Standard used in Frye does not apply to expert testimony based on experience and observation of witnesses

Law Reporter, May 2001

Kuhn v. Sandoz Pharms. Corp., 14 P.3d 1170 (Kan. 2000).

The Kansas Supreme Court held that the admissibility of expert testimony on whether a woman's death was caused by a drug is not governed by the standard used in Frye ro. United States, 293 F. 1013 (D.C. Cir. 1923).

Here, a woman died after taking the drug Parlodel. Her husband and others sued the manufacturer. Plaintiffs sought to introduce the testimony of three expert witnesses on the connection between the drug and the woman's death. The experts compared symptoms of different conditions to rule out various other possible causes of death. The trial court found that plaintiffs had not shown these opinions were generally accepted as reliable within the relevant scientific community, as required by Frye.

Reversing, the state high court observed that the Frye test does not apply to "pure opinion" testimony-expert opinions developed from inductive reasoning based on the expert's own experience, observation, or research. It does apply, however, when an expert witness reaches a conclusion by deduction from applying a new or novel scientific principle, formula, or procedure developed by others, the court explained.

The distinction between pure opinion testimony and testimony relying on scientific technique helps preserve the right to a jury trial, the court noted. Under the Kansas constitution, it is the jury that has the responsibility to decide between conflicting assertions, including conflicting opinions of causation, the court said.

Plaintiffs' causation experts in this case relied on their own experience and training when they offered their opinion that causes of the decedent's death other than Parlodel could be excluded. The weight of these opinions will not hinge on the validity of a scientific principle, device, test, or procedure developed by another-the type of situation in which the Frye test is applicable. Rather, the weight will depend on the accuracy of the experts' observations, the extent of their training, and the reliability of their interpretations, the court said. Such issues are better addressed through cross-examination, submission of contrary evidence, or limiting jury instructions than through exclusion of testimony.

Accordingly, the court remanded the case for further proceedings.

Plaintiffs' Counsel *Channel P. Townsley, Wichita, Kan. *Andrew W Hutton, Wichita, Kan.