State Courts—Frye vs. Daubert

What is Generally Accepted by the Relevant Community? (Part II of VII)

What is the Frye standard? How does it differ from Daubert? In this article the author details the Frye standard and what is “generally accepted”.

The D.C. circuit court’s decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) is also important in considering admissibility of expert testimony.  The Frye decision was eventually superseded by the United States Supreme Court in its 1993 Daubert decision.  Until that time, Frye governed the admissibility of expert testimony in both federal and state courts.  Even now, some states continue to adhere to Frye, while the remaining states have adopted their own versions of Rule 702 of the Federal Rules of Evidence (“FRE 702”) and the Daubert factors following a legislative decision or a seminal state court case setting precedent.[1]  Despite the increase in Daubert states, Frye is still followed in a number of states  (CA, IL, MD, MN, NJ, NY, PA, WA), and therefore a brief synopsis of the case is presented below.

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The Frye standard for admissibility of expert testimony requires experts to demonstrate that the methods and theories used to support their conclusions and opinions are generally accepted by the relevant scientific community.  In a criminal case in which James Alphonzo Frye was convicted of second-degree murder, the lower court excluded Frye’s expert from testifying, finding that the expert’s opinion was based on the results of a polygraph test—a method that had not been generally accepted by the relevant scientific community.  On appeal, the D.C. Circuit affirmed the lower court’s ruling to exclude Frye’s expert testimony and affirmed the conviction.  The Frye “general acceptance” test, originating from this appellate court decision, became the standard governing admissibility of expert testimony in federal criminal courts and, beginning in the 1980s, for civil proceedings as well.

Presented below are some examples of states that have maintained their version of Frye, adopted Daubert or developed their own standard for admissibility of expert testimony criteria.

Frye, Frye, Frye Again

Pennsylvania has continued to follow Frye, as codified in Pennsylvania’s Rule of Evidence 702, which permits expert testimony on subjects concerning “knowledge beyond that possessed by a layperson” (Pa.R.E. 702).  The Pennsylvania Superior Court’s interpretation of 702 and Frye is that an expert’s opinion must be supported by scientific authority, otherwise the “expert opinion reflects nothing more than mere personal belief” (Snizavich v. Rohm & Haas Co., No. 1383 EDA 2012, PA Superior Ct., 2013).  In other words, the courts draw a distinction between an expert opinion and an opinion given by an expert.  The former is admissible because it includes scientific authority; the latter is subject to exclusion because it is no different from a lay opinion.  The superior court’s recent Snizavich decision (citing to past superior court decisions invoking Frye) reaffirms the state’s commitment to Frye despite the country’s shift toward Daubert.

California also has remained a Frye state, having adopted the standard in People v. Kelly, 549 P.2d 1240 (Cal. 1976), and explicitly rejected Daubert in People v. Leahy, 882 P.2d 321 (Cal. 1994) (both were criminal cases heard by the California Supreme Court).  The standard, commonly known as “Kelly/Frye,” applies primarily to testimony considered new or novel, allowing expert testimony based on techniques already admitted by the court via precedent setting cases to escape Kelly/Frye scrutiny.  In 2012 however, California exhibited a shift towards Daubert.  In Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012), the California Supreme Court reviewed whether the trial court had erred in its decision to exclude the plaintiff’s expert testimony.  The Supreme Court not only concluded that the trial court properly excluded the expert’s testimony, it empowered state court judges to act as gatekeepers and cited the Daubert trilogy in its decision.  Though this ruling brings California one step closer to the federal standards, it is not a full transition.  Decisions in post-Sargon courts will ultimately reveal the state’s predilection.

Out with Frye, in with Daubert

In Florida, courts had become quite liberal in their application of Frye.  They had a provision known as the pure-opinion exemption, and, through case law, this provision allowed expert testimony to be admitted without being subject to Frye on the basis of an expert’s qualifications, as long as the testimony was not based on new or novel science or techniques.  Most methodologies were not new or novel, thus most experts were admitted without scrutiny.  Then, in 2013, the Florida state legislature amended its law governing admissibility of expert testimony, and Florida became a Daubert state.  This change required judges to have a stronger gatekeeping role.

North Carolina, on the other hand, had a rocky relationship with Daubert.  Its courts initially embraced the four factors in 1995, but after several years, the North Carolina Supreme Court revoked its application, finding that too many exclusions of experts infringed on the jury’s role to consider the weight of evidence and decide cases (Howerton v. Arai Helmet, Ltd, 358 N.C. 440, 597 S.E.2d 674, 2004).  The courts then followed their own Howerton standard for admissibility.  In early 2014, the North Carolina Court of Appeals reviewed whether the trial court had properly excluded an expert witness in State v. McGrady, No. COA13-330 (2014).  The court held that Daubert was now the standard governing admissibility of expert testimony because in 2011 the state legislature had amended its Rule 702 and patterned it after the federal rule.

Daubert plus two

Conversely, there are states like Texas that apply a more stringent gatekeeping standard.  In 1995, the Texas Supreme Court adopted what is sometimes referred to as the Robinson factors.  In E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554-57 (Tex. 1995), the trial court ruled that the testimony of Robinson’s expert witness was inadmissible because his underlying methodology was unreliable.  The Texas Court of Appeals reversed, holding that the expert’s credibility was a question for the jury.  The Texas Supreme Court then reversed the court of appeals’ decision and affirmed the trial court’s judgment.  In its decision, the Texas Supreme Court adopted Daubert and then expanded it by adding two additional factors for the lower court to use: “(5) the extent to which the technique relies upon the subjective interpretation of the expert; and (6) the non-judicial uses which have been made of the theory or technique.”  In 1998, the Texas Supreme Court held that such standards applied to all expert testimony, not just scientific [Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (1998)].

Summary

There is debate among the legal community as to whether the Frye test or Daubert criteria are more stringent.  Some argue Frye is tougher because an expert’s testimony cannot be admitted if it is based on emerging science that has not yet received general acceptance in the relevant community.  Meanwhile, others argue that although the Supreme Court had intended Daubert to provide more flexibility by permitting emerging science without general acceptance, the application of Daubert in certain jurisdictions has made it more rigid.  If your case is in state court, find out from the attorney what standard is followed prior to beginning your work so you can proceed knowing what the court will abide by in its review of your expert testimony.

This article originally appeared on IMS-ExpertServices.com in the Expert Library on May 20, 2015.

[1] See Hunt, James, W. “Admissibility of Expert Testimony in State Courts” at fitzhunt.com/news for an overview of states following Frye, states applying Daubert or similar standards, and states that follow neither. Current to 2010.

Wendy Pearson, founder of Pearson Research Group, has more than 15 years of experience providing strategic litigation support and expert witness support on over 50 major cases involving contaminants in the environment. She assists attorneys with case assessments, case strategy, understanding technical issues, fact and expert witness discovery, Daubert motions and responses, and direct and cross exams of experts at trial. Ms. Pearson fully supports expert witnesses throughout the litigation process to ensure high quality work product and sufficient preparation for deposition and trial. She holds a B.S. in Civil Engineering and a M.S. in Environmental Science and Engineering.

Ms. Pearson can be reached at (814) 240-2418 or by e-mail to wnpearson@pearson-rg.com.