(This describes the Federal Rules of Evidence 702 and 703 pertaining to
specialized knowledge of a witness. No less influential in this area are the
Supreme Court precedents described in Frye vs. U.S. (1923) and Daubert vs.
Merrill Dow (1993) which shaped rules on admitting scientific evidence. These
cases created heated debate about judges' role as 'gatekeepers.')
October 1994
By Nancy A. Miller
ALTHOUGH courts and commentators alike have confused the roles of Federal
Rules of Evidence 702 and 703 and have applied various tests to "scientific"
evidence inconsistently, the decisions may not be as diverse as regarded by
conventional wisdom. In the hope of providing some clarity to this murky area of
evidentiary law, the U.S. Supreme Court in 1993 decided Daubert v. Merrell Dow
Pharmaceuticals Inc.(1) Assessing the opinion in Daubert by comparing and
contrasting its guidelines with prior cases may shed some light on the future of
"scientific" evidence in the courtroom.
While efforts to amend Federal Rule of Evidence 702 were abandoned in the
light of Daubert, and other suggested methods of reform have fallen on deaf
ears, some states have continued to push for their reforms in spite of
Daubert. Perhaps this effort signals either that the standards set forth in
Daubert have not defined a clear path for admissibility of expert testimony or
that they are at least insufficient to allay concerns over the proliferation of
"junk science" in the courtroom. In either event, the Supreme Court has spoken
on the controversial issue of the standards for the admissibility of expert
testimony.
More than a year has passed since Daubert held that the Federal Rules of
Evidence superceded the "general acceptance" test of Frye v. United States(2)
previously used by several courts as the primary test of admissibility of expert
scientific testimony. Although Daubert has been cited in more than 40 federal
court decisions and more than 60 state court decisions across the country as of
September 1994, admissibility of expert testimony appears relatively unchanged.
The Supreme Court's mandate that the trial court serve as a "gatekeeper,"
assessing whether the subject of an expert's testimony consists of "scientific
knowledge" derived by a scientific method and supported by appropriate
validation, has led few courts to change the outcome of their admissibility
rulings. Instead, they merely have altered their analyses to comport with the
language of Daubert.
THE PRE-RULES ERA
Prior to the adoption of the Federal Rules of Evidence by Congress in 1975,
the widely accepted standard for admissibility of expert testimony was the
"general acceptance" test of Frye, a 1923 criminal case in which the District of
Columbia Court of Appeals held that expert testimony based on a scientific
technique is not admissible unless the technique has been generally accepted
by the scientific community from which it was derived. One author has stated
that the purpose of the Frye test was to prevent the "introduction into evidence
of specious and unfounded scientific principles or conclusions based upon such
principles."(3)
The defendant in Frye wished to offer the results of a systolic blood
pressure deception test, the forerunner of today's polygraph test. The court
acknowledged the well-recognized rule stated in the defendant's brief:
The rule is that the opinions of experts or
skilled witnesses are admissible in those cases in
which the matter of inquiry is such that inexperienced
persons are unlikely to prove capable of
forming a correct judgment . . . and when the
question involved does not lie within the range
of common experience or common knowledge,
but requires special experience or special knowledge,
then the opinions of witnesses skilled in
that particular science, art or trade to which the
question relates are admissible in evidence.(4)
However, the court refused to admit the testimony of the defendant's expert
witness, stating:
Just when a scientific principle or discovery
crosses the line between the experimental and
demonstrable stages is difficult to define. Somewhere
in this twilight zone the evidential force
of the principle must be recognized, and while
courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific
principle or discovery, the thing from
which the deduction is made must be sufficiently
established to have gained general acceptance in
the particular field in which it belongs.(5)
The court went on to hold that because the systolic blood pressure deception
test had not yet acquired such recognition in the scientific community of
physiologists and psychologists, the opinions the expert witness deduced from
the results of the test were not admissible.
Before expert testimony based on a new technique will be admitted into
evidence under the Frye test, the technique must go through an experimental
stage whereby it passes the scrutiny of, and gains the general acceptance of,
the relevant scientific community. One commentator notes that some scientific
techniques have become so well-accepted that courts have taken judicial notice
of their validity.(6) However, one expert or even several experts who believe a
new technique has passed this "experimental" stage may not be sufficient to
qualify the technique as having "gained general acceptance in the particular
field which is relevant and the subject of the proffered testimony."(7)
POST-RULES ERA
A. Judicial Dichotomy
Courts began rejecting the "general acceptance" standard with the advent of
the Federal Rules of Evidence in 1975.(8) These courts asserted that Rules 702
and 703, which specifically address the admissibility of expert testimony, were
contrary to and superceded the Frye standard. The standard these courts adopted
was the more flexible "relevancy" test,(9) derived from Rule 702:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge,
skill, experience, training, or education,
may testify thereto in the form of an opinion or
otherwise.
Further defining the conditions under which a court should allow the opinion
of an expert witness into evidence and sometimes read as a restriction on the
admissibility of expert testimony, is Rule 703:
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
Rule 703 actually regulates the facts and data, not the methodology, the
expert witness may rely on in forming his opinions or inferences.(10)
The split in the federal jurisdictions following adoption of the Federal
Rules resulted in much controversy over "junk science."(11) Courts that
continued to use the "general acceptance" test, even after the Federal Rules,
did so in an attempt to keep "junk science" out of the courtroom.
The ramifications of wrongly assessing liability against an innocent
defendant spark future public policy concerns.(12) Not only must defendants bear
the direct costs of litigation, including jury awards and settlements, but the
public must pay for the externalities associated with the scientifically
"as-yet-unproven" allegations. Companies bearing vast financial losses incurred
by litigation remove products from the market even in the absence of scientific
proof that they are truly unsafe. Large jury awards also may have a chilling
effect on manufacturers, causing them to refrain from producing some new
products because of the fear that a jury may assess liability against them based
on unreliable or spurious scientific reasoning.
The counter-argument, of course, is that the opposite result could occur.
Injured "victims" could go uncompensated for the wrongdoing of those who should
have known better, those who owed a duty to protect these very individuals,
those who profited from their own wrongdoing. Courts and commentators who
espouse these contentions feel that the scientific community may at times be too
slow to recognize the reliability and validity of new techniques. They argue
that the triers of fact should be the ones to weigh all of the available
evidence, including those facts derived from "new" scientific techniques, and
make decisions as to whom should bear the loss.
Controversy exists over whether lay jurors, persons with little or no
scientific expertise, are capable of sufficiently understanding the esoteric
methods being employed so as to render an accurate and reliable judgment. Courts
that believe jurors are not capable of sufficiently understanding all of the
"scientific" data presented to them have attempted to restrict information being
weighed to that which has already been sifted through the "experimental" phase
of the scrutiny of the relevant scientific community and reached a "general
acceptance" within that community.
Many of those courts continued, even after the arrival of the Federal Rules,
to apply the Frye test in one respect or another.
B. Courts Following "General Acceptance"
Before Daubert, the controversy over the admissibility of expert testimony
was seen as centering on the correctness or incorrectness of applying the Frye
test of "general acceptance." In looking at the judicial analyses, however, one
must conclude that Frye has not predominated as the ground for finding testimony
inadmissible. The most common exclusionary vehicle has been the Federal Rules
themselves.(13)
For example, in 1987 the Court of Appeals for the District of Columbia
Circuit in United States v. Shorter(14) upheld the district court's exclusion of
expert testimony proffered to show that the defendant suffered from a
pathological gambling disorder. The trial court had applied the three-part test
of Frye.
First, the court held that the pathological gambling disorder had achieved
general acceptance in the relevant scientific community--that is, the mental
health community comprised of psychologists and psychiatrists--and therefore it
could be the subject of expert testimony. But the court found that the link
between the lack of willfulness in a compulsive pathological gambling disorder
and the requisite mental state of specific intent necessary to proving tax
evasion was not generally accepted in the relevant scientific community. Experts
did not agree, the court pointed out, "that cash lifestyle, financial
mismanagement, and relinquishment of financial control were indeed
'characteristics' of compulsive gambling accepted by the relevant mental health
community."
