Herzfeld & Rubin, P.C.- Publications

Products Liability 'Gatekeeping' Experts: 'Daubert' Boils and 'Frye' Sizzles By Michael Hoenig - New York Law Journal - April 11, 2005	Print article

Many of our recent columns have updated developments in the area of judicial "gatekeeping," i.e., the judge's task to assure that expert testimony is not only relevant but reliable.¹

Some articles also exposed problems of reliability when experts base testimony upon untrustworthy writings in pursuit of what we have dubbed "trial by literature."² Many judges have warmed to the gatekeeping quest for trustworthiness by probing not only the expert's opinion but also his or her methodology, reasoning, foundation and other indicia by which reliability is gauged.

The "gatekeeping" task was revitalized in federal courts by a quartet of U.S. Supreme Court decisions, starting with the famous Daubert opinion in 1993 followed by Joiner, Kumho Tire and Weisgram.³ Indeed, some New York trial judges have found the federal expert reliability standards helpful in screening expert testimony,⁴ although the mainstay reliability test preferred by most state courts seems to be Frye's "general acceptance" standard.⁵ Still, as Appellate Division, First Department Justice David B. Saxe recently elaborated in a concurring opinion in Marsh v. Smyth,⁶ the Frye test, used "in a classic context," was meant to apply to novel or newly developed procedures or processes. "The important purpose of the Frye test is to ensure that courts do not rely upon an expert's testimony regarding a novel procedure, methodology or theory unless it has been 'generally accepted' within the relevant scientific community as leading to reliable results."

The focus of the Frye test, notes Justice Saxe, is "to distinguish between scientific principles which are 'demonstrable' and those which are 'experimental.'"⁷

Questions Raised

Putting Frye into a purely doctrinal corner, applicable solely to recently introduced scientific processes, raises interesting questions, however. For example, what standard of reliability should apply when the scientific or technical issue is not novel? Or, what if the issue requiring expert testimony is not "scientific"? What admissibility standards will courts use to discharge the gatekeeping task when Frye does not apply? Some courts have answered by looking to Daubert for guidance. Many have utilized Frye but, over time, the Frye test may have evolved into something broader in practice than its classical role.⁸ There is also a state court trend increasingly favoring evidentiary hearings to probe reliability issues,⁹ a development possibly catalyzed by the impact of Daubert.

Indeed, as we observed in a prior column, New York courts may be at a gatekeeping Frye/Daubert crossroads of sorts, a possibility reflected in Chief Judge Judith S. Kaye's remarks at a New York State Bar Association function: that "[t]he choice between Frye and Daubert is important"; that although she cannot say "which is the better test," that nevertheless, "we will together find a good balance . . . "¹⁰

Because much of the pertinent case law has been identified and elaborated in our columns and elsewhere,¹¹ we will not discuss the prior rulings. Here we move forward with some new developments.

Indeed, recently, the interface or tension between Frye and Daubert has vigorously resurfaced, this time in the context of psychological expert testimony in child custody controversies, as reported in the New York Law Journal (April 4, 2005, at p. 1).¹² That article referred to a decision by the Appellate Division, First Department, in In re Proceeding of John A. v. Bridget M.,¹³ in which custody of twins was returned to the children's mother. A concurring opinion by Justice Joseph P. Sullivan observed that the custody decision in Family Court was made on the basis of experts' testimony. He warned, however, that courts must be "ever mindful that, while the forensic expert may offer guidance and inform, the ultimate determination on any such issue is a judicial function, not one for the expert."¹⁴

'Daubert' Debate

Justice Sullivan noted that "there is an ongoing debate in both the legal community and the mental health profession as to the implication of expert psychological opinion in custody litigation, especially when the opinion is a conclusion as to the ultimate determination as to where to award custody so as to serve the child's best interest."¹⁵ The opinion referred, among others, to recent articles by the Law Journal's "Matrimonial Practice" columnist, Timothy M. Tippins, decrying chaos in the custody evaluation process and urging that use of Daubert reliability principles would bring a "refreshing breeze of scientific coherence."¹⁶ More recently, Mr. Tippins' column of March 3, 2005, posited that Daubert analysis will provide "enhanced empirical scrutiny" into the custodial issue which, heretofore, has suffered from "best interest" opinions by psychological experts that amounted to nothing more than guesswork and speculation. Experts ought to support each and every inference with specific empirical evidence, he urged.¹⁷

