Since the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals Inc., many state courts have shifted their admissibility analysis from the general acceptance rule of Frye v. United States to Daubert's reliability test that weighs multiple factors. But, says law professor David E. Bernstein, even those states that have stuck with Frye have felt Daubert's influence.

The case law under Frye, Bernstein says, "is slowly converging with Daubert jurisprudence." Instead of letting the process "continue haphazardly and inconsistently," Bernstein recommends that "state legislatures should enact state versions of new Federal Rule of Evidence 702, which explicitly adopts the Daubert trilogy."

 

FRYE, FRYE, AGAIN: THE PAST, PRESENT, AND FUTURE
OF THE GENERAL ACCEPTANCE TEST

David E. Bernstein

David E. Bernstein is Associate Professor, George Mason University School of Law. He can be reached at deliotb@aol.com.

Why Frye?

This article begins by reviewing the history of the Frye general acceptance test for the admissibility of scientific evidence from its origins in 1923 to its demise in federal court in Daubert v. Merrell Dow Pharmaceuticals Inc.,in 1993. This section focuses especially on how the Frye rule, which for decades applied almost exclusively in criminal cases, came to be the focal point of the controversy over the admissibility of scientific evidence in toxic tort cases in the early 1990s.

Next, the article discusses the development of the Frye test since 1993. Despite Daubert, Frye has remained the plurality rule in state courts. Following the lead of federal courts operating under Daubert's broad gatekeeper mandate, Frye jurisdictions are increasingly applying the general acceptance test to scientific evidence in civil cases, especially toxic tort cases. However, Frye jurisdictions are divided regarding whether the general acceptance test applies primarily to the expert's general methodologies or must be applied to the expert's conclusions. Recently, several courts have followed the Supreme Court's lead in General Elec. Co. v. Joiner. Instead of focusing on the methodologies-conclusions distinction, these courts have scrutinized experts' reasoning process. Meanwhile,most Frye jurisdictions do not apply the general acceptance test to nonscientific evidence, although some Frye courts apply a Kumho Tire-like reliability test to such evidence.

This article concludes that case law under Frye is slowly converging with Daubertjurisprudence. Rather than allowing this process to continue haphazardly and inconsistently, state legislatures should enact state versions of new Federal Rule of Evidence 702, which explicitly adopts Daubert and its progeny.

The Supreme Court's expert evidence trilogy--Daubert v. Merrell Dow Pharmaceuticals Inc.,¹ General Electric Co. v. Joiner,² and Kumho Tire Co. v. Carmichael³--has received a tremendous amount of attention, and rightly so. These cases dramatically tighten the rules for the admissibility of expert evidence in federal courts and in states that have adopted the trilogy.⁴ Daubert held that scientific evidence must be subjected to a reliability test; Joiner concluded that under Daubert, district courts may scrutinize the reliability of an expert's reasoning process as well as the general methodology; and Kumho Tire extended Daubert's reliability test to nonscientific expert evidence.

Daubert superseded in federal and some state courts the "general acceptance test" introduced to the common law in Frye v. United States.⁵ Most commentators have since largely ignored Frye. While Daubert and its progeny have been the subject of dozens of law review articles, commentary on Frye is mainly limited to the occasional bar journal or CLE article.

While legal scholars seem convinced of Frye's irrelevance,⁶ the case law tells a different story. Many jurisdictions continue to adhere to Frye, including Alabama,⁷ Arizona,⁸ California,⁹ Colorado,¹⁰ the District of Columbia,¹¹ Florida,¹² Illinois,¹³ Kansas,¹⁴ Maryland,¹⁵ Michigan,¹⁶ Minnesota,¹⁷ Mississippi,¹⁸ New Jersey,¹⁹ New York,²⁰ Pennsylvania,²¹ and Washington.²² These jurisdictions include the most populous states (save Texas and Ohio) in the United States and together contain almost half of the American population.²³ Meanwhile, many of the non-Frye states have not adopted Daubert.²⁴ Fryeis thus not only alive, but it is the plurality rule in state courts, which are the venue for the vast majority of litigation.

Although the general acceptance test originated in 1923, many issues concerning its application remain unsettled. As discussed below, confusion over the scope of Frye has mushroomed in the last decade, coinciding with more general interest in the issue of the proper standards for the admissibility of expert evidence.

Part I of this article briefly reviews the history of the Frye rule from its origins in 1923 to its demise in federal court in Daubert in 1993. This section focuses especially on how general acceptance--a test that for decades applied almost exclusively in criminal cases--came to be the focal point of the controversy over the admissibility of scientific evidence in toxic tort and products liability cases in the early 1990s.

Part II discusses the development of the Frye test since 1993. Following the lead of federal courts operating under Daubert's broad gatekeeper mandate, Frye jurisdictions are increasingly applying their tests for the admissibility of expert evidence to civil cases, especially toxic tort cases. However, Frye jurisdictions remain divided on whether the general acceptance test applies not only to an expert's general methodologies, but also to his conclusions. Recently, several Frye courts have followed Joiner's lead and scrutinized experts' reasoning process in extrapolating or drawing inferences from the underlying scientific evidence to reach their conclusions.

Meanwhile, Frye jurisdictions also must decide whether to follow the lead of Kumho Tire and apply the general acceptance test to nonscientific evidence, especially social science evidence. Thus far, few Frye courts have done so, except with regard to certain types of psychological evidence. An alternative adopted by some courts is to apply the general acceptance test only to novel scientific evidence, but to subject social science evidence to a separate reliability test under state versions of Federal Rule of Evidence 702.

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Part III of this article concludes that case law under Frye is slowly converging with Daubert jurisprudence. Rather than allowing this process to continue haphazardly and inconsistently, with all the awkwardness that shoehorning the Frye general acceptance test into the Daubert-Joiner-Kumho framework entails, state legislatures should enact state versions of new Federal Rule of Evidence 702, which explicitly adopts the Daubert trilogy.

A BRIEF HISTORY OF FRYE: 1923-1993

A. Before the Federal Rules

In Frye v. United States,²⁵ the District of Columbia Court of Appeals upheld the trial court's refusal to admit evidence that was based on a forerunner of the modern lie detector test. In a pithy opinion, the court of appeals announced that "while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."²⁶

The Frye general acceptance test gradually spread.²⁷ While evidence scholars have pointed out that Frye was cited only a few dozen times in published cases through the 1960s, the dearth of citations to Frye does not mean that courts ignored it. First, some courts adopted the general acceptance test without citing Frye.²⁸ Second, Frye applied only to novel scientific techniques. There were few major advances in forensic criminal evidence during this period that courts did not quickly accept. Moreover, few courts considered the types of expert scientific evidence presented in a typical civil case--for example, an automobile accident or medical malpractice case--to be based on a novel scientific technique within the meaning of the Frye rule.²⁹ Finally, most state court opinions, particularly at the trial court level, are unpublished, and we do not know how often Frye was relied upon in cases that did not reach higher courts.

Indeed, despite the dearth of published authority citing Frye, by 1954 the general acceptance test was sufficiently conspicuous to attract criticism from Professor Charles McCormick's treatise on evidence. Professor McCormick wrote that the general acceptance test "is a proper condition upon the court's taking judicial notice of scientific facts, but not a criterion for the admissibility of scientific evidence."³⁰ To replace Frye, McCormick advocated what became known as the relevancy approach:³¹ "Any relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion. Particularly, its probative value may be overborne by the familiar dangers of prejudicing or misleading the jury, unfair surprise and undue consumption of time."³² In other words, expert testimony is presumptively admissible if the expert presenting the testimony has appropriate credentials. Any flaws in the expert's testimony are a matter for jury consideration.

B. From the Federal Rules to Daubert

The Federal Rules of Evidence, which went into effect in 1975, failed to clarify the standard for admitting novel scientific evidence. Rule 702 states that any qualified expert who possesses "scientific, technical, or other specialized knowledge {that} will assist the trier of fact to understand the evidence or to determine a fact in issue" may testify at trial.³³ Neither the Rules nor the Advisory Committee notes discussed the viability of Frye.³⁴

Frye became a major issue in evidence circles around the same time the Federal Rules came into effect, as courts began to rule on the admissibility of novel forensic scientific evidence such as "voiceprint" identifications, bite mark comparisons, and hypnotically refreshed testimony.³⁵ Forensic science became more important to prosecutors both because of technological advances, and because decisions by the United States Supreme Court in the 1960s favoring the rights of the accused made it more difficult for prosecutors to use other types of evidence.³⁶

This period also marked the beginning of an era of the federalization of criminal law, when the federal government began to prosecute crimes that had once been solely the responsibility of the states.³⁷ The Frye rule, which originated in a federal court opinion, naturally began to attract increased attention.

