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0 \$ \. x" Y# |# Q7 R4 k: m, `78-MAY N.Y. St. B.J. 22
2 ]4 w6 D) Z! `6 m4 jNew York State Bar Journal
9 v6 `) T" s8 B0 P8 B! ^May, 2006
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Burden of Proof; j7 ?5 H$ X: K. L4 Y0 w# A
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*22 IS FRYE STILL GENERALLY ACCEPTED?2 K3 T" G. Y9 @7 R
( F6 a! t2 k* x4 p5 B0 o2 I) |4 o5 ?David Paul Horowitz [FNa1]
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0 }0 e! W! e% }. Q5 p4 M8 u% p+ ICopyright © 2006 by the New York State Bar Association; David Paul Horowitz. c& V! v& h# L, p. K6 o
8 \: a9 y) K8 j/ cOne of the first Burden of Proof columns [FN1] was an overview of expert witness practice in New York state courts, a topic worthy of greater attention in several respects. One of those areas is the topic of this column, and the next: challenges to the admissibility of expert testimony at trial based upon the technical or scientific basis of, and the methodology utilized by, the proffered expert. Litigating in this area requires understanding the development of, and tensions between, the Frye [FN2] (this column) and Daubert [FN3] (next column) standards, and their application by the courts of this state. The original column cautioned "[t]his is an evolving area, and practitioners are advised to pay close attention to new cases in this area, particularly any Appellate Division pronouncements." If I must say so myself, good advice -- then, now, and for the foreseeable future.' P' _( T7 c9 o9 G! ^6 T7 G! ], E
Frye and Daubert provide a framework for trial judges in deciding whether expert testimony is to be permitted and, if the expert is permitted to testify, whether to limit the scope of the expert's testimony. Frye's "general acceptance" test reigned in New York courts and in federal courts from 1923 to 1993. However, in 1993 the United States Supreme Court decided Daubert, holding that Federal Rule of Evidence 702 superceded Frye. Thereafter, in federal court, Frye was replaced with Daubert. The role of federal judges in determining whether a jury should hear a particular expert's testimony was re-cast, with the judge acting as "gatekeeper." General acceptance as a measure of reliability, while still a factor to be considered, was no longer the sole, or even key, test. More on Daubert next issue. For now, back to Frye.
' Q0 _0 l" ?& ?8 e1 |0 m) s# z3 fIn 1923 the District of Columbia Circuit decided Frye v. United States, reviewing a trial court's ruling on the admissibility of expert testimony of the results of a "deception test," a.k.a. a lie detector test. The Circuit Court, quoting directly from the defendant's brief, explained when expert testimony is appropriate:
% Y3 L% t2 d& K) ]2 e/ _When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence. [FN4]
3 Z5 K! G2 R; ] `3 ^/ R# TAssuming expert testimony was appropriate, what was the role, and what standards governed the role, of the trial judge in vetting the basic soundness of the proposed testimony? The Frye court, in what has become known thereafter in the vernacular as the "Frye test," explained:
& L4 J6 o. @: p" WSomewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. [FN5]. Z( `9 S; D3 a' `+ p3 l+ \
"General acceptance in the particular field" became the sine qua non for the reliability of expert testimony. New York state courts readily adopted Frye and, despite a lively debate in some of the lower courts, the New York Court of Appeals continues to follow Frye., t+ M' t2 P" k# m+ h
In determining whether expert testimony is appropriate, trial courts in New York must carefully exercise their discretion. In deciding when jurors would benefit from the testimony of an expert, ! f$ \: B# ^/ Y3 \4 V7 k" |$ M9 p
courts should be wary not to exclude such testimony merely because, to some degree, it invades the jury's province. As we have previously noted, "expert opinion testimony is used in partial substitution for the jury's otherwise exclusive province which is to draw 'conclusions from the facts.' It is a kind of authorized encroachment in that respect." [FN6]
4 Y1 N+ J3 x2 p9 c5 w$ b4 HIn evaluating the reliability of expert testimony, Frye may be satisfied in three ways. Professor Richard Farrell, in Prince, Richardson, explains:
8 z D3 ?, ~* H; tFirst, general acceptance may be so notorious that the court may take judicial notice of it.... Second, acceptance may be established by reference to "legal writings and judicial opinions." ... Third, if acceptance cannot be established by either judicial notice or the legal *23 literature, then the Trial Judge may conduct a hearing at which the proponent may establish admissibility by offering evidence of acceptance, including the expert's own testimony (citations omitted). [FN7]6 g L% t$ u+ J6 K$ Z
