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Reversal reflects how judicial standards can evolve

Most people have never taken a polygraph test. We venture to guess that the nearest encounter most people have had with the devices – also known as lie detectors – is what they’ve seen on television or the movies. In theory, the devices gauge changes in a subject’s physiological responses to questions and allow skilled operators to read whether the person is lying or not. The problem is that the machines are not foolproof. Courts sometimes allow polygraph results as evidence, but only if they meet a standard set 70 years ago called the Frye test.

Everyone can surely agree that the world is not the same as it was 70 years ago. So it should be no surprise if standards change. But a recent case out of Illinois offers an interesting perspective on how such a change can occur. In this instance, the judge who applied the Frye test one way in 2013 decided she had misapplied the standard and the result is that a plaintiff has another chance at putting her product liability claim before a jury in hopes of obtaining compensation she feels she is due.

The Frye standard, set so long ago, was an effort to provide judges some guidance about when to allow expert scientific evidence in a case. The standard established was that if the scientific methods supporting the testimony were generally accepted by the relevant scientific community, it might be admitted for a jury’s consideration.

Here’s what happened in the Illinois case. A woman who allegedly suffered injury after receiving a metal-on-metal hip implant lost her personal injury trial in 2013. In seeking a new trial, the woman claimed that the judge had wrongly barred testimony from her expert witness.

The judge had said his testimony didn’t meet the Frye test criteria. But in re-examining the case, the same judge said she had been too restrictive in defining who should be counted in the “relevant scientific community.” The judge expanded the list and granted the petition for a new trial.

In the wake of the ruling, the plaintiff’s attorney noted that the decision is a vindication for his client and thousands of others who injured by defective hip implants.

Source:, “Plaintiff wins new trial in DePuy ASR XL hip suit,” Brad Perriello, Sept. 21, 2017.