The court also found, however, that even if the proffered expert testimony
met the three-part Frye test, it was not admissible because no suggestion was
made that the impact of the defendant's gambling activities on his financial
habits required the testimony of experts, as opposed to lay witnesses familiar
with the defendant's activities.
Therefore, the expert's testimony was inadmissible under the relevancy test
of Federal Rule 702.(15) The result reached by the court would have been the
same without applying Frye.
Without ever overturning Frye, the District of Columbia Circuit has not
relied solely on its "general acceptance" test. For example, it did not even
mention Frye when it upheld the trial court's grant of a judgment
notwithstanding the verdict in 1987 in Richardson v. Richardson-Merrell
Inc.,(16) a Bendectin case. Rather, the court noted that the expert testimony in
question lacked an adequate basis and therefore did not provide "substantial
probative evidence" warranting the jury's verdict for the plaintiff.
The D.C. Circuit previously had held in Merit Motors Inc. v. Chrysler
Corp.(17) that Rule 703 "was intended to broaden the acceptable bases of expert
opinion" but not "to make summary judgment impossible whenever a party has
produced an expert to support its position." Quoting Rule 703, the court
reiterated in Richardson that information relied on by an expert must be of "a
type reasonably relied upon by experts in the particular field." In addition,
the court stated, expert testimony may be excluded pursuant to Rule 702, which
permits expert testimony only if it assists the trier of fact, and Rule 403,
which provides for the exclusion of any testimony that is misleading, confusing
or a waste of time, or if its probative value is substantially outweighed by its
potential prejudice.
Not only did the D.C. Circuit find the proffered expert testimony
inadmissible under Federal Rules 702, 703 and 403, but it also held that the
evidence supporting the plaintiff's theory that Bendectin caused birth defects,
and specifically her limb reduction birth defects, was insufficient to support
the jury's verdict.
The court in Richardson also distinguished the case before it from Ferebee
v. Chevron Chemical Co.,(18) which it described as a "classic battle of the
experts, a battle in which the jury must decide the victor." Ferebee involved
the "novel" causation issue of a possible connection between paraquat and
pulmonary fibrosis, while in Richardson the causation issue was not
"novel"--epidemiological research overwhelmingly supported the conclusion that
Bendectin did not cause birth defects.
In 1987, the D.C. Circuit, in Ealy v. Richardson-Merrell Inc.,(19) again was
faced with the evidentiary issue of the admissibility of expert testimony as to
whether Bendectin causes birth defects. Finding its decision in Richardson
binding, the court restated that "an expert opinion that Bendectin is a human
teratogen which caused the plaintiff s birth defects is without scientific
foundation under Federal Rule of Evidence 703 in the face of 'a wealth of
published epidemiological data' to the contrary."
In a Bendectin case in the First Circuit, Lynch v. Merrell-National
Laboratories,(20) the court affirmed the district judge's decision to exclude
the plaintiff's expert testimony, which consisted of re-analyses of
epidemiological research, in vivo animal studies, in vitro animal studies and
chemical studies. Applying the Federal Rules, the district court had held each
one independently inadmissible, stating:
Thus, a careful review of the material before
this court indicates that the only relevant, probative
and non-misleading evidence on the issue of
Bendectin's role in the causation of birth defects
are the controlled observations of human beings,
documented in more than 25 published epidemiological
studies. The data from these studies
do not indicate any statistically significant association
between Bendectin and the type of birth
defect suffered by Margo Lynch. This court
finds that the evidence submitted by the plaintiffs
in support of their expert testimony does not
comport with the requirements of the Federal
Rules of Evidence. Absent admissible and competent
expert testimony grounded on evidence
comporting with the requirements of the Federal
Rules of Evidence, the plaintiffs cannot raise a
genuine issue of material fact concerning
Bendectin's role in the causation of Margo
Lynch's birth defect.(21)
Praising the lower court's decision, the First Circuit stated that district
judge's rejection of "foundationless expert testimony was necessary, admirable
and entirely within the discretion of the court under Federal Rules of Evidence
403 and 703." Neither the district court nor the First Circuit mentioned the
"general acceptance" standard of Frye.
Although the Sixth Circuit applied the Frye "general acceptance" test in
1977 in a criminal case,(22) it did not even mention Frye in 1992 when it
granted summary judgment to the defendant in a Bendectin case, Turpin v. Merrell
Dow Pharmaceuticals Inc.(23) Instead, the court first reviewed other
jurisdictions' decisions in Bendectin cases, then analyzed in depth all of the
scientific evidence presented by both sides, and concluded that the plaintiffs'
evidence was insufficient to go to a jury.
The Fifth Circuit has been noted as being the most instrumental in keeping
Frye alive. Although in 1989 in Brock v. Merrell Dow Pharmaceuticals Inc.(24)
this court pointed out that the plaintiffs' expert witness had not published his
study for peer review, this was not its sole reason for reversing the trial
court's decision and dismissing the case. Instead, after an analysis of the
scientific evidence presented, the court held that the evidence was insufficient
to support a jury finding that Bendectin caused the plaintiff's limb reduction
birth defect.
The Fifth Circuit did employ the "general acceptance" test in its 1991
decision in Christophersen v. Allied-Signal Corp.,(25) but only as one prong of
a four-part "test" categorized by the court as follows:
(1) Whether the witness is qualified to express
an expert opinion, Fed. R. Evid. 702;
(2) whether the facts upon which the expert
relies are the same type as are relied upon by
other experts in the field, Fed. R. Evid. 703;
(3) whether in reaching his conclusion the expert
used a well-founded methodology, Frye;
and
(4) assuming the expert's testimony has
passed Rules 702 and 703, and the Frye test,
whether under Fed. R. Evid. 403 the testimony's
potential for unfair prejudice substantially outweighs
its probative value.(26)
This test looks very similar to the four-part test devised by the Sixth
Circuit in Sterling v. Velsicol Chemical Corp.(27) While the Sixth Circuit did
not cite Frye, but only applied the Frye test implicitly by citing United States
v. Brown, which used the terminology "generally accepted explanatory theory,"
the Fifth Circuit in Christophersen openly referred to Frye in the third and
fourth prongs of its test.
After noting that the first three prongs are essentially threshold
requirements that all expert testimony must meet, the court stated that Rule 403
"provides an overlay--a final mechanism for screening out otherwise admissible
testimony whose potential for prejudice substantially outweighs its probative
value." The trial court had found that the witness lacked specialized experience
and knowledge but based its decision to exclude his testimony on Rule 703 and
the Frye test.
Although Rule 703 limits an expert witness's testimony to "facts or data ...
reasonably relied upon by experts in the particular field," the Fifth Circuit
"went a step further" in Christophersen, according to one commentator, by
excluding the expert's testimony because it was based on "untrustworthy" facts
that would not be helpful to the jury. While that author applauded the court for
its decision, he expressed concern over the implementation of its analysis,
criticizing the expansion of Rule 703 to include the methodology employed by an
expert witness to form an opinion.(28)
C. Courts Rejecting Frye
The Third Circuit has been heralded not only as the forerunner of the
circuits rejecting the "general acceptance" theory but also for adopting a "let
it all in" approach to expert testimony.(29)
This court first rejected Frye in 1985 in a criminal case, United States v.
Downing,(30) in which the defendant had been convicted of mail fraud, wire fraud
and interstate transportation of stolen property solely on the basis of
eye-witness testimony. The trial court had refused to admit the testimony of a
psychologist, an expert in the field of human perception and memory, concerning
the reliability of eye-witness testimony, basing its position on the belief that
the testimony did not meet the "helpfulness" standard of Rule 702.