Twice since the United States Supreme Court decided Daubert, the New York State Court of Appeals has reaffirmed that Frye remains the standard in New York, [FN8] quoting verbatim from the original opinion. [FN9]5 f) T% m+ ] f! u/ {$ e- N
A Frye challenge may arise at trial, in a hearing before trial as part of a motion in limine, or as part of a summary judgment motion. [FN10]6 j% L. W: k+ G2 u9 z( G
In a 2004 decision, Marsh v. Smyth, [FN11] the First Department examined the preclusion of two of plaintiff's experts in a medical malpractice action following a Frye hearing, on the grounds that their theories concerning the positioning of the arm of the injured party during surgery were not generally accepted in the medical field. Citing Frye, the First Department held this was error: "The experts' testimony, and the supporting medical literature, satisfied the Frye standard, and a jury should be permitted to hear the testimony." [FN12]6 r5 Q) \, _* s& u. R0 C6 R R+ K
In Zito v. Zabarsky, [FN13] a Second Department decision citing Justice Saxe's concurring opinion in Marsh, that court, in reviewing a trial court's preclusion of plaintiff's medical experts in a medical malpractice action, reminded litigants that the "burden of proving general acceptance rests upon the party offering the disputed expert testimony." [FN14] Acknowledging that the alleged causal link between an excessive dose of Zocar and the onset of polymyositis was a novel one, warranting a Frye hearing, the Second Department held that the trial court had "erred in applying Frye too restrictively," [FN15] precluding the expert on the basis that no medical literature reported the alleged causal connection: 3 X/ P2 \+ ^( m% _% @2 c1 R! Z
In that regard, I agree with the statement in the concurring opinion of Justice David B. Saxe of the Appellate Division, First Department, in [Marsh] that it is not necessary "that the underlying support for the theory of causation consist of cases or studies considering circumstances exactly parallel to those under consideration in the litigation. It is sufficient if a synthesis of various studies or cases reasonably permits the conclusion reached by the plaintiff's expert." As stated in Beck v Warner-Lambert Co. (NYLJ, Sept. 13, 2002, at 18, col 2), which also involved a novel scientific opinion concerning the causal relationship between the ingestion of a drug and the development of a disease, "general acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions." [FN16] \6 g( t- r2 o
After carefully reviewing the proof that was put forward a trial, the Second Department concluded: 8 n) H& {) k6 m9 p9 ~6 t9 h
Moreover, the trial court, while purporting to credit the deductive reasoning of the plaintiff's experts, apparently believed that the Frye test could only be satisfied with medical texts, studies, or other literature which supported the plaintiff's theory of causation under circumstances virtually identical to those of the plaintiff. However, the Frye test is not that exacting. 0 Z9 y- i U) R$ \8 R. n# {( Z) f
The fact that there was no textual authority directly on point to support the experts' opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility. 4 K2 E% I0 U0 i+ J9 H/ c5 z) F
A strict application of the Frye test may result in disenfranchising persons entitled to sue for the negligence of tortfeasors. With the plethora of new drugs entering the *24 market, the first users of a new drug who sustain injury because of the dangerous properties of the drug or inappropriate treatment protocols will be barred from obtaining redress if the test were restrictively applied. [FN17]0 o3 P3 [( C5 V: Y. d; L* x
Finally, addressing the trial court's having conducted what it called a Frye/Daubert hearing, the Second Department stated, in a footnote, that "New York has not adopted the Daubert standard, but rather continues to adhere to the Frye test for determining the admissibility of novel scientific evidence." [FN18]
: p6 A2 l% p) g2 @& x. A5 w: WFrye's general acceptance test continues to be followed in the Third [FN19] and Fourth Departments. [FN20]6 r/ l5 v, ^$ ?) K y8 L: G, r
With Frye so firmly entrenched in New York state court practice vis-à-vis reliability and claims of novel scientific evidence, does Daubert have'a role to play in our state courts? Next issue's column will, I hope, shed some light on this question.
