The District of Columbia has gone Daubert. It follows thirty-nine states that have done so, suggesting Frye may soon be a relic of the past, something the next generation of lawyers will only learn about in passing in law school.

Aside from the desirability of uniformity in the law and the draw of the trend, why make the shift? Is Frye truly flawed? The highest court of the District of Columbia did away with nearly a century of admitting expert testimony under Frye and switched to Daubert in a sweeping and well-founded opinion that inspired us to issue this challenge to you: Can you articulate in one sentence which standard is better, Daubert or Frye, and why?

Differing Opinions

The D.C. opinion came out of thirteen cases multiple plaintiffs filed against various cell phone manufacturers, service providers, and trade associations alleging that long-term exposure to cell phone radiation causes brain tumors. The trial judge who presided over the cases, Honorable Frederik H. Weisberg, held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs. Judge Weisberg carefully compared each expert’s opinions, examining the methodology and reliability for admission. He concluded that “some, but not all, of the Plaintiffs’ proffered expert testimony on general causation is admissible under the Frye/Dyas evidentiary standard,” but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standard.” See Motorola, Inc. v. Murray, No. 14-CV-1350 (D.C. Oct. 20, 2016). Hence the need for the interlocutory appeal and a determination of whether the District of Columbia should continue under the Frye standard or switch to Daubert.

The primary critiques of Frye are that it is antiquated and out-of-step with modern science because it avoids, forbids even, looking at the critical question of whether the opinion offered is reliable as opposed to just accepted.

Critiques and Analysis

On appeal, the Superior Court underwent a detailed analysis of the two varying approaches, highlighting the pros and cons and purported critiques of each. This boiled down to a conclusion by the court that the primary critiques of Frye are that it is antiquated and out-of-step with modern science because it avoids, forbids even, looking at the critical question of whether the opinion offered is reliable as opposed to just accepted. The court noted some Frye critics believe the standard “forces unqualified jurors to decide which scientific theories should be applied to the particular case.” Motorola, No. 14-CV-1350.

On the other hand, Daubert suffers from its own critiques, the court pointed out, by “making unqualified judges evaluate the work of scientists” and producing inconsistent results. The Superior Court explained that a uniform rule isn’t expected to give uniform results as there are many trial judges applying the rule, each operating within their own permissible discretion. However, the court did mention the “substantial benefits” to be gained from adopting a test that is widely used, cited, and interpreted, in that they can learn from the decisions of other federal courts and their counterpart states who have adopted the Daubert rule.

The Decision   

Ultimately, the Superior Court decided to adopt the Rule 702 Daubert standard finding that although it goes beyond the reliability of the principles and methods the expert used to reach his opinion, a feature of Frye, Daubert goes “one step further” in forcing the court to determine whether the expert has reliably applied those principles and methods to the facts of the case.

To quote the Superior Court:

“We conclude that Rule 702, with its expanded focus on whether reliable principles and methods have been reliably applied, states a rule that is preferable to the Dyas/Frye test.” Id.

While they ultimately reached the same conclusion, we prefer the eloquent wisdom of Judge Weisberg, no doubt born of his four weeks of sluggish expert review:

“[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ 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.” Id.