The Changing Face of Expert Evidence

Mitchell L. Lathrop

 

I.

Introduction

 

Virtually all cases involving scientific or technical issues, or even professional standards, require expert witnesses and expert testimony.  The rules that have evolved and the standards that are required regarding expert testimony are by no means uniform, as they vary depending upon the jurisdiction.  Juries are frequently asked to decide between the conflicting testimony of two or more expert witnesses, with little or no guidance from the court.  As Judge Learned Hand pointed out more than a century ago, “how can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own?  It is just because [jurors] are incompetent for such a task that the expert is necessary at all.”[1]  The last half of the twentieth century saw an ever-growing debate about the standards that should be applied to expert testimony and the safeguards that should be applied to prevent abuse.[2]

At the outset, it must be remembered that there are three general areas of expert evidence: (1) pure opinion expert evidence, (2) scientific expert evidence, and (3) non-scientific expert evidence.  The rules that govern the admission of each may vary, both in terms of the standards for admission in the first instance as well as the standard for reviewing decisions of the trial court.  Different jurisdictions have formulated different tests for the admission of all types of expert evidence, and care must be taken to identify precisely what rules apply to each jurisdiction.

All too often courts avoid the issue of admissibility by stating, “it goes to the weight, not the admissibility,” and then simply let everything in.  The recent trend, however, has been toward a more careful scrutiny of expert evidence by trial courts.  As the Fifth Circuit Court of Appeals so aptly put it in In re Air Crash Disaster at New Orleans, Louisiana:[3]

 

Basic policy questions that affect the very nature of a trial lie behind decisions to receive expert testimony.  Under the Federal Rules of Evidence, experts not only explain evidence, but are themselves sources of evidence.

. . . .

. . . [W]e recognize the temptation [on the part of the trial judge] to answer objections to receipt of expert testimony with the shorthand remark that the jury will give it “the weight it deserves.” . . .  Trial judges must be sensitive to the qualifications of persons claiming to be expert. . . .

In sum, we adhere to the deferential standard for review of decisions regarding the admission of testimony by experts.  Nevertheless, we take this occasion to caution that the standard leaves appellate judges with a considerable task.  We will turn to that task with a sharp eye, particularly in those instances, hopefully few, where the record makes it evident that the decision to receive expert testimony was simply tossed off to the jury under a “let it all in” philosophy.  Our message to our able trial colleagues: it is time to take hold of expert testimony in federal trials.[4]

 

The same admonition is equally applicable to state courts.

II.

The Frye Rule

Modern rules governing expert testimony in federal courts and many states have their origin in the seminal case of Frye v. United States.[5]  It has been refined and to some extent replaced by what has become known as “the expert evidence trilogy.”  The three landmark cases decided by the Supreme Court that make up the trilogy are: Daubert v. Merrell Dow Pharmaceuticals, Inc.;[6] General Electric Co. v. Joiner;[7] and Kumho Tire Co., Ltd. v. Carmichael.[8]

Decided in 1923 by the District of Columbia Court of Appeals, Frye established the “general acceptance test.”  As the court held “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.”[9]  From its genesis in 1923 through at least the 1960s, the rule of Frye achieved general acceptance in both federal and state courts.  In 1954, however, Professor Charles McCormick published his treatise on evidence in which he opined that the general acceptance test “is a proper condition upon the court’s taking judicial notice of scientific facts, but not a criterion for the admissibility of scientific evidence.”[10]  McCormick argued that, “[a]ny relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion.  Particularly, its probative value may be overborne by the familiar dangers of prejudicing or misleading the jury, unfair surprise and undue consumption of time.”[11]  In McCormick’s view, any expert testimony should be admitted if the expert witness has sufficient credentials as an expert and no independent reasons exist to exclude the testimony.  He thought it is the role of the jury to determine the credibility of the expert witness and decide what weight the testimony should be given.

A significant weakness of the Frye rule is that it does not address situations involving new, unique or novel scientific evidence.  Unless the scientific principle that the expert’s testimony is based upon is sufficiently established in the scientific community, the expert testimony must be rejected under Frye.

Also, a question left largely unanswered by the Frye rule is exactly what the scientific community must generally accept.  Should it be the conclusion of the expert witness, the methodology used to arrive at the conclusion or the mode of reasoning and applying the scientific principles involved?  What should be the effect of applying a generally accepted scientific principle in an unaccepted way?  Should the Frye rule be applied to disciplines other than those considered strictly scientific, such as economics, social sciences, and epidemiology?  Even if an expert’s methodology is generally accepted, how is that methodology being used in the particular case?  It was not until the 1990s that many of these questions were considered by the courts, and the then-existing Federal Rules of Evidence offered little help.

Nevertheless, the Frye rule is still followed by at least seventeen states.[12]

III.

The Federal Rules of Evidence

The Federal Rules of Evidence became effective in 1975.  Like Frye before them, the Rules contained no standard for the admission of new or novel scientific evidence, regardless of the credentials of the expert witness seeking to give such expert testimony.  Expert testimony is governed by Rule 702, as amended in 2000, which states that “[i]f 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”[13]  However, conspicuously absent from the Rules and the Advisory Committee comments is any consideration of the Frye “general acceptance test.”

Rule 702 gives wide discretion to trial courts to accept or reject expert testimony.  Further, Rule 703 allows an expert witness to be “fed” facts or data in a particular case either during trial or before.  Such facts or data could form the basis for the expert’s opinion “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject . . .”[14]  Moreover, the facts or data “need not be admissible in evidence.”[15]  The facts or data, however, may be elicited on cross-examination if not otherwise brought out.[16]

The wide judicial discretion and lack of strict standards resulted in a proliferation of “junk science,” although there was also some judicial acceptance of legitimate new scientific testimony.  Courts tended to admit everything, retreating to the well-worn response that “it goes to the weight, not the admissibility.”  Faced with the broad, non-specific language of the Rules, federal courts continued to apply the Frye rule, sometimes without even mentioning it.  For example, in Sterling v. Velsicol Chemical Corp.,[17] the court excluded testimony about “clinical ecology” because it was not generally accepted in the relevant scientific community.

The Velsicol case was a class action brought against Velsicol Chemical Corporation because of its use of rural land in Hardeman County, Tennessee to dispose of by-products from the production of chlorinated hydrocarbon pesticides.  Velsicol conducted no hydrogeological studies to determine soil composition, the water flow direction, or the location of the local water aquifer.  The result was the potential contamination of local drinking water wells.  Additional tests performed after the initial studies confirmed the contamination of the local drinking water aquifer.  Forty-two plaintiffs sued Velsicol.  Over its objections, the district court certified a class and proceeded to hold a bench trial.

At trial, both the plaintiffs and Velsicol utilized the Trescott, Pinder and Larson computer model to trace the level of chemical contamination.  However, there were dramatic differences between presentations due to the use of different assumptions concerning the contaminant loading rates and porosity.[18]  The district court rejected Velsicol’s model as inaccurately under-representing the extent of chemical contamination in the ground water supply.

The plaintiffs also introduced evidence of immune system impairment based upon harm caused by Velsicol’s chemicals.  Their testifying experts stated that, on the basis of clinical ecological tests, Velsicol's chemicals damaged the plaintiffs' immune systems.  Clinical ecology is premised on a belief that exposure to a number of factors including, but not limited to, anxiety, radiation, certain chemicals, and some common household substances can cause immune system impairments.

The district court found Velsicol liable to the plaintiffs on legal theories of strict liability, common law negligence, trespass, and nuisance.  It awarded compensatory damages of over $5 million, prejudgment interest, and $7.5 million in punitive damages to the class as a whole.  Velsicol appealed the decision, challenging the validity of groundwater modeling techniques in general, as well as the particular model used by the plaintiffs in that it fatally failed to utilize all relevant data.  Velsicol also challenged the general concept of clinical ecology.

The Sixth Circuit Court of Appeals reversed the district court.  Although it upheld the use of computer modeling to determine the rate of contaminants in soil, it rejected the concept of clinical ecology.  The court held that Rule 702 mandates that a four-part test be met to uphold the admission of expert testimony.  The test requires “(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.”[19]  The court held that the third criterion had not been met.  Clinical ecology was not sufficiently established to have gained wide acceptance in the field to which it belongs.  The court noted that, “[t]he leading professional societies in the specialty of allergy and immunology, the American Academy of Allergy and Immunology (AAAI) and the California Medical Association (CMA), have rejected clinical ecology as an unproven methodology lacking any scientific basis in either fact or theory.”[20]  The court clearly relied on Frye in reaching its decision, yet it made no mention of that case in its opinion.

Nevertheless, “junk science” continues to be used.  The case of DeLuca v. Merrell Dow Pharmaceuticals, Inc.[21] involved birth defects allegedly caused by the mother’s ingestion during pregnancy of Bendectin, a drug manufactured and distributed by Merrell Dow.  Merrell Dow filed a motion for summary judgment.  It claimed that the only causation evidence produced by the plaintiff was inadmissible because all relevant epidemiological studies at the time determined there was no statistically significant link between the use of Bendectin during pregnancy and the type of birth defects suffered by the child.  The plaintiff submitted affidavits and deposition testimony by an expert in pediatric pharmacology.  That expert opined that the available epidemiological data did, in fact, support the conclusion that Bendectin causes limb reduction defects and that he believed, to a reasonable degree of medical certainty, that Bendectin caused the child’s defects.[22]  The district court held that such testimony would be inadmissible at trial because it was not based on data of a type reasonably relied upon by experts in the pertinent fields in issuing opinions on those subjects.  Since the expert’s testimony was the sole causation evidence tendered in response to Merrell Dow’s motion, the district court entered summary judgment for Merrell Dow.

On appeal, the plaintiff argued that the district court misapplied Rule 703.  The Court of Appeals reversed under the guise of a strict reliability test, but in actuality it endorsed expert testimony that was unlikely to meet either the requirements of Rule 703 or Frye.  While there was no question at the time that Bendectin was the target of hundreds of lawsuits claiming birth defects resulting from its use during pregnancy, the scientific evidence was still inconclusive as to its teratogenicity.  The court held that “an expert’s opinion need not be generally accepted before it can be sufficiently reliable and probative to be submitted to the jury and perhaps support a jury finding.”[23]  On remand, the district court found that the expert witness:

 

has presented no evidence that his methodology has been put to any non-judicial use.  Although “the Federal Rules of Evidence contain no requirement that an expert’s testimony be based upon reasoning subjected to peer-review and published in the professional literature,” the fact that [the expert’s] methodology has not been used non-judicially weighs against its admissibility.[24]

 

The district court concluded that the expert’s testimony was inadmissible under Rules 702 and 703, and again entered summary judgment in favor of Merrell Dow.

The economic impact of “junk science” decisions has been considerable.  Products have been forced off the market because of questionable expert testimony.[25]  Some manufacturers stopped producing products because they could be the target of the “almost unlimited pool of [plaintiffs’] experts. . . .  While attorneys are stuck with the testimonial limitations of the available fact witnesses, an attorney who needs an expert can ‘shop’ for an expert with a pleasing courtroom manner who will agree with the attorney’s theory of the case.”[26]

Having signaled in 1989 that it would support the application of Frye to toxic torts,[27] in 1991 the Fifth Circuit Court of Appeals applied Frye in the case of Christophersen v. Allied-Signal Corp.[28]  That case involved a wrongful death claim from exposure to heavy metal fumes.  The decedent died of a rare, small-cell form of cancer that was allegedly caused by exposure to fumes at his place of employment.  The district court entered summary judgment in favor of the defendant, finding that the facts and data relied upon by the plaintiffs’ expert witness were insufficient to meet the standards of Rule 703.  The appellate court, in a 9-3 decision, affirmed the district court.  It determined that a four-pronged test is required before expert testimony can be admitted:

 

(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.[29]

 

The court seemingly foresaw the expert evidence trilogy that was to emerge from the Supreme Court over the next eight years.

At about the same time, Peter Huber’s book Galileo’s Revenge: Junk Science in the Courtroom was published.  The work attracted great attention throughout the judiciary and the trial bar, and clearly influenced the Ninth Circuit Court of Appeals when it decided Daubert v. Merrell Dow Pharmaceuticals, Inc.[30]  Daubert, like DeLuca, involved birth defects attributed to Bendectin taken by a mother during pregnancy.  In Daubert two boys were born with defects that reduced the size of their limbs.  The parents sued Merrell Dow Pharmaceuticals.  During the ensuing litigation, Merrell Dow introduced extensive epidemiological studies showing that exposure to Bendectin in utero did not result in a higher rate of limb reductions than the rate for babies who were not exposed.  On rebuttal, the plaintiff’s experts gave opinions based on in vitro and in vivo animal tests, chemical structure analyses and the reanalysis of previously conducted epidemiological studies.  On that basis they opined that Bendectin was a teratogen.  The district court refused to admit the evidence proffered by plaintiff’s experts and entered summary judgment for Merrell Dow, finding that the re-analyses had neither been published nor subjected to peer review.

The Ninth Circuit affirmed, noting that:

 

Scientific studies conducted in anticipation of litigation must be scrutinized much more carefully than studies conducted in the normal course of scientific inquiry.  This added dose of skepticism is warranted, in part, because studies generated especially for use in litigation are less likely to have been exposed to the normal peer review process, which is one of the hallmarks of reliable scientific investigation.[31]

 

The court observed that Frye governed the admissibility of scientific evidence in the Ninth Circuit, despite the fact that the Frye rule had not previously been applied in a civil case in the Ninth Circuit, and had only been applied twice before in the toxic tort context in other jurisdictions.[32]

Daubert’s use of the Frye rule as the basis for the exclusion of expert testimony in a toxic tort case gained widespread notoriety, at least while the decision was in effect.  However, the Supreme Court granted certiorari in Daubert to decide whether Frye was still viable precedent under the Federal Rules of Evidence.  Thus began what would become the federal expert evidence trilogy.

IV.

The Federal Expert Evidence Trilogy

 

The Supreme Court reversed the Ninth Circuit’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.[33]  In a unanimous decision as to the principal holding, Justice Blackmun authored the Court’s opinion.[34]  The Court held that the Frye “general acceptance” test was superceded by the adoption of the Federal Rules of Evidence, but that Rule 702 nonetheless gives trial judges a “gatekeeping” responsibility in deciding questions of the admissibility of proffered expert testimony.  General acceptance was held to no longer be a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, since nothing in the text of Rule 702 establishes general acceptance as an absolute prerequisite to admissibility.  Neither the Rule itself nor the Advisory Committee comments indicate that Rule 702 or the Federal Rules of Evidence as a whole were intended to incorporate the Frye general acceptance standard.  Nevertheless, the Court held, the Federal Rules of Evidence require that a federal trial judge must ensure that any and all scientific testimony or evidence is not only relevant but reliable.  The majority went on to hold that in a federal case involving scientific evidence, evidentiary reliability must be based on scientific validity.

It was this latter point that caused Chief Justice Rehnquist and Justice Stevens to dissent in part.  Obviously concerned about the ability of federal judges to become instant scientists capable of determining the validity of proffered scientific evidence, Chief Justice Rehnquist observed, “I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony.  But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role.”[35]

Although the Ninth Circuit’s decision was reversed, the Daubert standard that replaced Frye achieves much the same end result.  Federal courts must strictly scrutinize scientific expert testimony for both evidentiary reliability and scientific validity.  In some cases that may even require the court to appoint its own experts under Rule 706(a).  Arising as it did from a birth defect case, Daubert dealt with scientific evidence focused on alleged harm flowing from the ingestion of an allegedly defective product.  It did not decide what standard of review should be applied in cases where the trial court excludes expert testimony.  It was not until four years later that a case involving exposure to allegedly carcinogenic substances reached the high court.

In General Electric Co. v. Joiner,[36] an electrician, Joiner, contracted lung cancer allegedly promoted by exposure to polychlorinated biphenyls (PCBs) contained in electrical transformers and dielectric fluid.[37]  The electrician sued the manufacturers of the transformers and the dielectric fluid on theories of strict liability, negligence, fraud, and battery.  The district court, on the manufacturers’ motion for summary judgment, excluded the testimony of the electrician’s experts and granted the manufacturers’ motion.  The court found that Joiner failed to show by a preponderance of the evidence that the expert opinions regarding a connection between PCB and lung cancer were admissible under the standards set out by Rule 702 and Daubert.

Joiner appealed to the Eleventh Circuit Court of Appeals.  In a 2 to 1 decision it reversed and remanded, applying a de novo standard of review to the admissibility of expert opinions.[38]  The majority decided that the trial court improperly assessed the admissibility of the expert testimony and overlooked evidence establishing disputed issues of fact.  It found that Joiner had sufficiently demonstrated the basis of the expert’s testimony and their scientific reliability. Ruling that the Federal Rules of Evidence liberalized the Frye standard, the majority misinterpreted the holding in Daubert.  As the dissent noted:

 

As a “gatekeeper,” the trial court must sift through expert testimony to decide not only whether an expert may testify, but what portion of the expert’s testimony is admissible.  A single expert may offer several opinions to reach his ultimate conclusion, and each opinion must be admissible under Daubert. Further, an expert’s testimony does not “assist” the trier of fact if the expert does not explain the steps he took to reach his conclusion.  We should not require the trier of fact to accept blindly the expert’s word to fill the analytical gap between proffered “scientific knowledge” and the expert’s conclusions.  Therefore, the trial court “gatekeeper” has broad discretion to decide whether a leap of faith across the analytical gap is so great that, without further credible grounds, the testimony is inadmissible.[39]

 

The Supreme Court granted certiorari and reversed the Eleventh Circuit.  The Court, in an opinion authored by Chief Justice Rehnquist, held that an “abuse of discretion” standard applies to a review of a trial court’s decision to exclude scientific evidence.[40]  It found that in the instant case, the district court did not abuse its discretion in excluding expert testimony based on studies indicating that infant mice developed cancer after receiving massive doses of PCBs, nor did the district court abuse its discretion in excluding expert testimony based on epidemiological studies.  The high court pointed out that “while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the gatekeeper role of the trial judge in screening such evidence.”[41]  The second leg of the expert evidence trilogy was now in place, but a decision on the applicability of the Rule 702/Daubert/Joiner standards to the testimony of engineers and other experts who are not scientists in a traditional sense was yet to come.

On July 6, 1993, the right rear tire of a minivan driven by Patrick Carmichael blew out.  In the accident that followed, one of the passengers died, and others were severely injured.  The Carmichaels sued the tire’s manufacturer and its distributor, collectively “Kumho Tire.”[42]  The claim was that the tire was defective.  On cross-motions for summary judgment, the Carmichaels relied in large part on deposition testimony given by an expert in tire failure analysis.  Much of the testimony given by Carmichael’s expert was not in dispute, including the method of manufacture of steel-belted radial tires.  However, the expert made certain assumptions that the parties could not agree upon, among them the fact that the tire had traveled a great number of miles.  The tire was manufactured in 1988.  The Carmichaels had purchased the used minivan in 1993 when the odometer showed 88,997 miles, and had driven it approximately 7,000 miles before the accident.  The tire tread depth showed considerable wear, and the tire had suffered at least two punctures that had been inadequately repaired.

The challenges to the Carmichael’s expert witness were significant.  The expert whose deposition testimony was used in opposition to Kuhmo Tire’s motion for summary judgment was the second expert hired by the Carmichaels, replacing a previous expert.  The original expert had examined and taken photographs of the tire.  The second expert reviewed those photographs, and adopted the first expert’s report and conclusions as his own.  The second expert examined the tire for the first time on the morning that his deposition was taken, after the original expert had issued his written report and conclusions regarding the cause of the blowout.  The second expert performed no tests on any of the minivan’s tires at that time, and his analysis was limited to a visual inspection of the tire, though he conceded that cutting the tire and physically examining it could reveal additional pertinent information.

