District of Columbia Court of Appeals Ditches Frye For Daubert

Back in October, the District of Columbia Court of Appeals issued a critical decision in Motorola, Inc. v. Murray, that altered the admissibility of expert testimony in that jurisdiction.  Practitioners in D.C. should take particular note of this decision in choosing their experts and in attempting to exclude expert testimony in future litigations.

The facts of the case that spurred this decision stemmed from thirteen cases in which Plaintiffs commenced suit against cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell phone radiation causes brain tumors. The Superior Court judge presiding over the cases held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the Plaintiffs.  The judge concluded that while some (but not all) of Plaintiffs’ proposed experts on general causation were inadmissible under the Frye/Dyas standard, most (if not all) would likely be excluded under the Rule 702/Daubert standard.  The judge then certified the following question 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.

In the District of Columbia, the admissibility of expert testimony was previously governed by the legal standard set forth in Frye v. United States and Dyas v. United States.  In Frye, the Court of Appeals articulated a test for admitting expert testimony.  Thereafter, in Dyas, the Court expanded on Frye and adopted a three-part test for determining whether to admit expert testimony: 1) the subject matter must be 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 the 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.

The third factor of Dyas incorporates the Frye test, under which scientific testimony is admissible only if the theory or methodology on which it is based has gained general acceptance in the relevant scientific community.  This inquiry was therefore limited to whether there was general acceptance of a particular scientific methodology, not an acceptance of particular results based on that methodology.  General acceptance meant that the answer could not vary from case to case.

In 1993, the Supreme Court held in Daubert that the “general acceptance” test had been superseded by the Federal Rules of Evidence and therefore, that standard should not be applied in federal trials.  Under Daubert, when a party proffers expert scientific testimony, the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue.  In Daubert, the Supreme Court also suggested factors to be considered including whether the theory or technique has been tested, whether it has been subjected to peer review and publication, the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation.  The focus under Daubert was solely on principles and methodology, not on the conclusions that they generate.

The Supreme Court later refined its analysis in Daubert, now acknowledging that conclusions and methodology are not entirely distinct from one another.  Therefore, a court may conclude that there is too great an analytical gap between the data and the opinion offered.  In addition, the Supreme Court also clarified that the court’s gatekeeping function applied not only to scientific knowledge, but also testimony based on technical or other specialized knowledge.  Daubert and its progeny therefore focused not only on methodology, like Frye and Dyas, but also on the application of that methodology.  Even though Daubert and its progeny represented the Supreme Court’s construction of Rule 702, the rule was later amended in 2002 to reflect the Supreme Court’s guidance.

With this background, the Court of Appeals considered three options: 1) retain the Dyas/Frye test, 2) adopt Federal Rule 702, as amended to reflect the Daubert progeny, or 3) craft a revised version of the Dyas/Frye test.  In doing so, the Court considered the criticisms of the Dyas/Frye test, which include that the test was “out of step with modern science” and forces unqualified jurors to decide which scientific theories should be applied, as well as the criticisms of Daubert, which include rendering inconsistent results, making unqualified judges evaluate the work of scientists, and invading the province of the jury.

The Court of Appeals explained that similar to the general acceptance test, Rule 702 is concerned with the reliability of the principles and methods applied by the expert, but goes further by requiring courts to determine whether the expert has reliably applied the principles and methods to the facts of the case.  The Court found that such an expanded focus is preferable to the Dyas/Frye test, concluding that the ability to focus on reliability of principles and methods, as well as their application, is an advantage that would lead to better decision making.  The Court of Appeals further emphasized the benefits in adopting a test that is widely used.

While the Court of Appeals highlighted the advantages of this change, it also recognized that the transition would not be easy and that judges and lawyers would have to adjust to the new rules.  Going forward, practitioners in D.C. should be mindful of this new standard, which will apply to all civil and criminal cases after this decision.  We will continue to monitor and report on how this important decision plays out.