Court lowers bar for admitting expert testimony

By Dan J. Von Seggern

The Frye rule, which governs admissibility of expert testimony, does not require that an expert’s specific conclusions on causation be “generally accepted” in the scientific community, the Washington Supreme Court recently held.

In Anderson v. Akzo Nobel Coatings, Inc., no. 82264-6, Julie Anderson was a longtime employee of Akzo who regularly mixed paint on the job. Akzo officially required employees to wear respirators while mixing paint but did not rigorously enforce that policy. Anderson claimed that she did not use a respirator because her supervisor said she did not need to. Anderson also asserted that the employees’ respirators were not properly maintained and that Akzo had deliberately not properly tested the air in the mixing room.

In 2000, Anderson gave birth to a son, Dalton. By 2003, he was diagnosed with serious medical abnormalities, along with delays in motor, communication, cognitive, and adaptive behavior. Anderson complained anonymously to the state Department of Labor and Industries, resulting in Akzo being cited. In 2004, she filed a formal complaint in her own name about her safety concerns. Just days later, Akzo fired her on the ground that she had taken paint without paying for it. Anderson disputed that charge.

Anderson sued Akzo for negligence, alleging that her paint exposure caused Dalton’s injuries, and for wrongful discharge. Anderson supported her claims through the testimony of experts including Dr. Sohail Khattak, who had published a paper on the correlation between exposure to organic solvents in utero and birth defects. Dr. Khattak opined that in utero exposure to solvents caused Dalton’s condition. He based his opinion in part on his own research on in utero solvent exposure that was published in the Journal of the American Medical Association. Akzo’s expert co-authored that article and would testify that it did not establish a cause-and-effect relationship between in utero solvent exposure and birth defects.

Akzo moved in limine to exclude Anderson’s experts, arguing that their opinions did not meet the test of Frye v. U.S., 54 App. D.C. 46 (1923), an evidentiary standard followed in Washington courts. Akzo pointed out that Dr. Khattak acknowledged that “we don’t have enough research” on causation of specific birth defects. The trial court agreed, struck the experts, and later granted summary judgment for Akzo on the negligence claim because without those experts, Anderson had no proof of causation. Anderson successfully petitioned the Washington Supreme Court for review.

In Frye, a federal appeals court noted, “Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define.” The court held that the technical basis for expert testimony “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Thus, under Frye, admissibility of expert testimony turns on whether the theory underlying the testimony has become generally accepted in the relevant scientific community. In 1993, the U.S. Supreme Court noted that the trend was to admit expert testimony more liberally than under the Frye test. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court held that the court must determine

whether the testimony is reliable, and specifically whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at hand. Daubert rejected the “general acceptance” requirement of Frye.

In criminal cases, the Washington Supreme Court has long followed the Frye “general acceptance” test and rejected the looser Daubert “reliability” test. In civil cases, however, the Court has not made a definitive ruling either adopting Frye or rejecting Daubert. The Anderson Court “assumed, without deciding,” that Frye would apply to civil cases. The Court then stated that “the Frye test is only implicated where the opinion offered is based upon novel science,” and that Frye does not require the specific conclusions drawn from generally accepted theories to also be generally accepted. Because Dr. Khattak’s methods and his general theories that exposure to organic solvents may cause brain damage and encephalopathy were not novel, the Frye test did not apply.

The Court noted that Akzo had other protections regardless of the Frye rule. The Evidence Rules still require that expert testimony be probative and relevant, and helpful to the trier of fact. The expert must possess sufficient expertise and a sufficient factual foundation for the expert’s opinion. Moreover, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”

The Anderson Court reversed the exclusion of Dr. Khattak’s testimony and the dismissal of Anderson’s negligence claim.

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