The Evolving Frye-Reed Standard for Admission of Expert Testimony
Thomas F. Yost In pharmaceutical products liability litigation, the area
of causation is usually hard fought. Te Court of Appeals has recently issued two opinions creating additional concerns when bringing cases in emerging torts. Tese cases provide new guidelines that will expand the discretion of judges when addressing motions to exclude causation expert opinions.
The Frye Standard Originated to Exclude Junk Science, not Expert Opinion
In Frye v. U.S., 293 F. 1013 (D.C. Cir 1923), the court
was faced with a precursor to a lie detector test. Te test was a “systolic blood pressure detection test” alleged to test the truthfulness of a defendant’s statements. Te court was concerned that the infallible aura of science might tempt the jurors to substitute a test result for their own deliberations on all of the evidence. Te court required that the generic kinds of studies, methodologies, and test results that the expert relied upon must be “generally accepted” in the relevant field. Since the blood pressure test was not then generally accepted to detect liars, the expert was not permitted to testify. Tis judicially-created doctrine imposed a gate keeper
duty and wide discretion upon a trial judge to determine the admissibility of expert testimony. Medical opinions were usually determined beyond the scope of Frye because they were based upon the generally accepted methodology of differential diagnosis. Te doctor’s opinions given to a reasonable degree of medical probability were unlikely to blind the jury with scientific infallibility. Te corollary argument would be that problems with the expert’s conclusion would be fodder for cross examination. Maryland adopted the Frye test in Reed v. State, 283 Md.
374 (1978). Te court explained that it made the independent determination whether “the basis of the opinion is generally accepted as reliable within the expert’s particular scientific field.” Reed at 381. Te standard Frye test adopted by each of the states still embracing the Frye test focuses only on the general acceptance of the basis, but not the conclusion. See Marsh v. Valyou, 977 SO 2d 543, 549 (Fla 2007); Donaldson v. Central Illinois Public Service Co., 767 N.E. 2d 314, 324 (2002); Kuhn v. Sandoz Pharmaceuticals Corp., 14 P. 3d 1170, 1183 (2000); Roberti v. Andy’s Termite & Pest Control, Inc., 6 Cal. Rptr. 3d 827, 832 (2003). Te Court of Special Appeals found “the Frye-Reed test applies to the methodologies underlying
Frye-Reed hearings provide the defendants with further discovery of your expert at your cost.
expert testimony and does not operate to exclude debatable conclusions that are based upon generally acceptable scientific principles.” Giddens v. State, 148 Md. App. 407, 413 (2002).
The Daubert Trilogy and Expert Conclusion In Federal and most State Courts, the admissibility of
expert testimony is based upon the interpretation of the Federal Rules of Evidence. Tis was a significant departure from approximately seventy years of developed common law. In Daubert v. Merrel Dow Pharm. Inc., 509 U.S. 579, 592-5 (1993), the Supreme Court stated that a trial court should only examine the reliability of the methodology used when determining the admissibility of the scientific evidence and not evaluate the correctness of the expert’s conclusions. However, later in Joiner v. General Electric Company, 118
S. Ct. 512, 519 (1997) the Supreme Court said “conclusions and methodologies are not entirely distinct from one another.” Mr. Joiner claimed he had contracted lung cancer from exposure to mineral based solvents at work which were known to be carcinogens. Te Court analyzed each piece of evidence which the Plaintiff ’s expert relied upon and found each in itself inadequate to support the expert’s causation opinion. Te Court found that reliance on studies of mice exposed to PCB’s failed to support plaintiff ’s claim. It also addressed four separate epidemiological studies finding each insufficient to support causation.
Dr. Thomas K. Hyland Robertson 410.305.1331 •
info@wholechiro.com
A DIFFERENT APPROACH TO REHAB & WELLNESS Specializing in TMD & extremity problems
1202 Annapolis Rd. 2nd Floor, Suite I Odenton, MD 21113 Trial Reporter / Winter 2010 17
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