En Banc November 24, 2015 October 20, 2016
from the Superior Court of the District of Columbia Civil
Division (CAB-8479-01) (Hon. Frederick H. Weisberg, Trial
Terrence J. Dee argued for appellants.
F. Green and Jeffrey B. Morganroth argued for appellees.
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,
Concurring opinion by Associate Judge Catharine Easterly.
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
and ADJUDGED that the judgments on appeal are remanded for
further proceedings consistent with this opinion.
Fisher, Associate Judge
decades this court has used the DyaslFrye
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.
The Factual and Procedural Background
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. 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 . . . ." 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
role at this stage of the proceedings is limited, but
consequential. It is not our task to affirm or reverse Judge
Weisberg's ruling. 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.
The DyaslFrye Test
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.
in Dyas, we expanded upon Frye and adopted
a three-part test for determining whether to admit expert
(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).
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)).
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).
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.
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
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 ...