Michelle Yeary | Drug & Device Law | October 25, 2016<\/p>\n
Remember Frye v. United States<\/em>, the case from 1922 that created the \u201cgeneral acceptance\u201d standard for expert testimony?\u00a0 In the federal system it\u2019s been replaced by Daubert<\/em> and Federal Rules of Evidence 702 and 703.\u00a0 But Frye<\/em> was technically a decision under DC law (1922 was before Erie v. Tompkins<\/em>). So, while the rest of the federal courts have been applying Daubert<\/em> for the last 23 years, DC has remained a Frye<\/em> jurisdiction. Until now.<\/p>\n In Motorola v. Murray<\/em>, 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\u2019s highest court) inters Frye<\/em> for good.<\/p>\n Following extensive expert evidentiary hearings, the trial court found that certain of the expert testimony would be admissible under Frye<\/em> but that most would be inadmissible under Daubert<\/em>. So, the trial court certified for interlocutory appeal the question of \u201cwhether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye<\/em> standard) for admissibility of expert evidence. Motorola<\/em>, slip op. at 3.<\/p>\n The appellate court first examined both evidentiary standards. Under Frye<\/em>, the entire inquiry is limited to whether \u201cthere is general acceptance of a particular scientific methodology.\u201d Id.<\/em> at 6. The Frye<\/em> standard equated general acceptance with reliability and looked no further. Id.<\/em> The standard announced in Daubert<\/em> 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<\/em>, the trial court must \u201cperform 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.\u201d Id.<\/em> at 7-8.<\/p>\n As subsequent courts refined Daubert<\/em>, it also became clear that \u201cconclusions and methodology are not entirely distinct from one another.\u201d Id.<\/em>at 10, citing General Electric Co. v. Joiner<\/em>, 522 U.S. 136, 146 (1997). This was yet another step away from the rigid Frye<\/em> focus on methodology only. After Joiner<\/em>, as part of the gatekeeping function, a court could \u201cconclude that there is simply too great an analytical gap between the data and the opinion proffered.\u201d Id.<\/em> Application of a particular methodology was something else for courts to consider in determining if the expert testimony was both relevant and reliable.<\/p>\n The Motorola<\/em> decision includes a quote from the trial court\u2019s own examination of the competing standards that we think fairly clearly demonstrates the superiority of Daubert<\/em>:<\/p>\n [A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces good science, Daubert<\/em>will let it in, and if an accepted methodology produces bad science, Daubert<\/em> will keep it out; conversely under Frye<\/em>, 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.<\/p><\/blockquote>\n Id.<\/em> at 14.<\/p>\n Most recently in the history of expert evidence admissibility, Rule 702 was amended to reflect Daubert<\/em> and its progeny. Id.<\/em> at 12-13. It is Rule 702 that the DC Court of Appeals decides to adopt over Frye<\/em>. Rule 702(c) admits expert testimony if it \u201cis the product of reliable principles and methods\u201d \u2013 similar to the Frye<\/em> general acceptance standard. Id.<\/em> at 15. But, Rule 702 (d) further provides that to be admissible the expert must also have \u201creliably applied the principles and methods to the facts of the case.\u201d<\/p>\n 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<\/em>] 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.<\/p><\/blockquote>\n