Goodbye Dyas/Frye: D.C. Court of Appeals Adopts Rule 702

On October 20, 2016, the District of Columbia Court of Appeals handed down a landmark ruling in Motorola, Inc. v. Murray, No. 14-CV-1350, changing the District’s standard for admitting expert testimony. Prior to this decision, D.C. had long adhered to the “general acceptance” standard set out in Dyas v. United States (1977) and Frye v. United States (1923). The federal courts and many other jurisdictions had since adopted the Daubert standard, reflected in Rule 702 of the Federal Rules of Evidence.

In Motorola v. Murray the trial court considered thirteen (13) consolidated cases in which each Plaintiff alleged that long-term exposure to cell phone radiation caused brain tumors. Following four (4) weeks of expert evidentiary hearings, the trial court found that some of the Plaintiffs’ proffered expert testimony was admissible under the Dyas/Frye standard, but that most, if not all, of the testimony would be excluded under the Rule 702/Daubert standard. Judge Weisberg of the D.C. Superior Court certified a question of law to the Court of Appeals to determine whether the District should adopt Federal Rule of Evidence 702 for the admissibility of expert evidence.

The Court of Appeals examined the evolution of both evidentiary standards Under Frye, the inquiry into whether to admit expert testimony was simply whether the scientific principles upon which the expert relied had gained “general acceptance in the particular field.” Dyas expanded on Frye to create a three-part test. Ultimately, under Dyas/Frye, the inquiry began and ended with whether “there is general acceptance of a particular scientific methodology.” This standard was widely adopted by state and federal courts for several years.

Then, in 1993, the Supreme Court issued its famous decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The Supreme Court held that the “general acceptance” test had been superseded by Rule 702 of the Federal Rules of Evidence. Under the new Daubert standard the trial court must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and . . . properly can be applied to the facts in issue.” The Court subsequently set forth a list of factors for the trial court to consider: (1) whether the theory or technique has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation. On top of these factors, the trial court may consider the degree to which the theory and technique is generally accepted by the relevant scientific community. While Daubert became the new standard in federal courts, the District retained the Dyas/Frye standard.

In two subsequent decisions, General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael, the Supreme Court reaffirmed and refined the Daubert analysis. The inquiry thus focused not only on the expert’s methodology but also on whether the methodology was appropriate in the particular case. Most recently, Rule 702 was amended to reflect Daubert and its progeny.

In Motorola, Inc. v. Murray, the Court of Appeals was presented with three options for consideration by the parties and amici: (1) retain the Dyas/Frye test; (2) adopt Federal Rule 702, as amended to reflect Daubert and its progeny; or (3) craft a revised version of the Dyas/Frye test. Ultimately, the Court concluded that Rule 702 was preferable to the Dyas/Frye test. In support of its decision, the Court reasoned that “[t]he ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.” As the trial court explained:

[I]f a reliable, but not yet generally accepted, methodology produces good science [Rule 702/Daubert] will let it in, and if an accepted methodology produces bad science, [Rule 702/Daubert] will keep it out; conversely under Frye, as applied in this jurisdiction, even if a new methodology produces good science, it will usually be excluded, but if an accepted methodology produces bad science, it is likely to be admitted.

The remainder of the decision was devoted to providing guidance on the application of Rule 702 and the transition away from the Dyas/Frye standard. The Court of Appeals cautioned the D.C. trial courts, acting in their new role as gatekeepers not to “reflexively admit expert testimony because it has become accustomed to doing so under the Dyas/Frye test.” In a concurring opinion, Judge Easterly expanded on the Court’s guidance for applying the newly adopted Rule 702 standard, by reference to two (2) reports by the National Research Council and the President’s Council on Advisors on Science and Technology that provide information about best practices for scientific testing.

Paul N. Farquharson and Scott H. Phillips of Semmes, Bowen & Semmes represented Cricket Communications in this case.