Kumho Tire moved the district court to exclude the expert’s testimony on the ground that his methodology failed Rule 702’s reliability requirement.  The court agreed with Kumho Tire that it should act as a Daubert-type reliability “gatekeeper,” even though the expert’s testimony was “technical,” rather than “scientific.”[43]  Having examined the expert’s methodology and the reliability-related factors mandated by Daubert, the court granted the motion to exclude the testimony and entered summary judgment in favor of Kuhmo Tire.[44]

On appeal, the Eleventh Circuit Court of Appeals reversed and remanded.  The appellate court held that “[t]he district court erred as a matter of law in applying the Daubert criteria to the Carmichaels’ proffered expert testimony.”[45]  Its reasoning was that because the testimony of the expert was based on observation and experience rather than upon scientific theory, the Daubert standard did not apply.

The Supreme Court granted certiorari and reversed.  It noted that Rule 702 states that “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.”[46]  The high court noted that the language of Rule 702 makes no relevant distinction between scientific knowledge and technical or other specialized knowledge.  Rather, the rule is clear that any type of knowledge could become the subject of expert testimony.  The word “knowledge” is the governing word that “establishes the standard of evidentiary reliability.”[47]  As a result, the reliability standard applies to all scientific, technical, or other specialized matters.

The Supreme Court was clear in Kuhmo Tire that Daubert’s principles apply to all expert matters described in Rule 702 and serve to clarify and define the standard of evidentiary reliability.  It is the trial judge who must determine whether proffered expert testimony has a reliable basis in the knowledge and experience of the relevant discipline, as well as a valid connection to the subject matter of the issues as a precondition to admissibility.  Factors which may be properly considered by a trial judge in fulfilling the gatekeeper obligation to determine the admissibility of an expert’s testimony include “whether a theory or technique . . . can be (and has been) tested,” whether it “has been subjected to peer review and publication,” whether, “in respect to a particular technique, there is a high ‘known or potential rate of error’ and whether there are ‘standards controlling the technique’s operation,’” and whether the “theory or technique enjoys ‘general acceptance’ within a ‘relevant scientific community.’”[48]  With the Court’s decision in Kuhmo Tire the expert evidence trilogy was now complete.

 

V.

Pure opinion expert evidence

 

“Pure opinion” expert evidence is expert evidence developed from inductive reasoning based on the expert’s own experience, observation, or research.  Pure opinion expert testimony is commonly found in professional liability cases.  In that setting experts are testifying about the standard of care or the standard of conduct, not about scientific or technical processes or theories.  A discussion of pure opinion expert evidence is found in Kuhn v. Sandoz Pharmaceuticals Corp.[49]  In Kuhn the plaintiffs’ mother died following childbirth.  She had been given a single dose of Parlodel, a drug manufactured by Sandoz Pharmaceuticals (Sandoz) designed to prevent postpartum lactation in mothers who did not intend to breast feed their babies.  Her survivors sued Sandoz claiming the Parlodel caused or contributed to her death.  The plaintiffs produced several expert witnesses who pointed to Parlodel as a cause or contributing factor to the death.  On cross-examination, Sandoz brought out that plaintiffs’ experts: (1) were “unable to identify any human study to support their hypotheses,” (2) admitted that “no epidemiological evidence concludes that Parlodel causes cerebral edema,” (3) are “not aware of any study demonstrating a statistically significant rise in blood pressure associated with the use of Parlodel,” (4) admitted that “there is no epidemiological evidence that a single dose of Parlodel can cause seizure, hypertension, or death,” (5) admitted “there is no statistically significant epidemiology demonstrating an increased incidence of stroke, seizure, myocardial infarction, or hypertension with Parlodel use,” and (6) were “not aware of any epidemiological studies associating Parlodel with any cardiac events.”[50]  The plaintiffs established that Sandoz had been requested by the F.D.A. to remove the recommendation that Parlodel be used for lactation suppression because the possibility that the product might cause serious adverse experiences in some patients outweighed the limited benefits associated with its use.  After Sandoz refused to voluntarily remove the indicated use, the F.D.A. initiated procedures for withdrawing approval for the indication.  A day later, Sandoz withdrew the Parlodel indication for the prevention of lactation in the United States.

The district court ruled that plaintiffs’ expert witnesses improperly offered medical causation opinions concerning Parlodel without general acceptance of the bases for those opinions within the relevant scientific community.  It dismissed the plaintiffs’ case with prejudice and the plaintiffs appealed.  The Kansas Supreme Court recognized that traditionally it has applied an abuse of discretion standard to the review of evidentiary decisions by trial courts.  It further noted that the Frye rule should be used when an expert witness reaches a conclusion by deduction from applying a new or novel scientific principal, formula, or procedure developed by others.  The court held that the Frye rule was inapplicable to pure opinion expert testimony.  Rather, the Frye rule applies only “when an expert witness reaches a conclusion by deduction from applying a new or novel scientific principal, formula, or procedure developed by others.”[51]  The court went on to state that “validity of pure opinion is tested by cross-examination of the witness.  The validity of an opinion subject to Frye is tested by inquiring into general acceptance as reliable within the expert’s particular scientific field.”[52]

Courts have taken differing views on whether pure opinion (i.e., personal observation) testimony should be subject to scrutiny under Frye or otherwise prior to its admission.  For example, in Case of Canavan,[53] the plaintiff claimed an inability to work because of exposure to chemicals.  The case involved the Massachusetts Industrial Accident Reviewing Board (IARB), which upheld a finding that the plaintiff, a nurse, was temporarily unable to work and that her medical treatment was reasonable and necessary.  She claimed that her duties in the operating room exposed her to multiple chemicals including ethylene oxide, formaldehyde, and diesel fuel.  She experienced headaches, dizziness, nasal congestion, swelling of her nose and right cheek.  Ultimately, a physician highly qualified in pediatrics and certified in environmental medicine treated her.  The American Board of Environmental Medicine certified the physician. However, environmental medicine was not a field recognized by the American Board of Medical Specialties.  The physician determined that the nurse suffered from “arthritis, paresthesias, organic brain syndrome, chemical induced headaches, immunodeficiency, and multiple chemical sensitivities (MCS) secondary to chemical poisoning, which [he] believed was caused by exposure during her employment at the hospital.”[54]  He testified as an expert that MCS “is a systemic reaction of the body with multiple symptoms to multiple kinds of chemicals, which may be chemically unrelated, which are commonly present in the everyday working and living environment where that environment has not been meticulously cleaned up and had the chemical sources removed.”[55]  The expert stated that tests that he conducted showed that the plaintiff suffered from MCS and that her injury was caused at her work by chemical poisoning. The expert for the defendant hospital was a board certified expert in allergy and immunology.  He testified that chemicals at her work did not cause the plaintiff’s condition and that MCS is “not accepted as a diagnostic disease by mainstream allergists/immunologists and occupational medicine physicians.”[56]  The hospital’s expert diagnosed the plaintiff as suffering from chronic nonallergic rhinitis, a disease caused by nonspecific stimuli existing in the everyday environment.

The Appeals Court affirmed the IARB decision and the Supreme Judicial Court of Massachusetts (SJC) granted further appellate review and reversed.  The hospital argued that the plaintiff’s expert medical testimony was not based on a reliable methodology in accordance with the standards set forth in Commonwealth v. Lanigan,[57] and should not have been admitted by the trial judge.  The SJC adopted the abuse of discretion standard set forth in Joiner and Kumho Tire.  It noted “that applying an abuse of discretion standard on appellate review will allow trial judges the needed discretion to conduct the inherently fact-intensive and flexible Lanigan analysis, while preserving a sufficient degree of appellate review to assure that Lanigan determinations are consistent with the law and supported by a sufficient factual basis in the particular case.”[58]  The SJC went on to observe that since its decision in Vassallo v. Baxter Healthcare Corp.,[59] wherein it explicitly reserved the question whether expert testimony based on clinical experience and personal observations would be admissible without Lanigan analysis, the Supreme Court had decided Kumho Tire.  There the Court held that the expert’s observations were subject to a Daubert analysis.  The question before the trial judge is whether the expert’s specific observations are sufficiently reliable to support the expert’s ultimate conclusion.  The SJC agreed and adopted Kumho Tire, requiring a Lanigan analysis:

 

“That a person qualifies as an expert does not endow his testimony with magic qualities.” Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan analysis than other types of scientific methodology.  The gatekeeping function pursuant to Lanigan is the same regardless of the nature of the methodology used: to determine whether “the process or theory underlying a scientific expert’s opinion lacks reliability [such] that [the] opinion should not reach the trier of fact.”  Of course, even though personal observations are not excepted from Lanigan analysis, in many cases personal observation will be a reliable methodology to justify an expert’s conclusion.  If the proponent can show that the method of personal observation is either generally accepted by the relevant scientific community or otherwise reliable to support a scientific conclusion relevant to the case, such expert testimony is admissible.[60]

 

The SJC held there was no evidence to demonstrate that the expert used a reliable methodology to diagnosis the plaintiff as suffering with MCS.  Therefore, it reversed the decision of the Appeals Court.

Pure opinion expert evidence must, of course, meet certain foundational requirements.  The expert must be qualified by education, training and experience to render an expert opinion.  Also, the material relied upon or considered by the expert in forming the opinion must be of a type reasonably relied upon by experts in that particular field in forming opinions, or inferences upon a subject.  Further, there must be a sufficient analytical connection between the material considered or relied upon and the expert opinion itself.[61]

In Bailiff v. Manville Forest Products Corp.,[62] the plaintiff brought an action against numerous chemical suppliers, alleging that their products caused the plaintiff chronic asthma and bronchitis.  The plaintiff’s treating physician supplied an affidavit. The affidavit indicated that the plaintiff had no medical problems before the alleged exposure, but after exposure he contracted asthma and bronchitis. The affidavit stated that the chemicals likely caused the plaintiff’s condition since the chemicals were known possible respiratory irritants. The court rejected the physician’s causation testimony.  The court first questioned “whether [the doctor] possesses the necessary qualifications to render an opinion on the issue of a causative link between the product of a defendant and [plaintiff’s] medical condition.”[63]  The court continued:

 

In this regard, there is nothing in [the physician’s] affidavit to indicate that he has any skills, training, knowledge, education or experience regarding any of the chemicals manufactured by the defendants (other than that contained in the Material Safety Data Sheets, discussed infra) . . .  There is no indication that [the physician] possesses any information concerning exposure times or quantities of chemicals involved in [plaintiff’s] exposures, or that he has knowledge concerning or has performed any tests that might offer information about any cause and effect relationship between exposure to particular chemicals and [the plaintiff’s] diagnosed conditions.[64]

 

Therefore, the court excluded the physician’s opinion concerning causation and it granted the defendant’s motion for summary judgment.

Similarly, in Elder v. Pacific Telephone & Telegraph Co.,[65] the plaintiffs offered the testimony of an architect about the custom and practice of the construction industry.  The exclusion of this testimony was excepted to, and on appeal the court held that even an expert witness would not be permitted to lapse into legal commentary.  The court stated:

 

Plaintiffs also called an architect to testify as to the custom and practices in the construction industry, and sought his opinion as to the Applicability [sic] to defendants of certain construction safety orders relating to demolition work.  The latter opinion was properly excluded.  While an expert witness may properly testify as to custom and practice in construction safety, he may not state interpretations of the law, whether it be of a statute, ordinance or safety regulation promulgated pursuant to a statute.[66]

 

Maffei v. Northern Insurance Co.[67] also involved pure opinion expert testimony.  In Maffei the plaintiff owned a warehouse facility in Berkeley, California where he stored numerous drums of various chemicals used for the manufacture of dry-cleaning products.  One of the drums caught fire and released sulfur dioxide smoke.  The plaintiff’s insurance covered “hostile fires,” but it excluded other types of pollution claims.  The insurer denied coverage based on the exclusion in lawsuits brought by third parties for personal injury and property damage that alleged injury from exposure to the sulfur dioxide smoke.  The plaintiff sued the insurer for a determination of coverage and alleged bad faith.  The primary issue was whether the discharge of sulfur dioxide was caused by the fire or from a non-fire-related chemical reaction in the drum.  The plaintiff had a thermal engineering expert submit a declaration that concluded that there had been a fire.  The expert testified that sodium hydrosulfite decomposes into flammable sulfur compounds when exposed to small amounts of moisture and the heat generated from the decomposition could have ignited the chemical compounds to produce emissions of sulfur dioxide gas and smoke.  The trial court struck the expert’s testimony, holding that:

 

(1) the defendants established that the pollution exclusion barred the plaintiffs’ claim; (2) no evidence supported the plaintiffs’ claim that the hostile fire exception applied, and (3) the plaintiffs failed to establish that a genuine issue of material fact existed with regard to the application of the hostile fire exception.[68]

 

The court struck the plaintiff’s declarations as “unnecessary” under Fed. R. Evid. 702, and because one declaration impermissibly asserted a legal conclusion that was unsupported.  The Ninth Circuit Court of Appeals, in a 2 to 1 decision, reversed, holding it was an abuse of discretion to have struck the expert’s testimony and noting that a material question of fact existed as to whether a fire occurred within the drum.

Pure opinion expert testimony has taken a variety of forms.  In Merit Motors, Inc. v. Chrysler Corp.,[69] an antitrust action, the plaintiffs relied on an expert that applied an “inherent” economic effects theory concerning subsidies and other special programs between Chrysler and its dealers.  The expert asserted that Chrysler dealers were being harmed in three significant ways according to “standard economic theory.”  First, the lower prices to fleet purchasers resulted in more new cars sold to the fleets, many of which end up on the used car market. Second, if Chrysler was unable to give subsidies it necessarily would have to lower wholesale prices to dealers to maximize its profits.  These subsidy programs would have the effect of “squeezing” dealers between higher wholesale prices and lower retail prices.  Third, a number of fleet purchasers are also long-term leasing companies and are in direct competition with the Chrysler dealers selling new cars.  The expert asserted the dealers were injured in their competition against the leasing companies because the dealers did not receive subsidies and other benefits the leasing companies were granted.  Chrysler argued that the expert’s theories were purely speculative.  The plaintiffs claimed that their expert merely applied “standard economic theory” to “a factual basis that is uncontroverted.”[70]  In affirming summary judgment for Chrysler, the court noted:

 

[I]t is obvious that [the expert] makes unsupported assumptions about the elasticities of demand in various markets and that he virtually ignores the impact of the dominant forces in the automobile market: General Motors and Ford.  To hold that Rule 703 prevents a court from granting summary judgment against a party who relies solely on an expert’s opinion that has no more basis in or out of the record than [the expert’s] theoretical speculations would seriously undermine the policies of Rule 56.  We are unwilling to impose the fruitless expenses of litigation that would result from such a limitation on the power of a court to grant summary judgment.[71]

 

It is axiomatic that experts must be properly qualified.  Testimony by an unqualified expert may constitute prejudice that requires reversal of a jury verdict.[72]  Further, an expert will not normally be permitted to give an opinion that invades the province of the trier of fact.  Nevertheless, expert opinions can be given that come very close to that line.  For example, in Nixon v. United States,[73] the defendant was convicted of multiple offenses, including assault with a deadly weapon upon his live-in girlfriend.  The trial court held an in limine hearing outside the presence of the jury and it ruled the government could introduce expert testimony on battered woman syndrome (BWS), including “myths about domestic violence,” “common patterns of battering,” and “common behavior of victims of battering.”[74]  An expert for the government testified about BWS, despite the fact that she had not examined the defendant or his girlfriend.  Further, the expert did not even know whether the girlfriend was abused at all, or if the defendant had abused her, making clear that she was not providing an opinion concerning the guilt or innocence of the defendant.  The appellate court affirmed the trial court’s decision to admit the testimony.

Similarly, in Drevenak v. Abendschein,[75] a medical malpractice case with competing experts on both sides, the trial court weighed the expert testimony and ruled for the defendant, finding that the testimony of the defense experts was more convincing, generally, because they were better qualified.  The court explained that:

 

If you look at the collective experience of these experts, it’s clear that the defense experts had many more years of practice and experience in the areas that they were talking about than [the plaintiff’s] experts.  And they also had a lot more experience in the number of cases that they’d seen over the course of their practice compared to [the plaintiff’s] experts.[76]

 

On appeal, the appellate court observed that the plaintiff’s case did not relate to any novel scientific evidence or test or to any unique, controversial methodology or technique.  The case focused solely on the exercise of clinical judgment based upon specialized medical knowledge.  The case did not fit the mold of one in which novel scientific evidence or a unique controversial methodology or technique is involved.  Therefore, the judgment of the trial court was affirmed.

In affirming, the court examined the standards in medical malpractice cases and it identified seven legal principles that are important when assessing the sufficiency of proof for a national standard of care proof.

 

First, the standard of care focuses on “the course of action that a reasonably prudent doctor with the defendant’s specialty would have taken under the same or similar circumstances.”  Second, the course of action or treatment must be followed nationally.  Third, the fact that District physicians follow a national standard of care is insufficient in and of itself to establish a national standard of care.  Fourth, in demonstrating that a particular course of action or treatment is followed nationally, reference to a published standard is not required, but can be important.  Fifth, discussion of the course of action or treatment with doctors outside this jurisdiction, at seminars or conventions, who agree with it; or reference to “specific medical literature” may be sufficient.  Sixth, an expert’s personal opinion does not constitute a statement of the national standard of care; thus a statement only of what the expert “would do under similar circumstances . . .” is inadequate.  Seventh, national standard of care testimony may not be based upon mere speculation or conjecture.[77]

 

Therefore, it is the role of the trier of fact, aided by vigorous cross-examination, to decide on the worth of the opinion.  In making a determination of whether there is sufficient evidence to support a jury verdict, the court should: (1) “consider the evidence most favorable to the prevailing party,” (2) “assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party,” (3) “assume as proved all facts which the prevailing party's evidence tends to prove,” and (4) “give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.”[78]

The bottom line although is that expert testimony is not binding on the trier of fact, and the trier of fact is given considerable latitude in determining the weight to be given such evidence.  Therefore, an expert’s testimony as to the standard of care does not conclusively establish the standard of care; it is only evidence of that standard.

VI.

Scientific Expert Evidence

 

Some scientific principles, laws and theories are so well established that the court may take judicial notice of them without the introduction of expert evidence.  For example, Charles’s Law[79] and Boyle’s Law[80] are accepted without question, as are many other laws of mathematics, physics and other scientific fields.  As the scientific basis for expert evidence moves away from the clearly proven and generally accepted areas of science, the courts are called upon to examine the evidence and determine its reliability, and hence its admissibility.  Exactly how that is to be done has been a subject of controversy for decades.

In Richardson v. Richardson-Merrell, Inc.,[81] the Court of Appeals unanimously affirmed the trial court’s grant of a motion for judgment in favor of the defendant, notwithstanding a very large contrary jury verdict, on the ground that the scientific basis for testimony of the plaintiff’s experts was inadequate.  The case, like many others of its day, involved the ingestion of Bendectin by a pregnant woman that allegedly resulted in birth defects in the baby.[82]  Both the district court and the Court of Appeals analyzed the evidence presented and came to the conclusion that the verdict could not stand.  The plaintiffs’ sole expert[83] admitted that there was no published work on Bendectin that concluded there is a statistically significant association between Bendectin and limb reduction defects of the type at issue in Richardson.  The expert was able to reach his opinion only by recalculating the available data.  The expert also rejected studies that had been published in peer-reviewed scientific journals.  At the same time, the expert had neither published his own recalculations nor offered them for peer review.

