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Clarifying the criteria for admission of expert opinion evidence, the Illinois Supreme Court on Feb. 22 affirmed a $3.2 million jury award to the families of four children who developed a rare form of cancer while living near an abandoned coal gas processing site owned by a public utility. Donaldson v. Central Illinois Public Svc. Co., docket no. 89679. One child died after developing a neuroblastoma, a kind of nervous system cancer; another is paralyzed from the waist down. The cancer in the other two children is in remission. The ruling resolves a split among Illinois’ five intermediate appellate courts. Four courts applied the admission standards created by the 1923 U.S. Supreme Court case Frye v. United States. But, the state’s 3d District court had used a “ Frye-plus-reliability” standard, incorporating some of the gatekeeping criteria developed by the U.S. Supreme Court in its 1993 case Daubert v. Merrel Dow Pharmaceuticals Inc., 509 U.S. 579. While not expressly overruling Frye, the Daubert Court said that Frye had been superseded by the 1975 adoption of the Federal Rules of Evidence. Attacking the trial judge’s decision to admit testimony by three plaintiffs’ experts on the causal links between the children’s cancer and toxic conditions at the site, the utility then known as CIPS said the judge failed in his role as gatekeeper. Rejecting that argument and the 3d District standard, Justice Thomas R. Fitzgerald wrote, “Today, we clarify that this is not the standard in Illinois.” Unembellished, Frye dictates that scientific evidence is only admissible if the methodology or scientific principle on which the evidence is based is sufficiently established to have gained general acceptance in the expert’s field. The more stringent “ Frye-plus-reliability” would have compelled a trial judge to engage in a six-step analysis to determine the reliability of the expert opinion after determining that the methodology was generally accepted. “The determination of the reliability of an expert’s methodology is naturally subsumed by the inquiry into its general acceptance by the scientific community,” the court held. “Simply put, a principle or technique is not generally accepted in the scientific community if it is by nature unreliable.” The utility’s lead counsel, David J. Rosso of Cleveland-based Jones, Day, Reavis & Pogue, said that not only did the state supreme court fail to adopt the modified Frye standard, but that it actually weakened the existing standard. “They disemboweled Frye,” he said. Now, Rosso said, if an expert has the proper credentials and a relevant but not necessarily majority opinion, he’ll be allowed to testify. “I’m surprised the court was not willing to get into the issue of whether the data was reliable,” he added. The plaintiffs’ lead counsel, Thomas Londrigan of Londrigan Potter & Randle in Springfield, Ill., was out of the country and could not be reached for comment. Alexandra De Saint Phalle, a partner in the firm who worked on the brief, would say only that their clients were very happy with the decision. Renamed AmerenCIPS after its 1998 merger with Missouri’s Union Electric Co., the utility has until March 15 to move for reargument, a spokesman said.

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