Grant v. Boccia

137 P.3d 20, 133 Wash. App. 176
CourtCourt of Appeals of Washington
DecidedMarch 28, 2006
DocketNo. 24320-6-III
StatusPublished
Cited by13 cases

This text of 137 P.3d 20 (Grant v. Boccia) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grant v. Boccia, 137 P.3d 20, 133 Wash. App. 176 (Wash. Ct. App. 2006).

Opinion

¶1 Adam and Tami Grant appeal the trial court’s summary dismissal of their negligence suit. They contend the court erred by excluding expert testimony that [178]*178Mr. Grant’s fibromyalgia1 was caused by an automobile accident and by dismissing their suit for lack of causation. We affirm.

Kato, C.J.

[178]*178¶2 On October 23, 1997, Gertrude Boccia collided with Mr. Grant’s vehicle while she was changing lanes. The collision forced Mr. Grant’s vehicle onto the curb. On October 9, 2000, the Grants sued Ms. Boccia, claiming the accident caused Mr. Grant’s fibromyalgia.

¶3 On December 15, 2003, Ms. Boccia moved to exclude any expert medical testimony the trauma from the accident caused Mr. Grant’s fibromyalgia. Ms. Boccia argued under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the proposition that trauma causes fibromyalgia is not generally accepted in the relevant scientific community and such testimony should be excluded. The court granted the motion and dismissed the lawsuit because the Grants could not otherwise prove causation. This appeal follows.

¶4 The Grants contend the court erred by excluding the expert opinion testimony that trauma causes fibromyalgia. Id. at 1014. A witness qualified as an expert may testify on the basis of “scientific, technical, or other specialized knowledge” if the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” ER 702. But the admission of novel scientific evidence involves two related inquiries: (1) whether the scientific principle or theory from which the testimony is derived has garnered general acceptance in the relevant scientific community under the Frye standard and (2) whether the expert testimony is properly admissible under ER 702. See State v. Riker, 123 Wn.2d 351, 359, 869 P.2d 43 (1994); State v. Copeland, 130 Wn.2d 244, 261, 922 P.2d 1304 (1996) (affirming Washington’s adherence to Frye despite United States Supreme Court’s adoption of a different test in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)); see State v. Dunn, 125 Wn. App. 582, 590, 105 P.3d 1022 (2005).

[179]*179 ¶5 In examining a Frye question, the court must determine: “(1) whether the underlying theory is generally accepted in the scientific community and (2) whether there are techniques, experiments, or studies utilizing that theory which are capable of producing reliable results and are generally accepted in the scientific community.” Riker, 123 Wn.2d at 359. Under the Frye test, we do not determine if the scientific theory underlying the proposed testimony is correct. Rather, we must look to see whether the theory has achieved general acceptance in the appropriate scientific community. Id. at 359-60. If there is significant dispute in the relevant scientific community about the validity of the scientific theory, it may not be admitted. State v. Cauthron, 120 Wn.2d 879, 887, 846 P.2d 502 (1993), overruled in part by State v. Buckner, 133 Wn.2d 63, 941 P.2d 667 (1997).

¶6 The review of a trial court’s decision to admit or exclude novel scientific evidence is de novo. Id. A reviewing court will undertake a searching review that is not confined to the record and may involve consideration of scientific literature. Copeland, 130 Wn.2d at 255-56. “Decisions from other jurisdictions may be examined as well, but the relevant inquiry is the general acceptance by scientists, not by the courts.” Cauthron, 120 Wn.2d at 888.

¶7 The Grants first contend the court erred in applying Frye because the doctrine is inapplicable here. They argue that because the experts’ opinions were derived from accepted clinical methodologies consisting of common and well-accepted evidence to support a conclusion on causation, Frye has no application. Although the core concern of Frye is only whether the evidence being offered is based on established scientific methodology, the analysis requires both an accepted theory and a valid technique to implement that theory. Cauthron, 120 Wn.2d at 889. “ ‘[T]he thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Id. at 887 (quoting Frye, 293 F. at 1014).

[180]*180¶8 Here, the Grants provided no evidence their experts’ methodologies used to conclude trauma causes fibromyalgia were sufficiently established to have gained general acceptance. Indeed, the record reflects medical science is still unclear as to the processes that trigger fibromyalgia. The simple assertion that their experts’ methodologies are common and well accepted to prove causation does not take their opinions outside the ambit of Frye. The “use of a general methodology cannot vindicate a conclusion for which there is no underlying medical support.” Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999).

¶9 The Grants next assert Frye is inapplicable because the theory that physical trauma causes fibromyalgia is not new or novel. “[EJvidence that does not involve new methods of proof or new scientific principles is not subject to the Frye test.” State v. Baity, 140 Wn.2d 1, 10, 991 P.2d 1151 (2000). This is because full acceptance of a process in the relevant scientific community obviates the need for a Frye hearing. State v. Russell, 125 Wn.2d 24, 41, 882 P.2d 747 (1994) , cert. denied, 514 U.S. 1129 (1995). But here, the record reflects there is no definitive acceptance as to the cause of fibromyalgia. The theory that fibromyalgia is caused by trauma is a new scientific principle subject to the Frye analysis.

¶10 Citing Reese v. Stroh, 128 Wn.2d 300, 907 P.2d 282 (1995) , a medical malpractice case, the Grants also assert that expert opinion on the cause of a medical condition is not subject to the Frye test. Because their expert was offering testimony on causation, they argue Frye is inapplicable here.

¶11 In Reese, a doctor sought to exclude under Frye the patient’s expert testimony that the doctor’s failure to treat the patient with a specific drug therapy caused decreased lung capacity. Id. at 303-04. Our Supreme Court held Frye was inapplicable because the doctor did not argue that the theory or methodology involved in the therapy lacked acceptance in the scientific community. Id. at 307. But in Ruff v. Department of Labor & Industries, 107 Wn. App. [181]*181289, 301

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137 P.3d 20, 133 Wash. App. 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grant-v-boccia-washctapp-2006.