Although the court concluded that the trial judge had erred in not admitting
the testimony, it held that the admission of "such expert testimony is not
automatic but conditional." It remanded for a hearing on admissibility of the
testimony--if held admissible, the district court would have to order a new
trial.
The Third Circuit's most noteworthy "let it all in" decision was DeLuca v.
Merrell Dow Pharmaceuticals Inc.,(31) another Bendectin case, decided in 1990.
The court appeared to reprimand the trial court, not for excluding the
plaintiff's expert testimony for failure to meet the Frye test, but rather for
purporting to exclude it pursuant to Rule 703, when in fact its decision to
exclude was "heavily influenced by the decisions of other courts that have
grappled with the difficult question of whether expert testimony that Bendectin
causes birth defects is admissible and/or sufficient to sustain a verdict."
The court rejected the application of the principles of issue preclusion
because, although the issues litigated in a previous multi-district Bendectin
trial(32) may have been the same as those in the DeLuca case before it, the
"plaintiffs could not be bound to the results of the multi-district litigation
common issues trial where (1) they had no direct financial or proprietary
interest in the outcome of the trial and (2) they had no effective control over
the theories or proofs advanced in that trial."
The court did note, however, that in order to avoid summary judgment, the
plaintiffs would have to "produce admissible evidence from which a jury could .
. . reasonably find that their injuries were caused by Bendectin." Rejecting the
district court's exclusion of the expert testimony under Rule 703, the Third
Circuit remanded the case for consideration of the question of reliability of
the expert testimony under Rule 702.
Ironically sounding as if it were applying the "general acceptance" test,
the court stated that the district court, on remand, "is permitted to identify
relevant scientific communities and make determinations about the degree of
acceptance of the expert's methodology within those communities," keeping in
mind, however, "that the ultimate touchstone is helpfulness to the trier of
fact."
Although recognizing that Rule 403 may provide an alternative ground for
excluding expert testimony, the court stated that it could not exclude this
expert's testimony based on the record before it. The court also noted that Rule
403 would be an unlikely basis for exclusion once an expert's testimony had
survived Rule 702 and 703 analysis. However, although the expert testimony may
be admissible, it may still be insufficient to meet the plaintiff's burden of
proof to bar summary judgment "unless it would support a jury finding that
Bendectin more likely than not caused the birth defects in this particular
case."(33) The court declined to decide whether the evidence in question met
this threshold requirement, leaving that for remand.
ENTER: DAUBERT
A. Lower Courts
Although in 1991 the Ninth Circuit affirmed the district court's decision in
yet another Bendectin case, Daubert v. Merrell Dow Pharmaceuticals Inc.,(34) its
rationale for affirming the exclusion of the plaintiff's proffered expert
testimony was slightly different from that employed by the lower court. The
court of appeals relied almost exclusively on the "general acceptance" test of
Frye, holding that although re-analysis of epidemiological studies was generally
accepted by the relevant scientific community, that re-analysis also must be
subjected to verification and scrutiny by the expert's peers in order for the
methodology to be considered "generally accepted." In this case, the re-analysis
did not meet this standard because it had not been subjected to peer review but
was generated only for the purpose of litigation.
The Ninth Circuit also purported to follow the decisions of its sister
circuits in Bendectin cases in finding that the plaintiffs' proposed studies
provided an "insufficient foundation to allow admission of expert testimony to
the effect that Bendectin caused plaintiffs' injuries."
The Daubert district court had not even mentioned Frye or the "general
acceptance test in its opinion. Because the Ninth Circuit had not previously
decided the relevant issue, the lower court cited decisions in other
jurisdictions, none of which had explicitly relied on the "general acceptance"
test either. In fact, all three of the decisions relied on by the trial judge
had excluded expert testimony on the basis of the Federal Rules of Evidence.(35)
B. U.S. Supreme Court
In the hope of ending the controversy among the circuits concerning the
application of Frye's "general acceptance" theory following the adoption of the
Federal Rules of Evidence, the Supreme Court ranted certiorari in Daubert. With
Chief Justice Rehnquist, joined by Justice Stevens, filing an opinion concurring
in part and dissenting in part, the Court, in its majority opinion by Justice
Blackmun, held that the Federal Rules of Evidence supersede the Frye test, and
it remanded the case because the court of appeals had relied almost exclusively
on the "general acceptance" test.(36) Summarizing the Supreme Court's decision,
Justice Blackmun wrote:
" G eneral acceptance" is not a necessary pre-condition
to the admissibility of scientific evidence
under the Federal Rules of Evidence, but
the Rules of Evidence--especially Rule 702--do
assign to the trial judge the task of ensuring that
an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand.
Pertinent evidence based on scientifically valid
principles will satisfy those demands.(370)
After stating that the Frye test of "general acceptance" was superseded by
the Federal Rules of Evidence, the Court reiterated the position that the
Federal Rules must be interpreted as any other statute. Although the Court does
not state explicitly in Daubert that it is offering a test for determining
admissibility, does not even indicate whether the proffered expert testimony in
the case would be admissible, and in fact denies proposing any such test, its
opinion would seem to be worthless if it could not be interpreted as offering
the lower courts some guidance. Yet, in looking at the suggestions of the Court
as a test the courts can apply, one may wonder if several of the circuits have
not already devised the numerous prongs of a correct test themselves.
C. Supreme Court's Test
1. Rule 401
The first evaluation the Court proposes is the baseline test of relevancy
found in Rule 401, which states, "'Relevant evidence' means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." Justice Blackmun explained the permissive nature of the
Federal Rules regarding expert testimony and noted the absence of the phrase
"general acceptance," stating, "That austere standard, absent from and
incompatible with the Federal Rules of Evidence, should not be applied in
federal trials."
The Court mandated that "under the rules the trial judge must ensure that
any and all scientific testimony or evidence admitted is not only relevant, but
reliable." While the word "reliable" is just as absent from the language of the
rules as "general acceptance," the Court seems to choose "evidentiary
reliability" as the new "buzz words" test for admissibility.
2. Rule 702
To determine evidentiary reliability, pursuant to Rule 702, the Court
proposed (albeit implicitly) the following analysis to determine whether the
subject of the expert's testimony is "scientific knowledge":
The adjective "scientific" implies a grounding
in the methods and procedures of science. Similarly,
the word "knowledge" connotes more than
subjective belief or unsupported speculation.
The term "applies to any body of known facts or
to any body of ideas inferred from such facts or
accepted as truths on good grounds."(38)
Therefore, to be termed "scientific knowledge," testimony must be derived by
a scientific method, supported by appropriate validation. Meeting the above
criteria is not sufficient, however; expert testimony also must satisfy the
specific requirements of Rule 702-that is, it must "assist the trier of fact to
understand the evidence or to determine a fact in issue." In other words,
another aspect of relevancy can be measured in terms of whether the proffered
testimony is sufficiently tied to the facts to aid the jury in resolving the
factual dispute. This analysis, the Court stated, "entails 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."
The Court asserted its confidence in the ability of federal judges to
perform this task and therefore did not purport to set forth a specific test,
but rather it offered these "general observations":
1. A "key question" to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of fact will be
whether it can be (and has been) tested.
2. Another appropriate consideration is whether the theory or technique has
been subjected to peer review and publication.
3. In the case of a particular scientific technique, the court should
consider the "known or potential rate of error."
4. And "general acceptance" is not dead. Under the rubic of "widespread
acceptance," it can have a bearing on the inquiry and can be an important factor
in ruling particular evidence admissible.
3. Rule 703
After the analysis of the proffered expert testimony under Rule 702, the
Court proposes an analysis under Rule 703, which provides that expert opinions
based on otherwise inadmissible hearsay are to be admitted only if the facts or
data are "of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject."
