Eighteen years after the U.S. Supreme Court enunciated a heightened standard of scrutiny to be applied to expert testimony in Daubert v. Merrill Dow Pharmaceuticals Inc.,1 New York continues to cling to the myopic “general acceptance” standard announced in Frye v. United States,2 nearly a century ago. A recent decision from the Appellate Division, Fourth Department, In re Bethany F.,3 dramatically illustrates the severe limitations of the Frye standard as a measure of reliability.

Distinction With a Difference

The Frye test mandates that the court determine the reliability of the principles and methods underlying an expert’s opinion using only one criterion: whether the principle or method in question has been generally accepted within the particular field in which it belongs. Under Frye, the court effectively delegates the question of reliability to the very professional/commercial community that has an economic interest in seeing its work product gain acceptance within the courts.4 The trial judge does not act as evidentiary gatekeeper so much as he or she acts as a number-cruncher, counting scientific noses rather than directly assessing the reliability of the proffered evidence. A particular method may be outright quackery but if enough of the ducks in the professional pond quack in unison that they accept it, into evidence it goes.

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