Under the Frye standard, “the proponent of a new technology must demonstrate by a preponderance of the evidence that the technology has been generally accepted in the relevant scientific community.”[84]  As the Porter court demonstrated, the issue is not validity, but consensus versus controversy over a particular technique.  If a significant number of scientists publicly oppose a new technique as unreliable, then it does not pass muster under Frye.[85]  The same result should be reached under the “gatekeeper” standard enunciated in Daubert.

 

VII.

Non-Scientific Expert Evidence

“Non-scientific” is really a somewhat misleading term.  It is used to define processes, tests and procedures that are not typically the subject of articles in peer-reviewed journals in the sense that, for example, the teratogenic effect of chemicals or drugs might be.  Engineering studies, construction material standards, and many environmental analysis techniques fall into the non-scientific realm, even though they are directly related to scientific inquiry and analysis.  For example, groundwater monitoring, aquifer flow rate and direction, and chemical analysis of potable and non-potable water would be considered non-scientific areas for the purpose of applying Kumho Tire and its progeny.

 

VIII.

Expert Testimony in State Courts

 

Most litigation takes place in state courts, not federal courts.  While many states follow the federal expert evidence trilogy, many have established their own rules governing the admission of expert testimony.  Some continue to follow Frye, some follow Daubert, and some have their own rules governing the admissibility of expert testimony.  Further, not all states have even established precedent.  The following are recent authorities by those states that have expressed views on the admissibility and standards for expert evidence.

 

A. Alabama

The Kumho Tire decision had its genesis in Alabama.  Carmichael v. Samyang Tires, Inc.[86] was the forerunner to the Supreme Court decision in Kumho Tire.  In Carmichael the district court believed correctly that it should act as a reliability “gatekeeper” under Daubert v. Merrell Dow Pharmaceuticals, Inc.,[87] and Fed. R. Evid. 702.  The trial judge ruled that the court must ensure scientific testimony is not only relevant, but reliable.  The court noted that Daubert discussed four factors – testing, peer review, error rates, and “acceptability” in the relevant scientific community – that might prove helpful when determining the reliability of a particular scientific theory or technique.  The court went on to find that those factors argued against the reliability of the expert’s methodology.  On the plaintiffs’ motion for reconsideration, the court agreed that Daubert should be applied flexibly.  In addition, its four factors were simply illustrative with other factors available to argue in favor of admissibility, however, the court affirmed its earlier order because it found insufficient indications of the reliability of the expert’s methodology.  The Eleventh Circuit reversed, holding that the district court had erred as a matter of law in applying Daubert.  It held that Daubert was limited to its specific scientific context and that the Daubert factors did not apply to skill- or experience-based testimony.  The Supreme Court subsequently reversed the Court of Appeals in the Kumho Tire decision.[88]

Neither Carmichael nor the later Kumho Tire decision answered the question of whether Alabama would adopt the federal expert evidence trilogy.  In fact, it did not do so.  In Southern Energy Homes, Inc. v. Washington,[89] the Alabama Supreme Court adhered to the Frye test and declined to adopt Daubert as the standard for the admission of scientific expert testimony in Alabama.

Southern Energy Homes, Inc. was then followed closely by the case of Courtaulds Fibers, Inc. v. Long.[90]  In Courtaulds the plaintiff Long lived and kept horses on property near the defendant’s fabric manufacturing plant.  He sued Courtaulds alleging that the carbon disulfide used by the defendant prevented him from enjoying his property and the plant caused death and injury to his horses.  Prior to trial, the court dismissed the plaintiff’s claim for punitive damages.  The jury returned a verdict against the defendant and the defendant appealed.  On appeal the plaintiff cross-appealed the punitive damage claim.  The trial court held the plaintiff’s expert testimony was admissible under the Frye test, and the expert witness was not required under Ala. R. Evid. 702 - that tracks its federal counterpart - to have scientific literature to support his opinion.

The Alabama Supreme Court reversed, finding the nuisance and negligence claims were not supported by substantial evidence.  The case was remanded for a new trial on the trespass claim only.  The court noted that it has not abandoned the “general acceptance” test in Frye, and that Daubert had not been adopted as the standard in civil cases.  However, the Alabama Defense Lawyers Association (ADLA) filed an amicus curie brief in support of the defendant.  The ADLA sought for the court to abandon the Frye test and adopt the Daubert standard.  However, the court declined to consider the issue because neither party in the case raised it.  The court noted that it “will not decide a question presented by amicus curiae which was not presented by the parties to the cause, and will leave the question for decision when properly raised and presented.”[91]

 

B. Alaska

Alaska has not definitively indicated how it will handle the admission of expert evidence.  In Bieghler v. Kleppe,[92] the Ninth Circuit Court of Appeals reversed a grant of summary judgment against the plaintiffs in an action against the government.  In Bieghler the plaintiff’s expert reconstructed the accident that occurred and opined that it was caused by defective lighting in a tunnel built and maintained by the government.  The court observed that when the expert evidence concerning the cause of the accident supports an inference that defendant’s negligence was more probably than not the proximate cause of the accident, it was sufficient to defeat summary judgment, even if it is not highly convincing or persuasive.  Although the expert’s affidavit did not describe in detail the manner by which the expert had arrived at his conclusions, it gave more than a bare conclusion that the defendants had been negligent.  Furthermore, the expert concluded that the government’s negligence had caused the accident, not that it might have caused the accident.  Relying on Fed. R. Evid. 702, the court held that the expert’s affidavit should have been admitted.[93]  Decided fifteen years before Daubert, the case made no mention of the federal expert evidence trilogy.

 

C. Arizona

Arizona follows what it calls the Hummert/Frye standard.  While there may have been some uncertainty before 1997,[94] the case of State v. Hummert[95] set the standard for Arizona state courts.  In Hummert the Arizona Supreme Court followed Frye as it held that “expert opinion on probability percentages based on computations derived from DNA statistics was inadmissible under Frye because the statistical bases and resultant formulae applied to reach the conclusion were not yet generally accepted.”[96]  The court recognized that because the expert’s opinion relied on processes or formulas established by others, and not generally accepted by scientists and statisticians in that particular field it was therefore inadmissible.  However, the court allowed the expert to relate experiences particular in the field to the facts of the case and that held such an opinion based on observations and experience would be admissible. The court allowed this because the opinions offered on random match frequency passed the Ariz. R. Evid. 702 test of witness observation and experience even though they did not pass the Frye general acceptance test. The Arizona Supreme Court found the trial judge applied the Frye analysis properly and determined the expert evidence concerning DNA matches was admissible, but testimony concerning the mathematical or statistical probability of the match was not.  The experts could offer opinion evidence under Ariz. R. of Evid. 702 and 703.  In that respect, they track their federal counterparts.  The court recognized that when an expert gives testimony that “only helps a trier to interpret the evidence . . . it will be received on a lesser showing of scientific certainty.”[97]  Because the DNA examination was made according to recognized scientific principles, and the experts found a match, they determined the DNA was likely from unrelated individuals. Therefore, the Arizona high court held the trial judge did not err in admitting that evidence of the experts’ own work and experience and the opinions reached on that basis.[98]

To the extent there was uncertainty in the Arizona standard, it was laid to rest, at least temporarily, by the Arizona Supreme Court in Logerquist v. McVey.[99]  In Logerquist the plaintiff sued her pediatrician alleging that he sexually abused her on several occasions.  She claimed that she had amnesia about those events until her memory was triggered while she watched a television commercial featuring a pediatrician.  At trial she sought “to introduce evidence, through expert testimony, that severe childhood trauma, including sexual abuse, can cause a repression of memory, and that in later years this memory can be recalled with accuracy.”[100]  The trial court held a Frye hearing to determine the admissibility of expert testimony on repressed memory and it concluded the “theories advanced by plaintiff’s experts [were] not generally accepted in the relevant scientific community.”[101]  The Arizona Supreme Court, in a three to two decision, rejected Daubert and Kumho Tire and retained Frye as modified by Hummert.

 

D. Arkansas

Arkansas follows the Daubert standard and the majority view that the qualification of expert testimony is to be made by the court alone.[102]  In Farm Bureau Mutual Insurance Co. v. Foote,[103] a fire that their insurer believed was deliberately set destroyed the plaintiffs' home.  The trial court refused to allow an investigator with the Arkansas State Police to testify regarding the ability of his canine partner to detect the presence of accelerants after a fire.  The investigator’s testimony was that as a result of the dog’s extensive training it could detect different types of chemicals such that when it alerts on a particular spot at a fire scene, this signifies the presence of accelerants.  The trial court denied the admission of the investigator’s proffered testimony based on Daubert.  The Arkansas Supreme Court affirmed the trial court judgment on a jury verdict in the plaintiffs’ favor.  In so holding, the court noted, “[t]his court has not previously adopted the holding in Daubert.  We do so now.”[104]

 

E. California

California has followed the Frye standard for over twenty-five years.  In People v. Kelly,[105] the California Supreme Court adopted the Frye standard in a criminal case involving voiceprint analysis.  The court concluded “[w]e have expressly adopted the foregoing Frye test and California courts, when faced with a novel method of proof, have required a preliminary showing of general acceptance of the new technique in the relevant scientific community.”[106]  Kelly is similar to many cases involving scientific expert evidence, where the issues arise in the context of criminal law.

In People v. Leahy,[107] the defendant was stopped by a police officer for driving at an excessive rate of speed.  The officer administered field sobriety tests, including a horizontal gaze nystagmus (HGN) test, which the defendant failed.  At trial, the defendant moved in limine to prevent the introduction of expert evidence on the HGN test, based on the fact that no Kelly/Frye hearing had been held.  The trial court refused the motion and permitted the police officer to testify about the HGN test.  At the time, the California Courts of Appeal were split on whether to admit HGN evidence without a Kelly/Frye hearing and proper scientific foundation.[108]  In Leahy the intermediate appellate court decided not to allow the testimony without the proper scientific foundation.  The California Supreme Court, in a six to one decision, affirmed the Court of Appeal.  It declined to abandon the Kelly/Frye standard in favor of Daubert.  The California Supreme Court decided “‘general acceptance’ does not require unanimity, a consensus of opinion, or even majority support by the scientific community.”[109]  Rather, the proponent must merely demonstrate a “scientific consensus” and “if a fair overview of the literature discloses that scientists significant either in number or expertise publicly oppose the technique as unreliable, the court may safely conclude there is no such consensus at the present time.”[110]

Federal courts in California have declined to apply the Kelly/Frye standard in light of the federal expert evidence trilogy.  In a much-criticized decision, Hopkins v. Dow Corning Corp.,[111] physicians were allowed to testify that silicone breast implants caused ailments to the plaintiff.  The court permitted the testimony under a Daubert analysis because the experts relied on medical literature and epidemiological studies in forming their opinions.

The distinction between pure opinion testimony and scientific expert testimony has proved problematic in California as elsewhere.  In Wilson v. Phillips,[112] the plaintiffs claimed their memory of sexual abuse by their father and stepfather had been repressed and then fortuitously triggered.  They offered expert evidence by a psychologist who specialized in the field of sexual abuse and memory.  The trial court refused to apply either Kelly/Frye or Daubert.  The Court of Appeal affirmed the trial judge’s refusal to hold a Kelly/Frye hearing.  The trial court correctly admitted the expert’s opinion that the circumstances and the plaintiffs’ behavior were “consistent with other individuals who had repressed their memories of childhood sexual abuse.”[113]  As the Wilson court explained:

 

California distinguishes between expert medical opinion and scientific evidence; [medical opinion] is not subject to the special admissibility rule of Kelly/Frye.  Kelly/Frye applies to cases involving novel devices or processes and not to expert medical testimony, such as a psychiatrist’s prediction of future dangerousness or a diagnosis of mental illness.[114]

 

F. Colorado

Colorado followed the Frye standard, that “requires nothing more than general acceptance at the time the evidence is admitted”[115] for some time.  However, in 2001 the Colorado Supreme Court decided the case of People v. Shreck.[116]  In that action the defendant was prosecuted for sexual assault and moved to bar admission of DNA evidence.  The trial court granted the motion, but on appeal the supreme court reversed finding the evidence sufficiently reliable for admission.  In so doing, the court said:

[W]e conclude that CRE 702, rather than Frye, represents the appropriate standard for determining the admissibility of scientific evidence.  We hold that under this standard, the focus of a trial court's inquiry should be on the reliability and relevance of the scientific evidence, and that such an inquiry requires a determination as to (1) the reliability of the scientific principles;  (2) the qualifications of the witness; and (3) the usefulness of the testimony to the jury.  We also hold that when a trial court applies CRE 702 to determine the reliability of scientific evidence, its inquiry should be broad in nature and consider the totality of the circumstances of each specific case.  In doing so, a trial court may consider a wide range of factors pertinent to the case at bar.  The factors mentioned in Daubert and by other courts may or may not be pertinent, and thus are not necessary to every CRE 702 inquiry.  In light of this liberal standard, a trial court should also apply its discretionary authority under CRE 403 to ensure that the probative value of the evidence is not substantially outweighed by unfair prejudice.  Finally, we hold that under CRE 702, a trial court must issue specific findings as it applies the CRE 702 and 403 analyses.[117]

 

Colorado Rule of Evidence 702 tracks its federal counterpart.

 

G.            Connecticut

The seminal case on the admission of scientific expert evidence in Connecticut is State v. Porter.[118]  In a unanimous decision, the Connecticut Supreme Court abandoned the Frye standard and adopted the Daubert standard.  At the same time, the court reaffirmed on the basis of its own independent examination of the literature and case law regarding polygraph evidence, that “polygraph evidence should remain per se inadmissible . . . in Connecticut courts.”[119]  Therefore, an evidentiary hearing is not necessary to evaluate the reliability of polygraph evidence.

In State v. Reid,[120] the defendant was convicted of first degree sexual assault and kidnapping.  He appealed on several grounds, including the trial court’s allegedly improper admission of expert testimony concerning microscopic hair analysis, as a violation of the Porter/Daubert standard.  The Connecticut Supreme Court affirmed the conviction, but also noted that although Porter adopted the Daubert test, it did not explicitly overrule Connecticut precedent concerning evidence to which the Daubert test should apply.  Prior to Porter, Connecticut followed the Frye standard for admissibility.  However, Frye did not apply to all expert testimony, but only to testimony that involved “innovative scientific techniques . . ..”[121]  In Porter the court did not define what constitutes “scientific evidence.”  Applying an abuse of discretion standard of review,[122] the Connecticut Supreme Court held in Reid that “[o]nce the trial court has served its gatekeeping function in accordance with Porter and determined that the expert testimony will be admitted, any challenges to the methodology used in the process generally go to the weight of the testimony and not its admissibility.”[123]

 

H. Delaware

Delaware has adopted Del. R. Evid. 702, which tracks its federal counterparts in Fed. R. Evid. 702 and Daubert.  In the interesting case of Bell Sports, Inc. v. Yarusso,[124] the plaintiff was rendered a quadriplegic as a result of an accident at a motocross raceway wherein he sustained a burst fracture in his neck.  He sued the manufacturer of the safety helmet he was wearing at the time of the accident claiming there was a design defect.  The plaintiff produced expert testimony that the helmet was defective, but failed to present testimony that any helmet could have protected the neck from injury.  The jury found the defendant was not negligent, but had breached an express or implied warranty, which proximately caused plaintiff’s injury.  On appeal, the defendant argued that the plaintiff’s claim that the helmet was defective was based entirely on expert testimony.  According to the defendant, this testimony was based upon “new science” and, as a result, an independent analysis under Del. R. Evid. 702 and Daubert was required prior to the admission of the expert testimony.[125]  The Delaware Supreme Court reviewed the trial court’s decisions to admit evidence under an abuse of discretion standard.[126]  The court noted that its acceptance of the Daubert/Kumho Tire approach for deciding issues under Del. R. Evid. 702 had not been promulgated by the time this case went to trial.  Nevertheless, it held that under the standards of admissibility then in effect for expert testimony, there was no abuse of discretion when the trial court permited the expert testimony.

 

I. District of Columbia

The District of Columbia was the birthplace of Frye v. United States.[127]  It held that before a party can introduce expert testimony of a scientific nature, the party must first establish that the scientific principles that the testimony is based upon are “sufficiently established to have gained general acceptance in the particular field in which it belongs.”[128]  The Frye decision still represents the majority view for the admission of new or novel scientific expert evidence notwithstanding the later federal expert evidence trilogy.

District of Columbia courts have clarified the Frye standard over the years following its issuance.  For example, in Dyas v. United States,[129] the District of Columbia Court of Appeals set forth a three-part test for the admission of expert testimony:

 

(1)             The subject matter must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average lay man; (2) the witness must have sufficient skill, knowledge, or experience in that 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.[130]

 

Seldom has a case had such a long and tortured history through the courts as the Oxendine litigation.  It began with Oxendine v. Merrell Dow Pharmaceuticals, Inc.[131]  The case involved a plaintiff who was born with a shortened right forearm and just three fingers on her right hand that were fused together.  Her parents filed a complaint alleging that Benedictin used by her mother during the pregnancy caused her birth defects.  At trial the jury awarded the plaintiff $750,000 in compensatory damages.  The defendant Merrell Dow, manufacturer of Bendectin, filed a motion for judgment notwithstanding the verdict or for a new trial.  The trial court granted both parts of the motion on the grounds that the plaintiff failed to prove that Bendectin used by her mother caused her birth defect.  The trial court focused on the fact that the plaintiff’s expert witness on causation testified that no conclusion about the effect Bendectin’s has on humans could be drawn from any of the four types of scientific data that he had principally relied upon.  These were: “(a) structure-activity information, (b) in vivo studies, (c) in vitro studies, and (d) epidemiological studies.”[132]  The District of Columbia Court of Appeals reversed and remanded on the grounds that expert witnesses testified on both sides which revealed disagreement as to how the data should be interpreted.  As the court recognized, “[t]he case was thus a classic battle of the experts, a battle in which the jury must decide the victor.”[133]  Nowhere was Fed. R. Evid. 702 or Frye mentioned in Oxendine I.