More recently, the trustworthiness of psychologists' opinions in child custody imbroglios was raised by Suffolk County Supreme Court Justice Emily Pines in S.M. v. G.M., a decision published in the Law Journal on April 5.¹⁸ In particular, Justice Pines focused on which evidentiary standard, Daubert or Frye, ought to apply to gauge the reliability of an expert psychologist's opinion. The controversy was brought to a head by plaintiff's motion for an order determining that the report and testimony of a forensic psychologist was inadmissible because it was based on psychological tests which do not meet the Daubert and Frye reliability standards. Alternatively, the motion sought a hearing to consider the admissibility issue. Defendant countered by arguing that the neutral expert in question was appointed with plaintiff's consent and that moving counsel knew that the expert employed the very techniques now being attacked. Further, psychological testing is accepted in the community and thus meets the applicable evidentiary standards.

Plaintiff cited 12 treatises and journal articles in the field of forensic psychology, excerpts of which appeared to be critical of the psychological tests performed by the neutral expert. Defendant, however, cited articles in the field of psychology that such tests are an essential tool in custody evaluations when used in conjunction with other techniques such as interviews, record review and gathering from collateral sources. As Justice Pines put it, "The Court is faced . . . with two sets of papers, each containing excerpts of relevant articles, both opposing and supporting the use of psychological tests in a forensic custody evaluation."¹⁹ She decided that the "best course" is to hold a pre-trial hearing "for the sole purpose of examining the reliability and relevance of the psychological tests utilized by the forensic psychologist in this case to the extent that the results were applied by the expert in making her various findings."²⁰

Confusion Abounds

Justice Pines next plunged into the question of which evidentiary standard to apply, that of Frye or Daubert. She noted that there remains "considerable confusion" in New York state courts on the issue. While Daubert and Kumho Tire pointed the way for federal courts, the state courts "have been less than clear on what standard to apply in which situation . . . ." Although, in People v. Wesley,²¹ which dealt with DNA profiling evidence, the Court of Appeals used the Frye test and the majority opinion there stated that Daubert did not apply, it is "unclear from the Court's opinion" why.

Did Daubert not apply because the state Legislature had not adopted an evidence rule akin to Federal Evidence Rule 702? Or, was the issue in People v. Wesley one involving admissibility of novel scientific techniques for which Frye was apt?

Further, said Justice Pines, People v. Wesley's majority opinion did observe that the "modern trend in the law of evidence has been away from imposing a special test on scientific evidence and towards using the traditional standards of relevancy and the need for expertise." That dictum sounded to Justice Pines "very close to an endorsement for the principles set forth in Daubert."²² She then observed that New York courts were in conflict on the evidentiary standard, citing the late Justice Alan Oshrin's decision in the Wahl products liability case applying Daubert, Justice Robert A. Ross' decision in the Zafran "Parental Alienation Syndrome" case directing a Frye hearing and the Appellate Division, Third Department's decision in People v. Johnston, a "child suggestive interrogation" case, where the Daubert standard was rejected.

"Faced with such confusion," said Justice Pines, the "more flexible standard of admissibility," based on several factors relating to reliability and relevance, is the "better standard" to apply in a civil action, "where the use of psychological tests in custody evaluations requires an expert evaluation which does not appear to this Court to be novel." The argument whether such techniques are "scientific" or not was viewed as inviting a "pointless philosophical discussion of where the line is to be drawn between expert testimony in the field of science and all else." Agreeing with Timothy M. Tippins' March 3 Law Journal column that the Daubert test is preferable in custody disputes, Justice Pines suggested that "inflexible" Frye was "really an indirect inquiry," which was "far less helpful when the community of a particular profession adopts a popular theory which has not been subjected to testing and/or peer review."²³ Justice Pines directed that a hearing be held applying Daubert rather than Frye and, further, that the forensic psychologist whose opinion is being questioned can nevertheless testify at such a hearing to support the defense position.

