Many litigants rely on “expert” testimony to establish their case in front of a jury. However, not all expert testimony is allowed to be presented to a jury. If the testimony involves a “novel” theory, the trial courts must decide (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.
In Anderson v. Akzo Nobel Coatings, Inc., the Washington Supreme Court confronted the question of how specific and accepted does a medical theory have to be before it is submitted to a jury. In Anderson, the plaintiff claimed that her child was born with several birth defects allegedly caused by toxins she inhaled while working for Akzo. According to the plaintiff’s expert, toxic solvents like the ones Anderson was exposed to pass easily through the placenta and dissolve into the amniotic fluid inside the uterus, and may damage the developing brain of a fetus within the uterus. Before the trial court, Akzo successfully excluded the plaintiff’s expert, claiming that there “must be general acceptance in the relevant scientific community that a particular type of in utero toxic exposure can cause a particular type of birth defect before expert testimony on causation is admissible.”
The Supreme Court rejected Akzo’s argument by taking a general view of the Fry test. specifically, the Court held that the Frye test is not implicated if the theory and the methodology relied upon and used by the expert to reach an opinion on causation is generally accepted by the relevant scientific community. The Court noted “there is nothing novel about the theory that organic solvent exposure may cause brain damage.”
So, in viewing Fry, the Supreme Court refused to allow the Fry test from becoming a test of specifics. The Fry test does not look to whether a particular toxin can cause birth defects, but whether any toxins can cause birth defects. It is for the jury to decide whether a particular toxin, based on the expert testimony, caused the birth defect.