By Dalisha Sturdivant

The District of Columbia Court of Appeals, sitting en banc, decided on October 20, 2016, that the ninety-two year old Frye standard[1] had ran its course and was in need of replacement.[2] After weighing its options, the Court decided that Federal Rule of Evidence 702, a reflection of the Daubert standard[3] that is applied by seventy-six percent of the country,[4] would best support the jury and judge’s task of providing decisions for the parties.[5] This new standard could negatively impact the plaintiffs in the consolidated case Motorola v. Murray;[6] however, in the interest of the phone industry, it could be a major win.[7]

Starting in the early 2000s, the plaintiffs in the consolidated case Motorola v. Murray, a class of individuals who had developed cancer, sued the defendants, various phone companies, on the claim that their cell-phone use had caused brain cancer and various other infirmities.[8] To support this belief, the plaintiffs sought to provide expert witnesses who would answer this question in the affirmative.[9] Before the expert testimony could be presented to the jury, the judge had to determine, under Frye, if such testimony was admissible.[10] The Superior Court for the District Court of Columbia began hearing evidence regarding the admissibility of the experts’ testimony in 2013, and in August 2014, the Court delivered its decision.[11] Under the Frye standard, the judge found that five out of the nine experts’ testimonies would not be excluded,[12] but acknowledged that if it had used the Daubert standard, most of the plaintiffs’ expert witnesses would be barred from testifying.[13] Upon receiving this decision, the defendants appealed, stating that the District Court should have replaced the Frye standard with Rule 702,[14] which codifies the Daubert standard. [15]

Two years later, the Court of Appeals has ruled in favor of the defendants’ request by [16] unanimously rejecting the Frye standard and adopting the Daubert standard. The Frye standard, a less stringent standard than Daubert,[17] focused on whether the expert used a “generally accepted methodology” in reaching its conclusion; it did not focus on whether the conclusion was scientifically sound.[18] However, under the new standard, the Court is placing more weight on the reliability of the expert’s testimony by asking if the expert applied reliable principles and methods, which will vary depending on the facts of the case.[19]

The new standard favors manufacturing companies and those industries that are held responsible for product liability, such as the defendants in this case. This is because claimants, who hire expert witnesses in the District of Columbia, will now have to jump over additional hurdles before their testimony will be accepted by the judge. [20] The lower court judge even acknowledged that in a “toxic tort case like this one, Daubert tends to insulate manufactures from product liability by excluding expert testimony on causation until the scientific community has reached a clear consensus.”[21] Opponents of the Daubert standard believe that this standard will prevent damaged parties from finding qualified experts, and will negatively affect those claimants who are financially disadvantaged.[22] Ultimately, this new standard could dictate how companies being sued in DC, will resolve similar suits, seeing that the bar has now been raised. Until then, we will just have to wait and see.

 

[1] See Frye v. United States, 293 F.1013, 1013 (D.C. Dec. 3, 1923).

[2] See Motorola, Inc. v. Murray, No. 14-CV-1350, 2016 D.C. App. LEXIS 382, at *19 (D.C. Oct. 20, 2016).

[3]  See id. at 12.

[4] See Michael Morgenstern, Daubert v. Frye- A State-by-State Comparison, The Expert Institute (Sept. 18, 2016), https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

[5] See Motorola, 2016 D.C. App. LEXIS 382, at *15.

[6] See Murray v. Motorola, Inc., No. 2001 CA 008479 B, 2014 D.C. Super. LEXIS 16, at *38 (D.C. Super. Ct. Aug. 8, 2014) (eliminating the amount of expert witnesses that can testify).

[7] See Id.

[8] See Bruce Kaufman, Mobile Phone Makers Score Big Win in Radiation Suit, BNA (Oct. 20, 2016), https://www.bna.com/mobile-phone-makers-n57982079004/.

[9]  See Murray, 2014 D.C. Super. LEXIS 16, at *8.

[10] Id. at *25-26.

[11] Id. at *4, 124.

[12] Id. at *125-26.

[13] Michelle Yeary, United States: R.I.P. Frye, Mondaq (Oct. 25, 2016), https://www.mondaq.com/unitedstates/x/538234/food+drugs+law/RIP+Frye.

[14] See Ryan Knutson, Case on Health Risk From Cellphones is Back in Court, Wall Street Journal (Nov. 22, 2015, 6:32 PM), https://www.wsj.com/articles/case-on-health-risk-from-cellphones-is-back-in-court-1448235126.

[15]  See Gordon Widenhouse, Changes to Rule 702(a): Has North Carolina Codified Daubert and Does it Matter?, in NC Advocates for Justice’s Trial Briefs 1 (2012). https://www.ncids.org/Defender%20Training/2015CriminalLawContractors/Rule702(a).pdf.

[16]  See Murray, 2014 D.C. Super. LEXIS 16, at *19.

[17] See Florida Supreme Court to Rule on Changes to Admissibility Standard for Expert Testimony. Was it Constitutional? Newson Melton (Oct. 4, 2016, 11:05 A.M.), https://newsomelaw.com/blog/2016/10/04/florida-supreme-court-ruling-on-admissibility-standard-for-expert-testimony/ (stating that the Daubert standard is stricter because it is based on the reliability of the evidence, rather than the credentials of the expert and standardized test).

[18] See Murray, 2014 D.C. Super. LEXIS 16, at *29.

[19] See Motorola, Inc. v. Murray, No. 14-CV-1350, 2016 D.C. App. LEXIS 382, at *14 (D.C. October, 20, 2016).

[20] See Yeary, supra note 13.

[21] Murray, 2014 D.C. Super. LEXIS 16, at *38.

[22] See Ginni Chen, To Daubert or Not to Daubert? Missouri and Florida Consider Changes to Expert Witness Standards, Expert Institute (July, 6, 2016), https://www.theexpertinstitute.com/to-daubert-or-not-to-daubert-missouri-and-florida-considers-changes-to-expert-witness-standards/.