'Parker v. Mobil Oil Corp.'

In Parker v. Mobil Oil Corp.,²⁴ the Appellate Division, Second Department, on March 28, ruled that a plaintiff's expert, proffering to give an opinion regarding medical causation of a disease by a toxic substance, should be precluded from testifying under the Frye standard. Plaintiff claimed that his employment as a gas station attendant subjected him to occupational exposure to benzene, a known human carcinogen. He claimed that, as a result, he was afflicted with acute myelogenous leukemia (called AML). The Second Department looked to Frye's "general acceptance" test as the applicable screening standard. Such reliability can be demonstrated through scientific or legal writings, judicial opinions or expert opinion other than that of the proffered expert. The proponent of the expert testimony has the burden to demonstrate generally accepted reliability.

Methodology Unreliable

Here, observed the appellate court, there was an issue as to what extent plaintiff had to establish the precise level of exposure to benzene in order to reliably prove that his AML was caused by benzene. A reliable methodology recommended by the World Health Organization and the National Academy of Sciences entailed a three-step process:

(1) determining the plaintiff's level of exposure to the toxin;

(2) proof of general causation, i.e., that the toxin is capable of producing the illness, as well as establishing the "dose-response relationship" (i.e., the level of exposure to the toxin which will produce that illness); and

(3) establishment of specific causation, i.e., the probability that the toxin caused the particular plaintiff's illness. Abundant case law acknowledges that this three-step process is generally accepted and reliable.

The court observed that, although federal courts use the "broader Daubert test" instead of the Frye standard, "it is instructive to examine federal authority for purposes of discussion of accepted scientific methodology." After applying the three-step process detailed above, the panel found that plaintiff failed to present evidence on the concentration level of benzene in the gasoline to which he was exposed. His experts failed to quantify his exposure in the typically used unit of measurement (commonly referred to as a "time-weighted average"). Further, plaintiff failed to quantify his own level of exposure to the toxin or failed to account for the "dose-response relationship." Accordingly, plaintiff failed to meet the generally-accepted three-step process of proving both general and specific causation.

The theory of plaintiff's expert, which assumed that "if a lot of something is bad for you, a little of the same thing, while perhaps not equally bad, must be so in some degree," was flatly rejected as "merely a hypothesis" and thus unreliable. The notion that no level of benzene can be considered "safe" is not a basis for admissibility. Thus, merely stating that benzene is "unsafe" is "not tantamount to stating that any exposure to benzene causes AML." Nor is plaintiff's reference to regulatory standards regarding benzene exposure compelling evidence, "as such standards are not measures of causation but rather are public health exposure levels determined by agencies pursuant to statutory standards set by the United States Congress."

In sum, the experts did not use the accepted three-step process for establishing medical causation set forth by the World Health Organization and the National Academy of Sciences. Additionally, the experts' conclusions as to plaintiff's level of exposure to benzene and whether the exposure was substantial enough to cause AML "were purely speculative." That some studies ultimately concluded that increased levels of benzene have been shown to cause leukemia was a fact not disputed by the parties.

No Causal Connection

However, plaintiffs experts "failed to make a causal connection, based on a scientifically-reliable methodology, between the plaintiff's specific level of exposure to benzene in gasoline and his AML."

The expert testimony should have been precluded as "not scientifically reliable" and therefore was inadmissible.

Further, a Frye hearing was not necessary under the circumstances here, where a hearing was not requested by any of the parties and where the parties exhausted their arguments and authorities in their submissions. Parker is a significant decision with potentially broad implications beyond its facts. Asbestos claims, for example, may suffer similar flaws in proof, and suits involving countless other toxic agents as well.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________
Endnotes:

1. Hoenig, "Unreliable Causation Proof Dooms Claims," New York Law Journal, Jan. 10, 2005, p. 3; "Report Disputes Radiology Experts' Opinions," NYLJ Sept. 13, 2004, p. 3; "Evaluating the Experts: Reliability, Qualifications and Methodology," NYLJ, Aug. 9, 2004, p. 3; "'Gatekeeping' of Experts: The New 'Compurgators,'" NYLJ, July 12, 2004, p. 3; "Expert Reliability Issues," NYLJ, June 14, 2004, p. 3.

