In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),
the Supreme Court determined the trial judge did not abuse his discretion in excluding an engineer who claimed to have developed a means to determine if a tire that shredded and caused an accident was defective. Te Court claimed a judge may exclude expert opinions that are “outside the range where experts might reasonably differ, and where the jury must decide among conflicting view of different experts, even though the evidence is shaky.” (Kumho at 153) In sum, the Supreme Court increased the trial judge’s discretion to address the reliability of the expert’s conclusions determining the admissibility of the basis or conclusion of the expert. Tis left each state that did not adopt the Federal Rules of Evidence interpretation to further develop its own common law that the Frye test began.
Maryland’s Frye Plus Reliability Standard In Montgomery Mutual Insurance Company v. Chesson,
399 Md. 314 (2007) the Workers’ Compensation carrier appealed the finding of occupational disease in a series of workers’ claims of injury from exposure to toxic mold in the work place. Te causation expert in the case diagnosed each of the claimants with biotoxic illness in part by applying a nystagmus gaze test. Te trial judge refused to hold a Frye-
Reed hearing summarily claiming the doctor’s opinion was a medical one and therefore not subject to Frye. Te Court of Appeals found that the doctor’s causation diagnosis of a condition not recognized in the ICD-9, yet similar to Sick Building Syndrome was significantly novel. Further, it found that the novel application of the nystagmus gaze test in conjunction with the novel diagnosis warranted a remand for the limited purpose of a Frye-Reed hearing. Te Court of Appeals explained that medical causation opinions were not immune from Frye-Reed challenge. Te Court held that the basis of the expert’s opinion, including the theory of causation, and the methodologies must be generally accepted as reliable in the expert’s field. (Chesson at 327) Significantly it proclaimed that novel causation theories were a factor in justifying a Frye-Reed admissibility hearing. Next,
in Blackwell, the trial court precluded five
Plaintiff ’s experts from offering opinions that Timerasol, a mercury-based preservative, could or did contribute to mental retardation and autism in genetically susceptible infants. Te Plaintiff ’s experts spanned the fields of genetics, epidemiology,
neuro-pharmacology, pediatrics, molecular
biology and psychiatry. Te court held a ten day evidentiary hearing where defendant Wyeth offered testimony from their own experts. Wyeth successfully framed the Frye-Reed
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18 Trial Reporter / Winter 2010
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Testifying Expert Location Medical Record Organization
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