Expert Medical Opinions in Toxic Tort Cases are Not Subject to Exclusion Under Kelly Frye
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Expert Medical Opinions in Toxic Tort Cases are Not Subject to Exclusion Under Kelly Frye

Kelly-Frye mandates the exclusion from evidence of test results to determine facts when the tests are generated by a new scientific machine, mechanism or instrument which is unproven or experimental.

The principle was first stated in Frye v. United States (1928) 293 F. 1013. It was later adopted by the California Supreme Court in People v. Kelly (1976) 17 Cal.3d 24. Frye involved the exclusion of an early form of lie detector test; Kelly dealt with the use of "voiceprint" evidence to identify the perpetrator of a crime. In both cases these new experimental tests were excluded.

In every toxic tort case defendant chemical companies routinely make Kelly-Frye motions seeking to exclude the plaintiff's experts from testifying that their chemicals cause canser. In most cases it is common for defendants to claim that plaintiff's experts should be precluded from testifying that even chemicals recognized as carcinogens since the 1980s by the State of California under Proposition 65 are carcinogens.

In every Kelly-Frye motion the Court must first determine whether there exists any type of new scientific machine, mechanism or instrument which is at the heart of the challenged testimony.

For example, in People v. McDonald (1984) 37 Cal.3d 351 (disapproved on another point in People v. Mendoza (2000) 23 Cal.4th 896), the question was whether an expert testimony on the accuracy of eyewitness identification, based on reference to various psychological factors, should be excluded. The Supreme Court held that Kelly-Frye principles had no application to the proposed testimony, since the information to be provided was not based on a new scientific test or magic "black box," but rather simply constituted "expert testimony."

It is important to distinguish . . . between expert testimony and scientific evidence. When a witness gives his personal opinion on the stand - even if he qualifies as an expert - the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. But the opposite may be true when the evidence is produced by a machine: like many lay persons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently 'scientific' mechanism, instrument, or procedure. . . ." (McDonald, supra at 372-3.)

Where there is no new scientific testing machine, mechanism, or instrument that is being offered, rather only medical and scientific opinions, there is no legal basis for excluding medical opinion evidence under Kelly-Frye and the California Supreme Court and a host of Courts of Appeal have held that medical opinion testimony is not subject to Kelly-Frye.

As a matter of law, medical opinions cannot be exclude from the jury's consideration. People v McDonald, supra,(1984) 37 Cal.3d 351, at 373, disapproved on other grounds in People v. Mendoza (2000) 23 Cal.4th 896 ("We have never applied the Kelly-Frye rule to expert medical testimony, even when the . . . subject matter is . . . esoteric . . . ." At 373.); People v. Cegers (1992) 7 Cal.App.4th 988 ("An expert may always give his opinion as to the cause of a particular injury or condition, and lack of absolute scientific certainty does not constitute a basis for excluding the opinion."); People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293-4 ("[A] medical diagnosis based on medical literature will not be viewed as a new scientific technique, but simply the development of an opinion from studies of certain types of cases."); People v. Bui (2001) 86 Cal.App.4th 1187 (toxicologist's opinion, based on two epidemiologic studies, that methamphetamine use can and did cause impairment of motor coordination not subject to Kelly-Frye); Wilson v. Phillips (1999) 73 Cal.App.4th 250 (psychologist's opinion as to causal connection between condition known as dissociative amnesia and accuracy of repressed memory not subject to Kelly-Frye); People v. Ward (1999) 71 Cal. App. 4th 368, 373 (expert psychiatric opinion based on application of Diagnostic and Statistical Manual of Mental Disorders criteria as to future dangerousness not subject to Kelly-Frye); People v. Luna (1988) 204 Cal.App.3d 726, 732-4 (medical opinion based on use of a medical device known as a colposcope not subject to Kelly-Frye); People v. Phillips (1981) 122 Cal.App.3d 69, 86-7 (medical opinion based on review of medical literature of subject's condition not subject to Kelly-Frye).

The opinions of medical experts in toxic tort cases that cancers, birth defects and other diseases have resulted from exposure to defendants' chemicals is not a subject for Kelly-Frye analysis and is not excludable under Kelly-Frye.

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