Winning Strategies for Withstanding a Frye Challenge

As litigation has become more complex, most advanced civil lawsuits rely on testimony from expert witnesses. Expert witnesses play a pivotal role in the jury’s determination of the outcome at trial. The expert witness is in a unique position to offer their opinion as testimony. Such testimony is allowable based on the education and expertise of the expert witnesses themselves. However, the challenges for admitting such testimony can be daunting when examining the Frye standard.

The Frye Standard – A History

In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the D.C. Court of Appeals examined expert testimony regarding the reliability of lie detector test results. As the court noted:

Just when a scientific principle of discovery crosses the line between the experimental and demonstrable stages is difficult to define…. [W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle of discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.

The Frye “general acceptance” standard held sway in state and federal courts for decades. It informed a number of federal criminal trials, and it also made its way into federal civil trials beginning in the 1980s. While the Federal Rules of Evidence articulated a different standard in 1975, it was not until 1993 with Daubert v. Merrell-Dow Pharmaceuticals that Frye was replaced. Today, all Federal courts and most states accept the five factor Daubert standard as the controlling legal standard.

Presently, states still following Frye, or the “Frye-plus” standard, include: California, Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington. Difficulty in the application of this standard has produced questions about whether or not the admissibility standard is flexible enough to adapt to truly new and novel scientific issues, where “general” or “widespread” acceptance may not yet be garnered. It also poses challenges for attorneys facing opposition challenges under the Frye standard.

The Challenges of the Frye Standard

Because the Daubert standard applies in federal courts and most state courts, many attorneys are familiar with its multi-factor demands. Surviving a Frye challenge, however, is different. Furthermore, it demands attention to a slightly different set of standards.

In order for an expert’s testimony to be admissible under the Frye standard, the party seeking to admit the expert’s testimony must be prepared to demonstrate both that the expert has expertise in their specific field, and that the methods and theories they use to support their opinions are “generally accepted” in that field. These two factors are key in an attorney’s selection and preparation of key witnesses for any potential challenges.

Field-Specific Expertise

Proving that an expert has field-specific expertise under Frye is, in practice, similar to the Daubert standard. Typically, the expert’s resume, portfolio, or similar work summary will come into a case early. In turn, attorneys in a case can seek to establish (or to challenge) the expert’s education, work experience, and contributions to their field in the form of publications, conference presentations, and similar activities. During any deposition, expert witnesses will answer questions about their education and practice in their professional field. Any publications or other projects they have undertaken and their familiarity with other experts in the field will also face questioning by the opposition.

Generally Accepted Methods

The second part of the Frye challenge is often difficult for both expert witnesses and attorneys to fully understand. It involves using peer-reviewed literature and similar sources to show that the expert’s field has reached consensus on the methods used to support the expert’s opinions. During deposition, experts successfully answering questions on how theories, methods, and knowledge in their field are developing, testable and acceptable can address challenges that focus on this prong of the Frye standard.

Prepare for the Hearing with the Opposing Party’s Objections in Mind

An expert witness will need to convince the judge and jury of their relevance and reliability. Like the written opposition, it is important to prepare arguments in response to opposing counsel’s own specific objections. An attorney can essentially take on the role of devil’s advocate and look for weaknesses or challenge points with their own expert witness. This allows an attorney to have arguments to thwart any challenges to their expert witness.

During a hearing, your expert should indicate the specific subject matter they plan to testify to at trial. The expert should then testify as to the basis of their opinion. This includes the facts and data they are relying upon, and the scientific principles, methods, or techniques that they are using to reach said opinion.

Know Your Audience: Be Mindful of the Judge’s Courtroom

An advantage of the Frye standard is that it focuses on contextualizing a particular expert’s approach. Such an approach operates within the greater setting of the expert’s professional field. However, a major shortcoming is that experts who work at the forefront of their fields are at a disadvantage. By using the latest scientific methods or advanced “cutting-edge” approaches, they may be avoiding generally acceptable methods. For mass tort matters, new scientific techniques may be necessary to establish causation. Under the Frye standard, the necessity of relying on novel methods may pose a threat to an attorney’s entire case. With judges in particular, new is not always better. Knowing a judge’s rulings on cutting-edge approaches or new scientific methods is key to knowing the limits of what can be achieved at trial.

Therefore, it is important for attorneys to retain the best expert witnesses. However, they must consider carefully the standard to be met and choose an expert who is capable not only of giving a considered opinion on the case, but of meeting the evidentiary standard before a judge.