After the remand following Oxendine I, the trial court granted a motion vacating the 1983 judgment in the plaintiff’s favor and granted a new trial.[134]  The trial court found that Merrell Dow was entitled to relief notwithstanding that the trial commenced five years earlier and the Court of Appeals had confirmed the plaintiff’s entitlement to judgment in Oxendine I.  The court found that the plaintiff’s sole expert witness had “grossly misrepresented” his credentials such that all his testimony on the plaintiff’s behalf became suspect.  The plaintiff appealed, arguing the trial court judge abused its discretion. The appeals court again reversed and remanded the trial court, noting, “[i]n view of [the expert’s] extensive resume, the minor portion of [the expert’s] testimony before the jury at issue, and the evidence presented . . . we hold that [the trial court judge] erred in concluding that [the expert’s] misrepresentation about his faculty status would have affected the outcome of the trial.”[135]

Back in the trial court once again, the Oxendine court purported to enter an immediately enforceable and appealable “final judgment” under D.C. Super. Ct. Civ. R. 54(b) although the question of punitive damages remained to be tried. In a two to one decision, the Court of Appeals held that the trial court had no such power under the rule or otherwise and it subsequently remanded the case with instructions to vacate the judgment entered.[136]

The last reported Oxendine decision, Merrell Dow Pharmaceuticals v. Oxendine,[137] dealt with claims by Merrell Dow that the Federal Food, Drug, and Cosmetic Act (“FDCA”),[138] and approval of Bendectin by the Food and Drug Administration (“FDA”) preempted state tort law.  Second, the plaintiff requested reconsideration of the 1983 jury verdict due to these post-trial developments.  The trial court rejected both the preemption and reconsideration claims, and the case once again proceeded to the District of Columbia Court of Appeals.  With respect to FDCA and/or FDA preemption, the Court of Appeals noted that “FDA prescription drug regulations and safety determinations are intended to be minimum standards which ‘do not conflict with state law which sets higher standards for due care and safety in the manufacture of drugs.’”[139]  The Court of Appeals agreed with the trial court preemption issue but found the court erred by refusing to consider any proffered post-trial developments. The case was remanded for further limited consideration and the issues were decided by the Superior Court in an Amended Memorandum Opinion and Order.[140]  It is interesting to note that throughout the almost ten-year course of the litigation, no mention is made of the Frye standard, and Daubert is barely given a passing glance.[141]

In United States v. Porter,[142] the court reiterated and expanded upon the decision in Frye, holding that “the proponent of a new technology must demonstrate by a preponderance of the evidence that this technology has been generally accepted in the relevant scientific community.”[143]  As noted previously, the issue is consensus versus controversy over a particular technique, not its validity.  It should be further recognized that if scientists significant either in number or expertise publicly oppose a new technique as unreliable, then that technique does not pass muster under the Frye standard.[144]

 

J. Florida

Initially, Florida had followed the Frye standard consistently.  In Flanagan v. State,[145] the petitioner was convicted of sexually battering his daughter.  At trial, one of the state’s experts provided testimony regarding sex offender profiles.  The district court affirmed the conviction, but certified the issue regarding the admissibility of the expert testimony.  The Florida Supreme Court recognized that scientific evidence is not admissible in Florida unless it meets the Frye standard.  Here, the court found the admission of the testimony to be error, as it determined sexual offender profile evidence is not generally accepted in the scientific community.  However, the Florida Supreme Court found the error was harmless for a number of reasons including the overwhelming evidence of petitioner’s guilt.

Five years later, in Berry v. CSX Transp., Inc.,[146] the Florida Court of Appeals again cited Flanagan, observing that an appellate court’s de novo review of a Frye issue “includes an examination of three methods of proof: (1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions.”[147]  However, the following year, in Florida Power & Light Co. v. Tursi,[148] the Florida Court of Appeals distinguished between novel scientific expert evidence requiring adherence to the Frye standard, and pure opinion testimony.  Tursi sued Florida Power & Light claiming the PCBs leaking from a utility pole got into his eye and caused a cataract.  Tursi’s causation expert, an ophthalmologist with experience treating thousands of cataract patients, testified that there were many causes of cataracts, but he concluded that within a reasonable degree of medical certainty, the PCBs were in fact the cause of Tursi’s cataract. Florida Power & Light Florida Power & Light argued that under Frye, the trial court should not have admitted the ophthalmologist’s testimony.  However, the district court recognized, and the appellate court agreed that pure opinion testimony need not meet the Frye test.  The appellate court stated:

 

[P]ure opinion testimony, such as an expert’s opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert’s personal experience and training.  While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness.[149]

 

A different but consistent result was reached in Kaelbel Wholesale, Inc. v. Soderstrom.[150]  The plaintiff experienced physical symptoms that caused an emergency room physician to suspect that she had suffered ciguatera poisoning after eating fish at a restaurant.  The disease progressed until the plaintiff was diagnosed with Guillain-Barre Syndrome (“GBS”), at which point she was paralyzed from the waist down.  Prior to trial, the defendant moved to exclude the testimony of the plaintiff’s expert concerning a causal link between ciguatera and GBS, on the ground that this was a novel theory not generally accepted within the relevant scientific community, and therefore inadmissible under Frye.  The trial court denied the motion, declining to interrupt the trial with a Frye hearing. The jury returned a verdict in favor of the plaintiff.  The defendant appealed, arguing that the experts’ testimony did not meet the Frye test.  The Court of Appeals, citing Berry, held that the scientific principles and methodology used by the plaintiff’s experts were not generally accepted, and therefore it reversed the trial court.

 

K. Georgia

In Salisbury v. State,[151] Georgia adopted the Frye test for the admissibility of scientific expert evidence.  However, about twenty years later, in Harper v. State,[152] the Georgia Supreme Court rejected the Frye standard, recognizing:

 

An evaluation of whether the principle has gained acceptance will often be transmitted to the trial court by members of the appropriate scientific community testifying as expert witnesses at trial.  It has been acknowledged that certain problems inhere in determining admissibility on the basis of this process.  First, the expert is selected and compensated by a party seeking to demonstrate a specific premise: that the scientific principle sought to be proved either is or is not accepted in the scientific community.  Such a process may result in a battle between each party’s experts at trial.  Also, there are limits on what any one “expert” may understand about a particular discipline.  And, last, we acknowledge that wide variations in intradisciplinary opinions frequently exist.  After much consideration, we conclude that the Frye rule of “counting heads” in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure in evidence.  Instead, we approve of the approach taken by the trial court in this case.  We hold that it is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure “rests upon the laws of nature.”  The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value.  Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions.  The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.  Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.[153]

 

In Smith v. State,[154] the Georgia Supreme Court held that expert opinion testimony on issues to be decided by the jury “is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves.”[155]  Put another way, the conclusion of the expert would be “beyond the ken of the average layperson.”[156]  The Georgia Supreme Court recognized this modern approach to expert testimony as exemplified by Rules 702 and 704 of the Federal Rules of Evidence.

 

L. Hawaii

In Doe v. Cutter Biological, Inc.,[157] the plaintiffs where hemophiliacs.  They received a blood factor during a transfusion that was contaminated with human immunovirus (“HIV”).  The transfusion was from a government hospital.  The plaintiffs sued the government along with four manufacturers of the blood factor.  The district court granted summary judgment to the blood factor manufacturers since the plaintiffs could not positively identify which manufacturer’s product caused their infection.  The trial court entered summary judgment in favor of all defendants because the plaintiffs’ expert put the time of the transfusions as between 1983 and 1984, and “until 1984 there was no medical consensus that AIDS was transmitted through blood.”[158]  The plaintiffs petitioned the Hawaii Supreme Court and the court granted certification.[159]  The Hawaii Supreme Court answered a number of certified questions and then remanded the case back to the Ninth Circuit for a final decision.

Back in the Ninth Circuit Court of Appeals, the plaintiffs argued that it was error for the district court to rely on the findings of fact in another case.  The appeals court agreed, noting, “[t]he idea that courts can rely on the opinions of other courts for legal principles but not for findings of fact is axiomatic.”[160]  The court reversed the district court, however, and remanded for further discovery by the plaintiffs.  Further, the court held that an adequately qualified expert witness need not be licensed in the field in which the opinion is offered.[161]

Hawaii, like several other jurisdictions, does not require a Daubert analysis where the expert evidence constitutes technical knowledge. In a case involving microscopic hair analysis, the Supreme Court of Hawaii allowed such evidence to be admitted without a Daubert hearing.[162]  As the court stated, technical knowledge:

 

involves the mere technical application of well-established scientific principles and procedures.  In such a situation, because the underlying scientific principles and procedures are of proven validity/reliability, it is unnecessary to subject technical knowledge to the same type of full-scale reliability determination required for scientific knowledge.[163]

 

M. Idaho

Idaho follows the Daubert test.  In State v. Merwin[164] the defendant objected to certain expert testimony that resulted in his criminal conviction for an infant’s death.  The Idaho Supreme Court noted that:

 

[T]the appropriate test for measuring reliability of evidence in this state is I.R.E. 702.  The trial court’s broad discretion in admitting evidence “will only be disturbed on appeal when there has been a clear abuse of discretion.”

The fact that the conclusion from a scientific study is not universally accepted does not preclude use of that study by experts in forming their opinions.  The question under the evidence rule is simply whether the expert’s knowledge will assist the trier of fact; not whether the information upon which the expert’s opinion is based is commonly agreed upon.  Even under the holding in Daubert, the focus of the court’s inquiry is “on the principles and methodology, not on the conclusions that they generate.”

Addressing the use of case studies by medical experts, we note the obvious ethical restrictions on conducting planned, controlled trauma studies on human beings.  In the present case, the State's experts testified as to why they found the studies used in forming their opinions to be reliable.  One factor was that the studies involved falls by children that were either observed by witnesses or occurred in a hospital environment so that the cause of the injury could be reliably determined.  Another factor was that the studies were prospective in nature and so specifically designed to determine the extent of injuries suffered by children in falls.  In addition, all of the studies had been subjected to peer review, another indication of their reliability.  In considering these factors, we conclude that the studies used by the experts possessed sufficient indicia of reliability to meet the I.R.E. 702 requirements.  Applying our standard of review for matters involving judicial discretion, we conclude that the district court did not abuse its discretion by admitting expert testimony based on these studies.[165]

 

In State v. Trevino,[166] a first-degree murder case, the defendant sought to introduce the results of a polygraph test.  The trial court refused to admit the proffered evidence, ruling that the polygraph results did not help the jury find facts but instead would substitute the “jury’s credibility-finding mechanism with physiological responses and their interpretation by psychologists.”[167]  The district court rejected polygraph evidence or the results, relying on State v. Fain.[168]  The Idaho Supreme Court held that the district court acted within its discretion when it rejected the proposed use of the polygraph machine and its results.[169]

 

N. Illinois

Illinois, like many populous jurisdictions, has faced many expert evidence issues.  In 1989 the Illinois Supreme Court made clear in People v. Eyler,[170] that the admission of scientific evidence is strictly governed by the standard enunciated in Frye.  In “non-scientific” cases, the court must determine whether the proffered witness is qualified to render an expert opinion on the matter at issue.  The view should be toward determining not whether the witness is believable, but whether he has the requisite knowledge, skill, education, training and experience to testify as to the subject matter of his proffered testimony.[171]

In Schmaltz v. Norfolk & Western Railway Co.,[172] the plaintiff alleged the spraying of herbicides at his work place caused him to develop Reactive Airway Dysfunction Syndrome (RADS).  The plaintiff sought to introduce the expert testimony that the herbicide spraying caused his RADS.  The district court, applying Daubert, recognized that the experts’ theory could theoretically be tested, but that the opinion had not been tested yet and that there were no documented cases or anything else indicating that this type of exposure could cause RADS.  Further, the court observed the experts did not even know the concentration of herbicide to which the plaintiff was exposed.  Finally, the court cited one expert’s testimony showing that the basis of the expert’s opinion was a temporal relationship.  The court observed, “[i]t is well settled that a causation opinion based solely on a temporal relationship is not derived from the scientific method and is therefore insufficient to satisfy the requirements of Fed. R. Evid. 702.”[173]  Although Schmaltz followed Daubert since it was a federal case, the Illinois Supreme Court still adheres to the Frye standard.[174]

In Duran v. Cullinan[175] the Illinois Court of Appeals explained that under “the Frye test, evidence may be admitted when the scientific principle on which it rests has gained general acceptance in its particular field.”  Duran involved a medical malpractice claim by a minor and her mother.  They alleged that the minor had birth defects as a result of the mother’s use of oral contraceptives while pregnant.  The mother had two older children, also with birth defects.  In the suit filed by the mother, she filed the affidavit of an obstetrics and gynecology specialist who was of the opinion that the defendants’ act of failing to rule out pregnancy before prescribing the contraceptive (Ovelen-21) resulted in the daughter’s defects.  Two of the daughter’s treating physicians, both medical genetics experts, were of the view that the daughter’s birth defects were not caused by the Ovulen-21.  Two other experts testified they were unaware of any teratogenic effect of Ovulen-21.  During the course of discovery, the plaintiffs answered interrogatories that additional confirmation of the link between Ovulen-21 and the birth defects were “extrapolated from a wide variety of defects appearing in the literature.”[176] The defendants moved to strike the plaintiffs’ interrogatory answers and for summary judgment.  They argued that the opinions of the plaintiffs’ expert witnesses lacked reliability because the extrapolation method used to reach their causation conclusion did not meet the Frye standard.  The trial court agreed and granted summary judgment.  The appellate court concluded that while Duran and Daubert both involved the science of teratology, Duran was clearly different.  Here the plaintiffs’ experts could point to forty-three studies connecting progesterone-based drugs to multiple birth defects.  The court ruled that the plaintiffs were not required “to present an epidemiological study showing the exact type of defect as long as the plaintiffs’ experts’ methodology in reaching their conclusions as to causation was sound.”[177]  The court reasoned that “while the Durans could not point to any article discussing the acceptance of the extrapolation method within the field of teratology, the defendants pointed to no articles against the extrapolation method and the extrapolation method was not very likely to have been the subject of scientific articles.”[178]  It concluded that the trial court abused its discretion and the plaintiffs’ experts should be allowed to testify as to causation using the extrapolation method, specifically finding that the extrapolation method was generally accepted within the field.

Illinois v. Basler[179] was a drunk driving case wherein the state introduced the results of a horizontal-gaze-nystagmus (HGN) test.  The defendant was convicted and on appeal raised the issues of whether a Frye hearing should have been held with respect to the HGN test.  The Court of Appeals reversed the trial court, but it did not expressly hold the trial court erred in admitting the HGN test results without first conducting a Frye hearing.  However, the court did send a clear message, observing that “if a new trial were to be held following remand and the State wanted to introduce evidence of the HGN test results, then a Frye hearing might well be appropriate.”[180]  On appeal to the Illinois Supreme Court, the State raised only the appellate court’s handling of the Frye hearing.  Prior to Basler, two separate divisions of the Illinois Court of Appeals reached different results concerning the necessity of conducting a Frye hearing with respect to admission of the results of an HGN test.[181]  The Illinois Supreme Court, recognizing that Frye is followed in Illinois, stated that the admission of scientific evidence that is novel requires only that evidence is generally accepted within the relevant scientific community before it can be admitted. The court held HGN tests are no longer “novel” due to their routine use in impaired driving cases, and therefore, the State did not have to establish the test’s validity in every case thereafter.  However, while the court made no ruling on whether HGN tests meet the Frye standard, it affirmed the Court of Appeals’ decision and remanded the case for further proceedings.

In Donaldson v. Central Illinois Public Service Co.,[182] four families with children who were born with neuroblastoma, a type of cancer, sued for negligence and nuisance attributed to improper air quality standards for particulate emissions.  The air standards were exceeded during the remediation of an abandoned manufactured gas plant.  Both sides introduced expert testimony, but conceded that as of the time of trial there was no established precise cause of neuroblastoma.  Statistically, nine out of every million children born develop neuroblastoma, but in 1988 in the area where plaintiffs lived, a county registering 520 live births, four children contracting neuroblastoma was exceptionally high.  The statistical excess of neuroblastoma cases, the plaintiffs argued, could only be connected to the contaminants released at the remediation site.  The plaintiffs’ experts included an epidemiologist specializing in childhood cancers, a toxicologist, and a physician specializing in occupational and environmental medicine.  The defendants called numerous experts, including the children’s treating physicians.  They testified that the cause of neuroblastoma remains uncertain, and therefore they could not determine to a reasonable degree of medical certainty that the exposures from the site caused neuroblastomas.  The jury returned a verdict against the defendants and they appealed.  The defendants contended that the plaintiffs did not establish proximate causation between the site chemicals and the cases of neuroblastoma through expert testimony.  Further, they argued that the trial court committed reversible error because it denied a request for a Frye hearing relative to the plaintiffs’ experts’ anticipated testimony.  The appellate court applied an abuse of discretion standard for reviewing the trial court’s rulings on the evidentiary matters.  The court recognized that Illinois law does not mandate a Frye hearing except in situations where the evidence at issue is not commonly recognized in the scientific field in that it belongs.  The defendants contended that the plaintiffs’ evidence would have failed the Frye test had that test been given because there was no scientific study directly linking neuroblastoma to the types of carcinogens involved in the case.   The Court of Appeals affirmed the trial court’s ruling and the jury verdict, finding that it was not error to allow the jury to hear the plaintiffs’ experts testimony despite the fact no scientific study directly linked neuroblastoma to the types of carcinogens involved in the case.

 

O. Indiana

Indiana has adopted a very flexible approach to the introduction of expert evidence, and follows the principles enunciated in Daubert.  As the Indiana Supreme Court observed in Jenkins v. State:[183]

 

There are doubtless many formulas and principles which experts use . . . to arrive at their ultimate opinions.  The determination of which factors, formulas, or calculations are necessary, either singly or in conjunction with each other, to form an expert opinion is within the knowledge and judgment of the expert and, again, is a subject which can be approached and examined in the cross-examination or by bringing forward other expert witnesses.[184]

 

Federal courts, of course, are bound by the Supreme Court’s expert evidence trilogy.  In Porter v. Whitehall Laboratories, Inc.,[185] the Seventh Circuit applied Daubert to a case in which the plaintiff provided numerous experts who testified that ibuprofen taken by the plaintiff caused medical problems.  However, the court recognized that the experts could not point to any studies, records or data for the basis of their opinions, and further that the experts’ opinions were based on the temporal relationship of the plaintiff taking the ibuprofen and the medical problems he experienced.  Specifically, the court stated that “[i]f experts cannot tie their assessment of data to known scientific conclusions, based on research or studies, then there is no comparison for the jury to evaluate and the experts’ testimony is not helpful to the jury.”[186]  Therefore, the court determined that the district court’s granting of summary judgment was appropriate because of the inadmissibility of the experts’ opinions and the plaintiff’s inability to prove causation.

Even with flexible standards, experts must meet the requirements of education, training and experience if their testimony is to be admitted, and further, the expert must testify in a field in which he or she is in fact an expert.  For example, in Norwest Bank, N.A. v. Kmart Corp.,[187] the plaintiff’s wife slipped and fell in a Kmart restroom, suffering head injuries and brain damage.  The plaintiff sought to call an expert witnesses who owned and managed a brain injury clinic.  The witness would testify about the necessity and costs of various medical expenses incurred by persons who have suffered brain injuries, and the impact a traumatic brain injury has on the quality of such a person’s life.  The proffered expert had a masters degree in rehabilitation counseling as well as a doctorate in counseling.  The court observed that the opinion offered by an expert witness must fit the witness’s expertise.  In this case the court excluded the testimony because the expert did not have the education, training or experience needed to predict the care and treatment the wife needed at the time, or would need in the future.  The expert’s experience in the treatment of neurologically impaired patients qualified him to state opinions of the costs of treatment, if the need for treatment is established by medical evidence, but the court did not find that the expert was qualified to provide the medical evidence.  The court noted that a witness may qualify under Fed. R. Evid. 702 solely by virtue of experience rather than education, and that an adequately qualified witness need not specialize or be licensed in the field in which the opinion is offered.  Nevertheless, it ruled that a witness with no education or licensure in medicine, osteopathy, dentistry, chiropractic, or nursing is not qualified, regardless of experience, to give an opinion on a person’s medical condition.  Nor is such a person qualified to give an opinion regarding the medical future based on a review of medical records and an interview with the patient and her husband.  Similarly, in Indiana Michigan Power Co. v. Runge,[188] the court made clear that “allowing a self-professed expert to base his opinions merely upon his ‘years of experience’ would be ‘inconsistent with the clear intent of [Ind. R. Evid. 702] that scientific experts demonstrate their testimony is based on reliable scientific principles.’”[189]

In addition to proper qualifications, the method selected by an expert in reaching the expert opinion must be accepted.  In Ollis v. Knecht,[190] the jury in an automobile wrongful death case awarded $2.8 million in damages.  The trial court excluded the testimony of an economist who was prepared to testify about the loss of income resulting from the death.  The expert would have predicted the decedent’s income in the future and determined the discount rate applied to reduce that amount to its present value. The method the expert selected for determining the growth and discount rates was the “mirror image approach,” whereby the economist would look back in time the same number of years he intends to predict forward in time.  The trial court held an Indiana R. Evid. 702(b) hearing.  At the hearing, the expert could not name a peer-reviewed publication that supported the mirror image approach.  Although the expert testified the mirror image approach is generally accepted within the field of economics and he had used the approach in testimony many times in the past, the expert could not provide any citation to an authority supporting his assertion that the mirror image approach is generally accepted.  The appellate court affirmed the trial court’s ruling, applying Daubert principles.

