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In 2002, this column devoted two articles to the division of authority over the question of whether the Frye general acceptance test or the Daubert empirical validation standard should govern the admissibility of purportedly scientific expert testimony. ["Evidentiary Balance," NLJ, 5-13-02; "Evidence Equilibrium," 7-22-02]. Those articles pointed out that while a majority of states now adhere to some variation of Daubert‘s reliability test, a significant minority still follow Frye. The articles also noted that the minority includes several populous, litigious jurisdictions such as California. In short, although Frye is technically a minority view, even in 2005 most state trials are governed by the general acceptance test. The California Supreme Court initially expressly adopted the Frye test in a pre-Daubert decision, People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240 (1976). In a post- Daubert decision, the same court reaffirmed its commitment to Frye. People v. Leahy, 8 Cal. 4th 587, 882 P.2d 321 (1994). Many advocates of the Frye test point to Leahy as proof of the continued viability of the general acceptance test. Ferment in California, despite ‘Frye’ commitment Despite the strong commitment by the California Supreme Court to Frye, there has been ferment in California. One of the causes seems to be a dissatisfaction among some of the lower courts with the limited scope of California’s version of the Frye test. To begin with, for the most part the California Supreme Court has confined the test to hardware or instrumental scientific techniques. For example, in People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709 (1984), the court refused to apply the test to expert psychological testimony about the untrustworthiness of eyewitness identifications. The court stated that the leading rationale for Frye is that lay “jurors tend to ascribe an inordinately high degree of certainty to” scientific evidence. The court asserted that that risk is plausible only when the purportedly scientific “evidence is produced by a machine.” Since the psychologist proffered as a witness in McDonald employed “no such methods,” his testimony did not trigger the danger inspiring Frye. With sweeping language, the court emphasized that in the past, it had “never applied the . . . Frye rule to expert medical testimony.” Moreover, to date California courts have largely refused to extend Frye to nonscientific expertise. Suppose, for instance, that a prosecutor calls a police officer to testify as an expert about the practices and behavior of gangs. If the prosecutor offers the testimony as nonscientific expertise, the testimony ordinarily escapes the general acceptance requirement. Rather than demanding a showing that the underlying theory or methodology is generally accepted, in practice the trial judge usually inquires only whether the witness qualifies as an expert and whether the topic is so esoteric that the jury might benefit from a qualified expert’s insight. The upshot is that both soft science and nonscientific expertise escape Frye scrutiny in California. In contrast, those types of testimony are subjected to Daubert‘s reliability analysis. In 1999, in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court announced that even when the proponent labels its expertise nonscientific, the proponent must demonstrate the reliability of the expertise. Whatever label the proponent employs, the trial judge may not accept the expert’s bare assertion that his or her reasoning and methodology are sound. Further, in Daubert the majority used a very broad definition of “science.” The message has not been lost on the lower courts. They have almost uniformly concluded that the requirement for a showing of reliability applies to soft as well as hard science. Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000); U.S. v. Amador-Galvan, 9 F.3d 1414 (9th Cir. 1993); Goodman-Delahunty, “Forensic Psychological Expertise in the Wake of Daubert,” 21 Law & Hum. Behav. 121 (1997); Comment, “Admissibility of Expert Psychological Testimony in Federal Courts,” 27 Ariz. St. L.J. 1315 (1995). Thus, two things have become increasingly clear to astute observers in California. One is that if there is a problem of unreliable soft science or nonscientific expertise, the California version of Frye gives its courts few tools to deal with the problem. Second, in contrast, Daubert has been interpreted as both enabling and requiring that courts applying that standard to directly tackle the problem of “junk” soft science and nonscientific expertise. The authors’ informal contacts with California judges and practitioners indicate that although the California Supreme Court remains formally committed to Frye, there is movement in the lower courts. Increasingly, when a California proponent offers medical testimony or nonscientific expertise, opponents are making Daubert-style foundational challenges specifically targeting the “reliability” of the testimony. In addition, there are signs