Section 13.5 Frye

• Library: Sources of Proof (2014 Ed.)

B. (§13.5) Frye, Daubert, and § 490.065, RSMo

Before the adoption of § 490.065.1, now RSMo 2000, Missouri courts adopted the Fryev. United States, 293 F. 1013 (D.C. Cir. 1923), standard. This standard instructs that “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.” Id. at 1014; seeAlsbach v. Bader, 700 S.W.2d 823, 828–30 (Mo. banc 1985).

The United States Supreme Court has since determined that the Frye test was superseded by the adoption of Federal Rule of Evidence 702. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 585 (1993). In Daubert, the Supreme Court found no provision in the Federal Rules of Evidence for the “general acceptance” standard of Frye. Id. at 588. In fact, the Court concluded that Frye was “incompatible” with the Federal Rules of Evidence. Id. at 589.

Under Daubert, 509 U.S. 579, it is the trial judge’s duty to screen expert testimony for relevance and reliability. Id. at 589. The evidence is admissible if it is scientifically based and will assist the trier of fact in determining a fact in issue. Daubert suggests that a trial court, when assessing the reliability of expert testimony, consider:

· whether the concept has been tested;

· whether the concept has been subject to peer review;

· what the known rate of error is; and

· whether the concept is generally accepted by the community.

Id. at 592–93. See Pestel v. Vermeer Mfg. Co., 64 F.3d 382 (8^th Cir. 1995), in which the district court did not abuse its discretion in determining under Daubert, 509 U.S. 579, that expert testimony in a products liability action would not assist the jury when an expert engineer admitted that:

· he would not use a guard in its present state;

· he had not tested the guard;

· the concept of the guard was evolving and had not been generally accepted; and

· he had not contacted others to determine if other similar-type guards had been created.

Federal principles on this topic continue to evolve. Effective December 1, 2000, Federal Rule of Evidence 702 was amended. Relying in part on Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), Rule 702 now provides that an expert may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d)

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