Commentators began to attack Frye on a variety of grounds. Some argued that Frye was too conservative in restricting evidence that had not yet received "general acceptance."³⁸ Others were unhappy with Frye's vagueness. The opinion does not define "general acceptance" or the "particular field's" boundaries, nor does it suggest whether the judge should defer to the scientific community or use another standard to resolve these uncertainties.³⁹ Confusion among judges on these issues led to contradictory Frye rulings in different jurisdictions concerning the same types of evidence.⁴⁰

Immediately after the Federal Rules went into effect, some courts in jurisdictions adopting the rules utilized McCormick's relevancy approach, discussed above, which focused mainly on a proffered expert's qualifications. Most courts, however, continued to apply the Frye general acceptance test for screening expert scientific evidence.⁴¹ In the ensuing years, a third approach, focusing on the underlying reliability of expert testimony, also began to win adherents.⁴² Several influential commentators suggested lengthy lists of factors that courts should examine to determine reliability.⁴³

As debate grew over the merits of Frye, the relevancy approach, and the reliability approach with regard to forensic criminal evidence, courts faced a new evidentiary challenge--toxic tort litigation. Some courts applied a reliability test to such evidence.⁴⁴ Other courts applied something akin to a relevancy test.⁴⁵ Until 1988, no court applied Frye--which was mainly limited to forensic evidence in criminal trials--in a toxic tort case.

Most courts ultimately admitted dubious testimony, even when they purported to apply a seemingly strict reliability test.⁴⁶ Frustrated critics of "junk science" in civil cases quickly lost patience with the reliability approach. Many junk science critics instead argued that courts should apply a strict version of the Frye test in toxic tort cases.⁴⁷ They noted that several courts had reformulated Frye in criminal cases to ensure that Frye addressed the underlying reliability and validity of expert scientific opinion,⁴⁸ and that some of the worst judicial offenders in permitting junk science had done so after explicitly rejecting the general acceptance test.⁴⁹ Moreover, Frye advocates were heartened by a Sixth Circuit decision excluding "clinical ecology" testimony because it was not generally accepted in the relevant scientific community, although the court did not cite Frye.⁵⁰

The Fifth Circuit, en banc, soon boldly applied Frye in the toxic tort context in Christophersen v. Allied-Signal Corp.⁵¹ The plaintiff's expert had claimed that exposure to chemical fumes at the battery manufacturing plant where the decedent had worked caused his fatal colon cancer. The Fifth Circuit adopted a four-part test for the admissibility of scientific evidence that included the Frye rule.⁵² Scientific testimony could not be admitted until the court ensured that the expert's methodology was widely accepted, with "methodology" interpreted broadly to include reasoning.⁵³ The court ultimately concluded that the methodology or reasoning that the plaintiff's expert had used to arrive at his conclusion was not generally accepted within the relevant scientific community, and therefore excluded the testimony.⁵⁴

A few months after the Fifth Circuit decided Christophersen, Peter Huber's Galileo's Revenge: Junk Science in the Courtroom appeared.⁵⁵ Huber's book described the misuse of scientific evidence in a range of civil cases. The book attracted a great deal of attention and made the issue of "junk science" into a matter of public debate. A consistent theme of the book was that to avoid the risk of being bamboozled by fringe scientists, courts should defer to mainstream scientific opinion when reviewing scientific evidence. To combat "junk science," Huber strongly advocated "a sophisticated, modern application of Frye {that} looks to the methods behind a scientific report."⁵⁶

It did not take long for Huber's influence to be felt. In December 1991, the Ninth Circuit decided Daubert v. Merrell Dow Pharmaceuticals Inc.⁵⁷ Daubert involved two boys born with tragic birth defects that reduced the size of their limbs. Their parents sued the manufacturer of the morning sickness drug, Bendectin, alleging that the mothers' use of the drug during pregnancy caused the deformities. The problem facing the plaintiffs was that the defendant presented the trial court with a large body of epidemiological studies showing that babies exposed to Bendectin in utero do not have a higher rate of limb reductions than those not exposed.

The plaintiffs countered by presenting experts who testified that based on their reanalyses of the data used in one or two of those epidemiological studies, they believed that Bendectin does cause birth defects. The district court, relying on a dubious interpretation of Federal Rule of Evidence 703,⁵⁸ found this evidence inadmissible and granted summary judgment for the defendant.⁵⁹

The Ninth Circuit affirmed.⁶⁰ The court began by noting that Frye was the test for the admissibility of scientific evidence in the Ninth Circuit.⁶¹ Like Huber, whose discussion of Frye overlooked the historical neglect of the general acceptance test in civil cases, the court simply ignored the fact that the general acceptance test had never previously been applied in a civil case in the Ninth Circuit, and had only been applied twice before in the toxic tort context in other jurisdictions.

The court noted that the plaintiffs' experts had not submitted their reanalyses to peer review or published them in a scientific journal.⁶² Citing Huber, the court held that because the work was not "subjected to verification and scrutiny by others in the field," it would not be accepted in the scientific community.⁶³

The Ninth Circuit's Daubert opinion quickly gained notoriety for its strong reliance on Frye to exclude evidence in a toxic tort case. The U. S. Supreme Court granted certiorari to decide whether Frye was still viable under the Federal Rules, particularly Rule 702.

II. FRYESINCEDAUBERT

The Supreme Court's decision in Daubert repudiated the Ninth Circuit's view that Frye was viable under the Federal Rules of Evidence.⁶⁴ However, while the Ninth Circuit lost the battle, it won the war. The Ninth Circuit was only the third court to apply Frye to a toxic tort or products liability case, and one of the few courts to adopt a stringent standard for the admissibility of scientific evidence in civil cases.⁶⁵ The Supreme Court nevertheless endorsed the Ninth Circuit's view that scientific evidence in civil cases must be strictly scrutinized to ensure reliability. As Michael Green notes, "{t}o say that the Supreme Court replaced Frye in its Daubert opinion is misleading. What the Court did in Daubert was to adopt a test for scrutinizing an expert's methodology and reasoning that filled a previously extant void."⁶⁶

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While the Frye controversy ultimately led to the creation of an invigorated and expanded reliability test in Daubertjurisdictions, the stringent criteria established by the Daubert trilogy have helped to cause a welcome expansion and tightening of the general acceptance test in Frye jurisdictions. As noted above, before 1991 only one reported opinion applied the general acceptance test in a toxic tort or products liability case.⁶⁷ By contrast, most courts in Frye jurisdictions today apply the general acceptance test in such contexts.

Meanwhile, Frye courts are struggling over whether the general acceptance test applies to general methodologies only, methodology and reasoning, or to an expert's ultimate conclusions. Courts in Frye jurisdictions are beginning to follow the Supreme Court's lead in General Electric Co. v. Joiner⁶⁸ and hold that an expert's methodology andreasoning should be scrutinized.

Finally, most courts in Frye jurisdictions refuse to apply the general acceptance test to social science evidence.⁶⁹ In the aftermath of Kumho Tire, however, courts should, and are likely to, apply Frye or some other form of gatekeeping test to nonscientific expert evidence.

A. Fryeand Civil Cases

As a result of Daubert, the general acceptance test is expanding its reach in Frye jurisdictions to civil litigation.⁷⁰ In part, Frye's expansion is a direct result of the publicity surrounding the Ninth Circuit's application of Frye to a toxic tort products liability case in its original Daubert opinion. That opinion, though overruled by the Supreme Court on other grounds, has inspired state courts to apply Frye in civil cases.⁷¹ More generally, the attention given to the Supreme Court's focus on the trial court's role of gatekeeper of all scientific evidence to prevent the proliferation of junk science has made the limitation of Frye to criminal cases seem outmoded.

Since the early 1990s, courts have appliedFrye in products liability and toxic torts cases in Arizona,⁷² California,⁷³ the District of Columbia,⁷⁴ Florida,⁷⁵ Illinois,⁷⁶ Maryland,⁷⁷ Minnesota,⁷⁸ New York,⁷⁹ and Pennsylvania.⁸⁰ After Daubert, no state has explicitly held that Frye is not applicable to evidence in products liability and toxic torts cases.⁸¹

In California, the largest Frye jurisdiction, there are no reported cases applying Frye to toxic tort or products liability cases,⁸² and pre-Daubert opinions suggest that Frye would rarely if ever be applicable to personal injury litigation.⁸³ It is nevertheless likely that in the wake of the U.S. Supreme Court's expert evidence trilogy, California will follow other states and apply Frye to civil cases. Already, one trial court has excluded evidence in a breast implant case because it failed to meet the Frye test.⁸⁴ This court stated that in California "'the proponent of evidence must demonstrate that correct scientific procedures were used in the particular case,'" and that "expert opinions must emanate from and be centered and grounded in what is current and predominant in the scientific 'marketplace.'"⁸⁵ The court drew no distinction between civil and criminal cases.

