December 2013 Bar Bulletin
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December 2013 Bar Bulletin

Frye and the Future of Daubert in Washington

By S. Karen Bamberger and Richard D. Ross


For 70 years, almost all courts followed the test in Frye v. United States,1 which holds that expert opinions founded on novel scientific principles are only admissible if the theory is "sufficiently established to have gained general acceptance in the particular field in which it belongs."

The rise of toxic tort litigation in the 1980s demonstrated that Frye was not alone sufficient to keep "junk science" out of the courts. Pertinent here, critics complained that Frye's reach ended once the underlying science was "generally accepted" and that Frye did not prohibit scientifically invalid opinions based on otherwise accepted theories.

In 1993, the U.S. Supreme Court established a new standard of admissibility in the seminal decision Daubert v. Merrell Dow Pharmaceuticals, Inc.,2 where the Court held that Frye was too "austere" to define the gate-keeping duty dictated by FRE 702. Relying on the FRE 702 term "knowledge" - defined as "truth on good grounds" - the Court held that opinions should be tested by the strictures of the scientific method, not the nose-counting general acceptance test. The product of this process are opinions deemed "reliable."

From the outset, the Court recognized that context is critical; what is reliable in one context may not be in another. Consequently, the Court declined to define "reliability" and instead set forth a non-exclusive list of criteria generally consonant with reliability.

Some of the more prominent factors include:

  • Is the underlying theory testable?
  • Was the theory peer reviewed?
  • Does application of the theory lead to a high "known or potential rate of error?"
  • Are there standards controlling the technique's operation and were they followed?
  • Is the theory or technique "generally accepted within the relevant scientific community? (aka, the Frye standard).

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