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New York Court of Appeals on the Frye General Acceptance Test:

I missed this when it came out in October, but the New York Court of Appeals issued an important ruling on the Frye rule for the admissibility of expert testimony. The court's ruling establishes (1) that Frye applies in New York in civil as well as criminal cases; and (2) even in cases where the evidence at issue is not novel, and thus (says the court) there is not technically a Frye issue, to lay a proper foundation for the admissibility the testimony in question must still meet a general acceptance test. Moreover, while the court thought the Appellate Division's opinion below was too strict, in contrast to several recent opinions from other Frye jurisdictions and, for that matter, lower New York courts, the court ultimately upheld the exclusion of plaintiff's causation evidence as too speculative. All in all, a significant loss for those who have tried to evade the strict scrutiny trend under Federal Rule of Evidence 702 and the Daubert trilogy by fleeing to Frye jurisdictions.

Related Posts (on one page):

  1. Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:
  2. New York Court of Appeals on the Frye General Acceptance Test:
Justin (mail):
"All in all, a significant loss for those who have tried to evade the strict scrutiny trend under Federal Rule of Evidence 702 and the Daubert trilogy by fleeing to Frye jurisdictions."

There seem to be more things wrong with that sentence than words, but I've highlighted the most obvious problems. You do realize that Daubert *liberalized* Frye, and that the D.C. Circuit's rule, at least, is that something that conforms to Frye *by definition* conforms to Daubert and Kumho Tire, right?
1.31.2007 10:22am
DavidBernstein (mail):
Justin, you are wrong, I'm afraid. Daubert was more liberal than an extremely strict but merely hypothetical Frye test that never existed in practice, anywhere, at the time Daubert was decided. I'm not sure what D.C. Circuit precedent you're referring too, but if that's the rule there, the judges either blundered, or again had in mind some imaginary "strict scrutiny" Frye rule that somehow became a part of legal discourse circa 1993 but never existed in practice. You can start your reading here: http://tinyurl.com/2qp7tn but to save you the effort, it's universally recognized among those who have actually studied the matter that the current Rule 702/Daubert trilogy test is substantially stricter than the old Frye rule, and even than the post-Daubert Frye rule applied in the states. It would, for example, be hard to see how evidence that passes Frye automatically meets the Kumho Tire test when Frye doesn't even apply to nonscientific evidence, the subject of Kumho.
1.31.2007 10:32am
DavidBernstein (mail):
Oh, and if you had read the link I provided:

Most other non-Daubert states, including New York, apply the older "general acceptance" test (Frye v. U.S.), which requires that expert testimony be generally accepted in the relevant scientific community. Unfortunately, in most jurisdictions Frye is not a significant barrier to the admissibility of junk science.

In Nonnon, for example, the majority limited the application of the Frye rule by applying it only to "novel" forms of expertise. Courts in other states have held that Frye only applies to "scientific" expertise, and then define such expertise extremely narrowly.

The Kansas Supreme Court (Kuhn v. Sandoz Pharmaceuticals Corp.) even held that a physician's testimony -- claiming that ingestion of the drug Parlodel caused a woman's death -- was exempt from Frye because it was not based on scientific evidence but was instead his "pure opinion." This peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive!

Even when courts do apply Frye, experts can usually evade the rule by claiming reliance on a "generally accepted" scientific methodology (such as high-dose animal studies to find suspected carcinogens) and then using it in a generally unaccepted way (extrapolating from the results of such a study to proving cancer causation in a human exposed to a much lower dose). In contrast, under Rule 702, federal judges are required to ensure that the expert "has applied the principles and methods reliably to the facts of the case."
1.31.2007 10:34am
Eli Rabett (www):
Timely post (at least for me). With the IPCC Assessment Report being announced tomorrow, how would one get contrary testimony about climate issues into courts as the AR4 will clearly be the generally accepted case. How would this affect the case on CO2 emissions currently pending before the Supreme Court.
1.31.2007 11:04am
josh:
Have to agree with DB. As a practitioner in a Frye state (Illinois), the rule generally means that as long as a bunch of people agree with the practice, it's "generally accepted." It's a rule of the majority and not really an in-depth analysis of scientific merit.
1.31.2007 11:41am
Bill Poser (mail) (www):
I think that one might add that in Frye jurisdictions the relevant "scientific community" is often defined too narrowly. When the advocates of a dubious idea succeed in defining themselves as the relevant community, of course it will be "generally accepted".
1.31.2007 1:12pm
r78:
Is there any evidence _at all_ that people have been "fleeing" to Frye jurisdictions?

