Presenting a live 90-minute webinar with interactive Q&A Daubert/Frye Motions in Product Liability Litigation Bringing or Defending Challenges to Expert Witness Evidence TUESDAY, NOVEMBER 5, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Sean P . Wajert, Managing Partner, Shook Hardy & Bacon , Philadelphia Tara D. Sutton, Partner, Chair, Mass Tort Group, Robins Kaplan Miller & Ciresi , Minneapolis The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Strafford Publications’ CLE Webinar Daubert/Frye Motions in Product Liability Litigation Sean P. Wajert, Esq. Shook, Hardy & Bacon Philadelphia 215-278-2430 www.shb.com swajert@shb.com swajert@shb.com
Daubert/Frye Motions in Product Liability Litigation Mr. Wajert is the managing partner of Shook, Hardy & Bacon’s office in Philadelphia, PA. He has represented clients in the chemical, consumer product, pharmaceutical, medical device, food and fragrance, and industrial products sectors when they face significant product liability and mass tort claims. Since 2003, Sean has been ranked annually among the top product liability lawyers by Chambers USA, a referral guide to leading lawyers in the United States based on the opinions of their peers and clients. Chambers has praised Sean as a “calm and organized” lawyer who “continues to deliver high quality work in the pharmaceutical area.” The Best Lawyers in America has also recognized Sean for product liability and mass tort litigation; The Legal 500 (U.S.) recommended his work in product liability and mass tort defense in the areas of toxic tort and consumer products; and Who's Who Legal: The International Who’s Who of Product Liability Defense Lawyers in 2013 named him a leading product liability defense attorney. Sean is an American Bar Foundation fellow and an elected member of the American Law Institute, the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. He previously chaired the Mass Torts and Class Actions Subcommittee of DRI. He is the author of the widely read law blog masstortdefense.com. www.shb.com swajert@shb.com
Overview of Frye • Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) – Criminal (murder) case – Systolic blood test showed defendant was telling the truth; early polygraph – Court excluded • just when a scientific principal or discovery crosses the line between the experimental and the demonstrable, is difficult to define • it must be sufficiently established to have gained general acceptance in the particular field in which it belongs • focus on relevant field’s view of its own members work; seeks to assure that reliability is determined by those most qualified to assess the validity of a scientific method 7
Overview of Frye • Doctrine lay dormant for almost a decade • and even after 25 years, only 8 federal and 5 state cases relied on it • citations exploded in 1970’s but mostly cited in criminal cases until 1980’s • the vast majority of courts then adopted Frye as the standard of admission for scientific evidence – until Daubert 8
Overview of Frye • Established a method of ensuring the reliability of certain scientific evidence • Does Frye apply to all scientific evidence or just novel scientific evidence, i.e. literal application? – E.g., Anderson v. Akzo Nobel Coatings, Inc., 260 P.3d 857 (Wash. 2011) ( Frye test is implicated only if opinion is based upon novel science). – some state courts have thus suggested the vast majority of expert opinion is not subject to Frye because it only applies when an expert attempts to offer an opinion based on new or novel scientific techniques • Others apply more broadly, with expanded definition of “novel” • Some apply when theories are subject to reconsideration • Note: some states adopted the “pure opinion” exception, if the opinion rests solely on the expert’s own experience and training, it need not be subject to Frye analysis 9
Overview of Frye • Issues Arising From Frye • How does the court define the relevant scientific community? – Especially when the theory or technique involves several scientific principles – Influence outcome by narrowing or expanding the pertinent group • What quantum of acceptance means general acceptance? – Most courts hold general acceptance does not mean universal acceptance of methodology 10
Overview of Frye • Issues Arising From Frye • Must there be acceptance of underlying theory and the methodology and the application of the theory -- one version of “fit”? – E.g., Anderson v. Akzo Nobel Coatings, Inc., 260 P.3d 857 (Wash. 2011)(both underlying theory and technique or methodology used to implement it must be generally accepted). – E.g., Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009)(method was generally accepted but applied to a novel theory; differential diagnosis to prove general causation) 11
Overview of Frye Issues arising from Frye • How does one prove general acceptance? Counting noses? – E.g., Anderson v. Akzo Nobel Coatings, Inc., 260 P.3d 857 (Wash. 2011)(if there is a “significant dispute” among qualified scientists, evidence should not be admitted) – testimony of experts? • Most courts seem convinced by testifying experts – Review of literature? • Few courts will undertake – Other judicial opinions • some states find once it is deemed by a court accepted in the particular community, its general acceptance is presumed in subsequent litigation • Although, generally accepted in the courts may or may not mean acceptance in science 12
Overview of Frye Status of Frye ? • Do your local homework! • Approximately 30 states have adopted Daubert or something akin to federal standard – Alabama, Wisconsin, Florida (by statute in 2013) recently • Approximately 12 states retain Frye in a quasi-traditional form – Including Pennsylvania, Minnesota • Many holdover courts view Frye as a higher standard of reliability – some novel scientific evidence may seem admissible under Daubert even if not generally accepted yet – but otherwise, most commentators disagree • Several states employ a unique or individual or hybrid approach – Maine (Rule 403-sounding) – Nevada (calling Daubert a work in progress) • Some states will apply Frye in criminal and Daubert in civil 13
Overview of Frye Brief word on mechanism • Proponent of evidence has burden of establishing that it satisfies, in most Frye states • Courts typically have discretion whether to hold Frye hearing – Court may conclude it can decide general acceptance on paper or based on prior judicial decisions – Failure to timely request hearing may constitute waiver • Frye decisions usually seen as interlocutory • Standard of appellate review varies from de novo to clearly erroneous – Again check your jurisdiction • Focus will be – is it novel or experimental – if so has it gained general acceptance 14
DAUBERT OVERVIEW Tara D. Sutton, Esq. Robins, Kaplan, Miller & Ciresi LLP Minneapolis, MN 612.349.8500 tdsutton@rkmc.com
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