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[FNa1]. DAVID PAUL HOROWITZ (dh 15@nyu.edu) practices as a plaintiff's personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration's CPLR Advisory Committee, and is a frequent lecturer and writer on the subject.
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[FN1]. David Paul Horowitz, Burden of Proof, "Expert Witness Primer," N.Y. St. B.J. (Feb. 2005) p. 18.4 t" S* s6 w% e# z0 _, w3 ^3 K' D2 \
% x) Z0 o% a# l ^4 u; k[FN2]. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).$ _. f) e3 l( U2 d# K2 b
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[FN3]. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)./ M7 y; |. A8 s7 Y9 E6 `1 G' R
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[FN4]. Frye, 293 F. at 1015.
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" t- g, Y+ V) w[FN5]. Id.
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. a, t* o; o" `/ P& t3 O3 E[FN6]. People v. Lee, 96 N.Y.2d 157, 726 N.Y.S.2d 361 (2001) (quoting People v. Jones, 73 N.Y.2d 427, 430-31, 541 N.Y.S.2d 340 (1989) (internal citation omitted) (quoting People v. Cronin, 60 N.Y.2d 430, 432, 470 N.Y.S.2d 110 (1983))).
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[FN7]. Prince, Richardson on Evidence, § 7-311 (11th ed. 2005).1 t/ S1 Z: ^) f- \' A: X) M
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[FN8]. People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97 (1994) (DNA profiling was properly admitted at trial under the Frye test); see People v. Wernick, 89 N.Y.2d 111, 651 N.Y.S.2d 392 (1996) (expert testimony was required to be based upon scientific principles sufficiently established to have gained general acceptance).
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& n* G. p% d0 Y$ x9 H, Z* [8 Y[FN9]. Wesley, 83 N.Y.2d 417.
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* |5 `& J. ^9 a5 ]( h[FN10]. See, e.g., Heckstall v. Pincus, 19 A.D.3d 203, 797 N.Y.S.2d 445 (1st Dep't 2005).
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2 f9 b# X9 f+ S6 d6 b! E[FN11]. 12 A.D.3d 307, 785 N.Y.S.2d 440 (1st Dep't 2004).: z; p% W- F8 w( j( S9 o
" V( P! s" ~# F6 F1 q- A/ K; D; f& K[FN12]. Id.
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8 |1 C' ~ g& M) @) T[FN13]. No. 2004-01148, 2006 WL205067 (2d Dep't Jan. 24, 2006).7 M6 T& {7 m0 a8 @
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[FN14]. Id.
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- ?- ~$ }/ e& I$ |3 T; A3 i) V[FN15]. Id.
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[FN16]. Id.) b0 b1 o; [; l/ n, _
: h6 C8 l8 ?) z' K4 k+ N' {4 M[FN17]. Id.5 O+ S* ~+ ^. ~9 K; N
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[FN18]. Id.
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[FN19]. People v. Cole, 24 A.D.3d 1021, 807 N.Y.S.2d 166 (3d Dep't 2005).3 I5 X- \* O0 O9 Q
. K. M3 U v4 G1 W, X8 g4 B/ A# {/ o[FN20]. People v. Wooten, 283 A.D.2d 931, 725 N.Y.S.2d 767 (4th Dep't 2001).
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