When Does Frye Apply?

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and its progeny Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993), General Electric Co. v Joiner, 522 U.S. 136 (1997) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) have resulted in more pretrial hearings than virtually any other line of cases.  Florida adopted Frye, supra, in Bundy v. State, 471 So. 2d 9, 18 (Fla. 1985), and Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989).  It has not adopted Daubert or the cases which follow it.  There is a continuing argument among scholars as to whether Frye or Daubert is stricter in the test to be applied as to the admissibility of expert testimony.  The recent Florida Supreme Court case of Marsh v. Valyou, 32 Fla. L. Weekly S750 (Fla. Nov. 21, 2007) clarifies when and how Frye should apply.

Ms. Marsh filed a lawsuit against four defendants as a result of four separate automobile accidents in which she claimed injuries.  The basis for her claim was that the multiple traumas that she received caused fibromyalgia and myofascial pain syndrome.  One of the defendants set a Frye hearing and the trial court excluded the testimony of the plaintiff’s expert witnesses.  The Fifth District affirmed in Marsh v. Valyou, 917 So. 2d 313 (Fla. 5th DCA 2005).

In an almost identical case, the Second District in State Farm Mutual Automobile Insurance Co. v. Johnson, 880 So. 2d 721 (Fla. 2d DCA 2004) allowed expert testimony causally linking trauma to fibromyalgia.  Conflict was certified and the Supreme Court used the opportunity to clarify its holdings with respect to the Frye test.  The Court concluded that Frye did not apply and, even if it did, plaintiff’s proffered expert testimony was sufficient to permit the admissibility of the testimony under Frye.

At a Frye hearing, the party seeking admissibility of the testimony bears the burden of establishing by a proponderance of evidence that the scientific principles and methodology utilized by the expert have been generally accepted.  Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264, 1268 (Fla. 2003).  In Marsh, at Page 751, the Supreme Court makes it clear that the first test to determine whether Frye applies at all is whether the expert’s testimony is based upon “new or novel scientific techniques.”  If it is not, there is no necessity for testing the expert’s testimony against the Frye doctrine.  Since medical causation is at the heart of almost all issues on which Frye is attempted to be imposed, it is the rare case where Frye applies at all.  At Page 751, the Florida Supreme Court holds:

“We review Frye issues de novo, with general
acceptance considered as of the time of the
appeal.  Id.  ‘By definition, the Frye standard
only applies when an expert attempts to
render an opinion that is based upon new or
novel scientific techniques.’  U.S. Sugar Corp.
v. Henson, 823 So. 2d 104, 109 (Fla. 2002)
(emphasis added).  Therefore, we have
recognized that Frye is inapplicable
in the ‘vast majority’ of cases.  Id;  see also
Rickgauer v. Sarkar, 804 So. 2d 502, 504
(Fla. 5th DCA 2001) (‘Most expert testimony
is not subject to the Frye test.’)
*   *   *
See, e.g. Cordoba v. Rodriguez, 939 So. 2d
319, 322 (Fla. 4th DCA 2005) (‘Medical
expert testimony concerning the causation
of a medical condition will be considered
pure opinion  testimony and admissible
when it is based solely on the expert’s
training and experience.’)  Gelsthorpe v.
Weinstein, 897 So. 2d 504, 510 (Fla.
2d DCA 2005) (‘[M]edical expert
testimony concerning the causation of
a medical condition will be considered
pure opinion testimony – and thus not
subject to Frye analysis – when it is
based solely on the expert’s training
and experience.’); Fla. Power & Light
Co. v Tursi, 729 So. 2d 995, 996 (Fla.
4th DCA 1999).
   *      *      *
 Quoting from U.S. Sugar Corp. v. Henson, 787 So. 2d 3, 14 n. 10 (Fla. 1st DCA 2000), approved 823 So. 2d 104 (Fla. 2002), the Court explained that a trial court at a Frye hearing needs to look only at the general acceptance of the scientific principles and methodologies which the expert relies upon in rendering the opinion.  If the opinion were tested by the Court as well, the trial judge would become a finder of fact and that is the exclusive providence of the jury.  Experts are not required to simply recite scientific principles from a book but are entitled to render their own opinion as to the applicability of those principles to the facts of the case.  It is up to the jury to decide whether to accept that conclusion or not.  At Page 752, the Supreme Court holds:

“Trial Courts must resist the temptation to
usurp the jury’s role in evaluating the
credibility of experts and choosing between
legitimate but conflicting scientific views.
See Castillo, 854 So. 2d at 1275 (‘[I]t is
important to emphasize that the weight to
be given to stated scientific theories, and
the resolution of legitimate but competing
scientific views, are matters appropriately
entrusted to the trier of fact.”)  (quoting
Berry, 709 So. 2d at 569 N. 14); Rodriguez
v. Feinstein, 793 So. 2d 1057, 1060 (Fla.
3d DCA 2001) (same).  A challenge to the
conclusions of Marsh’s experts as to
causation, rather than the methods used
to reach those conclusions, is a proper
issue for the trier of fact.  See. U.S. Sugar,
823 So. 2d at 110; Castillo, 854 So. 2d at
1270, 1272, 1276; Rodriguez, 793 So.
2d at 1060 (recognizing that ‘to involve
judges in an evaluation of the acceptability
of an expert’s opinions and conclusions
would convert judges into fact-finders’
to an extent not contemplated by
Florida’s Frye jurisprudence).”
Frye is being overused by trial courts and counsel.  Since it is rare that new or novel scientific principles are applicable to most expert testimony, it is rare that Frye applies at all.  When it does, it does not apply to the opinion of experts but rather to the underlying principles, which form those opinions.  This case seeks to clarify the settled jurisprudence in that area.Originally published in February 2008