4. Rule 403
Once the testimony has passed the Rule 703 test, the Court's opinion in
Daubert proposed implementing the Rule 403 balancing test, which states,
"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." Here the Court quotes
Judge Weinstein:
Expert evidence can be both powerful and quite misleading because of the
difficulty in evaluating it. Because of this risk, the judge in weighing
possible prejudice against probative force under Rule 403 of the present rules
exercises more control over experts than over lay witnesses.(39)
5. Putting the Rules Together
Therefore, the Supreme Court has effectively proposed the following elements
for consideration by courts in determining the admissibility of expert
testimony:
1. A baseline determination of relevancy (Rule 401);
2. A determination of evidentiary reliability, whether the subject of the
expert's testimony is "scientific knowledge" (Rule 702);
a. whether it is "scientific," grounded in the methods and procedures of
science;
b. whether it is "knowledge," connotes more than a subjective belief or
unsupported speculation;
c. whether it can and has been tested;
d. whether the theory or technique has been subjected to peer review and
publication;
e. what is the known or potential rate of error;
f. whether the methodology has had "general acceptance" in the relevant
scientific community;
3. A determination of whether the expert's opinions are "of a type
reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject" (Rule 703);
4. A determination of whether the expert's opinion's "probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury" (Rule 403).
Although the second prong of this admissibility test consists of more
elements than the Frye "general acceptance" test, this four-part test is nearly
identical to those tests outlined by the Sixth Circuit in Sterling and by the
Fifth Circuit in Christophersen.
WHAT NOW?
Is Frye dead? Although the Supreme Court stated explicitly that the Frye
test of "general acceptance" has been superseded by the adoption of the Federal
Rules of Evidence, the Court still provides for its use as one element to be
considered by courts in determining the admissibility of expert testimony. By so
doing, the Court appears to have merely expanded on the "general acceptance"
test by incorporating several additional factors which are the definitional
elements of the terms "scientific" and "knowledge," and to have re-named the
test.
If the courts interpret these elements as necessary and sufficient, which
they are unlikely to do given the other three prongs of the test, the Frye test
in fact would supersede the rules. If the courts interpret these elements as
necessary but not sufficient, then the Court has effectively incorporated Frye
into the rules. If the courts interpret the elements in the second prong as if
each alone, or in tandem with another, is necessary but not sufficient, then the
rules would supersede Frye when the "general acceptance" element has not been
met but one or more of the others have, but would be incorporated with Frye when
the element of "general acceptance" has in fact been met.
Therefore, although the Court very explicitly stated that the Federal Rules
of Evidence supersede the "general acceptance" theory of Frye, by incorporating
Frye into the schema for determining the admissibility of the expert's
testimony, the Court in essence has merely read the Federal Rules together with
the common law, which it refused to do at the outset.
The Court did not decide whether the expert testimony was admissible in
Daubert. Nor did it, even in dicta, say whether the testimony was properly
excluded in any other case in which the same testimony has been an issue.
Deciding the admissibility of the expert testimony in Daubert would have set
forth clearer guidelines for the lower courts to make their own evaluation of
"scientific knowledge" than the general guidelines the Court provided in Justice
Blackmun's opinion. Whether the Daubert testimony and other like testimony,
which many scientists and commentators consider junk science," will make it into
the courtroom remains to be seen.
The controversy over the place Frye holds in the analyses of expert
testimony may be over, but the controversy over the admissibility of expert
testimony still will reign as the courts begin a new struggle with attempting to
determine what is "scientific" and what is "knowledge," and the federal
circuits, as well as state courts, likely will remain split on admitting or
excluding such testimony. Will courts decide whether they will admit the
testimony and then fit their decision into the elements of whatever test they
utilize?
THE SCENE SINCE DAUBERT
The Supreme Court's holding in Daubert calls for a liberal application of
Rule 702 but also allows courts to restrict the testimony of an expert by
application of Rules 703 and 403, or by any one of several other criteria.
Because the Court stressed a "liberal" interpretation of the Federal Rules of
Evidence as compared to the previously applied stringent "general acceptance"
test, any scientific evidence that would have been held admissible under Frye
certainly would pass muster under the rules themselves, as can be seen in
several of the post-Daubert decisions. The circuits that had previously
abandoned Frye in favor of the rules, such as the Third, and those that had
applied Frye as one factor to be considered along with Rules 702, 703 and 403,
such as the Fifth and Sixth and much the same as was fashioned in Daubert, have
merely cited Daubert as additional support for their post-Daubert decisions.
Because of the large volume of post-Daubert decisions, only the most
representative and predominantly federal cases will be noted.(40) In a few
instances, the federal circuits have refused Daubert themselves and have
remanded cases for a re-analysis by the lower court.
A. Admissible under Daubert
Many post-Daubert decisions have involved scientific evidence previously
held admissible under other and more rigorous tests.
1. Sixth Circuit
The Sixth Circuit, for example, has cited Daubert in three decisions as
support for upholding admissibility of the expert's testimony.
In Cantrell v. GAF Corp.(41) the testimony dealt with the association
between asbestos exposure and cancer and the high incidence of laryngeal cancer
among workers at the defendant's facility. Upholding the district court's
decision to admit the testimony, the court stated that Daubert did not prohibit
such testimony, and it cited pre-Daubert decisions in support of admissibility.
In United States v. Bonds(42) the Sixth Circuit applied each of the "prongs"
of Daubert to support the admissibility of deoxyribonucleic acid (DNA) evidence.
Before doing that, however, the court reasoned:
We believe that by defining evidentiary reliability
in terms of scientific validity, by couching
almost the entire discussion of admissibility
of scientific evidence in terms of scientific validity,
and by requiring that the inquiry be focused
solely on the methodology and principles
underlying the proffered scientific expert testimony,
the Daubert Court has instructed the
courts that they are not to be concerned with the
reliability of the conclusions generated by valid
methods, principles and reasoning. Rather, they
are only to determine whether the principles and
methodology underlying the testimony itself are
valid. If the principles, methodology and reasoning
are scientifically valid then it follows that
the inferences, assertions and conclusions derived
therefrom are scientifically valid as well.
Such reliable evidence is admissible under Rule
702, so long as it is relevant.(43)
Although purporting to "touch only briefly on the prior case law dealing
with general acceptance," the Bonds court spent several paragraphs discussing
the general acceptance of the DNA procedures of the Federal Bureau of
Investigation.
In Glaser v. Thompson Medical Co.,(44) after an extensive discussion of the
Daubert guidelines, the Sixth Circuit found admissible an expert's opinion that
Dexatrim (a diet pill) could have caused enough blood pressure elevation for the
plaintiff to have sustained an intercerebral hemorrhage. The expert's testimony
was based on five studies he co-authored and two other published research
papers. The court held that the proffered evidence was sufficient to reverse the
district court's grant of summary judgment and remand the case for further
proceedings.
2. Eighth Circuit
Similarly, the Eighth Circuit upheld the district court's decision in United
States v. Martinez(45) to admit DNA evidence proffered by an FBI special agent.
Interpreting Daubert to require "a preliminary showing that the expert properly
performed a reliable methodology in arriving at his opinion," the court found
that the lower court had performed such an inquiry. The test applied by the
lower court derived from New York v. Castro,(46) which held admissibility to be
conditioned on a finding that the expert properly performed the protocols
underlying DNA profiling, and the Eighth Circuit stated this test was "at least
as stringent as the test mandated in Daubert."
3. Fourth Circuit
Another decision that was not unexpected under Daubert was the Fourth
Circuit's holding in United States v. Bynum.(47) With little discussion of
Daubert, the court upheld the district court's decision to admit expert
testimony of the chromatographic analysis of cocaine. The court stated that
although the district court had applied Frye, "the government's proffer of
evidence could hardly have better anticipated Daubert." The government explained
the hypotheses underlying the technique, listed the numerous publications
through which the technique had been subjected to peer review and concluded with
a citation to authority that gas chromatography enjoys general acceptance in the
field of forensic chemistry. The court also noted, however, that the defendant
had failed to offer any argument or evidence that gas chromatography was either
unreliable or that it was not generally accepted in the scientific community.