2. Hoenig, "Experts' Reliance on 'Unreliable' Hearsay," NYLJ, Nov. 12, 2002, p. 3; See also our columns in the NYLJ on Experts and Professionally Reliable Hearsay dated, respectively, April 11, June 18, July 8 and Aug. 12, 2002, each article commencing at p. 3.

3. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire v. Carmichael, 526 U.S. 137 (1999). Weisgram v. Marley Co., 528 U.S. 440 (2000).

4. See e.g., Wahl v. American Honda Motor Co., 181 Misc. 2d 396, 693 NYS 2d 875 (Sup. Ct. Suffolk Co. 1999); Giangrasso v. Assn for the Help of Retarded Children, NYLJ, March 19, 2001, p. 16 (Sup. Ct. Suffolk Co.); Giangrasso II, NYLJ, July 31, 2001, p. 24 (Sup. Ct. Suffolk Co.) (also available on Westlaw, 2001 WL 914258); Clemente v. Blumenberg, 183 Misc. 2d 923, 705 NYS 2d 792 (Sup. Ct. Richmond Co., 1999).

5. See e.g., Pauling v. Orentreich Medical Group, 787 NYS 2d 311 (1st Dept. 2005); Marsh v. Smyth, 785 NYS 2d 440 (1st Dept. 2004); Saulpaugh v. Krafte, 774 NYS 2d 194, 2004 N.Y. App. Div. LEXIS 2780 (3rd Dept. March 18, 2004), appeal denied, 3 NY3d 610 (2004).

6. 785 NYS 2d 440, 442-446 (1st Dept. 2004) (concurring opinion).
7. Id. at 443 (concurring opinion).
8. See W.J. Relihan, Jr., "Considering the Frye Rule in New York," NYLJ, Sept. 15, 2000, p.1.
9. Hoenig, "Trend Towards Hearings on Experts," NYLJ, Oct. 16, 2002, p. 3.
10. Complete remarks quoted in 32 NYSBA, Torts, Insurance & Compensation Law Section Journal, No. 1, pp. 4-6 (Summer 2003).
11. See e.g., M. Hoenig, "Gatekeeping: Reliability of Expert Testimony Under Daubert and Frye," Chapter 14, pp. 621-684, in Vol. 2 Preparing for and Trying the Civil Lawsuit (N.Y. State Bar Ass'n 2d Ed.) (N.A. Goldberg and J.P. Freedenberg, Editors-in-Chief); H.L. Schwab, "Is It Junk or Genuine? Precluding Unreliable Scientific Testimony in New York - A Look at the Last 10 Years in the Wake of Frye and Daubert," 76 NYSBA Journal, No. 9, pp. 10-18 (Nov./Dec. 2004) (Part I) and 77 NYSBA Journal, No. 1, pp. 25-30 (Jan. 2005) (Part II).

12. M. Fass, "Custody Ruling Addresses Reliance on Expert Opinions," NYLJ, April 4, 2005, p. 1.
13. NYLJ, April 4, 2005, pp. 27-28 (1st Dept. 2005).
14. Id. at p. 27, col. 6.
15. Id.
16. Tippins, Matrimonial Practice, "Custody Evaluations - Part IX," NYLJ , Nov. 5, 2004, p. 3; "Part X," NYLJ, Jan. 7, 2005, p. 3.
17. T. Tippins, Matrimonial Practice, "Custody Evaluations, Part XI: 'Daubert' and the Rise of Empiricism," NYLJ, March 3, 2005, p. 3.
18. S.M. v. G.M., NYLJ, April 5, 2005, p. 20 (Sup. Ct. Suffolk Co. 2005).
19. Id., NYLJ, at p. 20, col. 1.
20. Id.
21. 83 NY2d 417 (1994).
22. S.M., NYLJ, April 5, 2005, p. 20, col. 2.
23. Id. at p. 20, cols. 2-3.
24. 2005 NY Slip Op 02454 (2d Dept. March 28, 2005).