Alabama's evolving standard of admissibility for expert scientific testimony.

• Author: Montiel, Joi Tatum

INTRODUCTION

The success or failure of a plaintiff's case will often turn on the admissibility or exclusion of the plaintiff's expert's testimony. This is particularly true in the areas of products liability and toxic torts litigation, where plaintiffs' experts commonly testify to the causal relationship between the defendant's product or activity and the plaintiff's injury. Admissibility of such expert testimony in Alabama state courts is governed by several sections of the Alabama Rules of Evidence. (1) Alabama Rule of Evidence 702 directly addresses the admissibility of expert testimony. Ala. R. Evid. 702 allows testimony by a qualified expert to be admitted into evidence if his specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue." (2) However, an additional requirement is imposed if the expert testimony offered is based on a novel scientific principle. (3) This additional requirement for scientific testimony poses a peculiar challenge to judges and lawyers in Alabama, where the standard for admissibility of scientific testimony is anything but clear. Not only is the standard of admissibility unclear, but also unclear is in what instances the additional requirement should be imposed.

The admissibility of scientific testimony in both federal and state courts was clearly governed by the standard set forth in Frye v. United States (4) until 1975 when the Federal Rules of Evidence were adopted. Debate then erupted as to whether Frye survived adoption of the Rules. The Supreme Court of the United States held that it did not when it handed down Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993. (5) Since the Alabama Rules of Evidence were adopted in 1996, the Supreme Court of Alabama has also been urged to abandon the decades-old Frye standard in favor of the more contemporary Daubert standard. As there has been significant argument regarding the viability of the Frye standard in Alabama after the Supreme Court of the United States' 1993 Daubert decision, and following the adoption of the Alabama Rules of Evidence in 1996, the status and development of the Supreme Court of Alabama's position on the issue are due for examination.

A 2000 Comment stated: "[t]he burning issue with respect to the admission of scientific evidence in Alabama is whether the Supreme Court of Alabama will choose to adopt the federal standard for admission of scientific evidence or whether the court will continue to follow the traditional Frye standard for admission of scientific evidence." (6) This Comment will examine whether this "burning issue" has since been resolved; in other words, whether the admissibility of novel scientific evidence in Alabama courts is governed by Frye, Daubert, or neither. Such an examination requires an exploration of the historical development of the "Frye versus Daubert" issue in Alabama and the Supreme Court of Alabama's efforts to reach the issue since the adoption of the Alabama Rules of Evidence. This Comment concludes that the issue has yet to be affirmatively resolved. The Supreme Court of Alabama has appropriately limited its holdings to the issues before it and the "Frye versus Daubert" issue has yet to be properly presented to the Court for its full consideration. Thus, the questions of whether either Frye or Daubert should apply in a given case, which of the two is to be applied, and whether the appropriate test is satisfied will all continue to be answered on a case-by-case basis until such time as the issue is properly presented to the Supreme Court of Alabama.

HISTORICAL DEVELOPMENT OF THE FRYE VERSUS DAUBERT ISSUE IN ALABAMA

In 1923, the Court of Appeals for the District of Columbia in Frye v. United States (7) set forth a "general acceptance" test for admissibility of novel scientific evidence. The test was enunciated as follows:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (8)

This "short and citation free" (9) 1923 decision went unnoticed for decades; but gained recognition with the increasing popularity of expert testimony in the courtroom. (10) In determining admissibility of novel scientific evidence, both federal and state courts adopted the Frye "general acceptance" standard. (11) Alabama courts heralded Frye as the "seminal case" in protecting against admissibility of unreliable scientific testimony. (12) However, the Frye standard itself subsequently came under increasing attack and there was much debate as to its survival of the adoption of the Federal Rules of Evidence in 1975. (13) This debate was resolved for federal courts (14) in the Supreme Court's 1993 Daubert decision.

"In light of the sharp divisions among the courts regarding the proper standard for the admission of expert testimony," (15) the Supreme Court of the United States granted certiorari in Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993. (16) The Daubert Court overruled the Frye "general acceptance" standard and held once and for all that the Federal Rules of Evidence, adopted in 1975, superseded the Frye test. (17) The Court held that the "rigid 'general acceptance' requirement" of Frye "would be at odds with the 'liberal thrust' of the Federal Rules and their 'general approach' of relaxing the traditional barriers to 'opinion testimony.'" (18) Rather, Daubert assigns the trial judge a "gatekeeping" (19) function of "ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand" (20) and advises trial judges to consider the nonexclusive factors of testability (or falsifiability), error rate, peer review, and publication, in addition to general acceptance. (21)

As Daubert was not of constitutional dimension, the states were not bound by the decision. (22) Thus, Alabama was left free to continue its adherence to the Frye test. Alabama Rule of Evidence 702, governing testimony by experts, was made effective on January 1, 1996. The language of Ala. R. Evid. 702 is identical to the Federal Rule of Evidence 702 adopted in 1975:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (23)

As this exact language was held by the Supreme Court of the United States in Daubert to abrogate the Frye standard of admissibility, the question presents itself: If Fed. R. Evid. 702 abrogated the Frye standard in federal courts; should not the identical Ala. R. Evid. 702 do the same in Alabama state courts?

The drafters of the Alabama Rules of Evidence utilized the Federal Rules of Evidence as a model. (24) It was the policy of the Advisory Committee to adopt the language of the Federal Rules of Evidence "unless...