The trend of Frye's application in civil cases is a positive development. After all, "{t}he same concerns for reliability that led to the adoption and application of Frye in criminal cases 'are no less present because the action is civil in nature.'"⁸⁶ However, Frye's applicability to tort cases is not yet firmly established. Of the cases cited above, only the Minnesota and Pennsylvania cases were decided by a state's highest court, and the Pennsylvania Supreme Court suggested that it might abandon Frye in favor of Daubert in the future.⁸⁷ Other courts may be reluctant to apply Frye in toxic tort and products liability cases for fear of excessively raising the evidentiary barrier for plaintiffs.⁸⁸

Yet, ensuring the reliability of expert evidence is particularly important in products liability and toxic tort cases, where the economic stakes to the parties and to society are extremely high. The risk of rejecting a valid plaintiffs' claim is a problem, but certainly no more so than the risk of driving safe products and substances--the Bendectin example comes to mind--off the market. The only way to protect society's overall interests in toxic tort and products liability litigation is to enforce a standard that ensures the reliability of expert evidence, whether that standard be Daubert's reliability test or the Frye general acceptance test. As Justice Breyer wrote in his concurring opinion in Joiner:

{M}odern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may … prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability, which can generate strong financial incentives to reduce, or to eliminate, production, points toward the right substances and does not destroy the wrong ones.⁸⁹

B. Frye's Methodology, Conclusions, and Reasoning

After Daubert was decided, some judges and legal scholars argued that the decision required courts to limit themselves to determining whether a scientific expert witness was relying on studies that used a methodology appropriate for inquiry into the general subject at issue.⁹⁰ Others maintained that courts should also review the expert's reasoning in extrapolating from those studies to their testimony on causation or other issues.⁹¹ This debate was put to rest by the Supreme Court's opinion in Joiner.⁹²

Joiner acknowledged that under Daubert, district courts must focus on principles and methodology, and not on the conclusions that they generate. However, the Court added, "conclusions and methodology are not entirely distinct from one another."⁹³ "Trained experts," it is true, "commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."⁹⁴ The Joiner Court suggested that lower courts should refuse to accept "any conclusion that good science does not permit to be drawn from the underlying data."⁹⁵ To do so, the court must ensure "that every step in the expert's reasoning process" is "grounded in good science."⁹⁶

A similar controversy has swirled around the Frye rule. California has long required under its version of Frye that the proponent of scientific evidence demonstrate both that the methodology used by the expert is generally accepted, and "that correct scientific procedures were used in the particular case."⁹⁷ Several other courts adopted this version of the Frye rule as well, mainly in the context of DNA testing,⁹⁸ while others rejected it in favor of a general methodologies only approach.⁹⁹

In Christophersen v. Allied-Signal Corp.,¹⁰⁰ the Fifth Circuit applied Frye in a way that anticipated the Supreme Court's ruling in Joiner. The Fifth Circuit found that while an expert's conclusions need not be generally accepted, the methodology by which the expert arrived at them must be. Methodology, in this context, meant not only the type of scientific study relied upon, but also the expert's mode of reasoning. Christophersen states that if the expert's mode of reasoning in reaching his conclusion is not one "sufficiently established to have gained general acceptance in the particular field in which it belongs," then the expert's testimony must be excluded.¹⁰¹ Moreover, if the expert offers "no more than theoretical speculation, then well-founded methodology and reasoning may not alone suffice."¹⁰²

Since Christophersen, state courts in Frye jurisdictions faced with motions to exclude expert evidence in toxic tort and product liability cases have ruled inconsistently on the methodology-conclusion issue. In contrast to the focus on the challenged expert's reasoning process in Christophersen and Joiner, several courts have held that only the expert's underlying methodology must be generally accepted,¹⁰³ while others also have examined the general acceptance of the expert's ultimate conclusions.¹⁰⁴

Neither rule of these rules is satisfactory. Allowing testimony based solely on the acceptance of an expert's general methodology risks opening the floodgates to junk science. Epidemiology, DNA testing, and other methodologies are generally accepted by the scientific community, but only if the relevant studies or tests are conducted properly, and only if the person relying on the methodology has extrapolated (or reasoned) in a generally accepted way from the study or test results to a conclusion.

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Meanwhile, courts risk depriving the jury of a great deal of helpful information if they require experts to prove that specific conclusions are generally accepted. A scientist could conduct his research appropriately and extrapolate from it and other research in a generally accepted way, yet be the first to reach a particular conclusion relevant to a particular case. This is especially likely in toxic tort litigation, where issues not of general interest to the scientific community often are presented. Sound testimony should not be excluded simply because the expert presenting it is the first to endorse a particular conclusion.

Fortunately, several Frye jurisdictions recently have rejected both the general-methodologies-only and the conclusions approaches. Courts in these jurisdictions have focused instead on the expert's reasoning process.¹⁰⁵ This trend owes its emergence in part to Joiner, which, as discussed above, suggested that courts should focus on how an expert uses his methodology to reach the conclusion at issue.

For example, in Lofgren v. Motorola Inc.,¹⁰⁶ an Arizona trial court explicitly cited Joiner in rejecting the methodology-conclusion distinction, instead holding that it must scrutinize an expert's reasoning process. The court proceeded to exclude under Frye evidence that exposure to trichloroethylene caused various diseases among the plaintiffs. The plaintiffs' experts relied primarily on epidemiology, which the court acknowledged was, in a general sense, an appropriate methodology for determining whether exposure to a substance can cause disease. However, the court concluded that "no studies either epidemiological or animal … demonstrate {that} TCE, in the absence of other chemicals or in doses either similar to those at issue in this case or demonstrated through reliable scientific theory to be an appropriate extrapolation from existing studies, can be linked to any of the diseases at issue in this case at low level, environmental doses of TCE."¹⁰⁷ Moreover, the plaintiffs' experts failed to explain the non-applicability of studies showing no such link at even higher doses than those at issue.¹⁰⁸

Similarly, in Blum v. Merrell Dow Pharmaceutical Inc.,¹⁰⁹ a Pennsylvania appellate court, discussing the admissibility of evidence that Bendectin causes birth defects, stated that "we do not ask whether the expert's conclusions regarding the teratogenic effects of Bendectin are generally accepted. Rather, we consider the 'underlying principle' which must be generally accepted to be that the methods used by the experts to arrive at their conclusions actually give an accurate prediction of human teratogenicity."¹¹⁰ The court concluded that the underlying scientific principle of the plaintiffs' expert testimony was not generally accepted in the relevant scientific community.

In Goeb v. Tharaldson,¹¹¹ the Minnesota Supreme Court held that under its version of Frye, a novel scientific technique must not only be generally accepted in the relevant scientific community, but "the particular evidence derived from that test must have a foundation that is scientifically reliable."¹¹² Thus, the court determined that evidence linking exposure to an insecticide to various injuries was properly excluded because neither of plaintiffs' experts arrived at their opinions on causation through reliable means.¹¹³

A New York trial court, meanwhile, excluded testimony in Lara v. New York City Health & Hospitals Corp.,¹¹⁴ a medical malpractice case, on the grounds that the plaintiff's expert failed to show that his causation theory for cerebral palsy was generally accepted in the field of child neurology and also failed to show that his conclusion "was based on any scientifically valid methodology."¹¹⁵ The court cited Joiner for its position that it need not admit opinion evidence not supported by existing data.¹¹⁶

The opinion in a Frye jurisdiction most explicitly focusing on an expert's reasoning rather than just his general methodology is E.I. DuPont De Nemours & Co. v. Castillo ex rel. Castillo.¹¹⁷ Plaintiff claimed that exposure to the fungicide Benlate caused a child's birth defects. Plaintiff's expert relied on in vivo and in vitro tests, which DuPont acknowledged are generally accepted methods for analyzing the toxicity of a chemical such as Benlate. However, DuPont contended that the expert's direct extrapolation from the test data to the conclusion that a substance is a human teratogen is not generally accepted. The plaintiff responded that when an expert's opinion is based upon generally accepted scientific principles and methodology, it is not necessary that the basis for the expert's opinion be generally accepted as well.

The court disagreed, holding that "where, as here, plaintiffs wish to establish a substance's teratogenicity in human beings based on animal and in vitro studies, the methodology used in the studies, including the method of extrapolating from the achieved results, must be generally accepted in the relevant scientific community."¹¹⁸ The court ultimately concluded that the "direct extrapolation method" used by the plaintiffs' experts was not generally accepted, and therefore the testimony should be excluded.¹¹⁹

Courts that insist on examining the acceptance of experts' reasoning are obviously not inclined to limit Frye to novel techniques, as some jurisdictions still purport to do. Frye should in fact be applied to non-novel techniques because even an established technique can be used in an unaccepted, unreliable way. Thus, a New York trial court in Selig v. Pfizer, Inc.,¹²⁰ explicitly rejected the view that Fryedoes not apply when an expert's testimony is not "based on outwardly novel scientific technique."¹²¹ Rather, Frye must be applied to determine whether an expert reaches his conclusions by "accepted scientific methods," particularly when the conclusions are novel.¹²² Such opinions bring Frye ever closer to Daubert and Joiner.