 

P. Iowa

In Twin City Plaza, Inc. v. Central Surety & Insurance Corp.,[191] the court observed that the expert witness should determine the adequacy of the factual basis for an expert opinion, not the court.  The court’s view was based on the fact that the expert is subject to cross-examination.  As the court recognized, “[t]he weaker the scientific opinion or the less qualified the expert, the more vigorous will be the cross-examining attack and undoubtedly the less persuasive will be the opinion to the trier of fact.”[192]  In 1980 the Iowa Supreme Court rejected the Frye standard of “general scientific acceptance” for admission of scientific evidence, adopting instead a requirement only that the evidence be established as reliable and meet the general test for admission of expert testimony.[193]

In State v. Klindt,[194] the Iowa Supreme Court approved the use of “forensic serology” evidence to establish the identity of a dismembered torso that was believed to be the murdered wife of the defendant.  Forensic serology is an identification process involving analysis of the genetic makeup of blood and tissues.  Iowa R. Evid. 702 is identical to its federal counterpart and formed the basis for the court’s ruling.  The general rule, even predating evidence rule 702, is that expert testimony is admissible if it will assist the trier of fact in resolving an issue.  The evidence will be admitted, however, only if it is shown to be reliable “because unreliable evidence cannot assist a trier of fact.”[195]

Review of decisions of the trial court in admitting or rejecting expert evidence will be on an abuse of discretion standard.  The trial court is vested with broad discretion in ruling on the admissibility of expert testimony.[196]

 

Q. Kansas

Kansas follows the Frye standard.  It is within the trial court’s discretion to determine the qualifications of an expert witness, and its determination will not be reversed on appeal absent a showing of an abuse of discretion.[197]  Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court.[198]

In State v. Hill,[199] the Kansas Supreme Court followed the Frye standard for the admittance of scientific evidence.  It noted that under the Frye test, before expert scientific opinion evidence may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.  Frye hearings are not required where expert evidence is generally accepted as reliable, but before expert scientific opinion evidence may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.[200]

The Frye standard does not apply to every situation in which scientific evidence is proffered.  For example, in Kuhn v. Sandoz Pharmaceuticals Corp.,[201] plaintiffs’ decedent died following childbirth.  She had been given a single dose of Parlodel, a drug manufactured by the defendant and designed to prevent postpartum lactation in mothers who did not intend to breast feed their babies.  The plaintiffs produced several expert witnesses who testified that Parlodel was a cause or contributing factor to the death.  On cross-examination the defendant demonstrated that the plaintiffs’ experts: (1) were “unable to identify any human study to support their hypotheses,” (2) admitted that “no epidemiological evidence concludes that Parlodel causes cerebral edema,” (3) “are not aware of any study demonstrating a statistically significant rise in blood pressure associated with the use of Parlodel,” (4) admitted “that there is no epidemiological evidence that a single dose of Parlodel can cause seizure, hypertension, or death,” (5) admitted there was “no statistically significant epidemiology demonstrating an increased incidence of stroke, seizure, myocardial infarction, or hypertension with Parlodel use,” and (6) were not “aware of any epidemiological studies associating Parlodel with any cardiac events.”[202]

The trial court ruled that the plaintiffs’ expert witnesses improperly offered their medical causation opinions without general acceptance of the bases for those opinions within the relevant scientific community.  It dismissed the plaintiffs’ case with prejudice and the plaintiffs appealed.  The Kansas Supreme Court addressed this issue and began by recognizing that an abuse of discretion standard is traditionally applied in cases involving the admissibility of evidence.  However, it held that a de novo review standard should be applied in this case.  The court then held that the Frye general acceptance rule does not apply if the expert is giving “pure opinion” testimony whereby an expert opinion is developed from inductive reasoning based on the expert’s own experience, observation, or research.  Rather, the Frye standard applies “only when an expert witness reaches a conclusion by deduction from applying a new or novel scientific principal, formula, or procedure developed by others.”[203]  As the court recognized, “[t]he validity of pure opinion is tested by cross-examination of the witness.  The validity of an opinion subject to Frye is tested by inquiring into general acceptance as reliable within the expert’s particular scientific field.”[204]  Here, the trial court excluded all of the “studies, literature, and other evidence” upon which the plaintiffs’ experts’ relied without giving any evidentiary basis for its rulings.  The “studies, literature, and other evidence” excluded by the trial court were not identified with the result that there were no findings, analysis, or rationale for the court’s conclusions.  The decision was subsequently reversed and remanded with directions.

 

R. Kentucky

Kentucky was a jurisdiction that wrestled with one of the early “tainted blood” cases, but the case was handled in federal court.  In McKee v. Miles Laboratories, Inc.,[205] the plaintiff contracted AIDS from tainted blood.  The district court entered summary judgment for the defendant on the ground that there was no consensus in the medical community that AIDS was blood borne until 1984.  For that finding, the McKee court cited the findings of fact set forth in Kozup v. Georgetown University.[206]  The decision strongly suggests that the court did not independently assess the evidence advanced by the litigants before it and simply relied on the findings in another case.

A later decision of the same court correctly held that nothing requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.[207]  The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

The Kentucky Supreme Court explained in Mitchell v. Commonwealth[208] that the factors a trial court may apply in determining the admissibility of an expert’s proffered testimony include, but are not limited to: (1) “whether the theory or technique can be tested,” (2) “whether the theory or technique has been subjected to peer review and publication,” (3) whether, with respect to a particular technique, there is a high “known or potential rate of error” and whether there are “standards controlling the technique’s operation,” and (4) whether the theory or technique enjoys “general acceptance” within the relevant scientific, technical, or other specialized community.[209]  Further, Kentucky trial courts may take judicial notice of methods and techniques that already have been recognized by existing case law as reaching the status of “scientific reliability” (e.g., analysis of fibers, ballistics, and fingerprints).[210]  However, “judicial notice does not preclude proof to the contrary, rather it shifts the burden to the opponent to prove to the trial judge that the method or technique does not meet Ky. R. Evid. 702’s standard of reliability anymore.”[211]  At this point the proponent can rely on the judicially noticed method or technique, or may “introduce extrinsic evidence as additional support or in rebuttal.”[212]  Daubert and Mitchell both apply to all expert testimony, but the application of each is different depending on whether the method or technique that testimony is based upon has been recognized as reliable by existing case law.

In Goodyear Tire & Rubber Co. v. Thompson,[213] the plaintiff was injured during the course of his employment while changing a multi-piece tire rim manufactured by Goodyear.  He brought a products liability suit against Goodyear.  Goodyear moved for a hearing under to Ky. R. Evid. 104(a), which follows Fed. R. Evid. 104, in order to assess the qualifications of the plaintiff’s proffered expert who was going to testify concerning Goodyear’s liability for negligent design and failure to warn.  The trial court excluded the proffered expert testimony and granted a motion for a directed verdict when the plaintiff indicated he had no other witnesses.

On appeal, the plaintiff argued that the trial court misapplied the standard set forth in Daubert.  The Court of Appeals disagreed, but reversed the trial judge, holding that the trial court abused its discretion in excluding the expert’s testimony.  The Court of Appeals held that Daubert and Mitchell only applied to testimony that is based on “scientific knowledge,” but the expert testimony in this case would have been based on the expert’s “engineering knowledge.”  Applying an abuse of discretion standard for review, the Kentucky Supreme Court noted that after the Court of Appeals had decided the case, the Supreme Court decided Kumho Tire.  The Kentucky court adopted the Kumho Tire standard, which it indicated should be applied together with the earlier Daubert/Mitchell standard.[214]

Some principles are so well accepted that a Daubert/Mitchell analysis is not required.  For example, microscopic hair analysis was held not subject to the Daubert/Mitchell test because such evidence had been admitted for many years, and that, by inference, microscopic hair analysis was valid under a Frye test.[215]  Accordingly, the Kentucky high court determined that the trial courts in Kentucky can take judicial notice that microscopic hair analysis is deemed reliable.[216]

 

S. Louisiana

In State v. Foret,[217] Louisiana adopted the Daubert standard for scientific expert testimony.  The Louisiana Supreme Court observed:

 

Since much of the Louisiana Code of Evidence is patterned after the Federal Rules of Evidence in an attempt to facilitate a “movement towards a uniform national law of evidence”, it seems appropriate for Louisiana courts to, “especially where the language of the Louisiana Code is identical or virtually identical with that used . . . in the federal rules” utilize this “body of persuasive authority which may be instructive in interpreting the Louisiana Code.”  As the Louisiana Code of Evidence provision on expert testimony is identical to the federal Rule, it follows that this court should carefully consider the Daubert decision that soundly interprets an identical provision in the federal law of evidence.[218]

 

Today Louisiana continues to follow the test laid out in Daubert and Foret.[219]

 

T. Maine

Evidentiary rulings by a trial court are reviewed on an abuse of discretion standard in Maine.[220]  The state follows Maine R. Evid. 702, that is identical to its federal counterpart.  In State v. Williams,[221] the Supreme Judicial Court of Maine rejected strict compliance with the Frye standard, pointing out:

 

[T]he presiding Justice will be allowed a latitude, which the Frye rule denies, to hold admissible in a particular case proffered evidence involving newly ascertained, or applied, scientific principles which have not achieved general acceptance in whatever might be thought to be the applicable scientific community, if a showing has been made which satisfies the Justice that the proffered evidence is sufficiently reliable to be held relevant.[222]

 

In State v. MacDonald,[223] the court cited Daubert with approval.  While noting that a trial judge “may exclude an expert’s opinion under [Maine] R. Evid. 702 if he finds that it would not be within the expert’s specialized knowledge or would not be helpful to the jury,”[224] the court noted that the Maine rule is identical to its federal counterpart.  It recognized the requirement in Daubert that, “[t]he subject of an expert’s testimony must be ‘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.”[225]

 

L. Maryland

Maryland follows the Frye standard, holding that, in order to be admissible, a court must determine that a scientific process or technique is generally accepted within the relevant scientific community.[226]  In Gladhill v. General Motors Corp.,[227] the Fourth Circuit Court of Appeals observed that “[w]hether a witness is qualified as an expert can only be the nature of the opinion he offers.”[228]  Comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony does this.

The foundation for expert testimony must be reliable.  In Bohnert v. State,[229] Maryland’s highest court held the adequacy of the foundation for an expert opinion was woefully inadequate.  The case involved the propriety of the admission into evidence of an expert opinion that a child was the victim of sexual abuse.  The court applied an abuse of discretion standard of review and concluded that the trial court abused its discretion in admitting the expert testimony.

Hutton v. State[230] solidified Maryland’s adherence to the Frye standard notwithstanding the later Daubert decision.  The court recognized that on July 1, 1994, the state adopted the Maryland Rules of Evidence, patterned after the federal rules.  The court specifically looked at Md. R. Evid. 5-702, which is the counterpart to Fed. R. Evid. 702, and the Maryland committee note that stats the adoption of the Rule “is not intended to overrule Reed . . . and other cases adopting the principles enunciated in Frye. . . .  The required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law.”[231]

 

V. Massachusetts

One of the hundreds of Bendectin cases was Lynch v. Merrell-National Laboratories, Inc.[232]  The case involved relationship between Bendectin and birth defects.  The district court reviewed the records of testimony in other Bendectin trials, the expert depositions and testimony in the Lynch case, and scientific studies that explored the relationship of Bendectin to birth defects.  The court rejected expert testimony noting that “world-wide scientific investigations of Bendectin” had not produced evidence of causation.[233] As a result, the Lynch court ruled that the expert’s proffered testimony was inadmissible, and it affirmed a grant of summary judgment for the defendant. 

While the federal courts follow the federal expert evidence trilogy, in Commonwealth v. Curnin,[234] the Massachusetts Supreme Judicial Court adopted the standard set forth in Frye and held that in most circumstances “the community of scientists involved [must] generally accept[] the theory or process” for it to be admitted in evidence.[235]  The decision in Curnin was reinforced in Commonwealth v. Lanigan.[236]  In Lanigan, the court observed that the Frye general acceptance test is useful because, “if there is general acceptance in the relevant scientific community, the prospects are high that the theory or process is reliable.”[237]  However, the court went on to note that “strict adherence to the Frye test” may result in the finder of fact not seeing all the reliable evidence.[238]  This could happen when a new theory or process is “so logically reliable” that it should be admitted into evidence, even where its novelty prevents it from attaining general acceptance throughout the relevant scientific community.[239]

The Massachusetts court adopted part of  the Supreme Court’s reasoning in Daubert, as it held that “a proponent of scientific opinion evidence may demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance.”[240]  The court noted that in most cases general acceptance will be the most significant and at times the only issue.

There was still uncertainty about the standards for the admission of pure opinion expert testimony.  In Vassallo v. Baxter Healthcare Corp.,[241] the court expressly reserved a decision on whether expert testimony based on personal observations and clinical experience would be admissible without application of the Lanigan analysis.  It noted that federal courts that had considered the question had taken the view that such testimony would be subject to scrutiny regarding reliability pursuant to Daubert.[242]

The clarification finally came in Case of Canavan.[243]  In Canavan the plaintiff, a nurse, experienced headaches, nasal congestion, dizziness, and swelling of her nose and right cheek, presumably from her exposure to multiple chemicals at work.  She received treatment from a physician highly qualified in pediatrics and certified in environmental medicine.  However, the certification came from the American Board of Environmental Medicine and was in a field not recognized by the American Board of Medical Specialties.  The expert determined that the arthritis, paresthesias, organic brain syndrome, chemical induced headaches, immunodeficiency, and multiple chemical sensitivities (MCS) secondary to chemical poisoning suffered by the nurse was caused by her exposure to chemicals during her employment.  The expert testified that MCS “is a systemic reaction of the body with multiple symptoms to multiple kinds of chemicals, which may be chemically unrelated, which are commonly present in the everyday working and living environment where that environment has not been meticulously cleaned up and had the chemical sources removed.”[244]  The expert for the defendant, a board certified allergy and immunology expert, testified that “the employee’s condition was not caused by chemicals present in her work environment and that MCS is not accepted as a diagnostic disease by mainstream allergists/immunologists and occupational medicine physicians.”[245]

The Appeals Court upheld a ruling in favor of the plaintiff and the Supreme Judicial Court granted further appellate review and it reversed the ruling below.  The defendant’s main argument was that the medical testimony of the plaintiff’s doctor on diagnosis, disability, and causation was not based on reliable methodology as set forth in Lanigan, and therefore it should not have been admitted by the lower courts.  The Supreme Judicial Court adopted the abuse of discretion standard set forth in Joiner and Kumho Tire.  It noted “that applying an abuse of discretion standard on appellate review will allow trial judges the needed discretion to conduct the inherently fact-intensive and flexible Lanigan analysis, while preserving a sufficient degree of appellate review to assure that Lanigan determinations are consistent with the law and supported by a sufficient factual basis in the particular case.”[246]  The court went on to observe that since the decision in Vassallo, the Supreme Court had decided Kumho Tire.  There the Court held that the expert’s observations were subject to a Daubert analysis since the question before the judge was whether the expert’s specific observations were sufficiently reliable to support the expert’s ultimate conclusion.  The Massachusetts court agreed and adopted Kumho Tire, requiring a Lanigan analysis.

 

“[Just because] a person qualifies as an expert does not endow his testimony with magic qualities.” Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan analysis than other types of scientific methodology.  The gatekeeping function pursuant to Lanigan is the same regardless of the nature of the methodology used: to determine whether “the process or theory underlying a scientific expert’s opinion lacks reliability [such] that [the] opinion should not reach the trier of fact.”  Of course, even though personal observations are not excepted from Lanigan analysis, in many cases personal observation will be a reliable methodology to justify an expert’s conclusion.  If the proponent can show that the method of personal observation is either generally accepted by the relevant scientific community or otherwise reliable to support a scientific conclusion relevant to the case, such expert testimony is admissible.[247]

 

In reversing, the Supreme Judicial Court held there was no evidence in the record to indicate that the expert used a reliable methodology to transform his general finding of chemical exposure to his more specific diagnosis of MCS.

 

W. Michigan

Michigan has developed what is referred to as the Davis/Frye standard.  In People v. Davis,[248] the Michigan Supreme Court held that expert testimony in Michigan will be excluded unless the subject of the expert testimony and the methodology have achieved general scientific acceptance or been independently validated.

In Anton v. State Farm Mutual Automobile Insurance Co.,[249] the plaintiff claimed he developed Graves’ disease from stress he had after an automobile accident.  The defendant sought to prevent the testimony of the plaintiff’s expert witness who attributed the onset of Graves’ disease to the accident on the ground that such a theory of causation had not achieved general acceptance or been independently validated, as required by the Davis/Frye rule.  The trial court refused to allow the plaintiff’s proffered expert testimony as it found that no causal link was established.  The Michigan Court of Appeals affirmed, noting that “where an association between occurrences is disputed, and where scientific studies are unable to validate the hypothesized linkage, inference testimony may be more prejudicial than probative, and therefore, inadmissible.”[250]

 

X. Minnesota

Minnesota adopted the Frye standard in 1952 in State v. Kolander.[251]  In 1980, in State v. Mack,[252] the Minnesota Supreme Court added an additional consideration to the Frye analysis.  There the court developed the two-prong Frye-Mack standard where, “[f]irst, a novel scientific technique must be generally accepted in the relevant scientific community, and second, the particular evidence derived from that test must have a foundation that is scientifically reliable.”[253]

In Goeb v. Tharaldson[254] family members sued a pest control company and a chemical manufacturer claiming permanent injuries from the pesticide Dursban that was sprayed in a home into which they were moving.  The defendants sought to exclude the plaintiffs’ expert witnesses because the methodology used by the experts was not generally accepted under Frye, and did not meet standard set forth in either Mack or Daubert.  The trial court excluded the testimony and granted summary judgment.  The Minnesota Court of Appeals and the Minnesota Supreme Court affirmed the trial court.  The supreme court, applying an abuse of discretion standard, held that Frye-Mack is the standard in Minnesota to determine the admissibility of novel scientific evidence.

 

Y. Mississippi

Mississippi is another Frye standard state.  In Bailiff v. Manville Forest Products Corp.,[255] the plaintiff brought an action against multiple chemical suppliers, alleging that the defendants’ products caused the plaintiff’s chronic industrial asthma and bronchitis. The court rejected the causation testimony of the plaintiff’s expert.  The court first questioned “whether [the doctor] possesses the necessary qualifications to render an opinion on the issue of a causative link between the product of a defendant and [plaintiff’s] medical condition.”[256]  The court continued:

 

In this regard, there is nothing in [the doctor’s] affidavit to indicate that he has any skills, training, knowledge, education or experience regarding any of the chemicals manufactured by the defendants (other than that contained in the Material Safety Data Sheets, discussed infra) . . .  There is no indication that [the doctor] possesses any information concerning exposure times or quantities of chemicals involved in [plaintiff’s] exposures, or that he has knowledge concerning or has performed any tests that might offer information about any cause and effect relationship between exposure to particular chemicals and [the plaintiff’s] diagnosed conditions.[257]

 

The court excluded the doctor’s opinion concerning causation and granted the defendants’ motion for summary judgment.