Is is this just more standard tort-reform propaganda?
1.31.2007 1:15pm
Bruce Hayden (mail) (www):
It isn't that people are fleeing to Frye jurisdictions, but rather litigation may be doing so. The perceived problem is primarily junk science, and Daubert seems to have put a dent into juries seeing such.
1.31.2007 1:41pm
Peter B. Nordberg (mail) (www):
If debates about which regime is more "strict" -- Daubert or Frye -- tend to be inconclusive, it is partly because the key terms are often left undefined, and may indeed be undefinable, in any rigorous way that matches up satisfactorily with empirical reality.

Take "Frye." What might be called the standard or canonical formulation of the Frye test applies only to evidence that is (a) scientific and (b) novel. That canonical version of Frye is certainly less demanding than the Daubert trilogy for nonscientific evidence, and for scientific evidence that doesn't qualify as "novel." But the "standard" formulation is by no means universal. Some jurisdictions have extended Frye to scientific evidence resting on principles and techniques not qualifying as "novel" by anybody's lights, and others differ sharply, in practice, over where the "novelty" line is drawn. Nor do different "Frye" jurisdictions always agree on what kinds of testimony should count as "scientific" in the first place -- medical testimony, in its various aspects, being one recurring source of controversy on this front. This leaves differing interpretations of "generally accepted" wholly to one side. All in all, inter-jurisdictional differences over the formulation and application of Frye are sufficiently substantial that most generalizations about the Frye test will supply very poor guidance in practice.

Even at the level of broad generalizations, a lot depends on what is meant by "strict." If we evaluate strictness by looking at the language used by the judiciary to state and interpret the two tests, it turns out that both tests will sometimes permit evidence that the other would exclude. In theory, for example, evidence may be excluded under Daubert even though the basic scientific principles on which it rests are "generally accepted." Conversely, evidence may sometimes be admissible under Daubert even if it rests on principles that have not won the "general acceptance" that Frye demands.

On the other hand, if "strictness" is treated more as an empirical question about evidentiary outcomes, the data are mostly anecdotal. The few attempts at systematic empirical investigation have yielded findings that must be counted as collectively inconclusive. In particular, in the one published study I've seen on "fleeing" from one evidentiary regime to another, defense lawyers making removal choices showed no statistical propensity to flee from state-court Frye jurisdictions to the Daubertian haven of federal court. See Edward K. Cheng &Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471 (2005)

The common assumption that Daubert is
1.31.2007 1:44pm
Justin (mail):
DB, I have no idea what you are citing to.

I'll cite to Daubert itself, though:

Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to `opinion' testimony." Beech Aircraft Corp. v. Rainey, 488 U. S., at 169 (citing Rules 701 to 705). See also Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 631 (1991) ("The Rules were designed to depend primarily upon lawyer adversaries and sensible triers of fact to evaluate conflicts"). Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance," the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made `general acceptance' the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.

And then I'll cite to the D.D.C. case Groobert v. Georgetown University, who I will take as more authoritative on the D.C. Circuit's rule, and its correctness, than you:

The D.C. Circuit's rule is that "when the underlying basis or methods of an expert's opinion are of a type reasonably relied on by experts in the field, the court must allow the opinion to be assessed by the factfinder, even if the opinion reaches a novel conclusion." Ambrosini, 101 F.3d at 138 (citing Mendes-Silva v. United States, 980 F.2d 1482, 1485 (D.C. Cir. 1993))

219 F. Supp. 2d 1, 10 (D.D.C. 2002) (Urbina, J.)

Maybe Richard Urbina is wrong and you are right, but I'll need more than a citation to "http://tinyurl.com/create.php" does nothing for your credibility. And since I assume you are actually citing to yourself, an appeal to authority here simply won't work.
1.31.2007 1:46pm
Peter B. Nordberg (mail) (www):
I pushed the "post" button prematurely.