C. Fryeand Nonscientific Expert Evidence

Many courts continue to hold that Frye only applies when an expert is relying on a scientific technique or test.¹²³ These Frye jurisdictions hold that the general acceptance test does not apply to expert opinion testimony based on knowledge and experience, even if the opinion has an underlying scientific basis, because no technique or test is involved.¹²⁴ In Florida Power & Light Company v. Tursi,¹²⁵ for example, the Florida Court of Appeals held that testimony by an ophthalmologist that a cataract was caused by exposure to transformer fluid is not subject to Frye.¹²⁶ Likewise, in Owens Corning v. Bauman,¹²⁷ the Maryland Court of Appeals held that a physician may testify regarding the growth rate of mesothelioma based on his training and his experience with 2,500 cases.¹²⁸

Meanwhile,Frye also is not generally applied to social science evidence, with the exception of what Professor Michael Graham calls "social science explanative theories," such as eyewitness identification, hypnotic recollection, post traumatic stress disorder, battered wife syndrome, and child sexual abuse syndrome.¹²⁹ Frye, for example, is rarely applied to testimony by economists.¹³⁰

The underlying rationale behind the limitation of Frye to scientific evidence is that scientific evidence, unlike other expert evidence, may "appear infallible to the average juror,"¹³¹ especially if it is based on a seemingly objective test or device. By contrast, juries are assumed to understand that testimony based on experience or based on social science data is fallible. "{A}bsent some special feature which effectively blindsides the jury," the California Supreme Court suggests, special screening of expert testimony is not necessary.¹³²

However, the potentially intimidating effect of scientific testimony on the jury is not the primary or appropriate modern rationale for special, strict rules for the admissibility expert testimony. The important dividing line is not between scientific and nonscientific testimony, but between lay witnesses and experts. Learned Hand summed up a problem with experts one hundred years ago: "{H}ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because {jurors} are incompetent for such a task that the expert is necessary at all."¹³³ Courts therefore have a duty to ensure that experts are presenting reliable testimony.

This obligation is especially acute because unlike ordinary fact witnesses, who typically come from a very limited pool of witness, there is usually an almost unlimited pool of experts. For example, many qualified experts could testify in a typical medical malpractice case. While attorneys are stuck with the testimonial limitations of the available fact witnesses, an attorney who needs an expert can "shop" for an expert with a pleasing courtroom manner who will agree with the attorney's theory of the case.¹³⁴

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Some of these potential expert witnesses will be venal "hired guns." As Judge Jack Weinstein has noted, "{a}n expert can be found to testify to the truth of almost any factual theory, no matter how frivolous."¹³⁵ Ordinary fact witnesses may also have their biases, but attorneys can only take advantage of these biases if the witnesses already exist; they cannot normally shop for an ordinary fact witness. By contrast, attorneys can seek expert witnesses who will parrot the attorneys' line, and, indeed, implicitly "bribe" them to do so.¹³⁶

Moreover, ordinary biases, such as a familial or friendly relationship to one of the parties, can typically be brought out on cross-examination.¹³⁷ Some authorities have argued that cross-examination will also reveal an expert witness' bias to the jury.¹³⁸ However, it not at all clear how opposing counsel can discredit a "hired gun" expert for taking money for his testimony, given that opposing counsel will have his own expert--who may be scrupulously honest--on his payroll.

In any event, even if the biases of hired guns can be revealed through cross-examination, that does not resolve the problems caused by expert-shopping. Not all, and perhaps not even most experts who testify to opinions outside the mainstream of their field are venal hired guns. Our system assumes, perhaps optimistically, that the jury can determine if an expert is lying. But what if the expert is simply shading the truth? Or, even more likely, what if the expert is simply eccentric or outside the mainstream? Parties have every incentive to hire "outlier" experts with sincere but extreme views so long as they can conceal the outlier status. There is no reason to hire an expert, for example, who will tell the jury that a client's losses are worth $150,000 if an attorney can find an equally credible expert willing to testify that the true figure is $300,000. Moreover, there is no ethical obligation on attorneys to hire mainstream experts. Indeed, their duty to zealously advocate for their clients may require them to hire outliers if it would help their client's case.¹³⁹

The Supreme Court implicitly recognized these dynamics when it held in Kumho Tire that all expert testimony, not just scientific testimony, must be subjected to a reliability test. Frye, however, is so closely associated with scientific techniques and tests that few courts have broadened its traditional focus on criminal forensic techniques beyond certain types of psychiatric or psychological evidence and the toxic torts and products liability contexts.¹⁴⁰

Instead, some Frye jurisdictions are expanding their trial courts' gatekeeper role by applying a Daubert-like reliability test under their state evidence codes or common law to expert testimony not subject to Frye. The Illinois Court of Appeals, for example, has held that even non-novel scientific evidence is subject to a reliability test.¹⁴¹ The Maryland Court of Special Appeals has insisted that an expert may not testify on any subject "unless there is a sufficient basis" beyond the common knowledge of the jury "upon which to support his conclusions."¹⁴² A New York trial court, meanwhile, has explicitly adopted the Daubert test for nonscientific evidence in Wahl v. American Honda Motor Co.¹⁴³ The court held that Frye was not applicable to engineering testimony based on "recognized technical or other specialized knowledge."¹⁴⁴ Instead it applied "the reliability standard as derived from Daubert and Kumho Tire."¹⁴⁵

III. REPLACE FRYE WITH FEDERAL RULE 702

Many Fryestates reaffirmed their allegiance to Frye very soon after Daubert was decided. At that time, many commentators (incorrectly) believed that Daubert was a weaker test than Frye, a belief that explicitly influenced some courts' decision to retain Frye,¹⁴⁶ and undoubtedly implicitly influenced other courts.¹⁴⁷

Yet as some commentators predicted,¹⁴⁸ Daubert, particularly as extended by Joiner and Kumho Tire, has become a far broader and stricter test than Frye ever was. As discussed in Part II, instead of being the vanguards of strict scrutiny of scientific evidence, Frye courts are stretching Frye beyond its original boundaries in a struggle to keep up with Supreme Court precedents. A better solution would be for Frye jurisdictions to adopt amended Federal Rule of Evidence 702, which incorporates the holding of the Supreme Court's expert evidence trilogy.¹⁴⁹

Frye should be replaced by the trilogy for several reasons. First, the trilogy makes it clear that the trial court must serve as gatekeeper of expert evidence in civil as well as criminal cases. By contrast, as discussed above, only Minnesota has unambiguously held that Frye applies in civil cases. Moreover, even in states where courts have begun to apply Frye in civil cases, social science and experience-based experts are still given free reign. The Daubert trilogy, by contrast, requires that trial courts exercise their gatekeeping responsibility with regard to all expert evidence.

The second reason states should adopt the Daubert trilogy is that Joiner requires courts to scrutinize an expert's reasoning, not just the general methodology. As discussed above, many Frye jurisdictions only scrutinize an expert's general methodology for general acceptance, regardless of how it is used in the particular case. In many cases such scrutiny amounts to little more than a let-it-all in rule. Plaintiffs' attorneys with dubious expert testimony are therefore advised by their peers to "stay out of federal court and thus avoid Daubert" whenever possible.¹⁵⁰ State courts--particularly those that were initially concerned that Daubert established too liberal a test for the admissibility of expert evidence--assumedly do not want to be the dumping grounds for junk science. Adopting the Daubert trilogy would also correct the error of courts that exclude expert testimony where the conclusions are not generally accepted, even if the expert's methodology and reasoning is sound.

Third, Frye courts are not handling nonscientific expert evidence well. Some courts then apply a let-it-all-in approach to nonscientific evidence, others attempt to apply Frye to such evidence even where "general acceptance" has little if any meaning, while a growing number of courts are applying a separate reliability test to nonscientific evidence. The result is confusion at best, and a proliferation of unreliable "nonscientific" evidence at worst. As three justices of the Nebraska Supreme Court have observed, "{a}doption of the Daubert/Kumho Tire standards . . . both encourages the trial court to act as gatekeeper and places that function in the context of a sensible and uniform scheme for the evaluation of all types of expert opinion testimony."¹⁵¹

Fourth, even if the Frye rule were to evolve into a modern, sophisticated test that applies to all expert testimony and focuses on an expert's reasoning,¹⁵² Daubert's flexible approach focusing on reliability is superior to Frye's narrow focus on general acceptance.¹⁵³ If courts are to scrutinize expert testimony for reliability, they should do so directly, through a reliability test, rather than use general acceptance as a proxy. Frye occasionally can lead to the exclusion of scientifically reliable evidence that is too novel to have received such acceptance. More frequently, Frye leads to the admission of evidence that has never been shown to be reliable, but is generally accepted by a subgroup of experts who specialize in the forensic field in question.¹⁵⁴ Many forensic tests are generally accepted by those who conduct and interpret the tests, but these methods never have been subject to independent verification.¹⁵⁵ Thus, contrary to the assertions of several courts,¹⁵⁶ evidence that is admissible under Frye should frequently be excluded under Daubert.

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Fifth, courts too often use the Frye rule to avoid grappling with the quality of the scientific evidence before them. As the New Mexico Supreme Court has pointed out, while in theory Frye requires courts to defer to the views of the scientific community, "in practice too many courts reference reported case law to determine what is generally accepted in the scientific community. It is improper to look for scientific acceptance only from reported case law because that amounts to finding a consensus in the legal community based on scientific evidence that is sometimes many years old."¹⁵⁷

Finally, courts have yet to resolve the ambiguities inherent in the Fryetest, such as how to determine the relevant field, whether "general acceptance" requires a consensus, a majority, or a significant minority, and whether the quality as well as the quantity of the majority and minority's views should be taken into account.¹⁵⁸

About a decade ago, critics of "junk science" advocated the adoption of a version of the Frye general acceptance test that was much stricter and broader than the test applied in any actual Frye jurisdiction. So successful were these critics in associating Frye with strict scrutiny that many courts and commentators thought Daubert was a defeat for the opponents of junk science because Frye was overruled. Ironically, several courts adopted Daubert at least in part because they thought it was more liberal than Frye, while other courts retained Frye in what they thought was an attempt to combat junk science.

