Michelle Yeary | Drug & Device Law | October 25, 2016
Remember Frye v. United States, the case from 1922 that created the “general acceptance” standard for expert testimony? In the federal system it’s been replaced by Daubert and Federal Rules of Evidence 702 and 703. But Frye was technically a decision under DC law (1922 was before Erie v. Tompkins). So, while the rest of the federal courts have been applying Daubert for the last 23 years, DC has remained a Frye jurisdiction. Until now.
In Motorola v. Murray, No. CAB-8479-01 (D.C. App. Ct. Oct. 20, 2016), the District of Columbia Court of Appeals (successor to the DC Cir. as DC’s highest court) inters Frye for good.
Following extensive expert evidentiary hearings, the trial court found that certain of the expert testimony would be admissible under Frye but that most would be inadmissible under Daubert. So, the trial court certified for interlocutory appeal the question of “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for admissibility of expert evidence. Motorola, slip op. at 3.
The appellate court first examined both evidentiary standards. Under Frye, the entire inquiry is limited to whether “there is general acceptance of a particular scientific methodology.” Id. at 6. The Frye standard equated general acceptance with reliability and looked no further. Id. The standard announced in Daubert viewed general acceptance as one possible factor for the court to consider in its role as a gatekeeper for the admission of expert testimony. Under Daubert, the trial court must “perform a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 7-8.
As subsequent courts refined Daubert, it also became clear that “conclusions and methodology are not entirely distinct from one another.” Id.at 10, citing General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). This was yet another step away from the rigid Frye focus on methodology only. After Joiner, as part of the gatekeeping function, a court could “conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. Application of a particular methodology was something else for courts to consider in determining if the expert testimony was both relevant and reliable.
The Motorola decision includes a quote from the trial court’s own examination of the competing standards that we think fairly clearly demonstrates the superiority of Daubert:
[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces good science, Daubertwill 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 produced bad science, it is likely to be admitted.
Id. at 14.
Most recently in the history of expert evidence admissibility, Rule 702 was amended to reflect Daubert and its progeny. Id. at 12-13. It is Rule 702 that the DC Court of Appeals decides to adopt over Frye. Rule 702(c) admits expert testimony if it “is the product of reliable principles and methods” – similar to the Frye general acceptance standard. Id. at 15. But, Rule 702 (d) further provides that to be admissible the expert must also have “reliably applied the principles and methods to the facts of the case.”
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 [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.
Id.
The remainder of the opinion is focused on providing guidance to the DC courts which now must switch to applying Rule 702 and Daubert and become expert evidence gatekeepers. Id. at 16-19. The Court of Appeals specifically admonishes DC trial courts not to “reflexively admit expert testimony because it has become accustomed to doing so under the [Frye] test.” Id. at 18-19. A concurring opinion reiterates this warning and provides some additional resources and guidance for courts faced with applying Daubert for the first time. Id. at 20-23.
Frye is dead; long live Daubert.