Daubert, Frye and DTI: Hijacking the Right to Trial by Jury

Abstract

This article is a response to a number of recent articles by commentators such as Wortzel (2013), Meltzer and colleagues (2013), and Wortzel, Tsiouris, and Filippi (2014) that seek to restrict the admissibility of diffusion tensor imaging (DTI) in court cases where an injured plaintiff has suffered a mild traumatic brain injury.  The legal question governing the admissibility of expert testimony in these cases is that they misframe the issue of whether DTI technology has gained general acceptance as a diagnostic tool for single incidents, such as when they make a “plea for healthy skepticism regarding the value of [DTI], especially given the nature of [its] frequently visually spectacular impact on judges and jurors” (Wortzel et al. 2014, 9). This article offers a brief overview of DTI technology and its capabilities; summarizes the legal standards governing admissibility of such evidence and the position utilized by opponents of DTI to prevent admissibility; discusses events that transpired at an Emory conference seeking to develop some expert consensus around these issues; and concludes with the following: that when the question of admissibility is viewed through the proper lens, district courts should reach the conclusion that DTI has gained sufficient acceptance to be admitted and that the problems raised by its opponents are more properly handled by way of vigorous cross examination, as opposed to the outright exclusion recommended by some neuroradiologists.

Keywords:

• law
• neuroimaging

Notes

A copy of the transcript of the deposition is on file with the author.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  While Daubert concluded that Frye's “general acceptance” standard was superseded by the adoption of the Federal Rules of Evidence—to wit, Rule 702—a number of jurisdictions have retained the Frye standard.  See, e.g., Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (reaffirming Minnesota State Court's adherence to the Frye standard and rejecting the federal Daubert standard).

The court recognized that the list was neither dispositive nor exhaustive, and in the years since the court's decision in Daubert, a number of other factors have been determined to be relevant in evaluating the admissibility of expert testimony in Daubert jurisdictions.  See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (commenting that Daubert requires that the district court is assured that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field”); General Elec. v. Joiner, 522 U.S. 136, 146 (1997) (whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, resulting in “too great an analytical gap between the data and the opinion proffered”); Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (holding that possibility of uneliminated causes goes to weight and not admissibility as long as the most obvious causes have been considered and reasonably ruled out by expert).

A copy of the affidavit is on file with the author.

Ebel, et al. v. Apache, et al., New Mexico State Court, First Judicial District, File No. D-101-CV-2012–01210, November 22, 2013 Motion Hearing (rough draft transcript on file with author).

A complete list of attendees is on file with the author and available on request.

Ebel case: see note 6.