of the method with recognized scientific laws and procedures.
State v. Hofer, 512 N.W.2d 482 (S.D. 1994). Rogen v. Monson, 609 N.W.2d 456 (S.D. 2000).
Declined to adopt Daubert, but McDaniel v. CSX Transp. Inc., 955 acknowledged its general principles S.W.2d 257 (Tenn. 1997).
and relied upon the Daubert factors in applying TRE 702/703.
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Gammill v. Jack Williams Chevrolet Inc., 972 S.W.2d 713 (Tex. 1998); Merrill Dow Pharms Inc. v. Havner, 953 S.W.2d 707 (Tex. 1997); E.I. Du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex 1995).
Daubert/Rimmasch: "The trial court State v. Crosby, 927 P.2d 638 (Utah should carefully explore each logical 1996). State v. Rimmasch, 775 P.2d link in the chain that leads to expert 388 (Utah 1989).
testimony given in court and determine its reliability." State v. Brooks, 643 A.2d 226 (Vt. 1993).State v. Streich, 658 A.2d 38 (Vt. 1995).
In 1990, the supreme court expressly Spencer v. Commonwealth, 393 declined to follow Frye, in favor of the S.E.2d 609 (Va. 1990).
reliability test enunciated in Spencer. No post 1993 supreme court case.
State v. Copeland, 922 P.2d 1304 (Wash. 1996).State v. Jones, 922 P.2d 806 (Wash. 1996).
Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993).
Supreme Court expressly rejected State v. Peters, 534 N.W.2d 867 Frye, but has not yet ruled on (Wis. Ct. App. 1995).
Daubert. However, the Court of Appeals held that Daubert is irrelevant to the Wisconsin standard: 1. evidence must be relevant; 2. witness qualified as an expert; and 3. evidence will assist trial of fact.
Bunting v. Jamieson, 984 P.2d 467 (Wyo. 1999).
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Copyright 2002 by The Bureau of National Affairs, Inc., Washington D.C.
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Source: http://www.btlaw.com/files/frye.pdf