In fact, Frye as actually applied a decade ago was a rather limited, narrow test that barely restricted junk science in criminal cases, and was rarely applied in civil cases. The tests established by the Daubert trilogy are much more like those advocated in the anti-junk science classic Galileo's Revenge than was the Frye rule as applied in most courts circa 1991. Daubert, then, is more like the aspirational Frye test advocated by junk science critics than Frye itself ever was.

Over the last few years, however, Frye has started to mature into the type of test that critics of junk science advocated a decade ago. In another irony, this change has come about mainly because of the influence of the Daubert trilogy, which itself only exists because of the overruling of Frye in federal courts. Nevertheless, Frye has by now lost its utility, as least in comparison to the Daubert trilogy. While federal courts gradually learn to implement the Daubert trilogy, case law under Frye is in chaos with Frye jurisdictions often looking to federal Daubert precedents as guidance.

As discussed above, there are several reasons Frye should be replaced with the Daubert trilogy. At the same time, there are no convincing reasons to retain Frye, especially given that general acceptance is a factor that may be considered under the Daubert test. After a distinguished and controversial career, Frye v. United States should be given its gold watch and forced into retirement.

¹ 509 U.S. 579 (1993).

² 522 U.S. 136 (1997).

³ 526 U.S. 137 (1999).

⁴ As discussed below, the Daubert trilogy is much stricter than the relevancy and general acceptance tests it replaced. See infra notes 144-159 & accompanying text.

⁵ 293 F. 1013 (D.C. Cir. 1923).

⁶ For an exception, see Paul Giannelli & Edward Imwinkelried, Scientific Evidence: The Fallout from the Supreme Court's Decision in Kumho Tire, Crim. Just. Winter 2000, at 12 (acknowledging Frye's continuing viability in many states).

⁷ S. Energy Homes Inc. v. Washington, 774 So. 2d 505, 517 n.5 (Ala. 2000) (stating that the Daubert standard applies with respect to the admission of DNA evidence as provided for in Alabama Code §36-18-30, but Frye continues to apply to the admission of all other evidence).

⁸ Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000); State v. Johnson, 922 P.2d 294 (Ariz. 1996); State v. Bible, 858 P.2d 1152 (Ariz. 1993).

⁹ People v. Leahy, 882 P.2d 321 (Cal. 1994).

¹⁰ Lindsey v. People,892 P.2d 281 (Colo. 1995).

¹¹ Nixon v. United States, 728 A.2d 582, 588 (D.C. 1999).

¹² Flanagan v. State, 625 So. 2d 827 (Fla. 1993).

¹³ People v. Miller, 670 N.E.2d 721, 731 (Ill. 1996).

¹⁴ State v. Heath, 957 P.2d 449 (Kan. 1998).

¹⁵ Hutton v. State, 663 A.2d 1289 (Md. 1995).

¹⁶ The Michigan Supreme Court has not explicitly rejected Daubert, but lower courts continue to apply Frye. E.g., DePyper v. Navarro, 1995 WL 788828, at *34 (Mich. Cir. Ct., 1995).

¹⁷ Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000).

¹⁸ Gleeton v. State, 716 So. 2d 1083 (Miss. 1998).

¹⁹ State v. Harvey, 699 A.2d 596 (N.J. 1997).

²⁰ People v. Wesley, 633 N.E.2d 451, 454 n.2 (N.Y. 1994).

²¹ Commonwealth v. Blasioli, 713 A.2d 1117 (Pa. 1998).

²² State v. Copeland, 922 P.2d 1304, 1310 (Wash. 1996).

²³ They have a combined 267 electoral college votes of the 538 total votes available based on the 1990 census. See U.S. Electoral College: List of States and Votes: 1992, 1996, and 2000, available athttp://www.nara.gov/fedreg/elctcoll/votebyst.html (last modified Apr. 5, 2001).

²⁴ A few states follow neither Frye nor Daubert, but use more liberal admissibility tests. E.g., Norfolk S. Ry. Co. v. Baker, 514 S.E.2d 448 (Ga. Ct. App. 1999); State v. Merwin, 962 P.2d 1026, 1030 (Idaho 1998); Dow Chem. Co. v. Mahlum, 970 P.2d 98, 108 n.3 (Nev. 1998); State v. Council, 515 S.E.2d 508, 517-18 (S.C. 1999); State v. Peters, 534 N.W.2d 867, 872 (Wis. 1995). Ohio has basically adopted Daubert, but under its evidence code general acceptance may be required if "testimony reports the result of a procedure, test, or experiment." Ohio R. Evid. 702(C)(1). Connecticut has adopted Daubert, but Frye still applies where expert testimony involves "innovative scientific techniques." State v. Reid, 757 A.2d 482, 486 (Conn. 2000). Meanwhile, some courts adopted Daubertwhen they thought it comported with their very liberal interpretations of their state versions of Rule 702. Now that Daubert has proven to be both a strict and expansive test, it remains to be seen whether such states will continue to follow federal precedent. Oregon, for example, has implicitly rejected Joiner, and held that courts may only scrutinize an expert's general methodology. See Jennings v. Baxter Healthcare, 14 P.3d 596, 603-04 (Ore. 2000). Utah has its own version of the reliability test. See Franklin v. Stevenson, 987 P.2d 22, 26 (Utah 1999). Finally, other states have declined to explicitly adopt Daubert, but find its guidance helpful. E.g., State v. Fukusaku, 946 P.2d 32 (Hawaii 1997); State v. Ito, 978 P.2d 191, 202 n.7 (Hawaii Ct. App. 1999) ("It is not clear from a reading of Fukusaku… whether the {Hawaii} supreme court was adopting the Daubert standards for analyzing the admissibility of scientific evidence"); In re Doe, 981 P.2d 723, 734 n.16 (Haw. Ct. App. 1999) ("It is not evident that Hawaii has in fact adopted the standards for admission of expert evidence set forth in Daubert and as modified in Kumho"); McDaniel v. CSX Transp. Inc., 955 S.W.2d 257, 265 (Tenn. 1997).

²⁵ 26. 293 F. 1013 (D.C. Cir. 1923).

²⁶ Id. at 1014.

²⁷ Courts cited Frye five times in published opinions before World War II, mostly in cases involving lie detectors. After World War II, courts cited Frye six times before 1950, 20 times during the 1950s, and 21 times during the 1960s. Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 Tex. L. Rev. 715, 722 n.30 (1994).

²⁸ E.g., Puhl v. Milwaukee Auto. Ins. Co., 99 N.W.2d 163, 168-69 (Wis. 1959) (paraphrasing Frye and adopting the general acceptance test, but not citing the case); People v. Miller, 98 N.W.2d 524, 535 (Mich. 1959) (adopting "general scientific recognition" test, but not citing Frye); Shanks v. State, 45 A.2d 85, 86 (Md. 1946) (discussing "general acceptance" standard for use of blood tests without citing Frye).

²⁹ SeePaul C. Giannelli, Daubert: Interpreting the Federal Rules of Evidence, 15 Cardozo L. Rev. 1999, 2003-04 (1994).

³⁰ Charles T. McCormick, Handbook of the Law of Evidence 363 (1954).

³¹ Paul C. Giannelli, The Admissibility of Novel Scientific Evidence:Frye v. United States,a Half-Century Later, 80 Colum. L. Rev. 1197, 1232 (1980).

³² McCormick, supra note 31, at 363-64.

³³ Fed. R. Evid. 702 (1975) (amended 2000).

³⁴ See Giannelli, supranote 30, at 2017; D.H. Kaye, Choice and Boundary Problems in Logerquist, Hummert, and Kumho Tire, 33 Ariz. St. L.J. 41, 54 n.69 (2001).

³⁵ Giannelli, supra note 30, at 2004-09.

³⁶ See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Mapp v. Ohio, 367 U.S. 643 (1961).

³⁷ See generallyKathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135 (1995).

³⁸ E.g., Giannelli, supra note 32, at 1226 (noting that under Frye potentially helpful evidence may be excluded until general scientific consensus develops); Fredric I. Lederer, Resolving the Frye Dilemma--A Reliability Approach, 26 Jurimetrics J. 240, 241 (1986) ("Frye tends to be unduly conservative in its effect on the admissibility of novel evidence.").

³⁹ David W. Louisell & Christopher B. Mueller, Federal Evidence §105 (1977); 1 McCormick on Evidence §203 (John Strong ed., 5th ed. 1999); Giannelli, supra note 32, at 1248. But see Philip Hiatt Dixon, Recent Developments, 64 Cornell L. Rev. 875, 881 (1979) (arguing that Frye's vagueness is beneficial and gives court considerable leeway in deciding whether new scientific technique has achieved general acceptance in its appropriate scientific field).

⁴⁰ See, e.g., Black et al., supra note 28, at 739 (noting that courts applying Frye both admitted and rejected voiceprint evidence).

⁴¹ See Giannelli, supra note 32, at 1228-31.

⁴² See, e.g., United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); United States v. Williams, 583 F.2d 1194 (2d Cir. 1978).

⁴³ Jack Weinstein & Margaret Berger, Weinstein's Federal Evidence ¶ 702{2} (1995); Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L. Rev. 879, 911-12 (1982).

