District of Columbia Adopts Rule 702 Standard in Cell Phone Brain Tumor Cases

On October 20, 2016, the District of Columbia Court of Appeals abandoned the long-used Dyas/Frye test to govern the admissibility of expert testimony in favor of the standards embodied in Rule 702 of the Federal Rules of Evidence. The court issued its decision after the lower court permitted plaintiff expert opinions linking cell phone use to brain tumors under the then-existing Dyas/Frye standard.

In the matter of Motorola Inc. v. Henry, plaintiffs in thirteen cases had sued numerous cell phone manufacturers, service providers and trade associations, alleging that long-term exposure to cell phone radiation causes brain tumors. After consolidation for the purposes of a Dyas/Frye hearing, the Superior Court of the District of Columbia, Civil Division, conducted an evidentiary hearing to determine the admissibility of plaintiffs’ medical causation experts. The court heard four weeks of testimony from plaintiffs’ eight experts and defendants’ four rebuttal experts, received approximately 280 exhibits containing thousands of pages of documents and reviewed hundreds of pages of legal briefing both before and after the hearing.

In its ruling, the lower court discussed the distinction between the Dyas/Frye admissibility standard then in effect and the higher standard for admissibility under Rule 702 and Daubert. The court noted that some of the plaintiffs’ expert’s general causation opinions would be precluded under the Rule 702/Daubert standard, but were admissible under the Dyas/Frye standard. Constrained to apply the Dyas/Frye standard, the lower court permitted some of plaintiffs’ general causation experts to testify because they used a recognized scientific methodology. Under the Dyas/Frye standard, the court would not scrutinize whether that methodology was properly applied. Clearly, the lower court telegraphed that under the higher Rule 702 standard, plaintiffs’ experts would have been precluded.

On appeal, the District of Columbia Court of Appeals reviewed the principles set forth in Frye v. United States and Dyas v. United States which include a three-part test for determining whether to admit expert testimony: (1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman”; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth”; and (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.” [Citation Omitted]. Critics of Dyas/Frye claim that it is antiquated and out-of-step with modern science. It avoids, even forbids, looking at the crucial question of whether the testimony offered in a particular case is reliable. Some say that Frye forces unqualified jurors to decide which scientific theories should be applied to the particular case.

The court then discussed the higher Rule 702 standard: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” The Rule 702 and Daubert standard is faulted for producing inconsistent results, for making unqualified judges evaluate the work of scientists, and for invading the province of the jury.

In ultimately adopting the Rule 702 standard, this court emphasized that, like the “general acceptance” test within Dyas/Frye, Rule 702 is concerned with the reliability of the “principles and methods” applied by the expert. However, Rule 702(d) goes further and expressly requires the court to determine whether “the expert has reliably applied the principles and methods to the facts of the case.” Accordingly, this court concluded that Rule 702, with its expanded focus on whether reliable principles and methods have been reliably applied, states a rule that is preferable to the Dyas/Frye test. The ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike. The thirteen cases consolidated on appeal have thus been remanded for further proceedings consistent with the opinion.


More and more, we are seeing toxic tort litigation claims being pursued with questionable scientific support. From the cell phone/brain tumor litigation to the talc/ovarian cancer cases, the standard for admissibility of expert testimony is critical. From a defense perspective, removal to federal court or changing to a venue with a Rule 702 and Daubert standard should be a threshold consideration. However, that is only the beginning. Mastering the science and retaining knowledgeable experts is where the real work begins. Mounting an effective challenge to well-credentialed plaintiff experts is crucial as well. Often, experts will attempt to cloak their unsupported opinions in “studies” that really do not support their conclusions. The ultimate challenge will be to distill complex scientific issues down to an understandable story that the court can follow and comprehend. Knowing the literature, having the right experts, debunking the plaintiffs’ hypothesis and educating the court is the road map to success in these cases.



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