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Motorola Inc. v. Murray

Court of Appeals of Columbia District

October 20, 2016

Motorola Inc., et al, Appellants,
Michael Patrick Murray, et al, Appellees.

          Argued En Banc November 24, 2015 October 20, 2016

         Appeal from the Superior Court of the District of Columbia Civil Division (CAB-8479-01) (Hon. Frederick H. Weisberg, Trial Judge)

          Terrence J. Dee argued for appellants.

          James F. Green and Jeffrey B. Morganroth argued for appellees.

          Many additional counsel were on the briefs for the parties or filed briefs amicus curiae. Their names are listed in an appendix to this opinion.

          BEFORE: WASHINGTON, Chief Judge; and GLlCKMAN, FISHER, BLACKBURNE-RlGSBY, THOMPSON, Beckwith, and EASTERLY, Associate Judges.

          Concurring opinion by Associate Judge Catharine Easterly.


         This case came to be heard on the transcript of record and the briefs filed, and was argued en banc by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgments on appeal are remanded for further proceedings consistent with this opinion.


          John Fisher, Associate Judge

         For decades this court has used the DyaslFrye test[1] to govern the admissibility of expert testimony. We now are sitting en banc to consider whether we should abandon that test in favor of the standards embodied in Rule 702 of the Federal Rules of Evidence. For the reasons explained below, we adopt Rule 702.[2]

         I. The Factual and Procedural Background

         The plaintiffs in these thirteen cases have sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation causes brain tumors. Judge Frederick H. Weisberg held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs.[3] He concluded that, based on the present record, "some, but not all, of Plaintiffs' proffered expert testimony on general causation is admissible under the FryelDyas evidentiary standard, " but "most, if not all, of Plaintiffs' experts would probably be excluded under the Rule 702/Daubert standard . . . ."[4] Judge Weisberg then certified the following question of law for interlocutory appeal: "whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence." See D.C. Code § 11-721 (d) (2012 Repl). We granted appellants' motion for interlocutory review.[5]

         II. Legal Analysis

         Our role at this stage of the proceedings is limited, but consequential. It is not our task to affirm or reverse Judge Weisberg's ruling.[6] For this reason, we will not attempt to duplicate his learned discussion of the underlying science or his extended summary of the testimony he heard. Instead, we must decide whether to change the legal standard that governs the admission of expert testimony.

         A. The DyaslFrye Test

         In this jurisdiction, the admission of expert testimony has been governed by the legal principles set forth in Frye v. United States and Dyas v. United States. In the seminal case of Frye, the trial court excluded evidence that the defendant had taken and passed an early form of a lie-detector test. 293 F. 1013. Upholding the ensuing murder conviction, the Court of Appeals of the District of Columbia articulated a test for admitting expert testimony. That test was thereafter widely adopted in federal and state courts:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Id. at 1014.

         Later, in Dyas, we expanded upon Frye and adopted a three-part test for determining whether to admit expert testimony:

(1) the subject matter "must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman"; (2) "the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth"; and (3) expert testimony is inadmissible if "the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert."

376 A.2d at 832 (quoting McCormick on Evidence, § 13 at 29-31 (E. Cleary, 2d ed. 1972)). "The third criterion [of Dyas\ incorporates the . . . Frye test, under which scientific testimony is admissible only if the theory or methodology on which it is based has gained general acceptance in the relevant scientific community." (John) Jones v. United States, 990 A.2d 970, 977 (D.C. 2010).

         "[B]ecause expert or scientific testimony possesses an aura of special reliability and trustworthiness, the proffer of such testimony must be carefully scrutinized." Ibn-Tamasv. United States, 407 A.2d 626, 632 (D.C. 1979) (internal quotation marks and citation omitted). However, under DyaslFrye, this inquiry "begins-and ends-with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology." Id. at 638; see also President and Directors of Georgetown College v. Wheeler, 75 A.3d 280, 291 (D.C. 2013) ("The third Dyas requirement focuses not on the acceptance of a particular conclusion derived from the methodology, but rather on the acceptance of the methodology itself." (ellipsis, brackets, and internal quotation marks omitted)).

         "General acceptance means just that; the answer cannot vary from case to case." (Nathaniel) Jones v. United States, 548 A.2d 35, 40 (D.C. 1988). "If the technique has gained such general acceptance, we will accept it as presumptively reliable and thus generally admissible into evidence." Id. at 39. As Judge Weisberg explained, under the DyaslFrye test "the question of whether an expert used a particular generally accepted methodology correctly is not at issue when determining the . . . admissibility" of the expert's testimony. See, e.g., United States v. Porter, 618 A.2d 629, 636 (D.C. 1992) ("Any failure by the scientists to adhere to the appropriate procedure is, of course, a proper subject of inquiry, but does not raise an issue which implicates Fryer).

         B. The Daubert Trilogy

         In 1993 the Supreme Court held that the "general acceptance" test had been superseded by the Federal Rules of Evidence, which were enacted half a century after Frye was decided. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993). Accordingly, "[t]hat austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials." Id. at 589. Interpreting Rule 702, the "specific" rule governing expert testimony, the decision in Daubert in some respects relaxed traditional barriers to opinion testimony. Id. at 588 ("[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." (internal quotation marks omitted)). The Court emphasized, however, that "the trial judge must [still] ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589. Here, of course, the Court was referring "to evidentiary reliability-that is, trustworthiness." Id. at 590 n.9.

         Therefore, when a party proffers expert scientific testimony, the trial court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." 509 U.S. at 592-93. Although it eschewed "a definitive checklist or test, " id. at 593, the Court in Daubert did suggest factors to be considered, including whether the theory or technique has been tested, whether it "has been subjected to peer review and publication, " "the known or potential rate of error, " and "the existence and maintenance of standards controlling the technique's operation." Id. at 593-94. "Finally, 'general acceptance' can yet have a bearing on the inquiry." Id. at 594. Nevertheless, the Court cautioned, the inquiry is "a flexible one." Id. "The focus . . . must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595.

         The Court made clear that it did not intend for the trial judge's more refined gatekeeping role to displace the normal tools of the adversary system. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 596. "[I]n practice, " however, "a gatekeeping role for the judge, no matter how flexible, inevitably ...

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