2015/11/26

Washington Post Novembe 24, 2015: D.C. court considers how to screen out ‘bad science’ in local trials

The District’s highest court on Tuesday considered whether to change the rules for screening out “bad science” from trials and to adopt the standards used in most states and federal courts.

Local prosecutors and public defenders had urged the D.C. Court of Appeals to switch to what they consider more-rigorous rules for filtering expert testimony that juries weigh at trial and to give judges a more robust role as “gatekeepers.”

The case before the appellate court involves the question of whether cellphones can cause brain cancer. Plaintiffs have sued cellphone manufacturers and providers in D.C. Superior Court alleging that long-term exposure to cellphone radiation causes brain tumors.

The appellate court will not rule on that specific issue, but the full court is taking the opportunity to weigh how judges decide which expert witnesses are allowed to testify.

“We’re all interested in having more-reliable testimony in court,” said Judge Catharine F. Easterly, who had tough questions for both sides during Tuesday’s oral arguments before a panel of seven judges.

The guidelines for how a judge should distinguish between good and bad science have long been the subject of debate and are a critical procedural matter for criminal trials and product liability lawsuits. Under the standard used in the District, Illinois and a small number of other states, the judge determines whether a methodology or theory has gained “general acceptance” in the expert’s field. The test is known as Frye, a reference to a 1923 D.C. Circuit case. more