Despite the fact that Miss. R. Evid. 702 follows its federal counterpart, the state continues to follow Frye.  As the Mississippi Supreme Court stated in in Polk v. State,[258] “Mississippi has continued to follow the Frye ‘general acceptance’ standard even after the adoption of Rule 702 of the Mississippi Rules of Evidence.”[259]  The Mississippi court has declined to change its position and follow Daubert.  In Gleeton v. State,[260] the court noted that it has not adopted the Daubert test for determining admissibility of scientific evidence.  Instead, it adheres to the Frye test.

 

Z. Missouri

Missouri adheres to the Frye rule.  In State v. Link,[261] a particularly brutal rape-murder case, the Missouri Supreme Court applied the Frye test and held that the admission of expert testimony on DNA testing was proper.[262]  In one of the leading criminal cases in Missouri applying the Frye doctrine, the court quoted numerous excerpts from the Frye hearing in its determination of the admissibility of the results of neutron activation analysis of blood stains.[263]  In Callahan v. Cardinal Glennon Hospital,[264] the court declined to decide at that time “whether section 490.065 [of the Missouri statutes] supersedes the Frye doctrine in the same manner that Daubert held that Fed. R. Evid. 702 changes the requirements for the admissibility of expert testimony in federal court.”[265]  Finally, in State v. Middleton[266] the Missouri Supreme Court citied both Frye and Daubert, and noted that expert testimony is admissible unless the subject of that testimony is “within the realm of the jury’s common experience.”[267]

 

AA. Montana

Montana follows the Daubert standard.  In Gilkey v. Schweitzer,[268] the Montana Supreme Court recognized that the state follows Daubert, but it noted that, “Daubert is limited to novel scientific evidence.”[269] Where the scientific basis for expert evidence is so well-known and accepted, a Daubert analysis is not necessary, as, for example, for “ordinary fingerprint identification evidence . . .”[270]

 

BB. Nebraska

Section 27-702 of the Nebraska statutes is identical to its federal counterpart, Fed. R. Evid. 702.[271]  In Nebraska there is a four-part test used to determine the admissibility of expert testimony. In Seeber v. Howlette[272] the Nebraska Supreme Court explained:

 

Admissibility of expert testimony [in Nebraska] is based on four factors: (1) whether the witness is qualified as an expert; (2) whether the testimony is relevant; (3) whether the testimony will assist the trier of fact; and (4) whether the probative value of the testimony, even if relevant, is outweighed by the danger of unfair prejudice or other considerations.[273]

 

Admission or exclusion of expert testimony by the trial court will be reviewed on an abuse of discretion standard.[274]

In Anderson/Couvillon v. Nebraska Department of Social Services,[275] the plaintiff’s economics expert testified about the plaintiff's loss of future earning capacity based on another expert’s opinion that the plaintiff was unlikely to attend college.  The Nebraska Supreme Court held that it was not error for the trial court to determine that the testimony was speculative when there was no evidence that the plaintiff, who was seven years old at the time, would have attended and graduated from college but for the injury.  The court explained that “damages for permanent impairment of future earning capacity may not be based on speculation, probability, or uncertainty, but must be shown by competent evidence that such damages are reasonably certain as the proximate result of the pleaded injury.”[276]  Further “[w]here there is no sound and reasonable basis such that an expert is able to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture, the expert’s opinion is to be stricken.”[277]

In Schafersman v. Agland Coop,[278] the court held that, applying an abuse of discretion standard, the district court erred in permitting the plaintiffs’ expert to testify.  It remanded the case for a new trial.  More importantly, the court concluded that, “the framework for evaluating expert opinion testimony in Nebraska should no longer be guided by Frye . . ., but should instead reflect the criteria set forth in Daubert . . . and its progeny.”[279]

 

CC. Nevada

For the admission of expert evidence, Nevada applies a rule similar to Fed. R. Evid. 702.  In Dow Chemical Co. v. Mahlum,[280] Dow was held liable by a jury in connection with its laboratory work on silicone used in breast implants.  Dow appealed and the Nevada Supreme Court reversed the trial court, in part, recognizing that expert testimony is governed by section 50.275 of the Nevada statutes.  It provides that “expert testimony is admissible if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.”[281]  The court declined to adopt Daubert, finding it to be “a work in progress . . .”[282]  The decision, however, made no mention of Frye or the standard of review for expert evidentiary rulings by the trial court.

 

DD. New Hampshire

New Hampshire follows its own Cressy/Daubert standard.  In State v. Cressey,[283] the New Hampshire Supreme Court evaluated the admissibility of expert testimony under New Hampshire Rule of Evidence 702, and it concluded that such “testimony must rise to a threshold level of reliability to be admissible.”[284]  The court did not define the specific elements of the reliability inquiry for every case, but it did set forth a basic outline for determining the admissibility of expert testimony.  The trial court must consider the presence of objective, quantifiable evaluation results, the existence of a “logical nexus” between the expert’s observations and conclusions, the verifiability of any interpretive steps, and the likely difficulty of effective cross-examination of the expert.[285]

In State v. Hungerford,[286] the trial court was confronted with the issue of whether to allow expert testimony on “Repressed Memory Syndrome,” a therapeutic technique which was unrecognized in the field of psychology.  It held a two-week admissibility hearing and determined that the State failed to meet its burden of proving there was general acceptance of the phenomenon of repressed memories in the psychological community.  The case was consolidated with another for appellate review and the defendants moved to dismiss, asserting that the expert testimony would be inadmissible at trial under Cressey, New Hampshire Rule of Evidence 702, State v. Coolidge,[287] and Daubert.  Applying an abuse of discretion standard,[288] the court looked to its Cressy/Daubert standard, as well as both the New Hampshire and Federal Rules of Evidence.  It affirmed the trial court’s ruling that the expert testimony was not admissible because “Repressed Memory Syndrome” was not shown to be reliable.  The court remanded the case to allow the State to present expert testimony supporting the reliability of the recovered memories.

 

EE. New Jersey

New Jersey follows its own modified Frye standard, known as the Landrigan/Frye standard.  It has evolved from State v. Conklin,[289] wherein the New Jersey Supreme Court held that “abuse of discretion” was the appropriate standard for a reviewing court to apply with respect to the admissibility of evidence.[290]

New Jersey was not immune from Bendectin litigation.  In DeLuca v. Merrell Dow Pharmaceuticals,[291] children were born with birth defects allegedly caused by ingestion of Bendectin by the mothers during pregnancy.  Merrell Dow filed a motion for summary judgment arguing that expert evidence produced by the plaintiffs was inadmissible.  The plaintiffs produced expert evidence linking Bendectin to the defects, but the defendant’s evidence showed studies at the time found there was no statistically significant link between Bendectin and the type of birth defects suffered by the children.

The district court held the plaintiffs’ expert evidence would be inadmissible at trial because the data was not a type reasonably relied upon by experts in that field issuing opinions on that subject.  The defendant’s motion for summary judgment was therefore entered by the district court.  On appeal, the Third Circuit Court of Appeals reversed and remanded the case holding that “an expert’s opinion need not be generally accepted before it can be sufficiently reliable and probative to be submitted to the jury and perhaps support a jury finding.”[292]  The district court, back on remand, determined that the expert witness:

 

has presented no evidence that his methodology has been put to any non-judicial use.  Although “the Federal Rules of Evidence contain no requirement that an expert’s testimony be based upon reasoning subjected to peer-review and published in the professional literature,” the fact that [the expert’s] methodology has not been used non-judicially weighs against its admissibility.[293]

 

The district court concluded that the expert’s testimony was inadmissible under Rules 702 and 703 and it again entered summary judgment in favor of Merrell Dow.

As the New Jersey Supreme Court explained in People v. Harvey:[294]

 

Unlike many other evidentiary issues, whether the scientific community generally accepts a methodology or test can transcend a particular dispute.  . . .  Notwithstanding the trial court’s better position to shape the record and make factual determinations, appellate courts retain an important residual role for questions concerning the admission of scientific evidence.  Like trial courts, appellate courts can digest expert testimony as well as review scientific literature, judicial decisions, and other authorities.  To the extent that general acceptance focuses on issues other than a witness’s credibility or qualifications, deference to the trial court is less appropriate.[295]

 

While the Frye standard has been applied in New Jersey criminal cases, in Rubanick v. Witco Chem. Corp.,[296] the New Jersey Supreme Court modified the standard for the admission of expert testimony in civil cases, holding that:

 

[I]n toxic-tort litigation, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.  The evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training, and experience in the specific field of science. The expert must possess a demonstrated professional capability to assess the scientific significance of the underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached.[297]

 

It was in Landrigan v. Celotex Corp.,[298] that the standard for expert evidence in civil cases was clarified.  Here, the trial court refused to allow the plaintiff’s expert testimony because the testifying expert’s opinion was unsubstantiated by facts or reasons and the expert was unqualified to render an opinion because he was not a physician.  The New Jersey Supreme Court reversed, holding that:

 

(1) the trial court should have examined each step in the expert’s reasoning that exposure to asbestos more likely than not caused colon cancer;  (2) the fact that epidemiologist was not medical doctor and had never treated patients did not preclude him from testifying as expert that asbestos caused colon cancer in specific individual; and (3) the surviving spouse was entitled to proceed on both negligence and strict liability theories.[299]

 

Caterinicchio v. Pittsburgh Corning Corp.,[300] was a companion case to Landrigan.  Caterinicchio involved a person who suffered colon cancer, allegedly from exposure to asbestos.  The plaintiff called experts who found a causal relationship between asbestos exposure and colon cancer.  However, they did not address the question of whether asbestos was responsible for the plaintiff’s colon cancer.  The trial court granted the defendants’ motion for dismissal because epidemiological data showed the opinion of the expert was not reliable enough. The New Jersey Supreme Court applied the Landrigan test and affirmed in part and reversed in part.  It reversed the case with respect to the colon cancer claim based upon the Landrigan standard.

The rule in criminal cases is different, which to some makes little sense.  In State v. Harvey,[301] the defendant was convicted and sentenced to death for murder.  The trial court denied the defendant’s motion to exclude expert DNA evidence sought to be introduced by the state.  On appeal, the New Jersey Supreme Court observed that “[i]n criminal cases we continue to apply the general acceptance or Frye test for determining the scientific reliability of expert testimony,” and it went on to say that “[e]ven before the United States Supreme Court decided Daubert, this Court had relaxed the test for admissibility of scientific evidence in toxic-tort cases.”[302]  The court held:

 

A proponent of a newly-devised scientific technology can prove its general acceptance in three ways: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert’s premises have gained general acceptance.[303]

 

FF. New Mexico

New Mexico appears to follow the federal expert evidence trilogy.  In State v. Alberico,[304] the New Mexico Supreme Court applied Daubert, but it also found general acceptance of the scientific principle involved in the case and it therefore admitted the challenged evidence.

 

GG. New York

Although the federal courts in New York have followed the Fed. R. Ev. 702 standard,[305] New York state courts have adhered to the Frye standard.  In People v. Wesley,[306] the court was faced with the issue of the admissibility of DNA profiling evidence.  The court held such evidence is admissible as it has been accepted in the relevant scientific community. The court adhered to the Frye general acceptance standard and declined to follow Daubert.  The judgment was affirmed.

In People v. Angelo,[307] the defendant presented two psychological experts who testified that he suffered from a dissociative disorder that prevented him from recognizing the risks associated with his actions of injecting patients with an agent that caused respiratory problems.  In deciding on the admissibility of polygraph evidence the trial court ruled that no reference could be made to it because the New York appellate courts have held polygraph testing evidence is inadmissible as scientifically unreliable.  On appeal, the New York Court of Appeals noted that the common-law rule with respect to expert opinions and out-of-court evidence is that “an expert witness may rely on non-recorded evidence only if it ‘is of a kind accepted in the profession as reliable in forming a professional opinion’ or ‘only if it comes from a witness subject to full cross-examination on the trial.’”[308]  However, the common-law rule would not apply in this case because these rules “specifically incorporate the customary admissibility test for expert scientific evidence--which looks to general acceptance of the procedures and methodology as reliable within the scientific community.”[309]  The bottom line here was that because defendant could not demonstrate that polygraph test results are generally accepted by the scientific community as reliable, the results were properly excluded.

Similarly, in People v. Wernick,[310] the trial court precluded expert testimony on profiles of a novel neonaticide “syndrome,” which was sought to be introduced by the defendant in support of the her insanity defense. The principal issue on appeal was whether the trial court should have held a Frye hearing.  As the court stated:

 

On her affirmative defense of insanity, defendant presented expert testimony which tended to establish that (1) she completely denied the existence of her pregnancy, (2) such denial occurs in almost all cases in which women kill their newborn infants immediately after birth, and (3) in a large number of those cases the women believed that they were not pregnant.[311]

 

The court went on to note that New York  “has often endorsed and applied the well-recognized rule of Frye . . . [which] requires that expert testimony be based on a scientific principle or procedure which has been ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’”[312]

A similar result was reached in Payant v. Imobersteg.[313]  In Payant the plaintiff sued a hospital for amputating his leg followiing a motorcycle accident.  The plaintiff alleged the amputation was unnecessary, but for the hospital’s misdiagnosis of muscle tissue in his leg.  The trial court precluded the testimony of the plaintiff’s first expert for the reason that he was not qualified to testify as to the standard of treatment for an orthopedic surgeon because the expert was an infectious disease specialist.  The testimony of the second expert was also precluded because he had not performed surgery for over twenty years and could not readily recall the steps that must be taken to keep abreast of current medical procedures and trends.

On appeal, the Appellate Division held “while the fact that [the first expert] was not an orthopedic specialist could conceivably affect the weight of his testimony, it did not render it inadmissible as there is no requirement that a medical expert witness be a specialist in the same field as the parties to the lawsuit.”[314]  The same conclusion was reached with respect to the second expert because the alleged lack of skill or expertise would go to the weight of his testimony, not its admissibility.  The judgment was reversed and the case remanded for a new trial.  The Appellate Division made no mention of Frye or Daubert, but it clearly followed the Frye standard.

In People v. Fontanez,[315] the defendant was convicted of three counts of rape and other crimes.  On appeal he challenged the use of DNA evidence against him and the trial court’s failure to hold a Frye hearing on the DNA evidence.  The Appellate Division held the trial court:

 

properly denied the defendant’s request for a Frye hearing to determine the admissibility of expert testimony concerning the polymerase chain reaction (PCR) method of DNA testing.  The reliability of the PCR method has gained general acceptance in the scientific community.[316]

 

HH. North Carolina

North Carolina has in essence gone its own way when it comes to the standards for the admission of expert evidence.  As early as 1961, the North Carolina Supreme Court held that polygraph testing is not acceptable as an instrument of evidence in criminal cases.[317]  In State v. Bullard,[318] the court reviewed the law concerning the determination of whether a proffered method of introducing expert testimony is sufficiently reliable.  As the court stated:

 

In general, when no specific precedent exists, scientifically accepted reliability justifies admission of the testimony of qualified witnesses, and such reliability may be found either by judicial notice or from the testimony of scientists who are expert in the subject matter, or by a combination of the two.[319]

 

Just as it rejected polygraph testing, North Carolina also rejected hypnosis as an unreliable scientific process.[320]

In State v. Pennington,[321] the North Carolina Supreme Court considered the reliability of the DNA profiling process.  Numerous people on the plaintiff’s behalf, including a professor, a serologist and a scientist provided expert testimony concerning DNA profiling.  The court held that the expert testimony “established the reliability of the DNA profiling process” and “that the evidence of the DNA profile testing results was [, therefore,] properly admitted.”[322]  As the court noted:

 

Reliability of a scientific procedure is usually established by expert testimony, and the acceptance of experts within the field is one index, though not the exclusive index, of reliability. Thus we do not adhere exclusively to the formula, enunciated in [Frye], and followed in many jurisdictions, that the method of proof “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Believing that the inquiry underlying the Frye formula is one of the reliability of the scientific method rather than its popularity within a scientific community, we have focused on the following indices of reliability: the expert’s use of established techniques, the expert’s professional background in the field, the use of visual aids before the jury so that the jury is not asked “to sacrifice its independence by accepting [the] scientific hypotheses on faith,” and independent research conducted by the expert.[323]

 

In State v. Goode,[324] the North Carolina Supreme Court followed the Federal Rules with respect to expert evidence.  It held that preliminary questions concerning the qualifications of a witness to testify and the admissibility of evidence are to be determined by the trial court.  As the court observed, “[w]hen a trial court is faced with a proffer of expert testimony, it must determine whether the expert is proposing to testify to scientific, technical, or other specialized knowledge that will assist the trier of fact to determine a fact in issue.”[325]  North Carolina has by implication adopted the Daubert standard.

In the recent case of State v. Berry,[326] the North Carolina Supreme Court considered an unusual DNA situation.  In a rape and murder case, a defendant was identified by DNA comparison over three years after the crimes were committed.  North Carolina maintains a statewide DNA data bank in which the DNA comes from persons convicted of certain violent and sexual offenses.  Each time a convicted offender’s profile is entered into the data bank, the computer automatically compares the offender’s DNA to all the unsolved cases on file in the data bank.  The defendant contended, among other points, that it was error to admit testimony regarding the sources of the DNA in the DNA data bank and that the admission of expert testimony regarding barefoot analysis was also error.  The Court of Appeals disagreed.  Since the defendant did not object to the introduction of the DNA source testimony, it would only constitute error if it was plain error.  The court noted that, “[u]nder the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.”[327]  It went on to find that the barefoot analysis was not sufficiently reliable and should not have been admitted, but after reviewing the entire record, the court held the error to be harmless.

 

II. North Dakota

North Dakota Rules of Evidence 702, like that of many jurisdictions, is identical to Fed. R. Evid. 702.  In City of Fargo v. McLaughlin,[328] the North Dakota Supreme Court impliedly adopted Daubert when it pointed out that the “United States Supreme Court has recently held that the Frye test, requiring general acceptance within the relevant scientific community, has been superseded by FRE 702.”[329]  The court cited with approval a decision of the Montana Supreme Court wherein the court held that its version of Rule 702, and not the Frye general acceptance test, governed the admissibility of expert testimony.[330]

 

JJ. Ohio

Ohio federal courts follow the federal evidence trilogy and Fed. R. Evid. 702, as they are required to do.[331]  Ohio state courts have consistently rejected Frye’s “general acceptance” test.[332]

However, in Miller v. Bike Athletic Co.,[333] the Ohio Supreme Court noted that the admission of expert evidence in Ohio is governed by Ohio Evid. R. 702:

 

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either 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;

(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 all of the following apply:

(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;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.[334]

 

In Miller, the Ohio Supreme Court quoted extensively from Daubert, accepting it as the proper standard to be followed in Ohio.

