Justice slowly but surely: Toasting the Frye test

Trial News

November 1, 2011

It has happened to all of us. There you are, sitting in the courtroom waiting for the judge to appear and issue a ruling. The judge finally emerges from wherever it is that judges go to decide which of your arguments do or don’t stink. You and your client bolt to attention. You look across the courtroom and it is unclear which side won that battle. But you are quite confident that you stood up quicker than the defense lawyers at the other table, this time.

The smell of victory is in the air. But then, rather abruptly, the judge starts to speak. A few moments earlier, you were certain of the strengths of your client’s case. You vetted it well. You did all of the right discovery, and more. This case wasn’t a flyer. In fact, it was perhaps the most important case you ever handled. To you, every case is important. You practice that way. Every case gets your 100%. But when the case involves an injury of this nature, with a plaintiff of this nature — an injured child — you know that you need to do better than 100%. You have to win.

You were confident knowing you submitted your best briefing. All of the bad case law had been distinguished, you thought. Impeccable expert declarations were submitted. Your record has been fortified with everything needed. If the judge knew how much time, effort, strategy, and tactics that you put in, your client would prevail based upon sheer determination alone. You weren’t hedging this time. With this case, you did not need to.

But then, the judge starts talking. “Ruling” it is called. In this instance, “gutting” might be a more appropriate term. And all your hard work and client’s justice is curtly flushed down the proverbial drain. You did not think that it could happen. Not on this case. But it just did. You were just thrown out based upon one of “those” type of strained “technical” arguments concocted by some defense lawyer. This was not an argument based upon any kind of sound reasoning. This was not one of those inescapable dismissals upon which you expected the inevitable after having discovered a few bad facts that your client failed to mention from the outset. This wasn’t that case. It couldn’t be!

By the end of the oral filleting, you realize that “truth and justice” was not nearly as clear to the judge. You look to your side and your client is wobbly legged and bewildered as she imagines the fallout to her injured child. As you swallow deep to try and compose yourself while also straining to figure out how to explain this loss to your client, it gets even worse as you realize the judge isn’t finished yet. Oh no, just an oral ruling was not quite enough. You are summoned forward to receive your lashings in writing. Oh yes, a written document solidifying your complete and utter incompetence. Your client can take it home and read it over, and over, and over. A play-by-play of why the judge decided your arguments were not worth the paper that they were printed on. A point-by-point delineation of your failures that could be circulated on every listserv in the legal community. Defense lawyers throughout the state would soon be using this order, your order, as a road map of how to help get your plaintiff attorney peers’ cases dismissed too. You were not only the loser in this instance, you would also soon be famous.

This has happened to all of us in one way or another, at one time or another. If it has not happened to you, just wait, your time will come. It happened to me in Anderson v. Akzo Nobel. The Anderson case was one of my first true encounters involving a serious challenge to the admission of “scientific” evidence under a case that we were all supposed to learn to understand in law school, Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). Or, at least those diligent students who sat in the front row and were able to stay awake during Evidence class certainly did.

As a refresher to those who sat in the back of the Evidence classroom (next to me) that day, the Frye case set the standard concerning the admissibility of contested “scientific” evidence. In the Frye case, the issue before the Court pertained to the admissibility of a “deception test” in the context of a criminal prosecution. The prosecution expert’s “deception” opinion was based upon the theory that “blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it [was] claimed, demonstrated that fear, rage, and pain always produce a rise in systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of a crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure curve, which corresponds exactly to the struggle going on the in subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.” Id. at 1013-14.

The Frye Court understandably ruled that this lie detection “expert” opinion testimony was not a proper basis upon which to convict Mr. Frye and explained that the underlying methodology was not properly accepted in the scientific community: “We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” Id.

Over 90 years later, the Frye test had permeated into an often misinterpreted and frequently misapplied tool utilized by civil defense lawyers to have cases, such as the Anderson family’s, unfairly dismissed. My client, Julie Anderson, worked for a company known as Akzo Nobel. Akzo is a multi-billion dollar automobile paint manufacturer. Akzo markets paint products all over the world. Ms. Anderson worked for a local Akzo branch responsible for mixing and distributing products. At the time Ms. Anderson was terminated by Akzo for reporting workplace safety violations to WISHA, she had been a model employee, having been promoted from an entry level position into supervisory roles.