The usual perception among practicing lawyers is that Daubert is more demanding than Frye, but that may say more about the arduousness of the Daubert process than about any statistical difference in outcomes. It may well be that some specific types of evidence are in fact likelier to be excluded under one regime than under the other, but the hard empirical work of vindicating that hypothesis remains largely undone. It is, I suspect, at the level of particular types of expert evidence that the question is most profitably asked.
1.31.2007 1:51pm
r78:

It isn't that people are fleeing to Frye jurisdictions, but rather litigation may be doing so.

So is there any evidence _at all_ that litigation has been "fleeing" to Frye jurisdictions?
1.31.2007 1:53pm
Justin (mail):
I have no qualms with (though do not see empirical evidence to support) the argument that certain interpretations of Daubert may be more "strict" than certain interpretations of Frye. But to claim that as a general matter Daubert is a "strict" test relative to Frye is to completely ignore the text of Daubert. And citation (without quotation) to a few errant circuit court cases, along with ipse dixit determinations that oher district and circuit (Ambrosini) courts have gotten it wrong, are not very convincing.
1.31.2007 1:56pm
DavidBernstein (mail):
Justin, if you're not even willing to do a modicum of reading on the issue, there's really no point in debating you. I will say, however, that your cite to Judge Urbina points to a problem I've identified previously on this blog: judges who seem unaware that it's improper to cite circuit court opinions decided before Joiner, Kumho, and the 2000 amendments to Rule 702, when such opinions are in conflict in substance and tone from the subsequent, binding, rules and precedents.
1.31.2007 5:07pm
Justin (mail):
Are you seriously complaining that you won't debate someone on a comments because he won't read something you don't link to or bother to quote? And, I should point out, you fail to address any of my points, other than confirming that judges routinely disagree with you, and you have nothing to respond to other than your belief that the 2000 amendments did something the advisory committee notes specifically explains that they DID NOT MEAN. And while the fact that someone is making that argument is useful to defense lawyers (hi!), it's one that has been repeatedly and consistently rejected by courts. Even courts that agree with your underlying principle have found different reasoning to reach that conclusion (namely, that Daubert and Kumho Tire itself requires the judge to play a more assertive gatekeeper than the language of the case would imply).
1.31.2007 5:27pm
Justin (mail):
Also, David, are you under the weird impression that "http://tinyurl.com/create.php " is a link? This is the second time you've attacked me for not reading something you claim to have linked to, and while I tried to respond the first time by heavily implying you didn't link to anything, I think that point may have escaped you.
1.31.2007 5:30pm
Justin (mail):
Oh, and one final point - Ambrosini is still good law, and has been cited by all these other horrible judges:

O'Scannlain, 339 F.3d 1049, 1057 (9th Cir. 2003)

Hartz (with Ebel signing on), 356 F.3d 1326 (10th Cir. 2004)

Marcus (326 F.3d 1333 (11th Cir. 2003))

Lay (270 F.3d 681 (8th Cir. 2001))

Rogers (267 F.3d 1123 (D.C. 2001) (guess the DC circuit didn't know that they no longer followed Ambrosini, huh?)
1.31.2007 5:41pm
r78:
This must have been overlooked:

a significant loss for those who have tried to evade the strict scrutiny trend under Federal Rule of Evidence 702 and the Daubert trilogy by fleeing to Frye jurisdictions.

So is there any evidence _at all_ that litigation has been "fleeing" to Frye jurisdictions?

Or is this just reflexive tort-reform propaganda?

Or are you mean to say that "while there is no evidence that anyone ever tried to flee to Frye jurisdictions to evade bla, bla, bla, boy are those hypothetical people going to be disappointed now."
1.31.2007 6:35pm
DavidBernstein (mail):
R, I can site you several articles where plaintiffs lawyers say they are moving their litigation to state court, and urging their colleagues to do the same, but I why bother?
1.31.2007 7:55pm
r78:
DB - so in other words the only evidence you have for all of these cases "fleeing" to Frye jurisdictions are articles where plaintiffs say they are moving to state court?