4. Second Circuit
Citing Daubert only for the proposition that decisions regarding
admissibility of expert testimony require more active supervision by the
district court," the Second Circuit in United States v. Daccarett(48) upheld the
lower court's decision to admit the testimony of a Drug Enforcement
Administration agent regarding methods used in illegal drug operations. The
decision to admit the DEA agent as an expert under Rule 702 was based primarily
on prior decisions in the Second Circuit."
Upholding the lower court's decision to admit an expert's opinion based on
hearsay, the Second Circuit cited Daubert in United States v. Locascio(50) for
the limited purpose of supporting a liberal interpretation of Rule 703, noting
that the Supreme Court ruled that "a rigid standard for admitting expert
scientific testimony was inconsistent with the liberal thrust of the federal
rules." The court then gave Rule 703 and the determination of trustworthiness
the same flexibility the Supreme Court had applied to Rule 702 in Daubert,
reiterating the district court's "broad discretion to decide the admissibility
of expert testimony based on inadmissible evidence."
5. 10th Circuit
The 10th Circuit has applied Daubert's liberal approach to support a finding
of admissibility of expert testimony, some of which would appear to be somewhat
less "scientific" than in the previously discussed cases.
In United States v. Muldrow(51) two experts were allowed to testify pursuant
to Rule 702. The first, a forensic chemist, identified the tests he performed
and the methods and purposes to determine that the substance contained in a
paper bag was cocaine. The second testified that because of his specialized
knowledge about the amount of cocaine acquired for personal use and the amount
held for distribution, one kilo of cocaine would be for distribution, not
personal use. The court concluded that the lower court had not abused its
discretion by allowing the two experts to testify, based on the standard for
admitting expert testimony under Rule 702.
The defendant had contended that the trial court had abused its discretion
by allowing the testimony without establishing that the testing methods were
"widely accepted in the scientific community as required by Frye." The court
disagreed. The defendant then argued that the second expert's testimony was
"purely speculative." Because the court had previously held that a jury would be
unable to understand the significance of the amount of cocaine in the
defendant's possession without specialized knowledge, it rejected this
contention.(52)
The 10th Circuit revisited the issue of the admissibility of potentially
speculative expert testimony in Robinson v. Missouri Pacific Railroad Co.(53)
Although ruling an animated hypothetical re-enactment of the accident admissible
under a liberal reading of Daubert, the court suggested that the district court
"carefully and meticulously make an early pretrial evaluation of issues of
admissibility, particularly of scientific expert opinions and films or
animations illustrative of such opinions," implying that perhaps similar
evidence may not be admitted in future cases.
The testimony involved a visual animation of two scenarios of the collision
between a vehicle and a train, which was the subject of the litigation. The
court noted the potential for undue prejudice, as well as the danger of the
jury's confusing art with reality, could be difficult to limit. Although the
court warned of the potential dramatic power of this type of demonstration and
noted the Supreme Court's mandate that the trial judge must act as a gatekeeper
with respect to expert testimony, it nevertheless upheld the decision to admit
the animations.
6. Fifth Circuit
The Fifth Circuit also has upheld lower court decisions to admit expert's
testimony. For example, the expert in Carroll v. Morgan,(54) a cardiologist, not
a pathologist, was allowed to testify as to the cause of the plaintiff's death,
although he had refused to acknowledge several medical texts and journal
articles. His opinion was grounded in the methods and procedures of science" and
was not "mere speculation," the court concluded. Therefore, under Daubert, the
opinion was "more than a subjective belief or unsupported speculation." The
court also relied on its pre-Daubert opinion in Karp v. Cooley,(55) which held
that a cardiologist was qualified to render an opinion as to the cause of death.
Without resorting to an analysis under Daubert, the Fifth Circuit in United
States v. McCaskey(56) rejected the defendant's argument that results based on
tests using the Fourier Transform Infrared Spectrophotometer should not be
admitted because the test had not gained general acceptance in its field.
Instead, the court held that the Frye test, which the Supreme Court ruled was
superseded by the Federal Rules, has no application in sentencing hearings. "It
may be noted that scientific certainty is not absolutely required for a
fact-finder to determine the chemical composition of an alleged controlled
substance, even at a defendant's criminal trial," the court observed,(57)
instead of relying on an analysis of admissibility under Daubert. The court also
noted that sentencing required a lower standard of reliability of testimony to
prove the composition of the substance in the defendant's possession.
7. Ninth Circuit
The Ninth Circuit had no trouble upholding the lower court's decision to
admit an FBI agent's testimony in United States v. Quinn(58) of a bank robber's
height calculated from bank surveillance photographs through the use of
photogrammetry. The court applied Daubert but held that the trial court was not
required to conduct a full preliminary evidentiary hearing on the reliability
of the technique. Instead, it pointed out that the process was not novel and did
not involve questionable scientific methods, and it added that the defendant was
given the opportunity to cross-examine the expert witness and to introduce his
own expert to contradict the evidence.
When faced with testimony in United States v. Amador-Galvan(59) the court
found more questionable, the Ninth Circuit remanded to the district court to
apply Daubert to determine whether the proposed theory was trustworthy and
scientifically valid. The defendant's expert in this case proposed to testify as
to the unreliability of eye-witness testimony.
8. Third Circuit
Consistent with its "let-it-all-in" reputation, the Third Circuit appears to
be the first to apply Daubert to reverse a decision excluding expert testimony.
In Petruzzi's IGA Supermarkets Inc. v. Darling-Delaware Co.(60) it
criticized the district court for applying the wrong test under Rule 403,
stating that for testimony to be excluded under Rule 403, its probative value
must be "substantially outweighed" by the listed dangers, rather than simply
"not more probative than prejudicial." The proffered testimony was a report of
two economists that concluded that the defendants had engaged in collusive
activity resulting in price differences between existing accounts and new
accounts. The court concluded that the experts relied on a multiple regression
analysis of their data, which is both scientifically reliable and helpful to a
jury.
The court went on to find the testimony admissible as to two of the
defendants under Rules 702, 703 and 403 pursuant to a Daubert analysis, thereby
reversing the trial court's grant of summary judgment as to these two
defendants. It upheld the grant of summary judgment to the third defendant
because of lack of sufficient data on that defendant in the proffered report.
B. Inadmissible under Daubert
In spite of the liberal approach of the Supreme Court in Daubert, the
federal circuits have guarded against admitting all expert testimony.
1. Seventh Circuit
The Seventh Circuit, as a particular example, has upheld the lower court's
exclusion of so-called expert testimony on at least three occasions.
In Porter v. Whitehall Laboratories,(61) after an extensive analysis under
Daubert, the court upheld the district court's exclusion of the proffered
testimony of five experts that ibuprofen caused the plaintiff's renal condition.
Because the experts had no scientific support for their testimony, the court
found their conclusions merely "subjective belief or speculation," which still
are grounds for finding the testimony inadmissible under Daubert.
In Wilson v. City, of Chicago" the court held that the proffered testimony,
which was merely that the plaintiff's description of the effects of electroshock
was consistent with the description of the effects given by other electroshock
victims, "would not even draw on
the pathologist's medical expertise." The pathologist spent several hours a
week studying torture, and although the court agreed that his study of torture
was a serious avocation, it held that he had to prove the requisite medical or
scientific knowledge to establish the effects of electroshock on the human body.
The court referred to the pathologist as an "amateur."
The Seventh Circuit again affirmed the exclusion of expert testimony in
O'Conner v. Commonwealth Edison Co.,(63) in which the plaintiff's treating
physician proffered to testify that radiation-induced cataracts are a
"clinically describable and definable condition which, when present, cannot be
mistaken for anything else." Again undertaking a fairly extensive analysis under
Daubert, the found the testimony had no scientific basis on which to find it
admissible.
