October 2004 Bulletin

Setting the standard for expert witness testimony

Frye and Daubert standards determine whether a jury will hear testimony

By Richard N. Peterson, JD

When an orthopaedic surgeon agrees to testify as an expert witness, for either a defendant or a plaintiff, he or she may assume a starring role in a courtroom drama that may never be seen by a jury. Objections that arise regarding the admissibility of expert witness testimony must first be resolved by the court. To decide whether a jury should hear an expert witness’ opinion, courts apply standards based on two Federal court cases. These standards are commonly referred to as the Frye and Daubert standards.

Before examining the Frye and Daubert standards, it may be helpful to understand when expert witness testimony is necessary to litigation. The role of the expert witness is an instructional one. Expert witnesses possess specialized knowledge, skill, education or experience that is outside the common knowledge of a jury. In general, a jury needs expert witness testimony to reach a verdict. Orthopaedic expert witnesses often provide testimony regarding scientific theories or techniques during litigation. Whether a jury hears that scientific testimony is a decision made by the court, usually based on either the Frye or Daubert standards, or a combination of both.

Frye v. United States

The Frye standard dates back to 1923. The Frye case involved a criminal conviction in which the defense proposed that an expert instruct the jury by administering a systolic blood pressure test as a means of establishing Frye’s innocence. The trial court ruled this testimony inadmissible. The appellate court upheld the trial court’s decision, stating that the expert witness testimony lacked “general acceptance” in its particular field, thereby establishing the Frye standard.

Under Frye, the relevant scientific community validates the opinion of the expert witness. The notion of “general acceptance,” however, is one that has been open to criticism and debate ever since the 1923 ruling. The controversy revolves around the composition of the relevant scientific community and the length of time necessary for new or novel scientific theories to receive “general acceptance.” However, in many states the Frye standard continues to control whether new or novel scientific expert witness testimony is admissible in both criminal and civil litigation.

Typically, the court conducts a pre-trial hearing, requested by either the defendant or the plaintiff, and applies the Frye standard to proposed expert witness testimony. Proponents of the new or novel scientific theory bear the burden of demonstrating “general acceptance,” and case law reveals that courts have defined the term in various ways. As a rule, “general acceptance” does not equate to universal acceptance, consensus or even a majority of experts. Once a new or novel scientific theory is admitted as expert witness testimony, courts no long conduct Frye hearings on that subject. However, every new permutation of the scientific theory is subject to the court’s review.

Daubert v. Merrill Dow Pharmaceuticals

Not all states or courts rely on the Frye standard. In many states, courts admit scientific expert witness testimony based on the Daubert standard, which was established by the U.S. Supreme Court in 1993. The Daubert case involved children with birth defects that allegedly resulted from their mothers’ use of Bendectin® during the first trimester of pregnancy. To support their position, the plaintiffs offered testimony from eight expert witnesses whose scientific theories were based on conclusions drawn from animal studies, pharmacological studies and re-analysis of published epidemiological studies. Although both the trial court and the appellate court ruled this expert witness testimony inadmissible, the US Supreme Court overturned Frye and established what is now known as the Daubert standard.

Criticism and debate also surround this standard. Daubert authorizes a judge to be the gatekeeper of scientific evidence. Whether a jury hears scientific expert witness testimony is based on a judge’s review of these parameters:

Reliability of scientific expert witness testimony is critical under the Daubert standard. A judge weighs the methodology behind scientific research and relies on scientific reasoning to provide the necessary link between the facts and an expert witness’ conclusions and opinion. Under Daubert, testimony is not expert because others in the field accept the scientific theory or technique. Rather, Daubert predicates the decision on whether the scientific theory or technique is reliable and can be replicated.

Since its 1993 decision, the U.S. Supreme Court has extended the concepts outlined in Daubert to expert witness testimony outside of the scientific realm while retaining a judge’s authority to determine the admissibility of expert witness testimony.

State standards vary

Some states continue to follow the Frye standard, some base their judicial decisions on Daubert, and others follow a hybrid standard of “Frye plus reliability.” Orthopaedic surgeons named in civil litigation are advised to consult with legal counsel to determine the standard applied in the state where the litigation takes place. In addition, orthopaedic surgeons who provide expert witness testimony in multiple states should be aware that even though their testimony was admissible in one state, it might be subject to judicial review in another state and ruled inadmissible.

Richard N. Peterson, JD, is general counsel for the AAOS. He can be reached at peterson@aaos.org

Professional Compliance Program Update

Bylaws Amendments

September 2004—Proposed bylaws amendments submitted.

October 2004—Proposed bylaws amendments considered by the Board of Councilors and COMSS.

December 2004—Board of Directors considers the proposed bylaws amendments.

February 2005—Proposed bylaws amendments will be presented to Fellowship at Annual Meeting.

March 2005—Fellowship votes on proposed bylaws amendments.

Standards of Professionalism

August/September 2004—Standards of Professionalism drafted by the Expert Witness Project Team.

October 2004—Draft Standards of Professionalism considered by the Board of Councilors and COMSS.

December 2004—Board of Directors considers draft Standards of Professionalism.

February 2005—Draft Standards of Professionalism presented to Fellowship at Annual Meeting.

March 2005—Fellowship votes on draft Standards of Professionalism.

Committee on Professionalism and Judiciary Committee

August 2004—Charges for the Committee on Professionalism and the Judiciary Committee drafted by the Expert Witness Project Team.

September 2004—Committee on Committees approved draft charges.

October 2004—Board of Directors approves charges for Committee on Professionalism and the Judiciary Committee.

October 2004—Committee vacancies initially posted on KEI for candidate applications.

December 2004 and February 2005— Board of Directors appoints initial members to the Committee on Professionalism and the Judiciary Committee.


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