Cell Phones, Brain Cancer, and Scientific Outliers in Murray v. Motorola
43 Product Safety & Liability Reporter 1418 (2015)
4 Pages Posted: 20 Dec 2015 Last revised: 9 Mar 2016
Date Written: December 14, 2015
The District of Columbia’s highest court recently heard oral argument in Murray v. Motorola, Inc., on whether to discard the very test that its predecessor introduced into the law of evidence in the celebrated — and castigated — case of Frye v. United States. In 1923, Frye introduced the “general acceptance” standard for admitting scientific evidence in court. In 1993, the Supreme Court construed the Federal Rules of Evidence as replacing the “austere” general-acceptance standard with one that looks more directly at whether a scientific test or method is valid and reliable.
A recurring issue under Frye is whether proposed testimony represents a “conclusion” that need not be generally accepted or a “method” that must be. In Murray, the trial court faced this issue with regard to proposed expert testimony that cell phones can cause brain cancer. It ruled much of this testimony admissible on the theory that regardless of the extent to which the conclusions are within the mainstream of scientific thinking, the “methods” behind them were generally accepted in ascertaining carcinogenicity. Uncomfortable with this result, however, the court urged the Court of Appeals to abandon Frye. It suggested that it would exclude much of the testimony if only it could apply the approach sketched in Daubert.
However, under Daubert (as originally formulated) the same issue of distinguishing methodology from conclusion arises. Drawing on the “trans-case” analysis in The New Wigmore, A Treatise on Evidence: Expert Evidence and other writing, this essay reveals that for the plaintiffs’ testimony in Murray to be admissible under Frye (or under the general-acceptance prong of the more open-ended Daubert standard), the proposition that cell phones can cause cancer must be generally accepted in the relevant scientific community. Consequently, the essay reaches two conclusions. First, it is not necessary to adopt Daubert for the reason proposed by the trial court. Second, the Court of Appeals should consider whether the use of abstract methods such as “weight-of-evidence analysis” establishes the kind of general acceptance required under Frye (and highly pertinent under Daubert) for expert opinions of general causation to be admitted in the face of a lack of widespread acceptance (or even an outright rejection) of the proffered opinions among knowledgeable scientists.
Keywords: scientific evidence, Frye, Daubert, general acceptance, cell phones, epidemiology, toxicology, Federal Rule of Evidence 702
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