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: