Evidence

Michael M. Martin

04-13-2006


For probably as long as expert testimony has been admitted at trial, courts have struggled to "protect juries from being misled by expert opinions that may be couched in formidable scientific terminology but that are based on fanciful theories."1

For that reason, opinion testimony from experts has been excluded unless it met a standard not imposed on lay witness testimony. During the middle half of the 20th century (and longer in some jurisdictions, including New York) that standard was the one established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The 'Frye' Decision

The Frye court, upholding exclusion of expert testimony that a primitive lie detector indicated the defendant was telling the truth, held that expert testimony based on scientific principles or procedures is admissible only after the principle or procedure has gained general acceptance as reliable in its particular field. By making "scientific" evidence offered in litigation admissible only when those in the scientific field consider it reliable, the Frye standard provides an assurance of reliability to the judicial process.

Over the years Frye was criticized by courts and commentators for being excessively conservative, as well as for being indeterminant. It was seen as too conservative because new learning used in practice by only a few was sometimes held inadmissible because it had not gained "general" acceptance.2 It was seen as indeterminant because its key concepts — "scientific" evidence, scientific "field," and "general" acceptance — each had uncertain boundaries. Thus, whether expert testimony involved a "scientific" principle or procedure would be contested because that determined whether acceptance outside in the field was required. Likewise, the decision whether lie detectors were to be judged by a field narrowly defined to encompass only those who operated the devices, or more broadly to scientists studying physiological effects of lying, could well determine whether there was general acceptance. And "general" acceptance could describe a consensus, widespread agreement, or simply a view held by a substantial portion of those in the field.

After the Federal Rules of Evidence (FRE) were adopted in 1975, some (but not all) federal courts ceased to apply Frye. The drafters intended the rules to relax the traditional restrictions on opinion testimony, and nothing in Rule 702 — which made admissible opinion testimony by witnesses with "scientific, technical, or other specialized knowledge" that would be of assistance to the trier — fit well with the limitation imposed by Frye.

In 1993 a unanimous Supreme Court confirmed that Frye no longer applied in federal courts. The Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993), that admissibility of scientific evidence does not depend on general acceptance in the field. Rather, it is up to the judge to assure that scientific evidence is reliable, that it truly proceeds from "scientific knowledge," which is what is made admissible under Rule 702. Justice Harry Blackmun provided a list of five factors that could be considered by the judge in determining the reliability of scientific evidence. These five factors were not proposed as dispositive or as the exclusive list of considerations; they were only to provide a flexible test. They reflect Justice Blackmun's view of what's involved in "science" and whether the expert is using "science" rather than "junk science."

'Daubert' Factors

The Daubert factors are: (1) whether the technique or theory can be or has been tested; (2) whether the theory or technique has been subject to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards and controls; and (5) the degree to which the theory or technique has been generally accepted in the scientific community.

One thing to note about Daubert's five factors is their connection to Frye: general acceptance is specifically included as the fifth factor; the peer review and publication factor is closely related, since it is virtually a precondition for general acceptance; and there are usually standards and controls for techniques that are generally accepted.

The principal significance of Daubert was to make the trial judge the "gatekeeper" in admitting scientific expert testimony. No longer was the judge constrained to admit science-based evidence only when it was generally accepted in the field.

Daubert did not just give the trial judge responsibility to determine that scientific principles and procedures used in expert testimony were "valid" or reliable. It also pointed out that a principle may be valid for one purpose but not for another. Therefore, the judge is also to act as gatekeeper to ensure that the science relied on "fits" the facts of the case. As a result, an expert's opinion that a particular substance causes the plaintiff's disease must be excluded when there is no evidence the plaintiff was exposed to the substance, because the evidence does not meet the "fit" requirement even if the scientific principle of general causation is valid.

Because Frye had attempted to define when "science" crossed the line from experimental (or speculative) to demonstrable, and Daubert, in interpreting FRE 702, had listed considerations for when "science" was valid, some courts after Daubert said that it did not apply to "technical or other specialized knowledge" (also covered by Rule 702) when the expert testimony did not depend on "scientific" principles or procedures. However, in 1999 the Supreme Court held in effect that Daubert applies to all expert testimony in federal court. In Kumho Tire Co. v. Carmichael, 526 US 137 (1999), the Court said that because Rule 702 requires that experts testify on the basis of "knowledge," the judge has an obligation to ensure that there actually is "knowledge" being used (i.e., that the expert's opinions are based on reliable principles, not just the expert's speculation).

Kumho thus marks the second big distinction from the prior Frye rule: first, Daubert moved the locus for determining reliability from the scientific community to the judge; second, Kumho explicitly made the admissibility of all expert testimony, not just testimony based on "scientific" principles and procedures, subject to a reliability assessment.

Under Daubert and Kumho, the courts have considered a variety of factors as affecting the reliability of expert testimony; five are commonly used3:

(1) whether the expert is testifying about matters growing naturally and directly out of research conducted independent of the litigation, or whether the opinions were developed expressly for testifying;

(2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

(3) whether the expert has adequately accounted for obvious alternative explanations;

(4) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give; and, perhaps most important, the "bottom line" standard identified by Justice Stephen Breyer in Kumho;4

(5) whether expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

'Frye' Holds in New York

While the federal courts moved away from Frye in the Federal Rules, Daubert, and Kumho, New York has remained a follower of Frye. In People v. Wesley, 83 NY2d 417 (1994), the Court of Appeals noted that Daubert is inapplicable in New York courts because it was a product of the adoption of the Federal Rules. The court pointed out the contrast between the rigidity of the general acceptance rule and the "'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to "opinion" testimony.'" Although Wesley was decided shortly after Daubert (and before Kumho), there is no indication that the Court of Appeals is interested in changing it. So New York still asks about "general scientific acceptance"5 and Frye is supposed to be applied only to "scientific" evidence.6

Despite New York's continuation as a Frye jurisdiction, a review of the decisions shows Daubert has been creeping in. For example, I have found the term "Frye/Daubert hearing" used in at least seven decisions, including three7 in the appellate divisions. I have found 12 reported decisions, all post-dating Daubert, referring to trial judges as "gatekeepers" for expert testimony.

