I missed this when it came out in October, but the New York Court of Appeals issued an important ruling on the Frye rule for the admissibility of expert testimony. The court's ruling establishes (1) that Frye applies in New York in civil as well as criminal cases; and (2) even in cases where the evidence at issue is not novel, and thus (says the court) there is not technically a Frye issue, to lay a proper foundation for the admissibility the testimony in question must still meet a general acceptance test. Moreover, while the court thought the Appellate Division's opinion below was too strict, in contrast to several recent opinions from other Frye jurisdictions and, for that matter, lower New York courts, the court ultimately upheld the exclusion of plaintiff's causation evidence as too speculative. All in all, a significant loss for those who have tried to evade the strict scrutiny trend under Federal Rule of Evidence 702 and the Daubert trilogy by fleeing to Frye jurisdictions.

When I suggested that at least some lawyers were doing so in a recent post, a few commenters vociferously objected. One even claimed that I was merely spreading "corporate tort reform propaganda." Coincidentally, I just came across the following paragraph in a publication of the American Trial Lawyers Association, an organization for plaintiffs' attorneys:

In the years since Daubert, often the most daunting challenge faced by a plaintiff in a federal drug or medical device case is overcoming the defendant's challenge to the plaintiff's experts. As a result, many plaintiffs' attorneys choose to keep their cases out of federal court by any means possible, since the majority of state courts--even those that have adopted the Federal Rules of Evidence or a close approximation thereof--have rejected a strict application of Daubert and its progeny. In many cases, this has led plaintiffs' attorneys to bring in as additional defendants treating doctors, pharmacies, or suppliers, so as to destroy the diversity between all parties necessary for federal court jurisdiction. Alternatively, plaintiffs' attorneys have chosen to avail themselves of any available friendly state court forum, such as the defendant drug manufacturer's state of incorporation, even if that state is far from the plaintiffs' residence and the plaintiffs' lawyer's home state.