To the Anderson family, this case is not so much about Ms. Anderson but, instead, about receiving justice for Dalton Anderson. Dalton is Ms. Anderson’s now eleven-year-old son. At the time the Anderson family’s case was filed in 2006, Dalton had just turned seven. The reason Anderson pursued this case is that Akzo is responsible for causing Dalton to be born with serious birth defects including malformations of the brain. Dalton’s birth defects were caused by Ms. Anderson having been wrongfully exposed to Akzo paint products in the workplace. With regard to causation, there is no other viable medical explanation. Prior to any form of litigation, a number of Dalton’s treating physicians already alluded to the connection. And genetics testing had ruled out the possibility of an inherited offending gene.

In order to fortify the suspicions of the treating physicians, and for purposes of litigation, we retained several experts including an accomplished medical doctor who co-authored a publication in the Journal of American Medical Association (JAMA). JAMA is perhaps the most prestigious medical publication in the world. Medical researchers dream of having their work featured in this journal. Our selected expert’s research, as published in the resultant JAMA article titled Pregnancy Outcome Following Gestational Exposure to Organic Solvents, established with statistical probability that a child exposed to toxic paint fumes while in the womb is more likely to suffer from birth defects. See JAMA 1999; 281(12):1106-9. The JAMA study did not focus upon establishing a correlation between paint fumes and specific types of birth defects. Instead, the research and corresponding publication only catalogued the types of malformations and deformities suffered by the children evaluated in the study. Noteworthy was that at least one of the children in the JAMA study suffered from the exact type of brain malformation as Dalton Anderson’s, a neuronal migration defect.

As multi-billion dollar companies tend to do when getting sued, Akzo hired very clever lawyers. For the purpose of supporting the impending Frye challenge, Akzo’s hired-guns rushed out and retained one of the co-authors of the same JAMA study written by our expert! They hired this co-author and convinced him to opine that while the JAMA study did establish a statistical probability that there is a correlation between in utero exposure to paint fumes and birth defects, the study was purportedly not specific enough to establish causation in the Anderson’s case. Evidently, Akzo paid its expert enough to not only offer this contradictory opinion, but he managed to do so with a straight face.

Along came the Frye challenge. Akzo took their expert’s observations as to the purported lack of statistical strength of the JAMA study and offered arguments before the trial court. It was a classic battle of the experts. Akzo argued that the Anderson family’s claim was nothing more than “junk science” under a Frye analysis. By contrast, the Anderson family pointed out the mountains of supportive evidence, relying heavily on the study which was co-authored by the now competing scientists.

After extensive briefing and arguments, the trial court ultimately bought Akzo’s rhetoric. Based upon existing case law (now overturned) from Divisions I and III involving Frye challenges, the trial court agreed with Akzo and decided that the scientific underpinnings of the Anderson family’s case simply were not strong enough given the existing evidentiary standard. See Grant v. Boccia, 133 Wn. App. 176, 137 P.3d 20 (2006) and Ruff v. Department of Labor & Industries, 107 Wn. App. 289, 28 P.3d 1 (2001). While it was true that experts from both sides agreed, generally, that birth defects and particularly brain malformations could be caused by paint fume exposure, no scientist had ever conducted a study establishing that Dalton’s specific type of brain malformations were linked. In reaching this conclusion, the trial court embarked upon a journey of reviewing and interpreting the meaning and statistical strength of each epidemiological study cited by the parties. On behalf of the Anderson family, we argued that trial courts are unsuited to undertake this type of scientific scrutiny.

In the motions for reconsideration that followed, we argued, again and again, that Washington’s version of the Frye rule could not be this unforgiving. We re-cited Washington Supreme Court precedent indicating that, when conducting a Frye hearing, the trial court is supposed to focus upon evaluating the methods that experts employ to reach conclusions and not the ultimate conclusions derived by the experts. See State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006). From the Anderson family’s perspective, the trial court was substituting its interpretation about the meaning of the JAMA study for that of the seasoned professionals. Ultimately, the trial court stood fast with its unfavorable interpretation of existing precedent from Divisions I and III. The Anderson family was, temporarily, denied their day in court.

The trial court’s ruling seemed so unjust that in lieu of a conventional appeal we invoked Rule of Appellate Procedure 4.2. According to RAP 4.2, the Washington Supreme Court can accept direct review of trial court rulings under unique circumstances. In this instance, we argued the existing precedent from the Courts of Appeals was so bollixed up that only the Supreme Court could cure the defects with the law. To our surprise and satisfaction, the Supreme Court accepted our petition and the Anderson family moved one step closer to justice.

