On October 20, 2016, the District of Columbia Court of Appeals handed down a landmark opinion modernizing the District’s standards for the admission of expert testimony. Motorola Inc. v. Murray, _ A.3d _, No. 14-cv-1350 (D.C. Oct. 20, 2016) (en banc). In Motorola, the court adopted the more modern Daubert standard embodied in Rule 702 of the Federal Rules of Evidence and the case law applying the 1993 Supreme Court opinion, Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993). In doing so, the District discarded the decades-old “Frye-Dyas” standard, derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Dyas v. United States, 376 A.2d 827 (D.C. 1977).
Motorola heralds a shift from the limited Frye-Dyas inquiry into whether the expert applied “generally accepted” methodology to a Rule 702/Daubert standard with an “expanded focus on whether reliable principles and methods have been reliably applied.” The old standard allowed expert testimony if derived from generally accepted methods – even a misapplication of those methods. Conversely, it excluded expert testimony derived from novel methods – even if reliable and trustworthy. As the trial judge who certified the Motorola case for interlocutory appeal commented in his assessment of the old standard, “even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.” By contrast, Rule 702 tends to align the standard for admitting expert testimony more closely to the principles for determining reliability in science: “[I]f a reliable, but not yet generally accepted, methodology produces ‘good science,” Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out.”
In the Motorola case, Goodell DeVries attorneys Kelly Hughes Iverson, Kamil Ismail, and Craig S. Brodsky filed an amicus brief on behalf of the D.C. Defense Lawyers’ Association urging the adoption of the Rule 702/Daubertstandard, which it contended would advance one of the DCDLA’s key goals, that of “improving the civil justice system by making it more fair, consistent, and uniform.” As Goodell DeVries argued on behalf of the DCDLA, the Rule 702/Daubert standard requires trial judges to “independently evaluate the reliability of the opinions proffered by testifying experts,” as it is “reliability, not general acceptance, that should be the sine qua non of expert testimony.”