The court here interpreted Daubert to require the district court to engage
in a two-part inquiry as follows:
Daubert first "directs the district court to determine
whether the expert's testimony pertains
to scientific knowledge. This task requires that
the district court consider whether the testimony
has been subjected to the scientific method; it
must rule out (subjective belief or unsupported
speculation.'" . . . Second, the district court must
"determine whether the evidence or testimony
assists the trier of fact in understanding the evidence
or in determining a fact in issue. That is,
the suggested scientific testimony must fit' the
issue to which the expert is testifying."(64)
The proffered testimony did not meet either requirement, the court
concluded.
Reversing a lower court decision for failure to exclude the testimony of an
accountant, the Seventh Circuit in Frymire-Brianti v. KPMG Peat Marwick(65) held
that Daubert mandates that the lower courts ensure the reliability of expert
testimony, and that in this case the district court had failed to do so. The
accountant had assessed the value of the corporation's real estate assets based
solely on the corporation's past cash flow, failing to consider future expected
cash flow, the value of land owned by the corporation or a building under
construction at the time of the analysis.
2. First Circuit
The First Circuit, holding that a demonstration simulating the failure of a
component of the steering system of an automobile in a products liability case
must be conducted under conditions similar to those under which the malfunction
occurred, upheld the district court's exclusion of a videotaped re-enactment of
such a failure in Fusco v. General Motors Corp." This court cited Daubert only
for the proposition that Rule 702 implicitly requires expert testimony to be
reliable in order to be admissible.
In another First Circuit case, United States v. Sepulveda,(67) the court
relied on cases other than Daubert to uphold the trial judge's decision to admit
the testimony of the commander of the New Hampshire Drug Task Force, who was
allowed to testify regarding the drug conspiracy's operations and the role the
defendant allegedly played in that conspiracy. He was to "explain to the jury
how the quantities of drugs . . . referred to in the testimony at trial were
used and distributed . . . from the business aspect." But when he could not
identify the sources of his information, the court granted the defendant's
motion to strike the testimony. The First Circuit affirmed, referring to
Daubert only to affirm the trial judge's gatekeeping function in determining
whether the expert possesses specialized knowledge which will aid the trier of
fact.
3. Fifth Circuit
Finding the defendant's failure in Marcel v. Placid Oil Co.(68) to compare
the proffered testimony of an economist that was based on a study of the life
expectancy of oil field workers with either the national average life expectancy
or with that of any occupation other than oil field workers, the Fifth Circuit
upheld the exclusion of the testimony. Although the court relied upon Daubert in
its analysis, other courts have excluded the same study as being outdated and
unreliable.(69)
4. D.C. Circuit
The D.C. Circuit reversed the lower court in Joy v. Bell Helicopter Textron
Inc.(70) on the admissibility of the expert's testimony regarding the
plaintiff's future earning capacity. The court agreed with the defendant that
the testimony "was based solely on guesswork, speculation, and conjecture." It
noted that its conclusion was unaffected by the Supreme Court's decision in
Daubert because the Court pointed out in that case that Rule 702 permits an
expert to testify only when "scientific, technical or other specialized
knowledge will assist the trier of fact." (Court's emphasis. "The word
"knowledge," the D.C. Circuit stated, "connotes more than subjective belief or
unsupported speculation."
5. State Courts
After conducting a very extensive analysis of Daubert, the Supreme Court of
Appeals of West Virginia, in Wilt v. Buracker," held that the trial court had
abused its discretion in admitting expert testimony on hedonic damages. The
court applied Daubert because of that decision's reliance on the Federal Rules
of Evidence, which West Virginia has adopted verbatim.
The court held that in analyzing the admissibility of expert testimony under
Rule 702:
The trial court's initial inquiry must consider
whether the testimony is based on an assertion or
inference derived from the scientific methodology.
Moreover, the testimony must be relevant
to a fact at issue. Further assessment should then
be made in regard to the expert testimony's reliability
by considering its underlying scientific
methodology and reasoning. This includes an assessment
of (a) whether the scientific theory and
its conclusion can be and have been tested; (b)
whether the scientific theory has been subjected
to peer review and publication; e) whether the
scientific theory's actual or potential rate of error
is known; and (d) whether the scientific
theory is generally accepted within the scientific
community.(72)
Moreover, the court held that "loss of enjoyment of life resulting from a
permanent injury is part of the general measure of damages flowing from the
permanent injury and is not subject to an economic calculation."
C. The More Things Change ...
As can be seen from this review of cases deciding the issue of the
admissibility of expert testimony since Daubert, courts have not moved very far
from where they were before Daubert. The courts of appeals, as well as lower
federal courts and state courts, appear to render their decisions case by case,
gleaning whatever language from Daubert they need to support their positions.
REVISING RULE 702
Although case law generally can provide the standards for interpreting
rules, as well as statutory provisions, case law to date interpreting Federal
Rules 702 and 703 has created more confusion and controversy than it has
settled. One author, reflecting on this confusion, has written: " W e have had
almost two decades of experience working with Rules 702 and 703. Yet.... to date
the courts have failed to clarify the relationship between the two statutes.
That failure is intolerable."(73)
Commentators, too, have confused the roles of the two rules.(74)
Because of this confusion, the U.S. Judicial Conference Advisory Committee
on Civil Rules proposed changes to Rule 702, which were circulated to the bench
and bar by the conference's Committee on Rules of Practice and Procedure on
August 15, 1991. They would have required expert testimony admitted under Rule
702 to be "reasonably reliable" and to "substantially assist the trier of fact."
(Emphasis added.) Although the committee explicitly rejected the notion that the
restrictions on the admissibility of expert testimony constituted a return to
the "general acceptance" standard of Frye, it acknowledged that the amendments
would grant the trial judge more control over expert testimony. Because of
Daubert, however, efforts to reform Rule 702 have been abandoned.
Several commentators have offered other suggestions for amending Rule 702,
including, for example, incorporating Rule 403's balancing test into Rule
702;(75) requiring "reliable" evidence;(76) requiring the theory or technique
relied on to be "scientifically valid for the purposes for which it is
tendered";(77) restructuring Rule 702 to include all three of these
modifications;(78) and adding a notice requirement to Rule 702.(79) These are
only a few of the proposals. Whereas Rule 702 may need revision, danger lies in
setting forth requirements too specific for any judicial case-by-case
flexibility.
While efforts to reform the Federal Rules have been abandoned, Ohio, at
least, has not backed away from amending its state counterpart to Federal Rule
702. Effective July 1, 1994, is an entirely new rule that more specifically
identifies the factors used to determine admissibility:
A witness may testify as an expert if:
(A) The witness' testimony relates to matters
beyond the knowledge or experience possessed
by lay persons or dispels a misconception common
among lay persons;
(B) The witness is qualified as an expert by
specialized knowledge, skill, experience, training,
or education regarding the subject matter of
the testimony; and
(C) The witness' testimony is based on reliable
scientific, technical, or other specialized information.
To the extent that the testimony reports
the result of a procedure, test, or experiment,
the testimony is reliable only if:
(1) the theory upon which the procedure,
test, or experiment is based is objectively verifiable
or is validly derived from widely accepted
knowledge, facts, or principles;
(2) the design of the procedure, test, or experiment
reliably implements the theory; and
(3) the particular procedure, test, or experiment
was conducted in a way that will yield an
accurate result.
This rule, it will be noted, restricts admissibility beyond what Daubert
recommends. The analysis under Rule 702 proposed in Daubert is disjunctive--not
all six factors need be met. The three factors for determining evidentiary
reliability delineated in the new Ohio rule form a conjunctive test--each must
exist or the testimony is not sufficiently reliable to be admitted.