Hmmm. . . do you think that assertion would stand up under Daubert? Some unsourced, unsubstantiated hearsay?

Also, I don't know if you have ever actually filed a case in federal or state court but you can't just willy-nilly "move" cases from court to court as the mood strikes you, so I don't know what you mean when you assert that all of these plaintiff's lawyers are "moving their litigation to state court."

Finally, you have noted elsewhere (and it is common knowledge) that plaintiff's lawyers usually prefer state courts over federal courts in the first place. So your assertion just doesn't make any sense because it implies that there are all of these plaintiff's lawyers who would choose to be in Federal Court but that the are now "moving their litigation to state court" because of Daubert. Any plaintiff's lawyer with any sense would never choose the Federal forum in the first place.

As to why you should bother - you shouldn't unless you care about your credibility.

I understand that your post was grafted from something you previously wrote for AEI and that your function there is to just churn out more corporate tort-reform propaganda - but if you are going to make these nutty assertions you might want to have at least something to back it up.
1.31.2007 8:19pm
DavidBernstein (mail):
R, you have demonstrated for all who care why it's not worth even minor effort in responding to you; your posts are a pure attempt to provoke and annoy, not to discuss, and I have better things to do with my time.
1.31.2007 9:04pm
Peter B. Nordberg (mail) (www):
Lost in the exchange about flight to state court, by the way, is the question whether any such flight by plaintiffs' counsel is motivated by a desire to "evade" any perceived "strict scrutiny trend" under Daubert, or rather by the goal of avoiding the enormous expenditure of time, effort, and money associated with defending against Daubert motions in federal court, where such motions are nowadays filed routinely against even reliable and meritorious evidence.
1.31.2007 9:19pm
DavidBernstein (mail):
Peter,

Here's one plaintiffs' attorney from California:
http://www.toxictorts.com/art_daubert.shtml

His article starts: "Daubert is death and disaster for plaintiffs." California, of course, is a Frye state.
1.31.2007 9:39pm
DavidBernstein (mail):
Make that "death and disaster to plaintiffs' attorneys."
1.31.2007 9:40pm
Justin (mail):
The problem with Daubert, as many have mentioned, is that fairly routine expert testimony can be excluded based on the expert failing to live up to some standard according to the trial court's whim, even if tht standard is arbitrary and the challenged mistake something easily taken up at cross and/or irrelevant to the expert's conclusions. However, as many cases show, that there's plenty of testimony that would have been excluded under Frye that is acceptable under Daubert - indeed, that was the very message of Daubert, as shown by my point above.

Instead, what has basically happened is that trial courts just have a lot of discretion where before they had less discretion, and courts will allow or exclude often at great leisure. Furthermore, what used to be a test about whether something is scientific has now been a competency test, which sometimes helps the system from biased or incompetent experts, but also has the side effect of turning federal tort cases into "expert wars" where the case is won by who has the more expensive, and the more meticulous, team of experts. That's unfortunate, but it doesn't make David's argument in the OP anything near correct.
1.31.2007 10:19pm
DavidBernstein (mail):
Okay, just for fun Justin: give us a few examples of categories of testimony that have been excluded in Frye jurisdictions, or in any Frye jurisdiction, but have been admitted by federal courts since 2000. Or, examples of litigation going on in both federal and state court (e.g., Parlodel or Vioxx) where the state courts have been excluding expert testimony but the federal courts admitting it. After all, "many cases show, that there's plenty of testimony that would have been excluded under Frye that is acceptable under Daubert." So name some.
1.31.2007 10:26pm
r78:

R, you have demonstrated for all who care why it's not worth even minor effort in responding to you; your posts are a pure attempt to provoke and annoy, not to discuss, and I have better things to do with my time.

That's the sound of someone who makes a meritless statement and, when called on it, has nothing to back it up.

