Monday, April 6, 2020

In the January 2013 issue of the California Bar Journal, Wendy Chang and Frederick J. Ufkes summarized the history of the admissibility of expert testimony in California.

Unlike federal courts, which follow the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) test for admissibility of expert testimony, California has followed for the past 19 years, the general acceptance test from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 

Under the Frye general acceptance test, evidence of a new scientific technique is inadmissible until the proponent establishes the methodology or device has general acceptance in the relevant field.  This means, an expert with just clinical experience, may not be a good expert witness because usually someone involved in the clinical stages of a device or drug is able to testify on safety and proof of concept, but not necessarily general acceptance.

The Frye rule is conservative compared to Daubert.  Under Frye, consensus in the scientific community is required before testimony concerning a novel technique is admissible in evidence.  The United States Supreme Court overruled Frye in Daubert.  The U.S. Supreme Court said the general acceptance test failed to address the reliability issue of an expert’s testimony. 

The U.S. Supreme Court said in Daubert that the trial judge’s role was to be a gatekeeper to ensure reliability of the expert testimony based on several factors, including whether or not the opinion is being developed solely for litigation, the potential for error, and whether the opinion has been independently tested in the scientific community.  When a trial judge is a gatekeeper, the judge is expected to review expert testimony for foundation.  Foundation means ensuring the methodology used by an expert in reaching an opinion does not involve guessing or use of information not contained in a record.

California rejected the Daubert gatekeeper standard, but several appellate courts in California narrowed the application of Frye.  The Court of Appeal upheld in In Re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, the striking of an expert witness’ declaration because it was speculative and unsupported by relevant scientific data.  The court stated an expert opinion has no value if its basis is unsound. 

In Robert v. Andy’s Termite and Pest Control, Inc. (2003) 113 Cal.App.4th 893, the Court of Appeal held that the Frye rule has no application to expert medical testimony.  The predicate for applying Frye is that the expert testimony is based on a new scientific technique that is not generally accepted in the scientific community, not that the opinion by the expert is faulty. 

Read the Article Here