⁴⁴ E.g.,In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1223, 1243-48 (E.D.N.Y. 1985), aff'd on other grounds, 818 F.2d 187 (2d Cir. 1987).

⁴⁵ E.g., Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir. 1984).

⁴⁶ See, e.g., In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990); DeLuca v. Merrell Dow Pharms., 911 F.2d 941 (3d Cir. 1990).

⁴⁷ E.g., David Bernstein, Note, Out of the Fryeing Pan and into the Fire: The Expert Witness Problem in Toxic Tort Litigation, 10 Rev. Litig. 117, 138 (1990); Lanny S. Kurzweil et al., The Environmental Expert After Rubanick and Christophersen: Beware the Jabberwock!, 1 PLI Order No. H4-1521 (Dec. 1991-Jan. 1992); Jeffrey K. Sherwood, In Re Paoli Railroad: The Third Circuit Punts to the "Coffincorner," Toxics L. Rep., 11/14/90, at 773, 781.

⁴⁸ E.g., United States v. Franks, 511 F.2d 25, 33 n.12 (6th Cir. 1975); People v. Kelly, 549 P.2d 1240, 1244 (Cal. 1976).

⁴⁹ E.g., Ferebee, 736 F.2d 1529.

⁵⁰ Sterling v. Velsicol, 855 F.2d 1188, 1208 (6th Cir. 1988); seeKenneth R. Foster et al., A Legal Perspective, in "Phantom Risk: Scientific Inference and the Law," 40 (Kenneth R. Foster et al. eds., 1993) (praising Sterling); Bernstein, supra note 48, at 134, 157 (advocating that Sterling's use of the general acceptance test be adopted in other toxic tort cases). Interestingly, the leading "loose scrutiny" case, Ferebee,did not hold that Frye is inapplicable in civil cases but rather that Frye applies only "to the introduction of evidence based on novel scientific techniques or methodologies," not to the misuse of a well-founded methodology. 736 F.2d at 1535.

In Boger v. Norris & Stevens, Inc., 818 P.2d 947 (Ore. Ct. App. 1991), the court "assumed without deciding" that the general acceptance test applied to expert evidence regarding medical causation.

⁵¹ 939 F.2d 1106 (5th Cir. 1991). Six judges of the Fifth Circuit had previously hinted that they would support application of Frye to the admissibility of evidence in toxic tort cases. See Brock v. Merrell Dow Pharms. Inc., 884 F.2d 167, 168 (5th Cir. 1989) (Reavley, J., dissenting from denial of petition for rehearing en banc.).

⁵² The test focused on the expert's qualifications (Rule 702), the factual basis for the testimony (Rule 703), the level of acceptance of the methodology employed (Frye), and the balance between probativeness and the potential for undue prejudice (Rule 403). Christophersen, 939 F.2d at 1110.

⁵³ Id. at 1115.

⁵⁴ Id. at 1116.

⁵⁵ Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom(1991). The author of this article served as Huber's research assistant for Galileo's Revenge.

⁵⁶ Id. at 200.

⁵⁷ 951 F.2d 1128 (9th Cir. 1991).

⁵⁸ For a time, "strict scrutiny" courts relied on Rule 703, following the lead of Judge Jack Weinstein in the Agent Orange case. New Jersey tentatively adopted what was apparently a version of the general acceptance test under its version of Rule 703 in Ryan v. KDI Sylvan Pools, Inc., 579 A.2d 1241, 1247 (N.J. 1990) (adopting a test of "whether experts in the given field rely on certain information").

⁵⁹ 727 F. Supp. 570, 575-76 (S.D. Cal. 1989).

⁶⁰ 951 F.2d 1128 (9th Cir. 1991).

⁶¹ Id. at 1129-30.

⁶² Id. at 1130.

⁶³ Id. at 1131.

⁶⁴ See Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993).

⁶⁵ The leading strict scrutiny case before Daubert was In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1223, 1243-48 (E.D.N.Y. 1985), aff'd on other grounds, 818 F.2d 187 (2d Cir. 1987). Far more popular was the very liberal test adopted in Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir. 1984).

⁶⁶ Michael D. Green, The Road Less Well Traveled (and Seen): Contemporary Lawmaking in Products Liability, 49 DePaul L. Rev. 377, 398 (1999).

⁶⁷ Sterling v. Velsicol, 855 F.2d 1188, 1208 (6th Cir. 1988).

⁶⁸ 522 U.S. 136, 146-47 (1997).

⁶⁹ See infra note 131.

⁷⁰ Some courts previously applied Fryein civil cases, but usually this occurred only in (1) paternity cases; or (2) cases where the forensic technique in question was also used in the criminal context. See, e.g., Cameron v. Knapp, 520 N.Y.S.2d 917, 918 (N.Y. Sup. Ct. 1987) (applying Frye and rejecting handwriting analysis in a medical malpractice case).

⁷¹ Green, supra note 67, at 398-99 (noting that Frye and its general acceptance test were "virtually nonexistent in civil cases and toxic substances litigation" until the Ninth Circuit employed them in Daubert).

⁷² Lofgren v. Motorola, Inc., 1998 WL 299925, at *20 (Ariz. Super. Ct. June 1, 1998).

⁷³ Dinerman v. McGhan Med. Corp., No. BC 065884 (Cal. Super. Ct. undated) (mem.).

⁷⁴ Bahura v. S.E.W. Investors, 754 A.2d 928, 943 (D.C. 2000).

⁷⁵ E.I. DuPont De Nemours & Co. v. Castillo ex rel. Castillo, 748 So. 2d 1108 (Fla. Dist. Ct. App. 2000); Berry v. CSX Transp. Inc., 709 So. 2d 552 (Fla. Dist. Ct. App. 1998); Centex-Rooney Constr. Co. v. Martin County, 706 So. 2d 20 (Fla. Dist. Ct. App. 1997); Eldridge v. Riddell, Inc., 626 So. 2d 232, 233 (Fla. Dist. Ct. App. 1993) (Warner, J., concurring).

⁷⁶ Donaldson v. Cent. Illinois Pub. Serv. Co., 730 N.E.2d 68 (Ill. App. Ct. 2000); Duran v. Cullinan, 677 N.E.2d 999 (Ill. App. Ct. 1997); Lombardo v. Reliance Elevator Co., 733 N.E.2d 874 (Ill. App. Ct. 2000) (applying the general acceptance test to a case involving negligent maintenance of an elevator).

⁷⁷ United States Gypsum Co. v. Mayor of Baltimore, 647 A.2d 405 (Md. 1994); Owens Corning v. Bauman, 726 A.2d 745 (Md. Ct. Spec. App. 1999); Keene Corp. v. Hall, 626 A.2d 997 (Md. Ct. Spec. App. 1993).

⁷⁸ Goeb v. Tharaldson, 615 N.W.2d 800, 814-16 (Minn. 2000).

⁷⁹ Oppenheim v. United Charities of New York, 698 N.Y.S.2d 144 (App. Div. 1999) (mem.) (rejecting clinical ecology testimony); Selig v. Pfizer Inc., 713 N.Y.S.2d 898, 901-03 (N.Y. Sup. Ct. 2000);Collins v. Welch, 678 N.Y.S.2d 444 (Sup. Ct. 1998) (rejecting clinical ecology testimony).

⁸⁰ Blum ex rel. Blum v. Merrell Dow Pharms. Inc., 764 A.2d 1 (Pa. 2000) (holding that the evidence would fail either the Frye or Daubert tests).

⁸¹ But cf. Salazar v. Am. Sterilizer Co., 5 P.3d 357, 367 (Colo. Ct. App. 2000) (questioning whether the general acceptance test applies in products liability actions).

⁸² Raoul D. Kennedy & James C. Martin, California Expert Witness Guide §4.15, at 56 (2d ed., Supp. Mar. 1999).

⁸³ California only applies Frye when "the evidence is produced by a machine" or by other seemingly objective means. People v. McDonald, 690 P.2d 709, 724 (Cal. 1984); overruled by People v. Mendoza, 23 Cal. 4th 896 (2000). The state supreme court reasons that "like many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently 'scientific' mechanism, instrument, or procedure." Id. The court has further explained that for Frye to apply there must be "an unproven technique or procedure {that} appears both in name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury," such as "machines or procedures which analyze physical data." People v. Stoll, 783 P.2d 698, 710 (Cal. 1989). However, the introduction of genetic testing of various types in toxic tort and other cases may afford California courts an opportunity to apply Frye in these types of cases. See Gary E. Marchant, Genetic Susceptibility and Biomarkers in Toxic Injury Litigation, 41 Jurimetrics J. 67 (2000).

⁸⁴ Dinerman v. McGhan Med. Corp., No. BC 065884 (Cal. Super. Ct. 1997) (mem.).

⁸⁵ Id. at 2-3.

⁸⁶ Blum v. Merrell Dow Pharms. Inc., 705 A.2d 1314, 1319 (Pa. Super. Ct. 1997) (quoting Liles v. Balmer, 653 A.2d 1237 (Pa. Super. Ct. 1994), aff'd, 764 A.2d 1 (Pa. 2000); Thomas v. West Bend Co., 760 A.2d 1174 (Pa. Super. Ct. 2000).

⁸⁷ Blum, 764 A.2d at 3-4.