His article starts: "Daubert is death and disaster for plaintiffs." California, of course, is a Frye state.

Here is the quote I was asking you about:

a significant loss for those who have tried to evade the strict scrutiny trend under Federal Rule of Evidence 702 and the Daubert trilogy by fleeing to Frye jurisdictions.

You wrote that. Those are your words. I had the temerity to ask you whether there was any substantiation that people and cases have been "fleeing to Fry jurisdictions". You've provided none.
Then you make the assertion that

they are moving their litigation to state court

Again - as any practicing lawyer knows, if a plaintiff can file in State or Federal Ct. s/he will almost always file in State Ct. This has been true for the 24 years that I have been practicing.

California, of course, is a Frye state.

Okay - you just do not have a clue what you are talking about. CA is a Kelly state - not a Frye state. In some ways Kelly is actually a more restrictive standard than Daubert.

If you are going to make pronouncements about different jurisdictions - don't you think you should at least get a general knowledge about them first?
1.31.2007 11:26pm
Justin (mail):
David, being obnoxious is not a substitute for an argument. That being said:

Therefore, the Court holds that the fact that Dr. Aldrich's tests do not meet all of the Daubert factors is not, in the atypical circumstances of this case, fatal to Aldrich's ability to offer testimony. See, e.g., Smith, 215 F.3d at 720-21 (holding that the district court had abused its discretion in finding a particular methodology unreliable because there was no peer review, since all of the Daubert factors are "relevant, though not dispositive, consideration[s]"); Mitchell v. Gencorp, 165 F.3d 778, 781 (10th Cir.1999) (holding that the party offering expert testimony "need not prove that the expert is undisputably correct or that the expert's theory is 'generally accepted' in the scientific community"). Again, this case involves a novel measurement endeavor, and Defendant's own expert offered testimony that one might construe as endorsing the techniques employed by Wedgewood to address the problem at hand.

Despoir, Inc. v. Nike USA, Inc., 2005 WL 659199 (N.D. Ill. 2005).

In Despoir, the court found that although the expert's application was unique, it was based on reliable thoery, and therefore was included.

ically, although plaintiffs couch their objections in the language of Daubert and its progeny, their complaint boils down to an argument that Dr. Sandmire's and the other defense experts' opinions should be excluded because they are "novel," that is, that they are not generally accepted in the field of obstetrics. This standard, commonly known as the Frye test, see Frye v. United States, 293 F. 1013, 1014 (1923), although potentially relevant to the calculus, is no longer the sole touchstone of admissibility under Fed.R.Evid. 702. See Daubert, 113 S.Ct. at 2793-94. If the reliability and relevance requirements of Rule 702 are otherwise satisfied, the expert's opinion is admissible regardless of its novelty vel non. Because nothing in plaintiffs' motions suggest that Dr. Sandmire's opinions and those of the other experts who rely on his work offend these standards, those motions must be denied.

Potter ex rel. Potter v. Bowman
Slip Copy, 2006 WL 3760267
D.Colo.,2006.

see also

Moeller v. Weber
689 N.W.2d 1
S.D.,2004.

U.S. v. Lee, 315 F.3d 206 (3d Cir. 2003):

FN6. Since the Supreme Court's decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-89, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding that so long as expert testimony qualifies as reliable evidence under Fed.R.Evid. 702, it may be admissible even if it is not generally accepted in the relevant scientific community), some district courts have found polygraph evidence admissible at trial. See, e.g., United States v. Crumby, 895 F.Supp. 1354, 1358-63 (D.Ariz.1995) (finding polygraph evidence admissible because given the narrow purposes, it was sufficiently reliable); United States v. Galbreth, 908 F.Supp. 877, 878-95 (D.N.M.1995).