 

KK. Oklahoma

Oklahoma follows the Daubert analysis coupled with its own section 2702 of title 12 of the Oklahoma Statutes, which is identical to Fed. R. Evid. 702.  Expert testimony is admitted at trial pursuant to the Oklahoma Rules of Evidence.  In Taylor v. State,[335] Oklahoma adopted the Supreme Court’s analysis in Daubert for the introduction of expert testimony  as it relates to novel scientific evidence.  Thereafter Oklahoma adopted the Kumho Tire standard for the admission of all novel expert testimony.  The court stated that it felt “the time is right for this Court to abandon the Frye test and adopt the more structured and yet flexible admissibility standard set forth in Daubert.[336]  In Harris v. State,[337] the Oklahoma Court of Criminal Appeals noted that “[t]he Kumho analysis is compelling and is a logical and proper extension of the Daubert decision.”[338]

 

LL. Oregon

In State v. O’Key,[339] The Oregon Supreme Court formally adopted the Daubert test and further mandated that, “[w]hen proffered scientific evidence raises issues of scientific validity, those issues should be addressed by the trial court in a separate OEC 104(1) hearing, preferably in advance of trial.”[340]  That section of the code provides:

 

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (2) of this section.  In making its determination the court is not bound by the rules of evidence except those with respect to privileges.[341]

 

Under the rule, “the trial judge must decide whether the proffered evidence satisfies the minimum threshold of relevance required by OEC 401.” [342] OEC 401 requires a very low threshold of relevance.  The threshold is so low that “[e]vidence that increases, even slightly, the probability of the existence of a material fact is relevant evidence.”[343]

In Jennings v. Baxter Healthcare Corp.,[344] the trial court, following an in limine hearing, excluded the testimony of the plaintiff’s expert on causation. The Oregon Supreme Court reviewed for errors of law instead of applying the abuse of discretion standard.[345]  The Jennings court noted that in State v. Brown[346] the Oregon Supreme Court “abandoned special tests for the admissibility of scientific evidence in favor of resolving the problem by relying on traditional evidence law as codified in the Oregon Evidence Code.  The admissibility of scientific evidence in Oregon implicates three provisions of the evidence code.[347]  These are OEC 401, discussed previously, OEC 702, which is identical to its federal counterpart; and OEC 403, “that permits the trial court to exclude relevant evidence ‘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 or needless presentation of cumulative evidence.’”[348]  Making no mention of Frye and only a scant footnote reference to Daubert[349] the Oregon court affirmed the Court of Appeals, holding that evidence based on epidemiology and clinical examination by a neurologist should be admitted.  A retrial was ordered.

 

MM. Pennsylvania

Pennsylvania is a Frye standard state.  In Commonwealth v. Blasioli,[350] the defendant appealed following his conviction on a charge of rape, contending “evidence of statistical probabilities calculated using the product rule was not properly admitted at trial in a criminal case to assist the trier of fact in assessing the probative significance of a deoxyribonucleic acid ("DNA") match.”[351] The Commonwealth introduced expert testimony after a pre-trial hearing pursuant to Frye that “the probability of a random occurrence in the general population of a DNA profile matching both [the defendant’s] and the crime sample, calculated using the product rule, was one in 10 billion; and the probability calculated using the ceiling principle was one in 30 million.”[352]  The trial court ruled the evidence met the admissibility standard for novel scientific evidence.  The Pennsylvania Supreme Court, recognizing that the state follows the Frye rule, and both the theory and technique underlying novel scientific evidence must be generally accepted.  After a detailed and painstaking analysis of DNA forensic analytical technique, the Pennsylvania high court affirmed the judgment.

Pennsylvania federal courts, of course, follow the federal expert evidence trilogy.[353]

 

NN. Rhode Island

Rhode Island follows the Daubert standard.  In DiPetrillo v. Dow Chemical Co.,[354] the plaintiffs sought damages for bodily injuries allegedly caused from exposure to a herbicide manufactured by Dow Chemical.  The jury returned a verdict in plaintiffs’ favor for $1.2 million and Dow appealed.  The Dow product was manufactured and sold under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).[355]  Dow argued that FIFRA pre-empted the field, but the court disagreed, holding that the version of FIFRA in effect at the time of exposure did not create federal regulation “so pervasive” as to manifest a congressional intent to preempt the field by precluding all state authority.  It quoted Daubert at length with approval, noting that Rhode Island Rule of Evidence 702 is identical to its federal counterpart.

 

OO. South Carolina

South Carolina declined to accept Daubert.  Rather, while its own Rule 702 is identical to the federal counterpart, it follows a somewhat different path.  South Carolina has a more liberal approach to the admission of scientific expert evidence.  The courts look at several factors, including: “(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.”[356]  Scientific expert evidence is also “subject to attack for relevancy and prejudice.”[357]

In State v. Council,[358] the South Carolina Supreme Court reiterated the Jones and Ford standards and approved the trial court’s admission of DNA evidence in a murder case, noting:

 

While this Court does not adopt Daubert, we find the proper analysis for determining admissibility of scientific evidence is now under the [S.C. R. Evid.]  When admitting scientific evidence under Rule 702, [S.C. R. Evid.], the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable.  The trial judge should apply the Jones factors to determine reliability.  Further, if the evidence is admissible under Rule 702, [S.C. R. Evid.], the trial judge should determine if its probative value is outweighed by its prejudicial effect.  Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate.[359]

 

It should be noted that South Carolina reviews evidentiary rulings by the trial court on an abuse of discretion standard.[360]

 

PP. South Dakota

In State v. Guthrie,[361] the Supreme Court of South Dakota made clear that the state follows the Daubert standard.  In Guthrie, the prosecution offered the testimony of a clinical psychologist and suicidologist with expertise in “the character of individuals who are suicidal and those that do [commit] suicide and the circumstances that surround suicidal death.”[362]  The trial court admitted the testimony, but the supreme court, applying Daubert, found that the testimony should not have been admitted.

 

QQ. Tennessee

In State v. Coley,[363] the Tennessee Supreme Court reviewed the admissibility of expert testimony concerning eyewitness identification.  The court held that the testimony proffered was inadmissible under Tenn. R. Evid. 702, that is identical to its federal counterpart.  Applying an abuse of discretion standard of review,[364] the court noted that the reliability of scientific evidence in Tennessee is determined by considering the following nonexclusive list of factors:

 

(1) whether the scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether . . . the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation.[365]

 

The court did not mention either Frye or Daubert in the majority opinion, but noted that Tennessee’s standard for the admission of expert testimony is somewhat stricter than the standard established at the federal level.

 

RR. Texas

Texas follows the federal expert evidence trilogy, with supplemental explanations having been given by the Texas Supreme Court.  An early federal case in Texas was Viterbo v. Dow Chemical Co.,[366] wherein the court held that material relied upon in forming an expert opinion must be “of a type reasonably relied on by experts in the particular field in forming opinions, or inferences upon a subject.”[367]  Here the court was not concerned with the expert’s qualifications, but rather it  focused on the fact that the testimony lacked objectivity and was unsupported by medical literature.  In another case, Brock v. Merrell Dow Pharmaceuticals, Inc.,[368] the court rejected the plaintiffs’ reanalysis of epidemiological studies because of lack of thorough peer review.

Viterbo and Brock were followed by Slaughter v. Southern Talc Co.,[369] wherein the Fifth Circuit Court of Appeals affirmed a summary judgment for the defendants in an asbestos exposure case.  In Southern Talc, the plaintiff’s expert witness made conclusions based upon examinations of x-rays, but never personally examined the plaintiff.  The court recognized that questions about the scientific basis for an expert’s opinion affect the weight to be given the opinion and not its admissibility, expert testimony may be completely excluded when the sources that it is based upon are of so little value “that [the] testimony would not actually assist the jury in arriving at an intelligent and sound verdict.”[370]

The standard for Texas state courts was enunciated in Kelly v. State.[371]  In Kelly, the defendant appealed the trial court’s ruling on the admissibility of DNA evidence in a murder conviction.  The defendant argued the tests were not generally accepted as reliable within the scientific community.  However, the trial court decided to admit the testimony.  The Court of Criminal Appeals affirmed the decision, holding that evidence is reliable when the underlying theory and the technique used to apply it are valid, and further that the technique was properly applied by the expert in question.  As the court in E.I. du Pont de Nemours & Co. v. Robinson[372] noted:

 

Under Kelly, factors affecting the trial court’s determination of reliability include: (1) general acceptance of the theory and technique by the relevant scientific community; (2) the expert’s qualifications; (3) the existence of literature supporting or rejecting the theory; (4) the technique’s potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the theory or technique can be explained to the trial court; and (7) the experience and skill of the person who applied the technique on the occasion in question.[373]

 

In Burroughs Wellcome Co. v. Crye,[374] the plaintiff was hospitalized and never able to walk unaided again after using a product manufactured by the defendant. The jury returned a verdict in her favor and the defendant appealed.  The Texas Supreme Court reversed, holding that the expert testimony of the plaintiff did not demonstrate that the defendant’s product caused the plaintiff’s injury.  As the court observed, “[w]hen an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment.”[375]

Similarly, in E.I. du Pont de Nemours & Co. v. Robinson,[376] the plaintiffs sued du Pont claiming a product it manufactured was contaminated and damaged their pecan orchard.  The plaintiffs provided expert testimony on causation to this effect.  However, the expert did not conduct any soil tissue testing, did not research weather conditions, and did not test any of the product used by the plaintiffs.  DuPont filed a motion to exclude the expert’s testimony.  As the Texas Supreme Court observed:

 

The trial court held a pretrial hearing on DuPont’s motion and found that [the expert’s] testimony: (1) was not grounded upon careful scientific methods and procedures; (2) was not shown to be derived by scientific methods or supported by appropriate validation; (3) was not shown to be based on scientifically valid reasoning and methodology; (4) was not shown to have a reliable basis in the knowledge and experience of his discipline (horticulture); (5) was not based on theories and techniques that had been subjected to peer review and publication; (6) was essentially subjective belief and unsupported speculation; (7) was not based on theories and techniques that the relevant scientific community had generally accepted; and (8) was not based on a procedure reasonably relied upon by experts in the field.[377]

 

The trial court excluded the expert’s testimony as not reliable and not able to fairly assist the trier of fact in understanding facts at issue in the case.  The Texas Supreme Court held that scientific evidence offered pursuant to Tex. R. Evid. 702, which is identical to its federal counterpart, must be relevant and reliable.  The court adopted the Daubert standard and reaffirmed its support for Kelly.  The court noted:

 

Rule 702 contains three requirements for the admission of  expert  testimony: (1) the witness must be qualified; and (2) the proposed testimony must be “scientific . . . knowledge”; and (3) the testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue.”  In order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.

To be relevant, the proposed testimony must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”  Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy Rule 702's requirement that the testimony be of assistance to the jury.

In addition to being relevant, the underlying scientific technique or principle must be reliable.  Scientific evidence which is not grounded “in the methods and procedures of science” is no more than “subjective belief or unsupported speculation.”  Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.

There are many factors that a trial court may consider in making the threshold determination of admissibility under Rule 702.  These factors include, but are not limited to: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.  We emphasize that the factors mentioned above are non-exclusive.  Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence.  The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case.[378]

 

The court further observed:

 

 . . .  [W]e hold that in addition to showing that an expert witness is qualified, Rule 702 also requires the proponent to show that the expert’s testimony is relevant to the issues in the case and is based upon a reliable foundation.  The trial court is responsible for making the preliminary determination of whether the proffered testimony meets the standards set forth today.[379]

 

Texas was not spared from Bendectin litigation.  In Merrell Dow Pharmaceuticals Inc. v. Havner,[380] the Texas Supreme Court held the expert evidence was insufficient to establish that the drug caused the plaintiff to be born with a birth defect.  Also the Texas Supreme Court reaffirmed its scientific evidentiary admission standards once again in Gammill v. Jack Williams Chevrolet, Inc.[381]  In Gammill, the trial court excluded expert testimony from the plaintiff based on the fact that the experts were not qualified to testify on the matters in question and that under E.I. du Pont the opinions were not scientifically reliable.  The Court of Appeals affirmed the summary judgment in favor of the defendants.  The Texas Supreme Court reviewed the trial court’s decision concerning the admissibility of expert testimony using an abuse of discretion standard, and it had:

 

no difficulty in holding that the district court did not abuse its discretion in excluding [the expert’s] testimony.  Just as not every physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case.[382]

 

The Texas high court affirmed the trial court, citing to Daubert in its opinion.

 

SS. Utah

The two recent principal Utah cases discussing the admission of expert evidence are State v. Crosby[383] and State v. Rimmasch.[384]  As the court in State v. Brown[385] analyzed:

 

Rimmasch sets forth a three-part standard for admitting scientific evidence under Utah Rule of Evidence 702.  Rimmasch first requires a threshold showing of inherent reliability.  A proponent may either show a general acceptance of the principle or technique in the relevant scientific community or proffer a sufficient foundation to demonstrate the inherent reliability of the underlying principles and techniques.  If the proponent can show general acceptance, the court may take judicial notice and admit the evidence subject to the requirements discussed below.  However, if the subject is not suitable for judicial notice, the foundational showing must explore with careful precision such questions as the correctness of the scientific principles underlying the testimony, the accuracy and reliability of the techniques utilized in applying the principles to the subject matter before the court and in reaching the conclusion expressed in the opinion, and the qualifications of those actually gathering the data and analyzing it. . . .  Only with such information can the overall decision on admissibility be made intelligently.  In the absence of such a showing by the proponent of the evidence and a determination by the court as to its threshold reliability, the evidence is inadmissible.[386]

 

The Utah Supreme Court has quoted Daubert with approval in all its post-Daubert rulings on the admission of expert evidence.

 

TT. Vermont

Vermont has adopted the Daubert standard.  As its supreme court so clearly observed in State v. Kinney:[387]

 

The admissibility standard continues despite the intervening issuance of the Daubert decision, and the adoption of its holding in State v. Brooks, 162 Vt. 26, 30, 643 A.2d 226, 229 (1993), and State v. Streich, 163 Vt. at 342, 658 A.2d at 46.  The basic thrust of Daubert is that the widely-accepted standard of novel scientific and technical evidence, announced first in Frye . . . did not survive the adoption of Federal Rule of Evidence 702, which contains a more flexible standard of reliability and relevancy.  Largely because we had adopted F.R.E. 702 as V.R.E. 702, we adopted the Daubert standard as our own.[388]

 

UU. Virginia

Virginia has not clarified its position in the post-Daubert era.  In Ellis v. International Playtex, Inc.,[389] the Fourth Circuit Court of Appeals held that a scientific principle being applied must be reliable, and the court must make that determination, even if it did not follow the Frye rule.  Review of the trial court’s evidentiary rulings was made on an abuse of discretion standard.[390]

 

VV. Washington

In 1974 The Washington Supreme Court implicitly adopted the Frye standard.[391]  Four years later, in State v. Canaday,[392] the court explicitly approved the Frye standard for admissibility of expert testimony.  As the court stated “[I]n other words, scientists in the field must make the initial determination whether an experimental principle is reliable and accurate.”[393]

            In State v. Copeland,[394] the defendant was convicted of murder and challenged the use of DNA evidence on his appeal.  The defendant and the prosecution debated whether the Frye rule should apply to the admissibility of DNA evidence, or if Daubert should be the standard.  The Washington court rejected the Daubert standard and adhered to the Frye rule, pointing out:

 

The rationale of the Frye standard, which requires general acceptance in the relevant scientific community, is that expert testimony should be presented to the trier of fact only when the scientific community has accepted the reliability of the underlying principles. . . .  The Frye standard recognizes that “judges do not have the expertise required to decide whether a challenged scientific theory is correct,” and therefore courts “defer this judgment to scientists.”  The court does not itself assess the reliability of the evidence. “If there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted.”[395]

 

Review of admissibility under Frye is de novo and involves a mixed question of law and fact.

In State v. Greene,[396] the defendant in a criminal case was diagnosed with dissociative identity disorder (DID).  He pled not guilty by reason of insanity as a result of DID, claiming that one of his diagnosed alternate personalities instigated the crime and that at least four other of his alternate personalities exchanged control of his body during the incident.  The Washington Supreme Court held that: (1) the relevant inquiry under Frye was general acceptance of DID within the scientific community, without reference to its forensic application to this particular case; (2) DID was generally accepted within the relevant scientific community; and (3) although the expert testimony regarding DID met the Frye standard for admissibility, it was inadmissible under Wash. R. Evid. 702 because it would not have been helpful to the trier of fact.

Another novel scientific procedure was at issue in State v. Baity.[397]  The case involved the use of a Drug Recognition Expert (DRE) protocol in assessing the condition of two drivers.  The trial court refused to admit the DRE evidence.  The Washington Supreme Court reversed, conducting a de novo review applying the Frye rule and held that DRE evidence is admissible under Frye because it is generally accepted in the relevant scientific communities.[398]

The admissibility of DNA evidence was considered in State v. Gore.[399]  In Gore, the trial court held:

 

[a] seven-day pretrial hearing to determine admissibility of DNA evidence under Frye and [Wash. R. Evid.] 702.  The trial court ruled that the particular DNA typing techniques used were admissible, and also ruled that the product rule could be used to calculate the probability of a random match in the human population of the genetic profiles detected.[400]

 

The Washington Supreme Court affirmed.

 

WW. West Virginia

West Virginia has adopted Daubert which it applies with its own Rule 702, an identical rule to Fed. R. Evid. 702.  Rulings on the admissibility of expert evidence are reviewed on an abuse of discretion standard.[401]

In Wilt v. Buracker,[402] the West Virginia Supreme Court of Appeals adopted Daubert as the standard for determining the admissibility of expert scientific testimony pursuant to Rule 702 of the West Virginia Rules of Evidence.

In State v. Lockhart,[403] the defendant introduced evidence of his Dissociative Identity Disorder (DID) in support of his insanity plea.  The Supreme Court of Appeals of West Virginia held that while DID testimony may be admissible for proof of an insanity defense, the admissibility of it is on a case-by-case basis.  However, the court held that the DID diagnosis in this case was insufficient to support an insanity defense as the expert was unable to form an opinion about the defendant’s state of mind at the time of the crime.

 

XX. Wisconsin

The language of section 907.02 of the Wisconsin statutes is identical with Fed. R. Evid. 702.[404]  In State v. Walstad[405] the Wisconsin Supreme Court observed:

 

The rules in regard to the admission of expert testimony are also clear. The Wisconsin Rules of Evidence . . . provide that, if scientific or specialized knowledge will assist the trier of fact to determine a fact in issue, a qualified expert may testify. As the commentary to Rule 907.02 points out, under [the rule] expert testimony is admissible if relevant and will be excluded only if the testimony is superfluous or a waste of time.  The Frye concept is alien to the Wisconsin law of evidence.[406]

 

More recently, the Wisconsin Court of Appeals stated that the role of the trial court in Wisconsin as to scientific expert testimony is much different than that set forth in the federal trilogy.  It explained that “unlike the federal system, where the trial court has a significant ‘gatekeeper’ function in keeping from the jury expert testimony that is not reliable, the trial court’s gatekeeper role in Wisconsin is extremely limited . . .”.[407]

Thus, it could be argued that Wisconsin adheres to the “let it in for what its worth” approach to scientific evidence.

 

YY. Wyoming

Wyo. R. Evid. 702 is identical to Fed. R. Evid. 702.  In Rivera v. State,[408] the court rejected the Frye rule, as it stated that in Wyoming the proper analysis for determining the admissibility of scientific evidence is through the Wyoming Rules of Evidence, rather than the Frye test of general acceptance within the scientific community.  As Wyo. R. Evid. 702 states:

 

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.[409]

 

In Springfield v. State,[410] the defendant appealed the trial court’s decision to admit DNA evidence.  Here the Wyoming Supreme Court departed from its earlier Rivera decision, instead choosing to follow the holding in State v. Brown,[411] as it adopted a modified Daubert standard.

 

IX.

conclusion

            Although the expert evidence trilogy was clarified by both the amendments to Fed. R.Evid. 702 and the Supreme Court decision in Weisgram v. Marley,[412] state courts continue to follow a variety of approaches to expert evidence.  The practitioner must be thoroughly familiar with the standards of the jurisdiction whose law is to be applied to the particular case.  Most litigation today will involve some type of expert evidence, making a clear understanding of the standards for the admission of such evidence essential.