⁸⁸ This was the motivation behind the New Jersey Supreme Court's pre-Daubert decision not to apply the state's Frye standard to toxic tort cases. See Rubanick v. Witco Chem. Corp., 593 A.2d 733, 747-48 (N.J. 1991) (requiring only that a theory of causation be "based on a sound, adequately founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field"). The following year, however, the court seemed to apply a more stringent standard, holding that expert witnesses in toxic tort cases must demonstrate that both their methodology and the factual bases for their conclusions are scientifically reliable. Landrigan v. Celotex Corp., 605 A.2d 1079, 1083-84 (N.J. 1992). The Landrigan standard is implicitly incorporated into New Jersey's Rule of Evidence 702 and, at least by its explicit terms, is significantly more stringent than versions of Frye that look solely to the general acceptance of an expert's basic methodology.See N.J. R. Evid. 702 cmt.

⁸⁹ General Elec. Co. v. Joiner, 522 U.S. 136, 148-49 (1997) (Breyer, J., concurring).

⁹⁰ Kenneth J. Chesebro, Taking Daubert's "Focus" Seriously: The Methodology/Conclusion Distinction,15 Cardozo L. Rev. 1745 (1994); Michael H. Gottesman, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor, 43 Emory L.J. 867, 869-72 (1994).

⁹¹ Bernstein, supra note 48.

⁹² But see Michael J. Saks, The Aftermath of Daubert:An Evolving Jurisprudence of Expert Evidence, 40 Jurimetrics J. 229 (2000) (criticizing the Joiner majority's failure to distinguish more carefully between methodology and conclusion).

⁹³ Joiner, 522 U.S. at 146.

⁹⁴ Id.

⁹⁵ Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1401 (D. Or. 1996).

⁹⁶ Id.

⁹⁷ People v. Kelly, 549 P.2d 1240, 1244 (Cal. 1976).

⁹⁸ United States v. Two Bulls, 918 F.2d 56, 61 (8th Cir. 1990); Ex parte Perry, 586 So. 2d 242, 248 (Ala. 1991); People v. Lindsey, 868 P.2d 1085, 1090-91 (Colo. Ct. App. 1993); People v. Adams, 489 N.W.2d 192, 197 (Mich. Ct. App. 1992) ("the prosecutor must establish in each particular case that the generally accepted laboratory procedures were followed"); Commonwealth v. Rodgers, 605 A.2d 1228, 1234 (Pa. Super. Ct. 1992).

⁹⁹ See, e.g., State v. Cauthron, 846 P.2d 502, 506 (Wash. 1993) (rejecting the California rule). A New York court adopted a rule analogous to the California rule in People v. Castro, 545 N.Y.S.2d 985, 987 (N.Y. Sup. Ct. 1989), but the New York Court of Appeals rejected it in People v. Wesley, 633 N.E.2d 451, 456 (N.Y. 1994) ("The general reliability of DNA matching was established at the hearing. The Frye test--the sole issue before us--requires no more… .").

¹⁰⁰ 939 F.2d 1106 (5th Cir. 1991).

¹⁰¹ Id.at 1110-11.

¹⁰² Id.at 1111 n.8.

¹⁰³ See, e.g., Berry v. CSX Transp. Inc., 709 So. 2d 552 (Fla. Dist. Ct. App. 1998); Centex-Rooney Constr. Co. v. Martin County, 706 So. 2d 20 (Fla. Dist. Ct. App. 1997).

¹⁰⁴ See McKenzie v. Westinghouse Elec. Corp., 674 A.2d 1167, 1172 (Pa. Commw. Ct. 1996) ("there must be a showing, not that the studies establishing the causal relationship follow generally accepted methodologies, but that the existence of the causal relationship is generally accepted by the relevant medical community"); Selig v. Pfizer Inc., 713 N.Y.S.2d 898, 901-03 (Sup. Ct. 2000).

¹⁰⁵ Unfortunately, some judges still fail to recognize this third alternative. See, e.g., Blum ex rel. Blum v. Merrell Dow Pharms. Inc., 764 A.2d 1, 5 (Pa. 2000) (Cappy, J., dissenting). Justice Cappy wrote: "I refer to the Superior Court's statement that there are 'two ways to analyze the question of whether the causation testimony proffered … meets the Frye … standard. One focuses on whether the causal relationship is generally accepted by the scientific community, and the other on whether the methodology is generally accepted by the scientific community." Id. In fact, the Superior Court, as Justice Cappy half-heartedly acknowledges elsewhere, focused on the expert's reasoning, not his conclusions. See also id. at 9 (Castille, J., dissenting) ("Like Mr. Justice Cappy, I believe that the Frye test in this Court's jurisprudence has only required, and should only require, that the methodology employed by the testifying scientist, and not his or her ultimate conclusions or opinions as to causation, be generally accepted by the relevant scientific community.").

¹⁰⁶ 1998 WL 299925 (Ariz. Super. Ct., 1998).

¹⁰⁷ Id. at *12.

¹⁰⁸ Id.

¹⁰⁹ 705 A.2d 1314 (Pa. Super. Ct. 1997), aff'd, 764 A.2d. 1 (Pa. 2000).

¹¹⁰ Id. at 1323; cf. Donaldson v. Cent. Illinois Pub. Serv. Co., 730 N.E.2d 68 (Ill. App. Ct. 2000) (holding that if a substance is known to cause certain types of cancer, experts may extrapolate that the substance can cause other types of cancer because the "extrapolation method" is generally accepted); Duran v. Cullinan, 677 N.E.2d 999, 1003 (Ill. App. Ct. 1997) (finding that extrapolation method of determining cause of birth defects is generally accepted, and favorably analyzing the expert's reasoning in extrapolating in this case, but taking the expert's claim that he was adhering to generally accepted reasoning process at face value). The Illinois opinions contain no citations to any scientific book or article suggesting that the type of extrapolation engaged in by the experts in question was appropriate according to generally accepted standards. Rather, these courts seem to assume, based on the experts' own representations and common sense, that extrapolation is proper.

¹¹¹ 615 N.W.2d 800 (Minn. 2000).

¹¹² Id. at 810.

¹¹³ Id. at 816-17.

¹¹⁴ N.Y.L.J., 2000, at 26 (N.Y. Sup. Ct.).

¹¹⁵ Id.

¹¹⁶ Id.

¹¹⁷ 748 So. 2d 1108 (Fla. Dist. Ct. App. 2000).

¹¹⁸ Id. at 1121.

¹¹⁹ See id. By contrast, another Florida appellate court had the following to say about causation evidence: "Dr. Kelly's opinion was not only based upon Berry's statements of his symptoms, but was based upon Berry's personal history, medical records, physical examinations and medical tests. In short, Dr. Kelly's opinion was based upon sufficient epidemiological data, facts and personal observation, and was therefore reliable." Berry v. CSX Transp. Inc., 709 So. 2d 552, 571 (Fla. Dist. Ct. App. 1998). This is an obvious non-sequitur. An opinion based on appropriate data is not reliable if the expert does not extrapolate properly from that data.

¹²⁰ 713 N.Y.S.2d 898 (N.Y. Sup. Ct. 2000).

¹²¹ Id. at 902.

¹²² Id.

¹²³ E.g., Owens Corning v. Bauman, 726 A.2d 745 (Md. Ct. Spec. App. 1999). Some courts continue to require that the technique or test be novel. See, e.g., Wahl v. American Honda Motor Co., 693 N.Y.S.2d 875, 877 (Sup. Ct. 1999) (engineer's testimony, which was based on "recognized technical and specialized knowledge" is not subject to Frye). But the novelty requirement appears to be fading. See supra note 121 & accompanying text. Professor Giannelli focused on the "novelty" aspect of Frye in his famous Columbia article on the doctrine, but it is not at all clear that novelty had been an important requirement for the applicability of Frye. SeePaul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1232 (1980).

¹²⁴ See Logerquist v. McVey, 1 P.3d 113, 123 (Ariz. 2000) ("Although compliance with Frye is necessary when the scientist reaches a conclusion by applying a scientific theory or process based on the work or discovery of others, under Rules 702 and 703 experts may testify concerning their own experimentation and observation and opinions based on their own work without first showing general acceptance."); People v. Pitts, 223 Cal. App. 3d 606, 865 (1990) ("{T}here is a difference between development of a new scientific technique--a novel method of proof--and development of a body of medical knowledge and expertise. . . . The expression of an expert medical opinion as to the cause of a wound or injury falls outside of the realm of what is subject to the Kelly-Frye rule."). But cf. People v. Williams, 6 N.Y.2d 18 (1959) (applying Fryedoctrine to testimony regarding the credibility of a heroin addict).

¹²⁵ 729 So. 2d 995 (Fla. Dist. Ct. App. 1999).

¹²⁶ It is hard to see how a general acceptance test can apply to testimony based on training and experience where there is no underlying scientific basis. However, the same concern applies to Daubert-Kumho's reliability test. This author has suggested that parties wishing to present such testimony should not be allowed to present adversarial experts, but courts should instead appoint neutral experts. See David E. Bernstein, "Non-Scientific" Experts: What Degree of Judicial Scrutiny Should They Face?, (Oct. 1998) (unpublished manuscript), available at http://members.aol.com/ deliotb/kumho.html.

