In its October 20, 2016 decision in Motorola, Inc. v. Murray, 2016 WL 6134870 (D.C. Cir. Oct. 20, 2016), the DC Court of Appeals adopted the almost unanimously followed Daubert standard regarding the admissibility of expert testimony. In fact, all but seven states have adopted Daubert over Frye – the late adopters are New York, Illinois, California, Maryland, New Jersey, Pennsylvania and Washington – and I suspect that the pressure for them to adopt Daubert and abandon Frye will only increase and lead to a single standard.
The Frye standard, resulting from the 1923 DC Court of Appeals decision in Frye v. United States, essentially established that expert testimony must be based on a “well-recognized scientific principle” and “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
In 1993, however, the Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc. held that the “general acceptance” had been superseded by the Federal Rules of Evidence – FRE 702 in particular. Rule 702 determines admissibility on, among other factors, whether an expert’s opinion is based on a reliable scientific methodology as opposed to the general acceptance of the methodology as indicated by Frye. The Daubert standard thence governed the admissibility of expert testimony in all federal courts. Many states and the District of Columbia, however, continued to follow Frye – until now.
The gradual shift to Daubert makes the proficiency of expert witnesses and the advocacy of lawyers much more critical to the admissibility and the impact of expert testimony on the outcome at trial. The shift is also appropriate given the increase in emerging technologies in the financial, automotive, communications, medical and computer industries, among many others. The rapid pace of the development of technology makes the notion of “general acceptance” a thing of the past.
As stated in Daubert and cited in the instant decision, “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
Experts need be much more organized, detail-oriented, experienced (both in their fields and as experts) and persuasive. They need to learn how to communicate to the modern judge and jury by testifying in a way that is educational, understandable and able to be retained. Lawyers must sufficiently train their experts and be able to support (or refute) an expert’s methodology as there may not be other studies or testimony to indicate general acceptance.