physical examination of Plaintiff using techniques that are generally accepted in the relevant medical community. Tey did not rely upon any new scientific technique, device or procedure that has not gained general acceptance in the relevant scientific or medical community. Rather, it is the theory of causation that Dursban caused Plaintiff ’s autism that has not gained general acceptance in the relevant medical community. Te Kelly (i.e. Frye) test is not applicable even though the proffered evidence presents a new theory of medical causation.


Te traditional Frye test does not even address the novelty of the opinion and permits the defendant to address the expert’s extrapolation from animal studies to human at the time of cross examination. Rather it is the burden of the party seeking to preclude expert testimony to identify the novel basis. In Donaldson v. Central Illinois Public Service Co., 767


N.E. 2d 314 (2002), the Illinois Supreme Court refused to overturn a verdict rendered against an environmental polluter whose coal tar was proven to have caused children’s cancer. Te defendant complained that the trial judge should have undertaken more than a cursory Frye test and considered that


the plaintiff ’s expert found causation without epidemiology. Te defendants were asking the court to address the reliability of the expert in a Frye-Plus-Reliability Standard. Te Illinois Supreme Court responded, “. . .as long as the basic methodology employed to reach such a conclusion is sound, such as use of tissue samples, standard tests, and patient examinations, product liability law does not preclude recovery until a ‘statistically significant’ number of people have been injured or until science has had time and resources to complete sophisticated laboratory studies of the chemical” (Donaldson at 329), Te Illinois Court applied the traditional Frye test. Since the defendant did not identify a novel scientific test or methodology, the Appellate Court ruled they were not entitled to a Frye hearing. Absent some novel basis, a Frye hearing could not be warranted just because the conclusion was not popular.


Considerations for Frye-Reed Challenges In light of the successes in excluding the testimony


Legal Directory Aug 2006.qxd 8/15/2006 10:20 AM Page 1


Physicians demand experience. So should you.


M. R.Waite & Associates offers attorneys complete medical record reviews, interpretation and analysis – for the plaintiff as well as the defense. We can also locate testifying experts.


 Medical & Nursing Malpractice  Personal Injury Toxic Torts & Environment  Negligence Workers’ Compensation  Product Liability  Any case where health, illness, or injury is an issue


For a free phone consultation Call Today: 410-259-0800


of causation experts from testifying when their medical causation opinions are not popular, it is likely that there will be an increase in challenges in emerging torts. Tis provides defendants another bite at the summary judgment apple. It further creates additional cost and potential delay of a hearing not set in advance of the trial date.Frye-Reed hearings provide the defendants with further discovery of your expert at your cost.


Some considerations in advance of discovery in emerging


tort areas may help practitioners. Prepare your experts before discovery deposition to address where the relevant medical or scientific community stands on a test or opinion. If defense counsel questions your expert at discovery deposition about Frye-Reed issues, rehabilitate your witness as you may be able to offer the transcript instead of bringing the witness to a live hearing. Also consider naming scientific or medical experts you would not normally bring to trial in the event you need someone to be qualified to testify what is generally accepted as reliable in a specific field. 


Biography Tomas F. Yost, Jr. is a principal in Te Yost Legal Group


info@mrwaite.com  www.mrwaite.com 20 Trial Reporter / Winter 2010


in Baltimore, Maryland. He concentrates his practice on pharmaceutical product liability, wrongful death, catastrophic injury claims, interstate trucking litigation and FELA – railroad claims. He is a member of MAJ’s President’s Club.


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68