that when the opponent raises substantial doubts about the reliability of the proffered testimony, California judges are “modifying” Frye in order to scrutinize the testimony. In the rough and tumble of the trial court, “generally accepted” can become “generally accepted as reliable” which can easily elide into “generally acceptable as reliable (because of sound methodology).” Perhaps the clearest indication of the state of flux in California is the history of In re Lockheed Litig. Cases, 126 Cal. App. 4th 271 (Calif. Ct. App.), depublished, 2005 Cal. Lexis 3888 (Calif. April 13, 2005). In those coordinated actions, the plaintiffs were current and former employees of Lockheed. They claimed that their personal injuries were caused by exposure to toxic chemicals while they were employed by Lockheed. In order to establish general causation, they offered both epidemiological and animal studies. The trial judge excluded the testimony about the studies. The judge barred the epidemiological evidence proffered by Dr. Daniel Teitelbaum on two grounds: The studies did not yield a relative risk exceeding 2.0. And while the studies involved multiple solvents, including solvents the plaintiffs had not been exposed to, they did not investigate the question of whether exposure to only the chemicals the plaintiffs had been exposed to would increase the incidence of disease. Similarly, the trial judge excluded the testimony about the animal studies. The judge faulted that testimony because the plaintiff’s expert failed to explain why an extrapolation to human beings was warranted despite the obvious differences in species and dosage. The intermediate appellate court affirmed the exclusion of both types of evidence. The appellate court agreed with the trial judge’s reasoning about the animal studies. However, the court disagreed with the trial judge’s categorical position that an epidemiological study falling short of the 2.0 threshold is automatically inadmissible. The court took the position that an epidemiological study yielding a lower relative risk could be admissible and that, in combination with other evidence, the study could be legally sufficient to support a finding of general causation. However, the court concluded that the trial judge’s error was harmless; it ruled that the exclusion of the evidence was justifiable on the alternative ground that the study involved solvents that the plaintiffs had not been exposed to. Interestingly, the California appellate court drew very extensively on federal authority. The court cited the Supreme Court’s decision in Daubert. Id. at 776. In addition, the court relied on numerous lower federal court decisions applying the Daubert standard to epidemiological evidence. Id. at 775-78. Furthermore, the court repeatedly referred to the Reference Manual on Scientific Evidence, which the Federal Judicial Center has prepared to assist judges to apply Daubert‘s validation standard. Id. at 775, 777. Throughout its discussion of the admissibility of the plaintiffs’ testimony, the court’s focus was squarely on the methodological soundness of the expert’s reasoning rather than the general acceptance of the expert’s theory or technique. If the reader did not know better, the reader would have sworn that the opinion had been rendered by a federal tribunal rather than a California state court. ‘Lockheed’ wasted no time in drawing attention The Lockheed decision immediately attracted attention. The decision was handed down at the end of January 2005. In a March issue of The Recorder, a sister publication of the NLJ, Chris Locke of Farella Braun + Martel analyzed the significance of the decision. ["Clearing Out the Junk," The Recorder, March 24]. In his article, Locke asserted that Lockheed “altered the expert-testimony landscape in California.” He added that the opinion “provides a framework for analysis that allows California courts to properly screen and exclude expert testimony that is not based on scientifically valid principles, and to do so in a manner akin to the reliability factors of Daubert.” Nor did Lockheed escape the attention of the California Supreme Court. In his article, Locke argued that Lockheed was “entirely consistent with the standards established by the California Supreme Court and Evidence Code.” The California Supreme Court may have thought otherwise. For its part, the court wasted little time in acting in early April 2005 to depublish the Lockheed decision. 2005 Cal. Lexis 3888, 2005 Daily J. D.A.R. 4267 (Calif. April 13, 2005). Under California law, a depublished opinion may not be cited or relied on as authority. Calif. Rules of Court 977(a) (2005). However, a depublication order “is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.” Id. at Rule 979(d). As a matter of formal precedent, Lockheed may be gone. However, given the ferment in California, it should by no means be forgotten. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He is co-author of Scientific Evidence (Lexis Law Pub. 3d ed. 1999).

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