New York courts have also been using Daubert as precedent. A couple of trial court decisions have explicitly used a Daubert analysis.8 Other courts have noted that New York is still a Frye state, but then bolstered a conclusion with reference to federal cases,9 used both Frye and Daubert analyses in explaining a conclusion,10 or applied a Daubert analysis on the ground that the science involved was not novel.11

"Daubert-creep" may also be seen in "Frye" analyses going beyond simply the question of whether the science involved is generally accepted. For example, explaining that "Frye" was not satisfied because, inter alia, the plaintiff's experts had never studied the drug at issue, were not familiar with its usage and indications, did not cite a case in which the drug caused death like the plaintiffs, and did not rule out alternative causes of death12 sounds more like Daubert (although it might be possible to explain in Frye terms). A similar phenomenon might be at work when Frye is applied to non-novel scientific evidence, such as causation testimony in most medical malpractice cases.13

Analysis

So, what difference does it make whether Frye or Daubert or some combination is used? Here are some of my tentative conclusions after reviewing the cases. First, Daubert is more receptive to admission of expert testimony than Frye, in that it allows reliability of scientific evidence to be established other than by general acceptance. Anything admissible under Frye is likely to get in under Daubert, but the reverse does not necessarily hold true.

Second, however, Daubert/Kumho is less receptive to expert evidence than Frye in that it gives judges a general charge to determine reliability and "fit" (relevancy). Third, even New York courts adhering quite closely to Frye also exercise a power to determine reliability and relevance, not least when they make their "foundation" inquiry: they ask whether the science cited fits the facts of the case, whether the scientific procedures have been followed so that the results are reliable, etc. The difference is that New York judges are not supposed to inquire into the reliability of the principles beyond how the scientific community sees it, and that federal judges tend to look a lot more closely at the relation between expertise offered in litigation and what happens outside the courtroom.

My final observation is that those who object to Daubert are most concerned when judges focus on the relation between what the expert says in the courtroom and what she does outside, because that looks a lot like making a credibility determination, which is supposed to be left to the jury. I think a strong case could be made either way on whether that is what is happening.

Michael M. Martin is the Distinguished Professor of Law at Fordham Law School.

Endnotes:

1. Styles v. General Motors Corp., 20 AD3d 338, - (1st Dept. 2005) (concurring opn.)

2. Many critics agreed with the court in Zito v. Zabarsky, 2006 N.Y. Slip Op. 00506 (2d Dept. Jan. 24, 2006), at *3: "A strict application of the Frye test may result in disenfranchising persons entitled to sue for the negligence of tortfeasors."

3. See Advisory Comm. note to Fed. R. Evid. 702 (2000).

4. See 526 US at 152.

5. See, e.g., Parker v. Mobil Oil Corp., 16 AD3d 648, 651-52 (2d Dept. 2005).

6. But Frye "applies to all areas of scientific analysis including engineering." Styles v. General Motors Corp., 20 AD3d 338, - (1st Dept. 2005) (concurring opn.).

7. Zito v. Zabarsky, 2006 N.Y. Slip Op. 00506 (2d Dept. Jan. 24, 2006); Papa v. Sarnataro, 17 A.D.3d 430, *** (2d Dept. 2005); Middleton v. Kenny, 286 A.D.2d 957, *** (4th Dept. 2001).

8. See Pinales v. CSC Holdings, Inc., 2002 N.Y. Slip Op. 50410(U), at *3 (Sup. Ct. Nassau Co. Sep. 30, 2002) (using only Daubert in holding the plaintiff's medical evidence unreliable to establish "serious injury" under No-Fault Law); Stanley Tulchin Assocs., Inc. v. Grossman, 2002 N.Y. Slip Op. 50428(U), at *2-*3 (Sup. Ct. Nassau Co. Oct. 10, 2002) (making a lost earnings calculation, the court suggested it was an open question whether Frye or Daubert applies, and used a Daubert analysis).

9. See Hassett v. Long Island R.R., 6 Misc. 3d 168, 172-73 (Sup. Ct. Kings Co. 2004).

10. Lara v. New York City Health & Hospitals Corp., 2000 N.Y. Slip Op. 50887(U) (Sup. Ct. N.Y. Co. Nov. 16, 2000), aff'd, 305 A.D.2d 106 (1st Dept. 2003).

11. See Wahl v. American Honda Motor Co., 181 Misc. 2d 396, 398 (Sup. Ct. Suffolk Co. 1999) (vehicle design engineering); Giangrasso v. Association for Help of Retarded Children, 2001 N.Y. Slip Op. 40073 (U) (Sup. Ct. Suffolk Co. July 5, 2001) (negligent hiring).

12. See Heckstall v. Pincus, 19 A.D.3d 203, 205 (1st Dept. 2005). See also, e.g., Del Maestro v. Grecco, 16 A.D.3d 364, 366 (2d Dept. 2005); Hooks v. Court St. Medical, P.C., 15 A.D.3d 544 (2d Dept. 2005).

13. See Marsh v. Smyth, 12 A.D.3d 307, 311 (1st Dept. 2004) (Saxe, J., concurring).