PUBLIC POLICY AND EXPERT TESTIMONY
Perhaps the old adage that judges decide cases and then search for law to
support their decisions has been at work in many decisions on the admission of
expert testimony. Some courts have adhered to the F e test, while others have
applied the more liberal standards of the Federal Rules, all with an eye to
keeping junk science" out of the courtroom. Because the prevailing view is that
juries will tend to believe expert testimony regardless of its validity and
reliability, especially when faced with a mutilated, deformed child as the
plaintiff and a large corporate drug company as the defendant, judges may be
making the choice to exclude expert testimony for policy reasons. They might be
more willing to hear this same testimony themselves, however, adopting the Third
Circuit's "let it all in" approach on the belief they could give it the weight
it deserves based on a more objective and educated evaluation than a lay jury
could provide.
If this is so, the question of whether to admit certain expert testimony
actually may be one of public policy. If a court favors recovery by the
plaintiff, it will admit the expert testimony. If it favors the defense, it will
exclude it. The answer, on the other hand, may lie in the means the court
employs to achieve its end.
In view of this dilemma, several alternatives for reforming evidentiary
admissibility without amending the Federal Rules have been proposed. One
proposal is the appointment of "blue ribbon" juries, those composed of persons
with expertise in the particular scientific arena.(80) The idea of seating
special juries is not a novel or modern concept; it was prevalent in the United
States until the middle of the 20th century.(81)
Another alternative to amending the rules would be to eliminate the jury
altogether in complex cases.(82) Yet another proposal has been for judges to
utilize their powers to appoint their own experts.(83) Shifting the burden to
the defendant to prove the safety of a product, once the plaintiff has met the
burden of proving substantial exposure to the product and an injury consistent
with such exposure, has also been proposed.(84) Finally, another burden-shifting
approach would incorporate a legislatively produced listing of carcinogenic
substances. Once a plaintiff proves exposure to one of the carcinogens beyond
the requisite threshold level, the burden would shift to the defendant to prove
that the exposure did not cause the plaintiff's condition.(85)
Whether any of these alternatives are feasible is the subject of much
debate. The consensus, however, has been that some type of reform is necessary
to end the confusion, settle the controversy and render consistency among the
circuits. Even though the Supreme Court has issued an opinion on the
admissibility of expert testimony, without delineating specific guidelines in
the form of standards to be met for admitting such testimony, its holding in
Daubert may be too vague and open to individual interpretation to prevent
incongruous results at the trial court and appellate court levels.
Whether the guidelines set forth in Daubert will provide any more clarity
than the previously proposed amendment to Rule 702 or will elicit any more
consistency among the federal and state courts remains to be seen. (1.) 113
S.Ct. 2786 (1993). (2.) 293 F. 10 1 3 (D.C. Cir. 1923). See Peter Huber, Junk
Science in the Courtroom, 26 Val. U. L. Rev. 723, 731 (1992) (until mid-1970s
admission of scientific evidence governed largely by Frye) hereinafter Huber .
(3.) Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v.
United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1224 (1980),
quoting John William Strong, Questions Affecting the Admissibility, of
Scientific Evidence, 1970 U. Ill. L. Rev. 1, 14) hereinafter Giannelli . (4.)
293 F. at 1014. (5.) Id. (6.) Giannelli, supra note 3, at 1205 n.46. (7.)
Kathleen Strickland & Leah S. Elkins, A Current Assessment of Frye in Toxic Tort
Litigation, Toxic Tort Case Essentials: Strategies, Experts, Motions and ADR.
446 PLI/ Lit 321 (Oct.-Nov. 1992) hereinafter Strickland & Elkins . (8.) Recent
Case, Evidence-Admissibility of Scientific Evidence-Fifth Circuit Limits
Permissible Scientific Evidence to Generally Accepted Theories--Christophersen
v. Allied-Signal Corp., 105 Harv. L. Rev. 791 (1992) (before Federal Rules, rule
of Frye governed). (9.) Michael C. McCarthy, "Help.141" or "Reasonably
Reliable"? Analyzing the Expert Witness's Methodology under Federal Rules
Evidence 702 and 703, 77 Cornell L. Rev. 350, 354 (1992) hereinafter McCarthy .
(10.) Id. at 354. (11.) Huber, supra note 2, at 728, 729, 732. But see Comment
(Robert L. Schwatrz), There is No Archbishop of Science--A Comment on Elliott's
"Toward Incentive-based Procedure: Three Approaches for Regulating Scientific
Evidence," 69 B.U.L. Rev. 517 (1989) (scientific truth is relative and
culturally determined; therefore, judges should not exclude it). (12.) Book
Review (John F. Baughman), Galileo's Revenge: Junk Science in the Courtroom. By
Peter W. Huber, 90 MICH. L. REV. 1614 (1992) hereinafter Baughman . (13.) See,
e.g., Christophersen, 939 F.2d at 1106 (proposing four-prong test incorporating
Frye, along with Federal Rules Evidence 702, 703 and 403); Ealy v.
Richardson-Merrell Inc., 897 F.2d 1159 (D.C. Cir. 1988), cert. denied, 498 U.S.
950 (1990); Richardson v. Richardson-Merrell Inc., 857 F.2d 823 (D.C. Cir.
1988), cert. denied, 493 U.S. 882 (1989); Lynch v. Merrell-Nat'l Labs., 830 F.2d
1190 (1st Cir. 1987). (14.) 809 F.2d 54 (D.C. Cir. 1987), aff'g 618 F.Supp. 255
(D. D.C. 1985), cert. denied, 484 U.S. 817 (1987). (15.) Authors have referred
to the standard of admissibility under Rule 702 as the relevancy test or the
relevance standard. See Edward J. Imwinkelried, Judge Versus Jury: Who Should
Decide Questions of Admissibility of Scientific Evidence? 25 WM. & Mary L. Rev.
577, 579-80 (1984). (16.) 857 F.2d 823 (D.C. Cir. 1987). (17.) 569 F.2d 666, 673
(D.C. Cir. 1977). (18.) 736 F.2d 1529 (D.C. Cir. 1984). (19.) 897 F.2d 1159,
1160 (D.C. Cir. 1990), quoting Richardson, 857 F.2d at 832. (20.) 830 F.2d 1190
(1st Cir. 1987), aff'g 646 F.Supp. 856 (D. Mass. 1986). (21.) 646 F.Supp. at
866-67. (22.) United States v. Brown, 557 F.2d 541 (6th Cir. 1977). Nor did the
Sixth Circuit specifically apply Frye in Sterling v. Velsicol Chemical Corp.,
855 F.2d 1188 (6th Cir. 1988), but rather devised a four-part admissibility test
under Rule 702: "(1) a qualified expert (2) testifying on a proper subject (3)
which is in conformity to a generally accepted explanatory theory (4) the
probative value of which outweighs its prejudicial effect." Id. at 1208, citing
United States v. Kozminski, 821 F.2d 1186, 1194 (6th Cir. 1987), aff'd on other
grounds, 487 U.S. 931 (1988), and Brown. Quoting from Brown, the court held that
the scientific evidence offered in Sterling failed to meet the third prong of
the test. (23.) 959 F.2d 1349 (6th Cir. 1992). (24.) 874 F.2d 307 (5th Cir.
1989). (25.) 939 F.2d 1106 (5th Cir. 1991), superseding 902 F.2d 362 (5th Cir.
1990). (26.) Id. at 1110. (27.) 855 F.2d at 1188. (28.) Baughman, supra note 12,
at 1621-22. (29.) See, e.g., Strickland & Elkins, supra note 7; Cohen Wade,
Overcoming the Unsupported Adverse Opinion as a Matter of Law, Defense Research
Institute Drug and Medical Device Litigation Seminar, May 14-15, 1992, at D16.
