Daubert or Frye? The Most Important Standard You’ve Never Heard Of

The controversy over the allegation that genital talc use in females increases the risk of ovarian cancer is still raging. Juries have awarded tremendous damages in two cases that Johnson & Johnson has publicly announced they intend to appeal. The situation raises the interesting question of whether the judicial system is capable of determining “true” facts independently of the scientific community.

Daubert v. Frye

Daubert v. Frye was never a case; instead, they are two competing standards that govern the admissibility of scientific evidence in a court of law. The short version is that the Frye test came about in response to polygraph evidence in a 1923 Federal Court case; briefly, the rule requires that any scientific evidence submitted to the court is valid if and only if it has gained general acceptance in the particular field in which it belongs.

In the 1990s, things got a bit more complicated. Beginning with Daubert v. Merrell Dow Pharmaceuticals and spanning two more cases over the decade, a new series of rules were established that would eventually supersede the Frye doctrine as Federal law. The Daubert standard laid out in greater detail the admissibility requirements for expert testimony in any case. As of today, more than 75% of states have adopted Daubert. Interestingly, Missouri, where two talc cases were awarded millions in damages, and New Jersey, where the majority of talc cases are pending, still use the Frye standard.

How relevant are these standards?

The National Law Review commented on the jury decisions in the talc cases heard in Missouri, saying, “…was it really the jury that made the decision, or was it the judge and loose legal doctrine – permitting the jury to hear so-called ‘junk science?’

With talcum powder and cancer, that certainly does not appear to be the case. The fact is that scientists have been claiming links between talc and ovarian cancer since the 1970s, and while there may be as many studies that disprove the link as there are that establish one, the belief that there is a linkage is not new, novel, or without merit” (emphasis ours).

Johnson & Johnson’s continuing failure to acknowledge the possibility of a link and further failure to warn consumers is the heart of the matter in these cases. Ovarian cancer victims aren’t looking for a scapegoat, nor are they out solely for financial compensation. For many, there is no way to undo the effects of the disease, but a simple warning from a company that many have trusted for generations would have been enough.

Every day, we fight for those who have been the victims of neglect and negligence at all levels. If you believe that your loved one’s ovarian cancer was the result of talc use, you may be entitled to compensation. The experienced South Carolina defective product attorneys at McGowan, Hood, Felder & Phillips, LLC can evaluate your case and help get you the compensation you deserve. Call 803-327-7800 or contact us today for a free consultation.