D.C. Court of Appeals Abandons Frye Test, Adopts Daubert Test for Expert Evidence
In 1923, the Court of Appeals of the District of Columbia issued its opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In the wake of this federal opinion, court across the across the country adopted the Frye test, which deemed expert evidence admissible only if was based upon a technique/technology that had general acceptance in the relevant expert community. In 1993, however, the Supreme Court created a sea change when it decided Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which said that judges should serve as gatekeepers and determine the reliability/admissibility of expert evidence by looking at factors such as
(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
Since this decision, at least 30 states have changed from the Frye test to the Daubert test. One court, however, that had not adopted the Daubert test was the District of Columbia Court of Appeals, the “state” supreme court for D.C. But that all changed yesterday.
In Motorola Inc. v. Murray (No. 14-CV-1350), plaintiffs in thirteen cases “sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation causes brain tumors.”
Judge Frederick H. Weisberg held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs. He concluded that, based on the present record, “some, but not all, of Plaintiffs’ proffered expert testimony on general causation is admissible under the Frye/Dyas evidentiary standard,” but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standar ….” Judge Weisberg then certified the following question of law for interlocutory appeal: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.”
Ultimately, the court decided to adopt the Daubert/Rule 702 approach, concluding as follows:
Having studied the matter at great length, Judge Weisberg expressed his own conclusion: “[A]t the risk of over-simplification[,] if 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.”
Our choice boils down to this: Like the “general acceptance” test, Rule 702 is concerned with the reliability of the “principles and methods” applied by the expert. Fed. R. Evid. 702 (c). But Rule 702 (d) goes further and expressly requires the court to determine whether “the expert has 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 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.
-CM