According to Strickland and Elkins, citing Cohen Wade, the theory behind this
approach is that any lack of foundation for an expert's opinion goes to its
weight, not its admissibility. The weakness of this approach, however, lies in
allowing expert testimony based on foundations that are not considered valid in
the relevant discipline. (30.) 753 F.2d 1224 (3d Cir. 1985). (31.) 911 F.2d 941
(3d Cir. 1990). (32.) In re Bendectin Products Liab. Litig., 732 F.Supp. 744
(E.D. Mich. 1990). (33.) 91 1 F.2d at 958 (court's emphasis). (34.) 951 F.2d
1128 (9th Cir. 1991), aff'g 727 F.Supp. 570 (S.D. Cal. 1989). (35.) Brock, 874
F.2d 307; Richardson, 857 F.2d 823; Lynch, 830 F.2d 856. (36.) 113 S.Ct. 2786
(1993). (37.) Id. at 2798. (38.) Id. at 2794, quoting Webster's Third New
International Dictionary 1252 (1986). (39.) Id. at 2798, quoting Jack B.
Weinstein, Rule 702 of the Federal Rules Evidence Is Sound: It Should Not Be
Amended, 138 F.R.D. 631, 632 (1991). (40.) See Thomas J. Mack, Scientific
Testimony after Dauberet: Some Early Returns from Lower Courts, TRIAL, August
1994, at 23, and Jeffrey R. White, Life after Daubert: A Sampling of Recent
Federal Court Decisions, TRIAL, August 1944, at 26-27. (41.) 999 F.2d 1007 (6th
Cir. 1993). (42.) 12 F.3d 540 (6th Cir. 1993). (43.) Id. at 556. (44.) 1994 U.S.
App. LEXIS 21901 (6th Cir., Aug. 17, 1994). (45.) 3 F.3d 1191 (8th Cir. 1993).
(46.) 545 N.Y.S.2D 985 (N.Y. Sup.Ct. Bronx Cty. 1989). (47.) 3 F.2d 769 (4th
Cir. 1993). (48.) 6 F.3d 37 (2d Cir. 1993). (49.) See, e.g., United States v.
Campino, 890 F.2d 588, 593 (2d Cir. 1989), cert. denied, 498 U.S. 866 (1990);
United States v. Diaz, 878 F.2d 608, 617 (2d Cir. 1989), cert. denied, 493 U.S.
993 (1989). (50.) 6 F.3d 924 (2d Cir. 1993). (51.) 19 F.3d 1332 (10th Cir.
1994). (52.) See United States v. McDonald, 933 F.2d 1519 (10th Cir.), cert.
denied, 1 12 S. Ct. 270 (199 1). (53.) 16 F.3d 1083 (10th Cir. 1994). (54.) 17
F.3d 787 (5th Cir. 1994). (55.) 493 F.2d 408, 418 (5th Cir. 1974). (56.) 9 F.3d
368 (5th Cir. 1993). (57.) Citing United States v. Uwaeme, 975 F.2d 1016, 1019
(4th Cir. 1992); United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988);
United States v. Osgood, 794 F.2d 1087, 1095 (5th Cir. 1986), cert. denied, 479
U.S. 994 (1986). (58.) 18 F.3d 1461 (9th Cir. 1994). (59.) 9 F.3d 1414 (9th Cir.
1993). (60.) 998 F.2d 1224 (3d Cir. 1993). (61.) 9 F.3d 607 (7th Cir. 1993).
(62.) 6 F.3d 1233 (7th Cir. 1993). (63.) 13 F.3d 1090 (7th Cir. 1994), aff'g 748
F.Supp. 672 (C.D. Ill. 1990). (64.) Id. at 1106. (65.) 2 F.3d 183 (7th Cir.
1993). (66.) 11 F.3d 259, 264 (1st Cir. 1993), citing Swajian v. Gen. Motors
Corp., 916 F.2d 31 (1st Cir. 1990). (67.) 15 F.3d 1161, 1182 (1st Cir. 1993).
(68.) 11 F.3d 563, 567 (5th Cir. 1994). (69.) See, e.g., Bommarito v. Penrod
Drilling Corp., 929 F.2d 186, 191 (5th Cir. 1991); Davis v. Oedco, Inc., 1992 WL
125430 (E.D. La. 1992). (70.) 999 F.2d 549 (D.C. 1993). (71.) 443 S.E.2d 196
(W.Va. 1993). (72.) Id. at 203. (73.) Edward J. Imwinkelried, The "Bases" !f
Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N.C. L.
REV. 1, 23 (1988) (footnote omitted). (74.) See McCarthy, supra note 9, at 387,
for examples of these articles. (75.) Margaret A. Berger, A Relevancy Approach
to Novel Scientific Evidence, 115 F.R.D. 89 (1987). (76.) Frederic I. Lederer,
Resolving the Frye Dilemma--A Reliability Approach, 115 F.R.D. 84 (1987).
(77.)
James E. Starrs, Frye v. United States Restructured and Revitalized: A Proposal
to Amend Federal Evidence Rule 702, 115 F.R.D. 92 (1987). (78.) Bert Black, A
United Theory of Scientific Evidence, 56 Fordham L. Rev. 595 (1988). (79.) Paul
C. Giannelli, Scientific Evidence: A Proposed Amendment to Federal Rule 702, 115
F.R.D. 102 (1987). (80.) Discussion of the pros and cons of "blue-ribbon" juries
is abundant. Kee, e.g., Kenneth J. Chesebro, Symposium on Civil Justice Reform:
Galileo's Retort: Peter Huber's Junk Scholarship, 42 Am. U. L. REV. 1637 (1993);
Jay Tidmarsh, Unattainable Justice: The Form of Complex Litigation and the
Limits of Judicial Power, 60 Geo. Wash. L. Rev. 1683 (1992); Joseph Sanders, The
Bendectin Litigation: A Case Study in the Life Cycle of Mass Torts, 43 Hastings
L.J. 301 (1992); Case Comment, Limiting the Admissibility of Expert Testimony:
Christophersen v. Allied-Signal Corp., 53 Ohio St. L.J. 1185 (1992); Deborah R.
Hensler, Modern Civil Procedure: Issues in Controversy. Science in the Court: Is
There a Role for Alternative Dispute Resolution? 54 Law & Contemp. Probs. 171
(1991); Elizabeth C. Wiggins, Citizen Comprehension of Difficult Issues: Lessons
from Civil Jury Trials, 40 Am. U.L. Rev. 727 (1992); Joseph C. Wilkinson, Frank
D. Zielinski & George M. Curtis III, A Bicentennial Transition: Modern
Alternatives to Seventh Amendment Jury Trial in Complex Cases, 37 U. Kan. L.
Rev. 61 (1988); Note, Scientific Evidence and the Question o Judicial Capacity,
25 Wm. & Mary L. Rev. 675 (1984); Note, The Case for Special Juries in Complex
Civil Litigation, 89 Yale L.J. 1155 (1980). (81.) Rita Sutton, A More Rational
Approach to Complex Civil Litigation in the Federal Courts: The Special Jury,
1990 U. Chi. L. F. 575, 579-80. (82.) For discussions of the pros and cons of
this proposal, see, e.g., In re Japanese Elec. Prod. Litig., 631 F.2d 1069 (3d
Cir. 1980); Thomas M. Jorde, The Seventh Amendment Right to Jury Trial of
Antitrust Issues, 69 L. Rev. 1 (1981); Note, The Right to an Incompetent Jury:
Protracted Commercial Litigation and the Seventh Amendment, 10 Conn. L. Rev. 775
(1978). (83.) See Huber, supra note 2, at 749. (84.) Strickland & Elkins, supra
note 7. (85.) Note (William V. Dunlap & E. Michael Paul Thomas), Tort Actions
for Cancer: Deterrence, Compensation and Environmental Carcinogenesis, 90 Yale
L.J. 840 (1981).
A 1994 graduate of the University of Cincinnati College of Law, Nancy A.
Miller has joined the Cincinnati firm of White, Getgey Meyer Co., L.P.A. She
obtained her B.S. degree in 1975 from Illinois State University. This is a
revised and edited version of the paper with which the author won first place in
the 1994 IADC Legal Writing Contest, which is open to undergraduate students in
American Bar Association approved law schools. She thanks Glen Weissenberger,
professor of law at the University of Cincinnati for his comments and
suggestions.