In the briefing and during the oral presentation, the arguments we advanced on behalf of the Anderson family were focused upon the unrealistic burden for the admission of scientific evidence as interpreted by the trial court under Frye. For instance, it would be ethically irresponsible to ask our expert to conduct an epidemiological study that involved the deliberate exposure of pregnant mothers to paint fumes in order to establish our specific causation premise. We trumpeted a parade of horribles including the fact that even if we came forward with an adequate epidemiological study, Akzo’s lawyers would simply redefine the scientific standard and identify another subgroup of scientific support which we failed to produce. Eventually, under Frye as applied by the trial court, we would be arguing about the size, shape, and color of Dalton’s mitochondria. We argued that this never ending process could not possibly be, or remain, the law.

During this appellate expedition, the Anderson family received the support of impeccable amicus curiae. On behalf of the WSAJ Amicus Foundation, George Ahrend and Bryan Harnetiaux submitted excellent briefing and provided much appreciated assistance in refining the arguments and highlighting additional helpful precedent. See e.g. Reese v. Stroh, 128 Wn.2d 300, 907 P.2d 282 (1995). On behalf of the National Fibromyalgia Association, Steve Krafchick submitted briefing delineating why precedent from a previous Frye court challenge loss before Division III (Grant v. Boccia) should be overturned. The benefit derived from the assistance of these advocates and organizations cannot be understated. The ultimate result in Anderson underscores the critical role the WSAJ Amicus Foundation plays in providing a stopgap for justice to civil litigants in Washington State.

Nearly fifteen long months after the oral argument, on September 8, 2011 at 8:20 a.m., an email was delivered to my inbox from the Clerk of the Washington Supreme Court. Justice! Every member of the panel who patiently suffered through my oral argument signed a unanimous opinion reversing the trial court’s ruling. The opinion also defined the proper application of Frye in Washington. The Supreme Court rejected the trial court’s application of Frye suggesting that “under Washington common law there must be a consensus of scientific opinion of the issue of specific causation” in order for expert testimony to reach a jury. Anderson, No. 82264-6, at 11. It was now clear: the Frye test was not that unforgiving.

Writing for the unanimous Court, Justice Chambers observed that “if we were to accept Akzo’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.” Id. at 18. The Court’s opinion went on to explain what seemed obvious to us before being dismissed by the trial court: “There is nothing novel about the theory that organic solvent exposure may cause brain damage and encephalopathy.” Id. at 19. “Frye does not require that every deduction be drawn from generally accepted theories to be generally accepted.” Id.

With regard to underlying reasoning, the Court explained “science never stops evolving and the process is unending. Each scientific inquiry becomes more detailed and nuanced.” Id. at 14. “Further, scientific standards and legal standards do not always fit neatly together.” Id. “To require the exacting level of scientific certainty would support opinions on causation would, in effect, change the standard for opinion testimony in civil cases.” Id. at 15. “Finally, evidence is tested by the adversarial process within the crucible of cross-examination, and adverse parties are permitted to present other challenging evidence.” Id. at 14. The Court’s opinion in Anderson provides needed clarity as to the proper application of the Frye test: when there is a dispute between the experts regarding the nature and interpretation of existing scientific evidence, the questions about the veracity of the experts’ conflicting conclusions are left to the jury instead of a the trial court. Id. The opinion states that during a Frye challenge, it is not enough for the defense to hire one expert with a conflicting view of the scientific evidence in order to have a case dismissed. Moreover, the true emphasis of any Frye analysis must be focused upon the methods the experts use in reaching their opinions versus the actual conclusions reached by the experts based thereon.

In addition to doing justice in the Anderson family’s case, the Supreme Court specifically explained that to “the extent that the Court of Appeals opinions in Grant, 133 Wn. App. 176, and Ruff, 107 Wn. App. 289, are inconsistent with this opinion, they are overruled.” As of September 8, 2011 at 8:20 a.m., the unfair precedent upon which the trial court based the earlier dismissal was no longer the law. In that regard, after years of delay, when I called Ms. Anderson to explain the good news, I was able to let her know that the original loss before the trial court ultimately resulted in justice for others, too.

Lincoln C. Beauregard, WSAJ EAGLE member, is with Connelly Law Offices in Tacoma. His practice emphasizes personal injury.