That took me one westlaw search. You've done nothing other than throw easily defeatable challenges. Maybe you should stop acting immature, and engage criticism rather than sulk and sneer at it.
1.31.2007 11:57pm
DavidBernstein (mail):
Justin, what you're missing is that a federal court stating, hypothetically, that a given piece of evidence that's admissble under FRE 702 might be excludable under a general acceptance test is not actually even remotely proof that a real, live Frye jurisdiction would actually exclude this evidence. That's why I asked for examples of categories of evidence that have been admitted in federal court but excluded in Frye jurisdictions, not some federal judge saying, "Plaintiff argues that this evidence isn't generally accepted, but that's not the test in federal court." Hint: there aren't any such categories of evidence, with the very minor exception of a small minority of federal district courts admitting polygraph evidence. OTOH, there are many, many examples of federal courts excluding evidence that's routinely admissible in Frye jurisdictions, such as engineering testimony in products liability cases.
2.1.2007 8:46am
DavidBernstein (mail):
Oops, missed the last sentence of your post where you actually cite the polygraph cases; good catch, mazel tov, you found the one example.
2.1.2007 8:48am
DavidBernstein (mail):
BTW, did you have an Evidence professor who told you (wrongly) that Frye is stricter than the Daubert trilogy, or did you come to this conclusion on your own?

Also, I should add one caveat: I'm not saying that a general acceptance test CAN'T be applied more strictly than Rule 702, and indeed federal courts are correct in sometimes stating that evidence they're admitting under 702 might not be admissible under a hypothetical, very strict application, of a general acceptance test. What I am saying is that the Frye test, as actually applied by state courts, is not strictly applied; again, quoting the link in my post:
In Nonnon, for example, the majority limited the application of the Frye rule by applying it only to "novel" forms of expertise. Courts in other states have held that Frye only applies to "scientific" expertise, and then define such expertise extremely narrowly.


The Kansas Supreme Court (Kuhn v. Sandoz Pharmaceuticals Corp.) even held that a physician's testimony -- claiming that ingestion of the drug Parlodel caused a woman's death -- was exempt from Frye because it was not based on scientific evidence but was instead his "pure opinion." This peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive!


Even when courts do apply Frye, experts can usually evade the rule by claiming reliance on a "generally accepted" scientific methodology (such as high-dose animal studies to find suspected carcinogens) and then using it in a generally unaccepted way (extrapolating from the results of such a study to proving cancer causation in a human exposed to a much lower dose). In contrast, under Rule 702, federal judges are required to ensure that the expert "has applied the principles and methods reliably to the facts of the case."

Oh, and the polygraph cases date back to the early days of Daubert, I doubt any appellate court would uphold them now, though you never know.
2.1.2007 8:53am
Justin (mail):
So you prevent no evidence, you cite a challenge, seek to bellittle people for disagreeing, mock people who rise and meet your challenge, and then, determined to undermine your own lack of credibility by citing to a case, cite to one where the court relies on NEITHER frye NOR daubert? Good job.

I hope you're not this charming to all your students.
2.1.2007 9:24am
Justin (mail):
"such as engineering testimony in products liability cases."

Sure. But that's neither here nor there, and it's addressed in full at my 10:19 pm post.

This will be my last post on the topic. I know you're a law professor and all, but I feel like I'm debating a troll, and there's a limit to how useful such an exercise can be.
2.1.2007 9:26am
Justin (mail):
And, btw, DB, you may want to try researching true academics and academic articles on the topic. Here's a good start.

http://www.virginialawreview.org/articles.php?article=60
2.1.2007 9:28am
DavidBernstein (mail):
Challenge not met, Justin takes his marbles and goes home. Now that would be mocking! OTOH, I didn't mock you at all before, my "mazel tov" in finding the one obscure example that supports your thesis was genuine, it was good work.

But for anyone still following this thread, the challenge is open: if you believe that Frye, as applied in state courts, is stricter than Daubert, you will have to come up with examples of evidence that federal courts are admitting under Rule 702, but state courts are excluding under Frye. Even that wouldn't prove that Frye in GENERALLY stricter, but I don't think that even that minimum challenge can be met.
2.1.2007 9:34am
DavidBernstein (mail):
Oops, just saw your last comment. I'm not going to ban you, but henceforth I will ignore you. And next time you want to throw around gratuitous insults, why don't you show some manliness and not do it behind a veil of anonymity?
2.1.2007 10:01am
r78:

