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Article: February 2017: The Court That Created Frye Moves to Rule 702/Daubert Standard

Business Litigation Reports

In the twenty-three years since the Supreme Court issued its seminal opinion on the admissibility of expert witness testimony, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), approximately 40 states have embraced Daubert and its progeny—leaving behind the 90-year-old Frye test that had previously dominated the field. Frye v. U.S., 293 F. 1013 (D.C. 1923). In October 2016, the slowly shrinking club of stalwart Frye jurisdictions lost its founding member when the District of Columbia’s highest court—which created the Frye test—determined (en banc) that the District should move from Frye to Rule 702/Daubert. Motorola, Inc., et al. v. Murray, et al., 147 A.3d 751, 757 (D.C. 2016).

Frye v. Rule 702—A Distinction with a Difference
The distinction between Frye and Rule 702/Daubert matters as much as it always has—a fact perfectly illustrated by the Murray case. In Murray, the trial court was considering whether plaintiffs’ expert witnesses should be permitted to opine that cell phone use can lead to adverse health effects, including brain cancer. Murray v. Motorola, Inc., 2014 WL 5817891, at *1 (D.C. Super. Aug. 8, 2014). “[F]ollowing a four-week evidentiary hearing, the court ruled that some, but not all” of the plaintiffs’ expert testimony would be admissible under the District of Columbia’s Dyas/Frye standard but “most, if not all” of that expert testimony “would probably be excluded under the Rule 702/Daubert standard.” Murray v. Motorola, Inc., 2014 WL 5817890, at *1 (D.C. Super. Aug. 28, 2014). The trial court compared the Frye standard to the Rule 702/Daubert standard and concluded: “[I]f a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out; conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.” Murray, 2014 WL 5817891, at *11 (D.C. Super. Aug 8, 2014). Thus, the trial court certified a question for the District of Columbia Court of Appeals of “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.” Murray, 147 A.3d at 752.

On appeal, the Court considered the history of the Frye and Rule 702/Daubert standards and the benefits of each. The D.C. Court of Appeals established the Frye test in 1923 in the context of deciding whether to admit the results of an early version of a lie-detector test. Murray, 147 A.3d at 752-53 (citing Frye v. U.S., 293 F. 1013 (D.C. 1923)). The D.C. Court of Appeals later refined the test for admitting expert testimony as follows: (1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman”; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth”; 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.” Murray, 147 A.3d at 753 (quoting Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977)).

The Court explained that the third criterion of Dyas/Frye “begins—and ends—with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology.” Id. (quoting Ibn-Tamas v. United States, 407 A.2d 626, 638 (D.C. 1979) (emphasis added)). However, Dyas/Frye is criticized as “antiquated and out-of-step with modern science.” Murray, 147 A.3d at 756. Critics say Frye results in unqualified jurors deciding which scientific theories to apply. Id. Further, general acceptance of a particular methodology does not vary from case-to-case, and Frye does not permit a court to evaluate “whether the testimony offered in a particular case is reliable.” Id. at 753, 756. Therefore, the Frye test has been accused of “exclud[ing] scientifically reliable evidence which is not yet generally accepted, and admit[ting] scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.” Id. at 756 (citation omitted).

In 1993, the Supreme Court issued its opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., holding the “general acceptance” test from Frye had been superseded by the Federal Rules of Evidence. Murray, 147 A.3d at 753-54 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Under Daubert and subsequent Supreme Court decisions, the Rule 702/Daubert test is a “flexible” inquiry, where the trial judge acts as a “gatekeeper” and is permitted to evaluate not only the expert’s methodology “but also [] the application of that methodology in a particular case.” Id. at 754-56. An expert’s “conclusions and methodologies are not entirely distinct from one another” and “[n]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” 147 A.3d at 755 (quoting General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)). However, critics of Rule 702/Daubert argue the test produces inconsistent results and allows “unqualified judges [to] evaluate the work of scientists” and “invad[es] the province of the jury.” Id. at 756.

Ultimately, the District of Columbia Court of Appeals decided to adopt the Rule 702/Daubert test: “We conclude that Rule 702, with its expanded focus on whether reliable principles and methods have been reliably applied, states a rule that is preferable to the Dyas/Frye test. The ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.”

147 A.3d at 757. “The goal is to deny admission to expert testimony that is not reliable, but to admit competing theories if they are derived from reliable principles that have been reliably applied.” Id. The court decided against simply revising the Frye test. Id. By adopting the Rule 702/Daubert test, which is already being used in a majority of jurisdictions, the court noted there is a pre-existing body of precedent from which the D.C. courts can “learn.” Id.

What’s Next
The D.C. Court of Appeals held that the Rule 702/Daubert standard should be applied to the trial of “any civil or criminal case in which the trial begins after” October 20, 2016. 147 A.3d at 758-59. Thus, the strategy for D.C. cases currently being litigated should be re-evaluated where expert testimony previously admissible under Frye may be vulnerable under Daubert, and vice versa.

Meanwhile, the debate continues in the remaining Frye jurisdictions. Last year, the Missouri legislature passed a bill that would have required state courts to follow the Rule 702/Daubert standard, but the bill was vetoed by the Missouri Governor. And in 2013, the Florida legislature passed a statute requiring a move from Frye to Daubert. See 2013 Fla. Sess. Law Serv. Ch. 2013-107 (H.B. 7015) (West). The Florida Supreme Court is granted authority over procedural rules by the Florida state Constitution, see F.S.A. Const. Art. 5 § 2(a), and will decide whether to accept or reject the change—a decision expected sometime in 2017.