Is Frye-Mack toast? Committee mulls shift to Daubert standard.

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Minnesota judges might soon be using a different legal framework when deciding whether or not to admit expert witnesses.

The Minnesota Supreme Court’s Advisory Committee on the Rules of Evidence is currently studying whether to dump the Frye-Mack standard — a hoary body of case law with roots that stretch back to 1923 — with the Daubert standard, variations of which have been adopted by the federal courts and the majority of states since the 1993 U.S. Supreme Court decision of the same name.

Ted Sampsell-Jones, the chair of the advisory committee and a professor at Mitchell Hamline School of Law, said the committee is mulling the switch because “we have a general sense that there is dissatisfaction with Frye-Mack among Minnesota judges and lawyers.”

Speaking for himself and not the committee, Sampsell-Jones opined that the “eminently sensible” federal approach would help judges and lawyers on all sides because it would clarify the tests for admissibility of expert testimony.

That said, Sampsell-Jones emphasized that no decision has been made on a recommendation and, given the robust opposition to Daubert among trial lawyers, it’s possible none will. The committee will be soliciting input in the coming months, he said.

Rich Ruohonen, the secretary for the Minnesota Association of Justice and a personal injury attorney at TSR Injury Law, said he’s been encouraging fellow members of the MAJ to air their concerns with committee members ever since he first caught wind of the possibility change last spring.

“I think there’s a tremendous feeling that this is not the way to go,” Ruohonen said. “For us, no change is good. We’ve been under the same standards for years. It hasn’t been a problem. There hasn’t been this big uproar that we need to change from Frye-Mack. But I’ve heard from a lot of people who practice in federal courts and who say Daubert sucks.”

Paul Peterson, a partner at Harper & Peterson P.L.L.C. who handles personal injury cases in both state and federal courts, said Daubert doesn’t necessarily create a greater burden for getting experts into court. But he said Frye-Mack is tailored more narrowly to address admissibility of novel scientific theories, while Daubert is applied more broadly, giving judges more opportunities to exercise their gatekeeper role.

“Daubert says to judges, ‘Go and review all expert testimony,’” said Peterson. “It’s an invitation to judges to take a more active role in excluding evidence. So in cases where the judges are inclined to accept that invitation, it’s usually bad for the plaintiff because, most of the time, the plaintiff has the burden of proof.”

As a consequence of that dynamic, everyone concedes, most in the plaintiffs’ bar wants the Minnesota courts to stick with Frye-Mack, while the defense bar would welcome a switch to Daubert.

Despite the sharply delineated battle lines, retired Minnesota Supreme Court Justice Paul Anderson said he’s not so sure about the commonly held assumptions about which standard provides an advantage to whom.

Still, Anderson thinks there is a practical reason for Minnesota to stick with Frye-Mack.

After the U.S. Supreme Court decided Daubert in 1993, Anderson pointed out, many legal observers believed it would simplify the standards for deciding admissibility. But, Anderson noted, Daubert has been modified by subsequent case law, with plenty of conflicting jurisprudence between the state, district, and circuit courts.

“We have a well-established body of law on Frye-Mack which seems to work,” Anderson said. “Why should we force our attorneys to read the entrails of multiple, conflicting opinions from across the country to try to figure out a new standard?”

In 2000, the Minnesota Supreme Court took that position when it explicitly rejected Daubert (and re-affirmed Frye-Mack) in Goeb v. Tharladson, a product liability case.

Writing for the unanimous court, then-Chief Justice Kathleen Blatz also expressed the concerns about the expanded gatekeeper role for the bench under Daubert, which, she said, “takes from scientists and confers upon judges uneducated in science the authority to determine what is scientific.”

Daubert may have a better friend in the court’s current chief justice, Lorie Gildea.

The same year Goeb came down, Gildea, who was then an associate general counsel at the University of Minnesota, penned a law review expressly advocating that Minnesota abandon Frye-Mack in favor of the Daubert because “trial judges, not scientists or technicians, are best suited to decide what evidence is admissible and the reason for its admissibility.”

In the same article (“Sifting the Dross: Expert Witness Testimony in Minnesota after the Daubert Trilogy”), the future chief justice acknowledged that switch would significantly expand the role of bench, a change she analogized to “a trip from the calm, stable plains to the rigorous and intimidating mountains.”

But that’s a good thing, asserted Gildea, who concluded by urging the Minnesota Supreme Court to “give the Minnesota trial bench the opportunity and responsibility to make this trip.”

Minnesota is not the only alone in wrestling with whether to adopt the Daubert standard, which, with variations, is now applied in 37 states.

Victor Schwartz, general counsel at the American Tort Reform Association and a partner at the Washington, D.C. firm of Shook Hardy & Bacon, pointed out that Missouri Gov. Jay Nixon recently vetoed a bill that would have mandated a switch to Daubert. In Florida, meanwhile, the state Supreme Court is currently weighing whether to overturn a similar mandate from its legislature.

“In some of these jurisdictions, the fight isn’t so much whether Daubert is right or wrong; it’s whether the legislatures have the authority to change the rules of evidence,” observed Schwartz.

While the looming debate in Minnesota has drawn the attention of civil practitioners, there are implications for prosecutors and defense attorneys, too. Notably, the Frye standard — general acceptance within the scientific community — derives from a criminal case, where the court was faced with the question of whether or not to allow a polygraph test.

But if criminal practitioners might have a stake in the outcome, there doesn’t seem to be much awareness within the respective bars at moment. Asked whether anyone in the Hennepin County Attorney’s Office could provide a perspective, spokesman Chuck Laszewski said he was unable to locate anyone in the office who was aware of the possible rule change.