Judges Should Let Juries Hear Reliable Expert Witnesses

The Illinois Supreme Court recently passed upon the viability of the Frye v. United States,293 F. 1013 (1923), standard regarding the admissibility of expert evidence and has clarified its limits in its recent decision in Donaldson v. Central Illinois Public Service Co., No. 89679 (decided Feb. 22, 2002).

Frye allows for the admissibility of an expert’s opinion so long it is based on a scientific technique, principle of methodology sufficiently established to have gained general acceptance in ths particular field in question.

In the Donaldson case, four children in central Illinois developed a rare form of cancer within a short period of time. The families alleged in a toxic tort action that their proximity to a gas plant site that had stored carcinogenic hazardous waste was the cause of these children developing neuroblastoma, cancer of the peripheral nervous system. Typically, only nine out of every 1 million children develop the disease each year.

Because the cause of neuroblastoma is unknown, the plaintiff’s experts extrapolated from the cause-and-effect relationships of other diseases to show that the children’s exposure to the site’s contaminants caused their rare cancer.

The defendant, however, argued that the expert testimony wasn’t admissible under the Frye doctrine because "extrapolation" isn’t "generally accepted" in the relevant scientific community.

The Illinois Supreme Court disagreed and found that "extrapolation is commonly used by scientist...when the medical inquiry is new or the opportunities to examine a specific cause and effect relationship are limited... The fact that an expert must extrapolate, and is unable to produce specific studies that show the exact cause and effect relationship to support his conclusion, affects the weight of the testimony rather than its admissibility."

The ruling resolves a split among the appellate courts. As clear as the Supreme Court’s approach in applying Frye is clear, that is how uneven it appears that many trial courts’ assessment is of the same issue.

Stories abound of trial judges taking on what amounts to the role of fact-finder in throwing out experts’ testimony-even holding hearings during trial and rejecting an expert’s testimony after a jury has heard it and then instructing jurors to disregard it.

Never mind the fact that a juror may not be able to forget everything she has just heard from the expert on critical issues. How can it possibly be fair to a litigant and her attorneys who prepared a case based on that expert to find out, only in the midst of a trial, that the testimony, already heard by the jury, is inadmissible?

Frye hearings on the admissibility of expert evidence should be held before trial because it is highly prejudicial to the parties and nearly impossible for a jury to strike evidence in its collective mind once it has been presented.

Certainly it has been suggested by some courts that under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), a cottage industry of extensive and expensive hearings has developed in order to "Daubertize" expert evidence. But, those hearings are certainly a more sound and just alternative to conducting a hearing during trial and ruling to strike the testimony after the jury has heard it.

Daubert departed from Frye standard by adopting a six-prong reliability test. Although not adopted in Illinois, some courts here had utilized what they term a " Frye plus reliability" standard, incorporating some of Daubert’s gatekeeping criteria, particularly when novel scientific techniques no conventional evidence is challenged. Harris v. Cropmate Co., 302 Ill.App. 3d, 364,365, 706 N.E. 2d 55 (4th Dist. 1999). In these cases, the court first determined whether the methodology used by the expert was generally accepted and then decided whether the opinion itself was reliable.

The Illinois Supreme Court in Donaldson, expressly rejected this approach and reiterated that Frye is the established law in the state. " The trial court is not required to conduct a two-part inquiry into the [sic] both the reliability of the methodology and its general acceptance. The determination of the reliability of an expert’s methodology is naturally subsumed by the inquiry into it general acceptance in the scientific community. Simply put, a principle or technique is not generally accepted in the scientific community if it is by nature unreliable...questions concerning underlying date, an expert’s application of generally accepted techniques, go to the weight of the evidence, rather than its admissibility." [ emphasis in original] at p. 9.

Judges were intended to be gatekeepers, but they must not be overzealous in usurping the jury’s gatekeeping role in considering the weight and credibility of evidence that properly admitted at trial.

Some judges are putting themselves in the position of determining what scientific studies are acceptable and, in doing so, are even discouraging the development of new ideas.

Neither Frye nor Daubert was ever meant to do that. The admissibility of evidence must be flexible enough to accommodate the constant changes occurring in the scientific community, and judges must be flexible enough, as Donaldson dictates, to allow juries to hear reliable expert evidence.