¹²⁷ 726 A.2d 745 (Md. Ct. Spec. App. 1999).

¹²⁸ See also Harris v. Cropmate Co., 706 N.E.2d 55 (Ill. App. Ct. 1999) (testimony regarding crop damage not subject to Frye); Kuhn v. Sandoz Pharms. Corp., 14 P.3d 1170, 1179 (Kan. 2000) (Frye does not apply when testimony is based on expert's experience); Carter v. Shoppers Food Warehouse MD Corp., 727 A.2d 958 (Md. Ct. Spec. App. 1999) (testimony regarding safety measures not subject to Frye).

¹²⁹ Michael H. Graham, The Daubert Dilemma: At Last a Viable Solution?, 179 F.R.D. 1, 7 (1998). Some Frye courts refuse to apply the general acceptance test in such cases. E.g., Logerquist, 1 P.3d at 113 (testimony regarding repressed memories); People v. McDonald, 690 P.2d 709 (Cal. 1984) (unreliability of eyewitness identifications); People v. Phillips, 175 Cal. Rptr. 703, 713-14 (Ct. App. 1981) (evidence concerning "Munchausen's syndrome by proxy").

¹³⁰ SeeLong v. Missouri Delta Med. Ctr., 33 S.W.3d 629, 642 (Mo. Ct. App. 2000) (Frye does not apply to expert economic testimony); Christopher B. Hockett & Frank M. Hinman, Admissibility of Expert Testimony in Antitrust Cases: Does Daubert Raise a New Barrier to Entry for Economists?, Antitrust, Summer 1996, at 40, 42 (noting that courts do not utilize Frye to screen testimony in antitrust cases). But cf. Schumann v. Missouri Highway & Transp. Comm'n, 912 S.W.2d 548, 554 n.8 (Mo. Ct. App. 1995) (considering whether an economist's testimony regarding hedonic damages should have been admitted under the standards established in Frye, Daubert, and Missouri's evidence code).

¹³¹ Reese v. Stroh, 874 P.2d 200, 205 (Wash. Ct. App. 1994).

¹³² People v. Stoll, 783 P.2d 698, 710 (Cal. 1989); see also Flanagan v. State, 625 So. 2d 827 (Fla. 1993).

¹³³ Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1902).

¹³⁴ SeeSamuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1128-29.

¹³⁵ Jack B. Weinstein, Improving Expert Testimony, 20 U. Rich. L. Rev. 473, 482 (1986).

¹³⁶ SeeGross, supra note 135, at 1127-29.

¹³⁷ See id. at 1127.

¹³⁸ Ronald J. Allen & Joseph S. Miller, The Common Law Theory of Experts: Deference or Education?, 87 Nw. U. L. Rev. 1131, 1145-46 (1993).

¹³⁹ See Bernstein, supra note 48, at 159.

¹⁴⁰ But see Clemente v. Blumenberg, 705 N.Y.S.2d 792, 800 (Sup. Ct. 1999) (holding that expert testimony regarding biomechanics failed the general acceptance test).

¹⁴¹ See Harris v. Cropmate Co.,706 N.E.2d 55, 65 (Ill. App. Ct. 1999).

¹⁴² Carter v. Shoppers Food Warehouse MD Corp., 727 A.2d 958, 963 (Md. Ct. Spec. App. 1999).

¹⁴³ 693 N.Y.S.2d 875, 878 (Sup. Ct. 1999).

¹⁴⁴ Id.

¹⁴⁵ Id. But cf. Long v. Missouri Delta Med. Ctr., 33 S.W.3d 629 (Mo. Ct. App. 2000) (refusing to apply a reliability test to testimony by an economics expert absent explicit direction from the state supreme court).

¹⁴⁶ E.g., People v. Leahy, 882 P.2d 321 (Cal. 1994) (emphasizing the purported relative liberality of the Daubert test); Brim v. State, 695 So. 2d 268, 271 (Fla. 1995) ("Despite the federal adoption of a more lenient standard in {Daubert}, we have maintained the higher standard of reliability as dictated by Frye."); State v. Carter, 524 N.W.2d 763, 778 (Neb. 1994) (referring to "the more lenient relevancy standard of Daubert"); Blum v. Merrell Dow Pharms. Inc., 764 A.2d 1, 2 (Pa. 2000) (observing Daubert relaxes to some extent the impediments to the admission of novel scientific evidence); see also cases cited infranote 158.

¹⁴⁷ For example, in People v. Berberich, N.Y.L.J., Jan. 11, 2000, at 25 (Sup. Ct.), the court assumed that both Daubert and Kumho Tire were weaker tests than Frye. Not only has Daubert turned out to be stricter than Frye, but Kumho Tire enforces a gatekeeping standard for types of evidence that never were subject to the Frye test, and instead were admitted under a very liberal relevancy test.

¹⁴⁸ E.g., David Bernstein, Hauling Junk Science Out of the Courtroom, Wall St. J., 7/13/93, at A16 ("as standards are established, {Daubert} means that junk science will have a far harder time making it to court"); David E. Bernstein & Peter W. Huber, Defense Perspective, 1 Shepard's Expert & Sci. Evid. Q. 59, 60 (1993) ("The trend towards stricter scrutiny of scientific evidence began in the late-1980s; in the aftermath of Daubert it will accelerate"); Marc S. Klein, The Revolution in Practice and Procedure: "Daubert Hearings," 1 Shepard's Expert & Sci. Evid. Q. 655, 656 (1994); see also Robert P. Charrow & David E. Bernstein, Scientific Evidence in the Courtroom: Admissibility and Statistical Significance After Daubert (Washington Legal Foundation 1993).

¹⁴⁹ Alternatively, states might adopt the latest version of Uniform Rule of Evidence 702, which incorporates the holdings of the Daubert trilogy while still retaining an element of Frye. Under U.R.E. 702, courts must determine whether expert scientific, technical or specialized testimony is based upon principles or methods that are reasonably reliable; whether the testimony is based upon sufficient and reliable facts or data; and whether the witness has applied the principles or methods reliably to the facts of the case. The rule incorporates the same factors suggested in Daubert as possible criteria for determining the reliability of expert evidence. Frye is relevant because there is a presumption of reliability if a principle or method at issue has "substantial acceptance" within the relevant scientific, technical or specialized community.

Given the continued confusion over how to apply Frye, and the tendency of courts applying an "acceptance" test to rely on (1) prior case law and (2) the views of subgroups of experts who specialize in the field in question but who lack credibility in the broader scientific community, "substantial acceptance" should not create a presumption of admissibility. In particular, applying such a presumption would likely make it nearly impossible for criminal defendants to challenge venerable forensic techniques of dubious reliability.

¹⁵⁰ Ned Miltenberg, Out of the Fryeing Pan and into the Fire, and Out Back Again--Or "Back to the Future," 2 Ann. 2000 ATLA CLE 2645 (2000).

¹⁵¹ Phillips v. Indus. Machine, 597 N.W.2d 377, 391 (Neb. 1999) (Gerard, J., concurring).

¹⁵² "Even in states which do not have a version of the federal code of evidence, such as New York, one easily discerns an emerging trend on the part of trial judges to more assiduously scrutinize expert testimony to assure that it is reliable." Michael Hoenig, 'Testability' of Expert's Technique or Theory, N.Y.L.J., Nov. 13, 2000, at 3.

¹⁵³ As the Supreme Court of Alaska noted:

Frye is potentially capricious because it excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny. Because the Frye test potentially excludes evidence that should be admitted under our rules, and also potentially admits evidence that should be excluded under our rules, we conclude that it is both unduly restrictive and unduly permissive.State v. Coon, 974 P.2d 386, 393-94 (Alaska 1999).

¹⁵⁴ See, e.g., David E. Bernstein, The Science of Forensic Psychiatry and Psychology, 2 Psychology, Psychiatry & L. 75 (1995). California's Frye-Kelly test is closer to a reliability test than to a traditional general acceptance test. See supra note 98 & accompanying text.

¹⁵⁵ SeePaul C. Giannelli, "Junk Science": The Criminal Cases, 84 J. Crim. L. & Criminology 105 (1993).

¹⁵⁶ United States v. Bonds, 12 F.3d 540 (6th Cir. 1993); Coon, 974 P.2d at 398 ("It also seems unlikely that methodologies that were admitted under Frye and that remain generally accepted in the appropriate community will be excluded, absent affirmative evidence of unreliability."); Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999); State v. Kinney, 762 A.2d 833, 841 (Vt. 2000); Murray v. State, 692 So. 2d 157 (Fla. 1997) (choosing to continue using "the higher standard of reliability as dictated by Frye"); State v. Carter, 524 N.W. 763, 768 (Neb. 1994) (declining "to adopt the less demanding Daubert standard"). But see Phillips, 597 N.W.2d at 388-89 ("The 'gatekeeper' function exercised by trial courts under the Daubert/Kumho Tire analysis is, in fact, a more effective means of excluding unreliable expert testimony than is the Frye test.").

¹⁵⁷ State v. Alberico, 861 P.2d 192, 203 (N.M. 1993).

¹⁵⁸ See, e.g., 1 McCormick on Evidence, supra note 40, §203.