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The Frye-Mack analysis remains the standard for admissibility of scientific evidence in Minnesota, the Minnesota Supreme Court ruled last month ( Lawrence C. Goeb, et al. v. Timothy Tharaldson d/b/a Duluth Quality Pest Control, et al., No. CX-98-2275, Minn. Sup.). The court held that a trial judge did not err in excluding expert testimony offered by the plaintiffs in a Dursban exposure case because the experts failed to eliminate other potential causes of the plaintiffs’ claimed illnesses. Lawrence and Diane Goeb sued Timothy Tharaldson and Dow Chemical Co., alleging that exposure to pesticide Dursban caused personal injuries and property damage. Dow is the manufacturer of Dursban; Tharaldson applied it to a home rented to the Goebs. The trial court granted a defense motion for summary judgment; the Minnesota Court of Appeals affirmed the dismissal, finding that the trial court properly excluded plaintiff expert testimony and properly applied preemption law under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The Minnesota Supreme Court granted review. ARGUMENTS ON APPEAL On appeal, the Goebs argued that if the reliability of the experts’ methodology is disputed in a summary judgment context, as it is here, it should be left to the jury to resolve that conflict and summary judgment should be denied. They also urged the state Supreme Court to adopt Daubert as the standard for determining admissibility of scientific evidence. In response, Dow Chemical argued that whether expert testimony is admissible under Minnesota law is a question solely for the trial court. Moreover, Dow said, the trial court did not err when it found that the methodologies used by the Goebs’ experts, Dr. Janette Sherman and Dr. Kay Kilburn, were not generally accepted and reliable under Daubert principles. And, Dow said, the trial court properly granted partial summary judgment on the basis of FIFRA preemption. FRYE-MACK VS. DAUBERT Affirming, the state Supreme Court held that the standards of general acceptance and reliability set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and State v. Mack, 292 N.W.2d 764 (Minn. 1980) remain in place in Minnesota. Under that test, a novel scientific technique must be generally accepted in the relevant scientific community and the evidence derived from the test must have a scientifically reliable foundation to be admitted into evidence. While critics of the Frye standard claim that it may “exclude cutting-edge but otherwise demonstrably reliable, probative evidence,” the high court said, “in practice, Daubert does not necessarily make admissible expert evidence that was not admissible under Frye.” Further, the court said, while the Frye standard has been criticized on grounds that it improperly defers to scientists the legal question of admissibility of scientific evidence, “ Daubert takes from scientists and confers upon judges uneducated in science the authority to determine what is scientific.” The court also rejected the argument that the general acceptance standard set forth in Frye is difficult to apply, saying that such criticisms “are not unique to Frye-Mack, given that general acceptability is also one of the Daubert factors.” NON-UNIFORMITY Finally, the court said that the potential for non-uniformity under Daubert raises concerns. “Cases built on similar facts and offering similar scientific techniques could have widely disparate results,” the court said. “For example, the 5th and 9th Circuit Courts have held that Daubert overruled the per se rule excluding polygraph evidence. As a result, each federal district court will need to consider the admissibility of polygraph evidence anew each time it is raised.” In contrast, the court said, “under the Frye prong of the Frye-Mack standard, the trial judge defers to the scientific community’s assessment of a given technique, and the appellate court reviews de novo the legal determination of whether the scientific methodology has obtained general acceptance in the scientific community.” FRYE-MACK APPLIED Applying Frye-Mack to the testimony at issue, the high court agreed with the lower court that the methodologies used by Sherman and Kilburn were not reliable. Specifically, the court said, Sherman did not review the Goebs’ pre-exposure medical records and relied primarily on the oral history given to her by the Goebs. In addition, she failed to explain “post-exposure medical tests that reflected normal neurological examinations and blood tests.” Similarly, while Kilburn stated in an affidavit that he had performed a differential diagnosis, “he admitted at his deposition that he did not review appellants’ pre- or post- exposure medical records.” Without the experts’ testimony, the Goebs will not be able to prove medical causation, the court said, affirming summary judgment for Dow on that issue. Finally, the court affirmed the lower court’s ruling that a number of the claims asserted by the Goebs are preempted by FIFRA. Dow Chemical is represented by Mark S. Olson and Cynthia J. Atsatt of Oppenheimer, Wolff & Donnelly in Minneapolis and Robert D. MacGill and Joseph G. Eaton of Barnes & Thornburg in Indianapolis. The Goebs are represented by Mark W. Gehan of Collins, Buckley, Sauntry & Haugh in St. Paul, Minn.

� Copyright 2000 Mealey Publications, Inc.

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