Fibromyalgia: Testimony Regarding Causation Need Not Meet the Frye Standard for Admissibility
According to the Mayo Clinic's website, doctors don't yet know what causes fibromyalgia, a condition whose symptoms can include widespread pain, fatigue and sleep disturbances, irritable bowel syndrome, headaches and facial pain, and heightened sensitivity, among others. Some experts, however, think the condition can be caused by trauma. What standards should govern the admissibility at trial of expert testimony in that regard? Specifically, should such testimony meet standard for admissibility set forth in Frye v. United States that the testimony have gained "general acceptance" in the scientific community?
In Marsh v. Valyou, decided on 11/21/2007, the Florida Supreme Court said no. A majority of the Court concluded that the Frye standard should not apply because the testimony of the experts in the case was "pure opinion," that is, it was based upon a review of the plaintiff's medical history, clinical physical examinations, their own experience, published research, and differential diagnosis, and not upon any "new or novel" scientific theory. The majority further concluded that even if Frye applied, its standards were satisfied by the testimony presented here.
Two of the justices in the majority (Anstead and Pariente), would have gone further and, similar to the United States Supreme Court's holding in Daubert v. Merrell Dow Pharmaceuticals, would have held that Frye has been superseded by the legislature's adoption of the Florida Evidence Code.
Marsh was not a workers' compensation case, but it's important to workers' compensation practitioners because: (1) the Florida Evidence Code does govern the admissibility of evidence in Florida workers' compensation proceedings [see Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983) ]; (2) the Florida Supreme Court has specifically held that Frye applies in workers' compensation proceedings [see U.S. Sugar Corp. v. Henson, ]; and (3) whether an injured worker's fibromyalgia is causally related to the trauma of his industrial accident is not an uncommon dispute in workers compensation cases.
One final note about Marsh: it shows once again the apparent idealogical rift which currently exists on the Florida Supreme Court. The four-justice majority in Marsh (Chief Justice Lewis, along with justices Anstead, Pariente, and Quince) is the same majority which recently decided to grant review in Murray v. Mariners Health, a fact which I discussed here.
