Expert Testimony -- 2016

Motorola, Inc. v. Murray   (D.C. Court of Appeals)

Standard for admissibility of expert testimony in DC

This case involves the admissibility of expert testimony. The NAM, along with the U.S. Chamber of Commerce, the International Association of Defense Counsel, and the National Federation of Independent Business, filed a brief with the District of Columbia Court of Appeals asking that the District of Columbia adopt the Daubert standard for determining the admissibility of expert testimony, rather than the Frye test, which focuses almost entirely on the general acceptance of the science being proffered rather than case-specific applications and the broader scientific validity.

The underlying action is the lead case in a group of cases alleging that exposure to radiofrequency emissions from cell phones cause brain cancer. The Superior Court judge issued an order admitting some, but not all, of the plaintiff’s expert testimony. The District of Columbia is one of only three jurisdictions that still uses the less rigorous unmodified Frye test to determine the admissibility of expert testimony instead of Federal Rules of Evidence 702 and the Daubert standard. As a result, Judge Weisberg became the first judge in America to allow expert testimony that cell phones are more likely than not to cause brain cancer. He felt he was compelled to admit the testimony even though he concluded it was unreliable and inadmissible under Daubert. However, he granted leave for an immediate appeal.

In our brief, we first argued that the Daubert standard is more in line with current D.C. law, with the Supreme Court having decided the Daubert case more recently and the Court of Appeals already having adopted much of the Federal Rules of Evidence concerning opinion and expert testimony. Second, adoption of the updated standard would position D.C. courts to be better gatekeepers against unreliable expert testimony. And lastly, we pointed out that moving to the Daubert standard will level the playing field for D.C.-based businesses, who are at a competitive disadvantage by being subject to the Frye standard. In short, we urged the court to adopt the Daubert standard because it is a more fair and realistic test of expert testimony and is being used in a vast majority of jurisdictions already.

Our brief urged the court to take up the appeal and update its standard for evaluating expert testimony to reflect modern norms and jurisprudence. The court agreed to do so, and 2/23/2015, we filed an additional brief, also joined by the Business Roundtable, Pharmaceutical Research and Manufacturers of America, the Association of Corporate Counsel, the Medical Society of the District of Columbia, and the American Medical Association. This time we explained how the gatekeeping function set forth in Rule 702 and Daubert fits within the broader context of D.C. courts' well-established role as gatekeepers against the admission of all types of unreliable evidence. The function is particularly important in the context of expert testimony because expert opinions may not be based on first-hand knowledge or observation, may rely on evidence that is not admissible in court, and are harder for jurors to assess.

On Oct. 20, 2016, the court agreed to adopt Daubert and Rule 702 as the proper standard. That means that courts will assess not only the reliability of scientific principles and methods, but also their application to the particular facts of each case by proposed experts. This will lead, according to the court, "to better decision-making by juries and trial judges alike." This is a significant victory for all defendants that want decisions to be made on credible and reliable evidence.

Related Documents:
NAM amicus brief on the merits  (February 23, 2015)
NAM amicus brief  (October 24, 2014)


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