The Battle of Frye v. Daubert: Alabama’s New Standard of Admissibility for Expert Testimony
05.04.12 | Permalink
Posted by: Lisha Li Graham
Alabama’s recent expert testimony reform and amendment of Rule 702 of the Alabama Rules of Civil Procedure has tightened the standard of admissibility of expert testimony. Alabama has been a “Frye state” since at least 1953, applying the test developed from the case of Frye v. United States [FN1] to determine the admissibility of scientific evidence. [FN2] The Frye or “general acceptance” test requires the proponent of scientific evidence to demonstrate that the science underlying the scientific evidence is “generally accepted” by scientists. The more widely accepted standard, the Daubert test [FN3], is more restrictive toward the admission of expert testimony and requires a trial court to make a determination as to whether the science underlying proffered evidence is “scientifically valid” or “reliable” [FN4] and to make this determination by considering a variety of factors that have become informally known as “Daubert factors.” [FN5]
It should be noted that the Daubert test incorporates the holdings of three different United States Supreme Court decisions, which are often referred to as the “Daubert trilogy.” The seminal case is Daubert v. Merrell Dow Pharmaceuticals, Inc. [FN6] where the United States Supreme Court abandoned the Frye standard, and held that the trial court acts as a gatekeeper to independently assess the scientific validity and reliability of the reasoning, methodology and principles underlying proffered evidence. [FN7] The second case, General Electric Co. v. Joiner, made it clear that a trial court could exclude a scientific expert's opinion even if the expert had used reliable and accepted methodology if the trial court determined that the expert's conclusion was not supported by the data produced by the methodology. [FN8] Finally, in Kumho Tire Co. v. Carmichael, the Supreme Court resolved an issue that had split the circuits. [FN9] In Kumho Tire, the Court held that the test it created in Daubert applied to all Rule 702 experts, and not just scientific experts. Kumho Tire, therefore, represents a significant expansion of both Frye and Daubert when one considers that the Frye test and Daubert's holding were both limited to experts that based their opinions on scientific techniques, tests, and experiments.
In the past few years, there has been a strong movement to urge the Alabama Supreme Court to abandon the Frye test and adopt a more Daubert-like test. This movement is fueled by frustrated litigants due to a lack of uniform definition of “general acceptance” from the Courts, and the admissibility of novel “expert testimony” based on the lack of boundaries. Even though Alabama appellate courts have applied Frye sparingly in civil cases, defendant companies in civil suits, such as toxic tort and products liability cases, where plaintiffs often rely upon novel scientific expert testimony to establish causation, have been front runners in the movement. They have urged the Court to adopt a more strict and cautious standard to rule out unreliable expert scientific testimony, and the Court listened.
Recently, Act No. 2011-629 (SB187/HB251) reformed Alabama’s expert testimony reform standard to impose the Daubert standard for admissibility of scientific expert testimony. Its aim is to move Alabama’s Rule of Evidence 702 closer to the Federal Rule of Evidence 702. In effect, it amended Alabama’s Rule of Evidence 702 to require that expert testimony must be based on “scientific theory, principle, methodology, or procedure,” stating the standard for admissibility to be:
(1) the testimony is based on sufficient facts or data;
(2) the testimony is the produce of reliable principles and methods; and
(3) the witness has applied the principles and methods reliably to the facts of the case.
The new expert testimony reform was set to apply prospectively from January 1, 2012 and apply to all pending actions if it is “just and practicable.” Expert evidence that is not scientific and Medical liability Act of 1987, are exempt from this standard. The effect of this new standard is yet to be determined, but with a more stringent standard in place, one can only assume that scientific expert testimony will under go extensive scrutiny and admissibility of such testimony will be more conservative than litigants are used to.
[FN1]. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
[FN2]. See Turner v. State, 746 So. 2d 355, 357 (Ala. 1998) (“In Alabama, whether novel scientific evidence is admissible is determined normally by using the test established in Frye v. United States.”). Alabama uses the Frye test to determine the admissibility of all categories of scientific evidence except DNA evidence. A statute requires Alabama to use an alternative test, the Daubert test, for determining the admissibility of expert scientific evidence based upon DNA analysis. Ala. Code § 36-18-30 (1975); Turner, 746 So. 2d at 360-61.
[FN3]. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
[FN4]. Id. at 589, 592-93.
[FN5]. Id. at 592-95. See also Turner v. State, 746 So. 2d at 358-59 (discussing the Daubert test, including “guiding factors” mentioned in Daubert that trial courts are to use in assessing reliability).
[FN6]. 509 U.S. 579 (1993).
[FN7]. The Court stated that “(f)aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Id. at 592 (emphasis added).
[FN 8] 522 U.S. 136 (1997).
[FN9]. 526 U.S. 137 (1999).