District of Columbia May Get Daubert Standard

The District of Columbia Court of Appeals heard oral arguments November 24th on whether or not the Daubert standard should be used in Motorola, Inc. v. Murray, a case that is nearly 15 years' long and where plaintiffs seek more than $1.9 billion in damages due to cancers allegedly caused by cellphone radiation. The ruling could set a precedent for the use of the Daubert standard in the District of Colombia, where the Frye standard began.

In August 2014, Judge Frederick H. Weisberg of the Superior Court of the District of Columbia issued his opinion that the testimonies of five of the plaintiffs' eight expert witnesses were admissible under Dyas¹/Frye standards, but Weisberg noted that the expert scientists' testimonies would "almost certainly be excluded under Daubert."

Justice Weisberg did exclude the testimony of two scientists opining as epidemiology expert witnesses and one in biophysics, and he partially excluded the testimony of a pharmacology and toxicology expert witness.

Dr. Shira Kramer, an epidemiologist, was excluded as she failed to demonstrate that she "… used any describable methodology at all, much less a generally accepted methodology". Dr. "Vini" Guatam Khurana, a neurosurgeon, was excluded as he provided a "shallow and highly selective reading" of the epidemiological literature, and lacked expertise in epidemiology. The testimony of Dr. Dimitris Panagopoulos, a biophysicist, was excluded as his methodology, placing a cell phone next to a vial of fruit flies, "has not obtained general acceptance." Dr. Laura Plunkett, a pharmacologist and toxicologist, had portions of her testimony excluded as irrelevant where it was used to support the testimony of Dr. Kramer and Dr. Panagopoulos since their testimony had been excluded.

The defendants in this consolidation of 13 cases — Audiovox Communications, Nokia, Qualcomm, Samsung and Motorola — appealed Judge Weisberg's decision allowing the other five experts' testimonies, arguing that the court should have used the Daubert standard.

The D.C. Superior Court and D.C. Court of Appeals do not apply the Federal Rules of Evidence nor rely on any legislatively created evidentiary rules. The common law on evidence controls expert evidence issues. That said, the D.C. rules on expert evidence overlap substantially with the Daubert standard as some of the key aspects of the Daubert standard are part of D.C.'s Dyas standard. Prominently lacking in the Dyas standard, however, is the discretion of the court to assess the reliability of expert testimony.

A decision by the D.C. Court of Appeals in favor of the defendants would affect what evidence could be admitted in other cellphone cases (seventeen similar cellphone-health cases are stayed pending a ruling in this case), and the decision could also set a new precedent in the Superior Court of the District of Columbia.

An amicus brief in favor of the Daubert standard was filed with the District of Columbia Court of Appeals jointly by the U.S. Chamber of Commerce, the International Association of Defense Counsel, the National Association of Manufacturers, and the National Federation of Independent Business. The brief argues that the current inability of District of Columbia courts "… to serve as gatekeepers against scientifically unreliable testimony places DC businesses at a significant disadvantage in comparison with those located in the vast majority of states that have adopted Daubert."

While cellphone manufacturers and wireless carriers have acknowledged in their SEC filings the risk posed by health-related lawsuits, the odds of the plaintiffs winning seem long. In his August 2014 ruling, Judge Weisberg wrote:

The consensus throughout the scientific community is that the present state of science does not permit any definitive answer to the question of whether cellphone, [radio-frequency] radiation causes cancer or any other adverse health effects.

Still, the case has continued through several motions to dismiss, as well as one effort to transfer it to federal court. Given that the Frye standard began in a D.C. courtroom 93-plus years ago when a judge decided not to admit into evidence a novel lie-detector test, it might be a time and a place to advance the admissibility standards.