Featured Expert Column: Judicial Gatekeeping of Expert Evidence
By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP
Nearly a century ago, in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the federal appeals court in the District of Columbia—the US Court of Appeals for the DC Circuit—announced the general acceptance test for evaluating the admissibility of expert testimony. Over the next several decades, the general acceptance test itself became generally accepted. But since the US Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the adoption of that standard in Federal Rule of Evidence 702, many states have replaced Frye with Daubert. In Motorola, Inc. v. Murray, __ A.3d __, 2016 WL 6134870 (D.C. Oct. 20, 2016), the en banc District of Columbia Court of Appeals (the District of Columbia’s appellate court, distinct from the federal DC Circuit) expressly dispensed with the Frye standard and adopted Rule 702.
The plaintiffs in Motorola allege that long-term exposure to cell-phone radiation causes brain tumors. After the trial judge held four weeks of evidentiary hearings on the admissibility of the plaintiffs’ expert reports, he concluded that the majority of the evidence would be admissible under Frye but would be inadmissible under Daubert. The trial judge then certified the following question for interlocutory appeal: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.” The DC Court of Appeals accepted the certified question.
At the outset, it must be emphasized that the Motorola decision reads like an opinion from the common-law era. That is because the District of Columbia has no codified rules of evidence: even though it is a federal enclave, the District is not bound by the Federal Rules of Evidence. The DC Court of Appeals thus was confronted with determining the best approach for evaluating the admissibility of expert testimony. As the court saw it, there were three options: (1) retain the Frye standard; (2) adopt Rule 702 and the Daubert trilogy; or (3) craft a revised Frye standard.
In considering these three options, the court engaged in a detailed exposition and scholarly critique of the Frye and Daubert standards.
The court faulted Frye for being “out-of-step with modern science” and for avoiding an examination of “the crucial question of whether the testimony offered in a particular case is reliable.” The court further opined that Frye puts the onus on jurors to decide which scientific theory to apply to a particular case. The court noted that Frye can be both unduly restrictive and unduly permissive because it requires admission of scientifically unreliable evidence that is generally accepted while simultaneously dictating exclusion of scientifically reliable evidence that has not yet attained general acceptance.
As for the Daubert standard, the court criticized Rule 702 for producing inconsistent results. That inconsistency arises from requiring judges who are untrained in science to evaluate the work of scientists. Furthermore, the court noted that some scholars believe that Daubert improperly invades the role of the jury.
The court also entertained—but then rejected—the idea of revising Frye, as New York, Maryland, and Pennsylvania have done, concluding that the benefits of uniformity across jurisdictions and the emerging consensus at the state level in favor of Rule 702 dictated against adoption of a hybrid approach. The court noted in particular that, by adopting Rule 702, courts in the District of Columbia could benefit from existing case law on that standard from other jurisdictions.
Ultimately, the court adopted Daubert because of its “focus on whether reliable principles and methods have been reliably applied” to the particular case. The court stated that “[t]he ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.”
In so holding, the court acknowledged that there would be transition costs to adopting Rule 702. Although emphasizing that “[t]here is no ‘grandfathering’ provision in Rule 702” that allows admission of evidence that satisfied the Frye standard but cannot pass muster under the Daubert standard, the court observed that widespread acceptance remains an important factor under Daubert. It cautioned, however, that a lower court may not “reflexively admit expert testimony because it has become accustomed to doing so” under the Frye standard. The court also held that Rule 702 would govern in all pending cases, both civil and criminal.
In a concurring opinion, Judge Easterly expanded on how trial judges should handle the transition to Rule 702. She recommended that lower courts rely on certain “landmark reports” on the admissibility of expert testimony, such as the National Research Council’s congressionally mandated 2009 Report “Strengthening Forensic Science in the United States: A Path Forward” and the 2016 Report of the President’s Council on Science and Technology “Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.” According to Judge Easterly, the ultimate concern under Rule 702 is evidentiary reliability—and, as the landmark reports make clear, that inquiry dovetails with scientific validity.
The Motorola decision is significant in two respects. First, it further accelerates a trend across the country as more and more states adopt Daubert. Second, because the opinion provides an even-handed and erudite overview of the rise and fall of Frye and the development of Daubert, it is likely to be influential when other state supreme courts are asked to jettison Frye in favor of Daubert.