Daubert, Frye and DTI: Hijacking the Right to Trial by Jury

Abstract

This article is a response to a number of recent articles by commentators such as Wortzel (2013), Meltzer and colleagues (2013), and Wortzel, Tsiouris, and Filippi (2014) that seek to restrict the admissibility of diffusion tensor imaging (DTI) in court cases where an injured plaintiff has suffered a mild traumatic brain injury. The legal question governing the admissibility of expert testimony in these cases is that they misframe the issue of whether DTI technology has gained general acceptance as a diagnostic tool for single incidents, such as when they make a “plea for healthy skepticism regarding the value of [DTI], especially given the nature of [its] frequently visually spectacular impact on judges and jurors” (Wortzel et al. 2014, 9). This article offers a brief overview of DTI technology and its capabilities; summarizes the legal standards governing admissibility of such evidence and the position utilized by opponents of DTI to prevent admissibility; discusses events that transpired at an Emory conference seeking to develop some expert consensus around these issues; and concludes with the following: that when the question of admissibility is viewed through the proper lens, district courts should reach the conclusion that DTI has gained sufficient acceptance to be admitted and that the problems raised by its opponents are more properly handled by way of vigorous cross examination, as opposed to the outright exclusion recommended by some neuroradiologists.