            The court should be made aware at the earliest opportunity that expert evidence may be presented in the case.  Careful, thorough and detailed preparation of expert evidence is essential if it admitted.  Conversely, the exclusion of expert evidence is frequently outcome determinative.  The same careful, thorough and detailed discovery of expert evidence is vital if a challenge to its admission is to be mounted.  Every detail of the expert evidence must be examined, together with the body of scientific or technical literature to which it belongs.  Opposing experts must be consulted, possibly in multiple disciplines, depending upon the specifics of the case.  The timing of a challenge to the admission of expert evidence can be equally important.

            A motion to exclude expert evidence filed shortly after the close of discovery is usually the best approach.  Whether in the form of a motion for a Daubert hearing, a motion for summary judgment, or simply a motion to exclude expert evidence, the court is forced to focus on the expert evidence issues.  Frequently courts will require an evidentiary hearing.  Motions in limine prior to trial may accomplish much the same goal, but usually without the focus or thoroughness of a full blown evidentiary hearing.

            Expert evidence may not play a principal role in every case, but in those cases where expert evidence is involved, it will frequently determine the outcome of the case, whether at the trial or even the appellate level.

ENDNOTES

 


[1]           Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1902)

[2]           For an in-depth analysis and commentary of the evolution and rules of expert testimony, see: Hand, supra note 1; Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half Century Later, 80 Colum. L. Rev. 1197, 1232 (1980); Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L. Rev. 879, 911-12 (1982); Frederic I. Lederer, Resolving the Frye Dilemma-A Reliability Approach, 26 Jurimetrics J. 240, 241 (1986); Jack B. Weinstein, Improving Expert Testimony, 20 U. Rich. L. Rev. 473, 482 (1986); Bert Black, A Unified Theory of Scientific Evidence, 56 Fordham L. Rev. 595 (1988); David Bernstein, Note, Out of the Frying Pan and Into the Fire: The Expert Witness Problem in Toxic Tort Litigation, 10 Rev. Litig. 117, 138 (1990); Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113; Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom (1991); Michael H. Gottesman, Admissibility of Expert Testimony After Daubert: The ‘Prestige’ Factor, 43 Emory L.J. 867, 869-72 (1994); Kenneth J. Chesebro, Taking Daubert’s “Focus” Seriously: The Methodology/Conclusion Distinction,” 15 Cardozo L. Rev. 1745 (1994); Michael H. Graham, The Daubert Dilemma: At Last a Viable Solution?, 179 F.R.D. l, 7 (1998); Michael D. Green, The Road Less Well Traveled (and Seen): Contemporary Lawmaking in Products Liability, 49 DePaul L. Rev. 377, 398 (1999); Michael J. Saks, The Aftermath of Daubert: An Evolving Jurisprudence of Expert Evidence, 40 Jurimetrics J. 229 (2000); David E. Bernstein, Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test, 41 Jurimetrics J. 385-407 (2001).

[3]           795 F.2d 1230 (5th Cir. 1986).

[4]           Id. at 1233-34

[5]           293 F. 1013 (D.C. Cir. 1923).

[6]           509 U.S. 579 (1993).

[7]           522 U.S. 136 (1997).

[8]           526 U.S. 137 (1999).

[9]           Frye, 293 F. at 1014.

[10]            Charles T. McCormick, Handbook of the Law of Evidence 363 (1954).

[11]          Id. at 363-64.

[12]          States that follow the Frye rule include: Alabama, Arizona, California, Colorado, the District of Columbia, Florida, Illinois, Kansas, Maryland, Michigan, Minnesota, Mississippi, Nebraska, New Hampshire, New Jersey, New York, Pennsylvania and Washington.

[13]          Fed. R. Evid. 702.

[14]          Id. 703.

[15]          Id.

[16]          See Fed. R. Evid. 705.

[17]          855 F.2d 1188, 1208 (6th Cir. 1988).

[18]          If a high rate of porosity is used, the model will make it appear that the chemicals arrive and leave quickly with a very high level for a short period of time.  If a low rate of porosity is used, there is a more insidious level of exposure over a longer period of time that cannot be predicted by odor or taste.

[19]          Vesical, 855 F.2d. at 1208 (citing United States v. Kozminski, 821 F.2d 1186, 1194 (6th Cir.), cert. granted on other grounds, 484 U.S. 894 (1987); United States v. Brown, 557 F.2d 541 (6th Cir. 1977); United States v. Green, 548 F.2d 1261 (6th Cir. 1977)).

[20]          Id. at 1208.

[21]          911 F.2d 941 (3d Cir. 1990), cert. denied, 510 U.S. 1044 (1994).

[22]          The expert in question was also used in several previous cases, with some courts permitting his expert testimony and others rejecting it.  See, e.g., In re Richardson-Merrell, Inc. Bendectin Prod. Liab. Litig., 624 F. Supp. 1212 (S.D. Ohio 1985), aff’d in relevant part, 857 F.2d 290 (6th Cir. 1988), cert. denied, 488 U.S. 1006 (1989); Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100 (D.C. 1986), cert. denied, 493 U.S. 1074 (1990); Lynch v. Merrell-Nat’l Labs., 830 F.2d 1190 (1st Cir. 1987); Richardson v. Richardson-Merrell Inc., 273 U.S. App. D.C. 32, 857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989).

[23]            DeLuca, 911 F.2d at 951, n.11 (quoting Christopherson v. Allied-Signal Corp., 902 F.2d 362, 367 (5th Cir. 1990)).

[24]          DeLuca v. Merrell Dow Pharms., Inc., 791 F. Supp. 1042, 1057 (D.N.J. 1992) (citing United States v. Downing, 753 F.2d 1224, 1239 (3d Cir. 1985); Perry v. United States, 755 F.2d 888, 892 (11th Cir. 1985) (“the examination of a scientific study by a cadre of lawyers is not the same as its examination by others trained in the field of science or medicine”)).

[25]          It has been alleged that Bendectin is one such product.  See DeLuca, 791 F. Supp. at 1045.  “[d]ata collected by the Centers for Disease Control ("CDC") in Atlanta, Georgia show that after Bendectin ceased to be marketed (when Bendectin had been off the market for about three years) there was a slightly greater increase in birth defects than when Bendectin was prescribed in approximately 25% of all pregnancies”).

[26]            Bernstein, supra note 2, at 402 (citing Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1128-29).

[27]          See Brock v. Merrell Dow Pharms., Inc., 884 F.2d 167, 168 (5th Cir. 1989).

[28]          939 F.2d 1106 (5th Cir. 1991), cert. denied, 503 U.S. 912 (1992).

[29]          Id. at 1110.

[30]          951 F.2d 1128 (9th Cir. 1991).

[31]          Id. at 1131, n.3.

[32]            Bernstein, supra note 2, at 392.

[33]          509 U.S. 579 (1993), rev’g, 951 F.2d 1128 (9th Cir. 1991).

[34]          Justice Blackmun was joined by Justices White, O’Connor, Scalia, Kennedy, Souter, and Thomas, as to all holdings, while Chief Justice Rehnquist and Justice Stevens concurred in part and dissented in part.

[35]            Daubert, 509 U.S. at 600 (Rehnquist, C.J., dissenting).

[36]          522 U.S. 136 (1997).

[37]          As an aside, Joiner smoked one pack of cigarettes daily for approximately eight years.  His parents smoked around Joiner while he was growing up and his mother died of lung cancer when Joiner was 23, smoking up to the time of her death.  Joiner also had a maternal uncle who died of lung cancer.

[38]          Joiner v. General Electric Co., 78 F.3d 524 (11th Cir. 1996).

[39]          Id. at 535 (Smith, Judge, dissenting).

[40]          General Electric Co. v. Joiner, 522 U.S. 136 (1997).

[41]          Id. at 142.

[42]          See Carmichael v. Samyang Tires, Inc., 923 F. Supp. 1514 (S.D. Ala. 1996).

[43]          Id. at 1521-22.

[44]          Id. at 1522.

[45]            Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1437 (11th Cir. 1997).

[46]          Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Fed. R. Evid. 702).

[47]          Id.

[48]          Id. at 149-50 (quoting Daubert, 509 U.S. at 579, 592-94.

[49]          14 P.3d 1170 (Kan. 2000).

[50]          Id. at 1177.

[51]          Id. at 1179-80.

[52]          Id. at 1180.

[53]          733 N.E.2d 1042 (Mass. 2000).

[54]          Id. at 1045.

[55]          Id.

[56]          Id. at 1046.

[57]          641 N.E.2d 1342, 1348-49 (Mass. 1994).

[58]            Canavan, 733 N.E.2d at 1049.

[59]          696 N.E.2d 909, 919 n.15 (Mass. 1998).

[60]            Canavan, 733 N.E.2d at 1050 (citations omitted).

[61]          See, e.g., Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1360 (6th Cir. Ky.), cert. denied, 506 U.S. 826 (1992)  (recognizing that nothing requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert because a court may conclude that there is simply too great an analytical gap between the data and the opinion proffered).

[62]          772 F. Supp. 1578 (S.D. Miss. 1991).

[63]          Id. at 1582.

[64]          Id. at 1583.

[65]          136 Cal. Rptr. 203 (Ct. App. 1977).

[66]          Id. at 210 (citations omitted).

[67]          12 F.3d 892 (9th Cir. 1993).

[68]          Id. at 895.

[69]          569 F.2d 666 (D.C. Cir. 1977).

[70]          Id. at 673.

[71]          Id. (citations omitted).

[72]          See Trapp v. American Trading & Prod. Corp., 414 N.Y.S.2d 11, 12 (App. Div. 1979) (reversing the trial court where the expert, contrary to his testimony, held no degrees, graduate or undergraduate, never completed his freshman year in college, held no licenses in his field of expertise, and, in essence, was not an expert); Herington v. Smith, 485 N.E.2d 500 (Ill. App. Ct. 1985)  (upholding a trial court order granting a new trial where a medical expert lied about the university and medical school from which he graduated and the kind of medical license he held); California Shoppers, Inc. v. Royal Globe Ins. Co., 221 Cal. Rptr. 171 (Ct. App. 1985); Oxendine v. Merrell Dow Pharms., Inc., 563 A.2d 330 (D.C. 1989).

[73]          728 A.2d 582 (D.C.), rehrg. denied, 736 A.2d 1031 (D.C. 1999), 528 U.S. 1098 (2000).

[74]          Id. at 586.

[75]          773 A.2d 396 (D.C. 2001).

[76]          Id. at 419.

[77]          Id. at 416-17 (citations omitted); see also Hawes v. Chua, 769 A.2d 797 (D.C. 2001).

[78]          Id. at 417 n.31 (quoting Graham v. Wallace, 538 S.E.2d 730, 732 (W.Va. 2000)).

[79]          At constant pressure the volume of a given mass of gas is directly proportional to its temperature measured on the Kelvin scale.

[80]          At constant temperature the volume of a given mass of gas is inversely proportional to its pressure.

[81]          857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989).

[82]            Bendectin was initially marketed in 1957 and taken off the market in 1983.  See In re Richardson-Merrell, Inc. Bendectin Prods. Liab. Litig., 624 F. Supp. 1212 (S.D. Ohio 1985), aff'd in part, vacated in part, and remanded with directions sub nom., In re Bendectin Litig., 857 F.2d 290 (6th Cir. 1988), cert. denied sub nom. Hoffman v. Merrell Dow Pharms., Inc., 488 U.S. 1006 (1989).

[83]          The same plaintiffs’ expert that testified in Richardson also testified in Oxendine v. Merrell Dow Pharms., Inc., 506 A.2d 1100 (D.C. 1986), cert. denied, 493 U.S. 1074 (1990) and Lynch v. Merrell-Nat’l Labs., 830 F.2d 1190 (1st Cir. 1987).

[84]          See United States v. Porter, 618 A.2d 629, 633-34 (D.C. 1992).

[85]          See Ibn-Tamas v. United States, 455 A.2d 893, 895 (D.C. 1993) (stating that “Frye requires the profferor of the expert on a new scientific theory to show that the evidence is not still in the experimental stage but has gained a scientific acceptance substantial enough to warrant the exercise of judicial discretion in favor of admissibility.”).

[86]          923 F. Supp. 1514 (S.D. Ala. 1996), rev’d, 131 F.3d 1433 (11th Cir. 1998), rev’d, 526 U.S. 137 (1999).

[87]          509 U.S. at 589.

[88]          See the discussion of Daubert and Kohmo Tire, supra in parts IV and V.

[89]          774 So. 2d 505 (Ala. 2000).

[90]          779 So. 2d 198 (Ala. 2000).

[91]          Id. at 202, n.1.

[92]          633 F.2d 531, 533-34 (9th Cir. 1980).

[93]          See also, Ashley v. State, 6 P.3d 738 (Alaska Ct. App. 2000) (holding that when the defendant failed to object to the qualification of a police officer as an expert witness, any evidentiary objections were therefore waived on appeal).

[94]          See, e.g., State v. Roscoe, 700 P.2d 1312, 1319-20 (Ariz. 1984); United States v. Crumby, 895 F. Supp. 1354, 1361 (D. Ariz. 1995) (holding that “polygraph evidence is sufficiently reliable under Daubert to be admitted as scientific evidence under Fed. R. Evid. 702”).

[95]          933 P.2d 1187, 1192-93 (Ariz. 1997).

[96]            Logerquist v. McVey, 1 P.3d 113, 120 (Ariz. 2000) (discussing the holding in Hummert).

[97]          Id. at 121.

[98]            Hummert, 933 P.2d at 1192-93; see also State v. Garcia, 3 P.3d 999 (Ariz. Ct, App. 1999) (holding that the trial court properly determined that expert statistical testimony concerning DNA evidence obtained in the case met the Frye standard).

[99]          1 P.3d 113 (Ariz. 2000).  The decision has been harshly criticized.  See Lori A. Van Daele, Note, Logerquist v. McVey: Frye, Daubert or “Non-Scientific” Expert Testimony, 42 Jurinetrics J. 85 (2001).

[100]        Id. at 115.

[101]        Id.

[102]        See Loudermill v. Dow Chem. Co., 863 F.2d 566, 569 (8th Cir. 1988).

[103]        14 S.W.3d 512 (Ark. 2000).

[104]        Id. at 519.

[105]        549 P.2d 1240 (Cal. 1976).

[106]        Id. at 1244.

[107]        882 P.2d 321 (Cal. 1994).

[108]        See People v. Loomis, 203 Cal. Rptr. 767, 769-70 (Ct. App. 1984) (disallowing police officer’s opinion testimony, based on HGN test results, regarding suspect’s blood-alcohol level); People v. Ojeda, 275 Cal. Rptr. 472, 473 (Ct. App. 1990) (allowing police officer to testify regarding HGN test results as indicating defendant’s intoxication); People v. Williams, 5 Cal. Rptr. 2d 130, 134 (Ct. App.1992) (disallowing officer’s opinion testimony, based on HGN test, that suspect had consumed alcohol).

[109]        Leahy, 822 P.2d at 329.

[110]        Id. at 336 (quoting People v. Shirley, 723 P.2d 1354, 1377 (Cal. 1982)).

[111]        33 F.3d 1116 (9th Cir. 1994), cert. denied, 513 U.S. 1082 (1995).

[112]        86 Cal. Rptr. 2d 204 (Ct. App. 1999).

[113]        Id. at 206.

[114]        Id. at 207.

[115]        Lindsey v. People, 892 P.2d 281, 290-91 n.25 (Colo. 1995) (citations omitted).

[116]        22 P.2d 68 (Colo. 2001).

[117]        Id. at 78-79.

[118]        698 A.2d 739 (Conn. 1997), cert. denied, 523 U.S. 1058 (1998).

[119]        Id. at 758-59.

[120]        757 A.2d 482 (Conn. 2000).

[121]        Id. at 486 (citing State v. Borrelli, 629 A.2d 1105, 1110 (Conn. 1993); State v. Hasan, 534 A.2d 877, 879 (Conn. 1987).

[122]        See State v. McClendon, 730 A.2d 1107, 1114 (Conn. 1999) (holding that “‘[t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . .  The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law’”) (citations omitted).

[123]        Reid, 757 A.2d at 489; see also State v. Pappas, 776 A.2d 1091 (Conn. 2001).

[124]        759 A.2d 582 (Del. 2000).

[125]        Id. at 587.

[126]        See Young v. Frase, 702 A.2d 1234, 1236 (Del. Supr. Ct. 1997).

[127]        293 F. 1013 (D.C. Cir. 1923).

[128]        Id. at 1014.

[129]        376 A.2d 827 (D.C. 1977), cert. denied, 434 U.S. 973 (1977).

[130]        Id. at 832.

[131]        506 A.2d 1100 (D.C. 1986) (“Oxendine I”).

[132]        Id. at 1104.

[133]        Id. at 1110 (citing Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1535 (1984), cert. denied, 469 U.S. 1062 (1984)).

[134]        See Oxendine v. Merrell Dow Pharms., Inc., 563 A.2d 330 (D.C. App. 1989), cert. denied, 493 U.S. 1074 (1990) (“Oxendine II”).

[135]        Id. at 331.

[136]        See Merrell Dow Pharms. v. Oxendine, 593 A.2d 1023 (D.C. 1991) (“Oxendine III”).

[137]        649 A.2d 825 (D.C. 1994) (“Oxendine IV”).

[138]        21 U.S.C. §§ 301-393 (1999).

[139]            Oxebdine IV, 649 A.2d at 828 (citations omitted).

[140]            Oxebdine v. Merrell Dow Pharms., Inc., 1996 WL 680992 (D.C. Super. Oct. 24, 1996).

[141]        See also Kozup v. Georgetown Univ., 663 F. Supp. 1048, 1051-53 (D.D.C. 1987), aff'd in relevant part, 851 F.2d 437 (D.C. Cir. 1988) (finding a hospital and the Red Cross were not liable because they were not aware of the risk and because there were no steps either party could reasonably have been expected to take to prevent transmission of AIDS virus where infant contracted AIDS through a blood transfusion).

[142]        618 A.2d 629 (D.C. 1992).

[143]        Id. at 633.

[144]        See also Ambrosini v. Labarraque, 966 F.2d 1464, 1469 (D.C. Cir. 1992), later decision, 101 F.3d 129 (D.C. Cir. 1996), cert. dismissed, 520 U.S. 1250 (1997); Ibn-Tamas v. United States, 455 A.2d 893, 895 (D.C. 1993) (stating that “Frye requires the profferor of the expert on a new scientific theory to show that the evidence is not still in the experimental stage but has gained a scientific acceptance substantial enough to warrant the exercise of judicial discretion in favor of admissibility”).

[145]        625 So. 2d 827 (Fla. 1993).

[146]        709 So. 2d 552 (Fla. Dist. Ct. App.), rev. denied, 718 So. 2d 167 (Fla. 1998).

[147]        Id. at 557 (citations omitted).

[148]        729 So. 2d 995 (Fla. Dist. Ct. App. 1999).

[149]        Id. at 997.

[150]        785 So. 2d 539 (Fla. Dist. Ct. App. 2001).

[151]        146 S.E.2d 776 (Ga. 1966).

[152]        292 S.E.2d 389 (Ga. 1982).

[153]        Id. at 395 (citations omitted); see also Caldwell v. State, 393 S.E.2d 436 (Ga. 1990).

[154]        277 S.E.2d 678 (Ga. 1981).

[155]        Id. at 683.

[156]        Id.

[157]        971 F.2d 375 (9th Cir. 1992).

[158]        Id. at 378 (noting Judge Flannery’s detailed and well-reasoned discussion of the medical chronology of AIDS and the medical literature cited therein in Kozup v. Georgetown Univ., 663 F. Supp. 1048, 1051-1053 (D.D.C. 1987), aff'd in relevant part, 851 F.2d 437 (D.C. Cir. 1988));