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D.C. Court of Appeals Overturns Frye and Adopts Federal Rule of Evidence Rule 702

Posted in Complex Torts, Products Liability, Toxic Tort
district court

Washington, D.C. District Court of Appeals

The District of Columbia Court of Appeals recently adopted the standards found in Federal Rule of Evidence 702 (“Rule 702”), regarding the admissibility of testimony by expert witnesses, thereby replacing the Frye (“Frye”) test.  See Motorola Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016)(“Motorola”). Washington D.C. is now the most recent jurisdiction to adopt Rule 702, a trend that has continued since Rule 702 was amended in 2000 to reflect United States Supreme Court decisions pertaining to expert witness testimony, such as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); and General Electric v. Joiner, 522 U.S. 136 (1997).

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

In Motorola Plaintiffs in thirteen cases sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation caused their brain tumors. The trial 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 record before him, some, but not all, of Plaintiffs’ proffered expert testimony on general causation was admissible under the Frye evidentiary standard, but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standard.” Judge Weisberg then certified the following question of law to the Circuit Court: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.”

In certifying the question, Judge Weisberg noted,

[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.

The District of Columbia Court of Appeals, en banc., heard the question, Plaintiffs’ appeal, and adopted the Rule 702 standards unanimously, with Judge Easterly providing a concurring opinion.

Associate Judge Fisher, writing for the Court, stated, “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.” Associate Judge Fisher highlighted the language in State v. Coon, deeming the Frye test, “as both unduly restrictive and unduly permissive” because the crux of the test is general acceptance as opposed to reliability. 974 2d. 386, 394 (Alaska 1999). The standards deriving from Rule 702, however, require trial court judges to act as “gatekeepers” in the determination of whether or not expert testimony is relevant and reliable. Associate Judge Fisher cited to the Daubert decision to emphasize, “the objective of the gatekeeping requirement is to make certain that an expert…employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”  Despite this, the Court explicitly stated that differing scientific opinions can be equally reliable. In so doing, the Court established that minority opinions within expert communities will not be per se unreliable.

The Court considered revising the Frye test, as some jurisdictions have done. It rejected doing so given their belief that Rule 702/Daubert analysis better ensures evidentiary reliability based upon scientific validity. It also found substantial benefits to be gained from adopting a test that is widely used.

The Court directed future litigants and judges to review closely the Advisory Committee Notes to Rule 702, and the cases cited therein when making Rule 702/Daubert challenges. See Fed. R. Evid. 702 advisory committee’s note (2000 Amendment); Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802 (3d Cir. 1997)(regarding newly founded expert theorems); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940 (7th Cir. 1997)(demanding consistency between the expert’s professional and testimonial opinion); Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)(regarding expert’s consideration of “obvious alternative explanations”). It will apply Rule 702 to all civil and criminal cases in which the trial begins after the date of this opinion. The Court also indicated that it will consider at a later time whether the standard applies to cases that have already been tried but are not yet final on direct appeal.

The District of Columbia now joins twenty-seven states in adopting the factors of the Daubert standard and rejecting the Frye test. See Andrew Flake, Eric Harlan & James King, 50 State Survey of Applicability of Daubert, available here (last visited Oct. 28, 2016).

The full decision can be read here.

About the Author

Jonathan F. Tabasky is a partner with the firm. He has primary responsibility for the management, handling and defense of litigation brought against many different types of professionals. His clients include architects, attorneys, engineers, real estate brokers, real estate appraisers and independent insurance adjusters, among others. Since joining the firm, Jon has also been extensively involved in the defense of product liability and toxic tort claims. In this capacity, Jon represents a broad range of companies, including those that manufacture prescription drugs, protective clothing, fittings, heating devices, wire and cable, trucks, aircraft and turbines. As a result, Jon regularly works with renowned epidemiologists, pathologists, industrial hygienists, pulmonologists, radiologists, economists and others. Jon also defends product and premises liability cases brought against major retailers.

Alexander Zodikoff is a law clerk with Manion Gaynor & Manning LLP, and in his final year of law school at Suffolk University. Alexander received his B.A. from Virginia Tech.