observing that the method of extrapolation does not involve a technique new to science that may instill a sense of false confidence because "extrapolation by nature admits its fallibilitythe lack of specific support to establish the existence of a known cause and effect relationship"
How later courts described this case
- observing that the method of extrapolation does not involve a technique new to science that may instill a sense of false confidence because "extrapolation by nature admits its fallibilitythe lack of specific support to establish the existence of a known cause and effect relationship"
- noting that the extrapolation method did not involve a new scientific technique that may instill a sense of false confidence because Aextrapolation by nature admits its fallibilityBthe lack of specific support to establish the existence of a known cause and effect relationship@
- noting that this court has not considered adopting the new Daubert standard to replace the Frye standard
- declining to adopt the frequency, regularity and proximity rule and “depart from traditional concepts of causation” in a case involving environmental exposure, as opposed to asbestos exposure, because “[e]nvironmental exposure cases *** do not afford litigants the opportunity to specify with such certainty the exact level and dose of exposure” or “when or where exposure occurred”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by In Re Commitment of Simons, 213 Ill. 2d 523 (2004)
199 Ill. 2d 63, 78 (2002), abrogated on other grounds by In re Commitment of Simons, 213 Ill. 2d 523, 530
The opinion
JUSTICE McMORROW, specially concurring:
Although I agree that the appellate court judgment should be affirmed, I write separately to reiterate the position I took in People v. Miller, 173 Ill. 2d 167 (1996), that “the all-encompassing abuse of discretion standard” is inappropriate when reviewing “the legal issues raised by trial court applications of the Frye standard.” Miller, 173 Ill. 2d at 204 (McMorrow, J., specially concurring). I maintain, as I did in Miller, that the more appropriate standard for reviewing Frye “general acceptance” issues is de novo.
Whenever a trial court is called upon to decide whether to admit expert testimony, the court must decide whether the expert is qualified to testify in the subject area and whether the proffered testimony will assist the jury in resolving the issues before it. These determinations, like most evidentiary matters, are traditionally left to the discretion of the trial court and its decision should not be reversed unless it is found that the trial court abused its discretion. People v. Gilliam, 172 Ill. 2d 484 (1996); People v. Jordan, 103 Ill. 2d 192 (1984).
Frye evidence is a particular form of expert testimony. As the majority correctly acknowledges, when an expert’s opinion is derived from a scientific method or technique which is alleged to be unconventional or novel, the admission of the expert’s testimony depends on whether the trial court finds that the scientific method employed by the expert meets the Frye “general acceptance” test. In my view, the “general acceptance” question should not be subject to an abuse of discretion standard. As stated in the specially concurring opinion in Miller:
“There are good reasons why the determination of general acceptance in the scientific community should not be left to the discretion of the trial court. Foremost is the fact that the general acceptance issue transcends any particular dispute. As one court has put it, ‘[t]he question of general acceptance of a scientific technique, while referring to only one of the criteria for admissibility of expert testimony, in another sense transcends that particular inquiry, for, in attempting to establish such general acceptance for purposes of the case at hand, the proponent will also be asking the court to establish the law of the jurisdiction for future cases.’ Jones v. United States, 548 A.2d 35, 40 (D.C. App. 1988). Application of less than a de novo standard of review to an issue which transcends individual cases invariably leads to inconsistent treatment of similarly situated claims.” People v. Miller, 173 Ill. 2d at 204 (McMorrow, J., specially concurring).
In addition, de novo review of the “general acceptance” issue allows the reviewing court to look beyond the expert evidence presented in the trial court. It allows consideration of other judicial opinions, including those from other jurisdictions, as well as pertinent legal and scientific commentaries. See Miller, 173 Ill. 2d at 205 (McMorrow, J., specially concurring).
The appropriateness of employing a de novo standard when reviewing decisions regarding “general acceptance” under Frye has been recognized by courts in other jurisdictions. In fact, the supreme courts in three states, citing to my special concurrence in Miller, have adopted a de novo standard for reviewing the “general acceptance” issue. See Commonwealth v. Vao Sok, 425 Mass. 787, 796 , 683 N.E.2d 671 , 677 (1997); State v. Harvey, 151 N.J. 117, 167 , 699 A.2d 596, 619 (1997); Brim v. State, 695 So. 2d 268, 274 (Fla. 1997).
On a whole, then, there is no single standard of review appropriate when considering the admissibility of Frye evidence. Traditional evidentiary matters, such as the expert’s qualification to testify and the relevancy of the testimony, should be left to the discretion of the trial court. “General acceptance,” however, is more appropriately a matter subject to a de novo standard of review.
Adopting this dual standard of review is not unusual. This court has recognized that the measure of deference to be afforded any trial court determination depends on “the substantive and procedural backdrop against which the appealed order or ruling arose.” People v. Coleman, 183 Ill. 2d 366, 378 (1998). Further, it has been acknowledged that, at times, evidentiary issues can present both questions of law and fact, requiring application of different standards of review at different junctures in the inquiry. See In re G.O., 191 Ill. 2d 37, 47-48 (2000) (whether trial court erred in denying defendant’s motion to suppress his statements based on a claim that they were involuntarily made is subject to de novo review, although any factual findings will be accorded great deference).
In the present case, the majority, without discussion or analysis, states: “We review Frye issues under an abuse of discretion standard.” 199 Ill. 2d at 76. In so doing, the majority appears to hold that the deferential “abuse of discretion” standard should be applied to a trial court’s determination that a novel scientific technique has gained general acceptance in the relevant scientific community and that the trial court’s determination will not be reversed absent an abuse of discretion. At the same time, however, the majority states, “[o]nce a principle, technique, or test has gained general acceptance in the particular scientific community, its general acceptance is presumed in subsequent litigation; the principle, technique, or test is established as a matter of law.” 199 Ill. 2d at 79. Later, citing to my special concurrence in Miller, the majority states:
“Where the question of general acceptance of a scientific technique is raised for the first time a court is generally asked to establish the law for future cases.” 199 Ill. 2d at 83.
These statements are inconsistent. On the one hand, the majority professes to be applying an abuse of discretion standard when analyzing whether the trial court properly admitted expert testimony under the Frye standard. On the other hand, the majority expressly acknowledges that “general acceptance” is a legal issue — and legal issues are normally subject to de novo review. In my view, the bar and bench would be better served if the majority took this opportunity to acknowledge that a de novo standard of review is appropriate when reviewing issues of “general acceptance” under Frye.
JUSTICE GARMAN joins in this special concurrence.