Frye vs. Daubert: Should it matter? Part 2

If you are a trial attorney who relies on forensic experts, you are no doubt familiar with the Daubert and Frye standards, and will know which standard applies in your particular jurisdiction.

Knowing the standard, however, does not necessarily mean that your expert will have the same knowledge. It also does not mean that your expert will know how to formulate and express opinions that will meet the standard, as applied either by the trial court or by an appellate court. Assuming that your expert has such knowledge can be a costly mistake.

One of the most dramatic examples of what I am referring to is provided by a recent appellate decision that cost a party $7,000,000. In this case, a teenage plaintiff (Trellvion Gaines) alleged he had suffered lead poisoning due to exposure to lead-based paint manufactured by the defendant, resulting in a significant decline in his mental abilities. The court’s opinion states:

 “Two blood tests in September 1993 showed that Trellvon had elevated blood lead levels of 30 micrograms per deciliter (30 μg/dL) and 19 μg/dL five days later. Trellvion now has significant cognitive deficiencies….”

The question was whether the lead plaintiff had ingested — thus producing the elevated blood tests — caused the cognitive deficiencies.

To establish causation, plaintiff offered the opinions of two experts, described as “some of the world’s leading experts in their respective fields.” Prior to trial, the defendant paint manufacturer moved to exclude their testimony on grounds it did not satisfy the Daubert standard, which had been adopted in this jurisdiction.

The trial court denied the motion, and allowed their testimony. The jury found for plaintiff, and awarded him $7,000,000.

On appeal, the appellate court pointed out that under Daubert, the trial judge has a “gatekeeping” function insofar as expert opinion is concerned. In this case, the opinions offered by plaintiff’s experts did not satisfy the requirements of Daubert:

“The basis for Lidsky’s and Rosen’s causation testimony – that Trellvion was ingesting and being poisoned by lead the entire time he lived in the house – was mere speculation and inadmissible.”

Accordingly, the court vacated the judgment. The $7,000,000 awarded to the plaintiff disappeared. The appellate court also held that once the expert opinion was found inadmissible, there was no evidence of causation. Hence, the trial court should have granted defendant’s motion for judgment notwithstanding the verdict. The case was dismissed.

In short, plaintiff lost not only the $7,000,000 verdict, but also the chance to offer better expert testimony in a retrial. The case is Sherwin-Williams v. Gaines, decided by the Mississippi Supreme Court on September 8, 2011.

The moral of this story is simple: If you want to protect your verdict, you cannot rely on your expert’s sterling credentials. Instead, you must be sure that your expert will be able to offer opinions that satisfy the Daubert (or Frye) standards.

How can you be sure?

Here’s one approach: You can ask your expert if he or she is familiar with the standard that applies in your jurisdiction, and if not, you can try to explain the standard. You can also tell your expert to be careful to offer opinions that satisfy the standard.

Sounds easy, but will it be enough? Perhaps, but remember this: It is one thing to be told what you need to accomplish, and quite another thing to be able to do it.

Why, as an attorney, should you take unnecessary chances? Why should you risk losing a verdict that you and your client have worked hard to achieve?

Isn’t it more prudent to make sure your expert is exposed to a step-by-step program that explains exactly how to formulate and offer opinions that will satisfy either the Daubert or Frye? The program I have produced will do just this. All you have to do is order the program, give it to your expert, and urge him or her to study it carefully.

I cannot guarantee, of course, that having your expert look at my program will result in admissible testimony. Your expert still must have the ability to assimilate and put into effect all that is explained and demonstrated in the program.

However, I can make this guarantee: If you aren’t satisfied, return the program within 30 days, and I will refund the purchase price, plus your postage. You have nothing to lose, and much to gain. To go to the “Order” page, click here.

One final point: although the program was developed for experts who want to offer psychological or psychiatric opinions, I believe the advice I offer will assist any expert who hopes to offer opinions based on scientific evidence.

 Shirley Feldman-Summers, Ph.D.

April 7, 2013

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