OTOH, I didn't mock you at all before, my "mazel tov" in finding the one obscure example that supports your thesis was genuine, it was good work.


earlier post


BTW, did you have an Evidence professor who told you (wrongly) that Frye is stricter than the Daubert trilogy, or did you come to this conclusion on your own?
2.1.2007 12:13pm
DavidBernstein (mail):
That was a sincere question. I am professionally curious as to whether Evidence professors who don't specialize in expert testimony misconstrue the relative strictness of Daubert and Frye, and thus I was wondering if Justin's strong adherence to his view was a result of being taught that in Evidence class (maybe I'm wrong, but I'm under the impression that Justin is either a law student or a recent graduate).
2.1.2007 1:26pm
r78:
Would an Evidence professor who specialized in expert testimony know whether California is a Frye state or a Kelly state?
2.1.2007 2:06pm
Peter B. Nordberg (mail) (www):
Prof. Bernstein,

I know about the "death and disaster" piece (and even link to it, along with several of your own articles, at my site). It's well-written statement of one lawyer's perceptions, at least as those perceptions stood in 1999. I don't know that I differ with those perceptions, but they don't constitute anything resembling a systematic empirical study, nor does their author hold them out as such. In other words, the "death and disaster" piece is one piece of anecdotal evidence, at best.

As for polygraph evidence, my perception is that the actual trend is not so much toward appellate rejection of polygraph testimony, after <i>Daubert</i>, as it is toward appellate affirmance, after <i>Joiner</i>, of whatever decision on polygraph testimony the district court may make. It's true that the district courts usually reject polygraph evidence. But many district court decisions find ways of ducking the <i>Daubert</i> issues when they do so (e.g., reliance on Rule 403). I'm no polygraph fan. But after Justice Thomas's remark in <i>Scheffer</i> that "individual jurisdictions may reasonably reach differing conclusions" on the reliability of polygraph evidence, it would be dubious, I think, to claim that the appellate climate is no more receptive to polygraph evidence than it was under <i>Frye</i>.
2.2.2007 11:32am
DavidBernstein (mail):
Perhaps, but the only reason, in my opinion, Frye jurisdictions have been so hostile to polygraph tests is that lie detector tests were the subject of the original Frye opinion. So even if it turned out that Rule 702 jurisdictions are more liberal on polygraph evidence than are Frye jurisdictions, I wouldn't extraplate to that from anything else. As for the piece I linked to, note that I never said that ALL litigants are fleeing to state court, though I do believe that that is virtually true in products liability litigation. Rather, I said that those who are fleeing to state court suffered a loss from the NY court's opinion.
2.2.2007 3:26pm
r78:

I never said that ALL litigants are fleeing to state court, though I do believe that that is virtually true in products liability litigation. Rather, I said that those who are fleeing to state court suffered a loss from the NY court's opinion.

Two problems with that: 1) the only "evidence" you cite to substantiate your claim that anyone is fleeing is one snippet from a website. 2) As any experienced litigator knows, plaintiffs routinely choose to file in state courts - instead of federal courts - for a variety of reasons and have been doing so for at least the past 20 years.

Your assertion assumes that plaintiffs would be filing in federal court by choice, but that Daubert and related decisions have caused plaintiffs (and virtually ALL products liability plaintiffs) to file in state court. But, since plaintiffs have preferred State courts long before Daubert was even decided, asserting that Daubert is causing them to "flee" to State courts is just silly.
2.2.2007 5:28pm
r78:
Are virtually ALL litigants fleeing Federal Courts because of Daubert?

Not acccording to Ted Frank at overlawyered:

Federal non-asbestos product liability suits, 1990: 5,812
Federal non-asbestos product liability suits, 1995: 21,310
Federal non-asbestos product liability suits, 2005: 29,052
That 1995 number is unusually high because that's the year that most of the breast implant cases were filed.

So since Daubert was decided in 93, Federal Court product liability have increased.
2.2.2007 5:40pm
r78:
Should be: So since Daubert was decided in 93, Federal Court product liability filings have increased.
2.2.2007 5:41pm