By Jacob W. Gent
In a recent article entitled Fibromyalgia, Expert Testimony and the Washington Courts: A Cautionary Tale, we explored one of the many evidence-based legal challenges facing trauma victims when seeking redress for their injuries. Specifically, the article discussed the effect of the 2006 Washington Court of Appeals decision in Grant v. Boccia,1 on the standard for introducing expert testimony when a medical condition is involved.
The Court of Appeals in Grant held that expert testimony concerning a particular scientific/medical theory over which there was a significant dispute within the relevant scientific community was inadmissible. In so doing, the appellate court upheld the trial court’s decision to exclude evidence of fibromyalgia’s connenction to trauma, which resulted in the injured party’s case being dismissed, despite the significant and disabling nature of that person’s injuries.
The Court of Appeals came to its decision, in part, by using what is known as the Frye2 test, a threshold standard for evaluating the admissibility of evidence at trial. Under Frye, the court does not decide whether a particular scientific theory or method is correct, but whether it is “generally accepted” within the appropriate scientific community.3 The Grant court stated that the existence of a “consensus is necessary for admissibility of expert opinion testimony” and required “sufficient reliability and acceptance” within a scientific community for the evidence to be admissible under the Frye test.4
A person bringing a negligence claim has the burden of proving his or her damages in court. That burden is met only by introducing evidence and testimony from the plaintiff’s treatment providers and other scientific or forensic experts. Grant gives defendants an easy way to challenge the admissibility of expert evidence; defendants need only claim that there is a lack of “consensus” within the applicable scientific or medical community. Under this standard, the prospect for recovery for damages by an injured person was adversely impacted and the decision provided an unfair advantage to insurance companies looking for a way to get out of paying reasonable compensation.
Fortunately, a recent Washington Supreme Court decision, entitled Anderson v. Akzo Nobel Coatings, Inc.,5 has brightened the prospects for injured parties by overruling the Grant decision. Plaintiff Julie Anderson filed a negligence claim against her former employer claiming that exposure to toxic paint at work caused injuries to her unborn son, resulting in serious “medical abnormalities” by age 3, including neuronal migration defect, congenital hemiplegia, microcephalus, and multicystic dysplastic kidney.6 At trial, defendant Akzo Nobel persuaded the court to exclude Ms. Anderson’s expert testimony offered to support her causation theory on the ground that it did not meet the Frye standard. Without the support of this evidence, Ms. Anderson could not prove that her exposure to the toxic paint had caused her son’s injuries and her negligence claim against Akzo Nobel was dismissed. 7
In a unanimous decision, the Supreme Court held that the Frye test for admissibility of novel scientific evidence was not implicated if the theory and/or the methodology relied upon by the expert to reach their opinion was generally accepted by the relevant scientific community. The Supreme Court stated that Frye did not require every deduction drawn from generally accepted theories or practices to be generally accepted within the relevant scientific community.8 Put another way, the Grant decision held that there must be a consensus of opinion within the relevant community for a theory on causation to be admitted into evidence, while the court in Anderson stated that a consensus on the causation theory was not required, but that the theory of causation being offered must be based on principles or methods which are generally accepted within the community.
In reaching its conclusion, the Anderson court reasoned that the Frye rule recognized that science is a constantly evolving field in which novel scientific techniques pass through an “experimental stage,” subject to scrutiny, debate, and testing by the scientific community, until arriving at a “demonstrable” stage where general acceptance is achieved.9 The court also noted there is a “difference between the quest for truth in the courtroom and in the laboratory,” and that “scientific standards and legal standards do not always fit neatly together”; the degree of certainty required for general acceptance within the scientific community is much higher (95%) than the standard of proof in civil litigation (a “preponderance,” or greater than 50%). 10
Some comments by the Anderson court should be of particular interest to treatment providers called upon to provide expert opinion testimony in a deposition or trial setting:
The absence of a “statistically significant basis” for the expert’s opinion… neither implicated Frye nor rendered the proffered testimony inadmissible. Many expert medical opinions are pure opinions and are based on experience and training rather than scientific data. We only require that “medical expert testimony… be based upon ‘a reasonable degree of medical certainty’” or probability. Many medical opinions on causation are based upon differential diagnoses. A physician or other qualified expert may base a conclusion about causation through a process of ruling out potential causes with due consideration to temporal factors, such as events and the onset of symptoms.11
Frye does not require that the specific conclusions drawn from the scientific data upon which [the expert] relied be generally accepted within the scientific community. Frye does not require every deduction drawn from generally accepted theories to be generally accepted.
. . . If we were to accept [the defendant’s] argument and require “general acceptance” of each discrete and evermore specific part of an expert opinion, virtually all opinions based upon scientific data could be argued to be within some part of the scientific twilight zone.12
It is important for healthcare professionals treating patients injured as a result of another party’s negligence to be familiar with the medical-legal rules related to their legal recovery. The attorneys of Adler Giersch, PS, are available to assist patients and providers alike through the intricacies insurance claims and court processes.
1 133 Wash. App. 176 (2006).
2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3 Grant at 179.
4 Id. at 183.
5 260 P.3d 857 (2011).
6 Andersonat 859-860.
7 Id. at 860.
8 Id. at 866
9 Id. at 864. (Internal citation omitted.)
11 Id. at 865-866. (Internal citations omitted.)
12 Id. at 866. (Internal citations omitted.)