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Harris v. Cropmate Co.

January 26, 1999


Appeal from Circuit Court of Cass County No. 95L14

The opinion of the court was delivered by: Justice Steigmann


Honorable Robert L. Welch, Judge Presiding.

In January 1996, plaintiffs, Francis Patrick Harris and Linda N. Harris (the Harrises), sued defendants, Cropmate Company, d/b/a the Richter Company (Cropmate), and Robert Schone, one of Cropmate's employees, alleging that Cropmate and Schone had negligently sprayed a herbicide on farmland adjacent to a 50-acre tract of land rented and farmed by the Harrises, causing damage to the Harrises' watermelon, cantaloupe, and pumpkin crops. In October 1997, the trial court conducted a bench trial, granted a motion for directed verdict in Schone's favor, and ultimately entered judgment against Cropmate and in favor of the Harrises, awarding them damages.

Cropmate appeals, arguing that (1) the trial court erred by (a) refusing to admit a letter written by a bureau chief of the Illinois Department of Agriculture, (b) admitting the testimony of three of the Harrises' opinion witnesses, and (c) limiting the testimony of one of Cropmate's opinion witnesses; (2) the court's finding that the Harrises' crop yield loss resulted from Cropmate's negligent spraying of the herbicide 2,4-D was against the manifest weight of the evidence; and (3) the damages award was clearly excessive and against the manifest weight of the evidence. We affirm.


The material in this section is not to be published pursuant to Supreme Court Rule 23. 166 Ill. 2d R. 23. (Nonpublishable material under Supreme Court Rule 23 omitted.)


A. The Trial Court's Decision To Admit the Testimony of the Harrises' Opinion Witnesses

1. The Daubert Standard

Initially, we address Cropmate's suggestion that this court should adopt the "admissibility standard for expert opinion" articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). We decline to do so.

Since the Supreme Court's decision in Daubert, the Supreme Court of Illinois has adhered to the "general acceptance" standard for the admission of novel scientific evidence established in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). See People v. Hickey, 178 Ill. 2d 256, 277, 687 N.E.2d 910, 920 (1997); People v. Miller, 173 Ill. 2d 167, 187, 670 N.E.2d 721, 731 (1996); People v. Moore, 171 Ill. 2d 74, 96, 662 N.E.2d 1215, 1225 (1996). In Miller, the court acknowledged that the Supreme Court in Daubert held that the Frye "general acceptance" standard no longer applies in federal cases and, instead, Federal Rule of Evidence 702 (see 28 U.S.C. app. Fed. R. Evid. 702 (1994)) applies in those cases. Nonetheless, the Miller court declined to address sua sponte the issue of whether it should abandon the Frye standard and adopt the reasoning of Daubert. Miller, 173 Ill. 2d at 187 n.3, 670 N.E.2d at 731 n.3.

The decision whether to change long-standing, fundamental rules of Illinois evidence law lies within the discretion of the Supreme Court of Illinois, not this court. Further, even if we did possess that discretion, we are not at all sure Daubert should be adopted in this State--at least, not at the present. We note that legal scholars do not share Cropmate's enthusiasm regarding Daubert. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence §702.4, at 565 (6th ed. 1994) (hereafter Handbook of Evidence) ("[M]any theoretical and practical arguments support Illinois retaining adherence to Frye, at least until the impact of Daubert is fully understood"); see also 2 M. Graham, Handbook of Federal Evidence §702.5, at 34 (4th ed. Supp. 1999), in which Professor Michael H. Graham made the following comments:

"Daubert boxed the courts into working within a structure that has not functioned as anticipated by the Supreme Court and can fairly be said not to have functioned well at all. The Supreme Court sought to encourage liberal admissibility. It believed that it was abolishing a strict Frye test in favor of a more liberal factor[-]balancing analyses. In fact, liberality of admissibility has not occurred."

2. Admissibility of the Opinion Testimony Under the Frye Standard

Cropmate alternatively argues that even if this court decides not to adopt the Daubert standard, the "proper application of th[e] Frye standard" would have precluded the testimony of Derrill Kregel, Aaron Hager, and Dr. Dennis Scott--the Harrises' three opinion witnesses. Specifically, Cropmate contends that no evidence exists that the "com- parative symptomology" technique employed by those witnesses--that is, their visual examination of plants to determine whether they have suffered damage from exposure to 2,4-D--is generally accepted by the relevant scientific community. Because we conclude that the testimony at issue falls outside Frye's scope, we disagree with Cropmate's conten- tion.

Initially, we note that Cropmate never requested a Frye evidentiary hearing before the trial court. (Nor did Cropmate's motion to strike the testimony of Kregel and Scott--in which Cropmate argued only that the testimony should be excluded under the Daubert standard--request an evidentiary hearing.) Although Cropmate's failure to request such a hearing may well constitute a forfeiture of this issue on appeal, we nonetheless address Cropmate's argument on the merits. See Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 368, 695 N.E.2d 853, 858 (1998) (in general, the forfeiture doctrine is an admonition to the litigant, not a limitation on the jurisdiction of the reviewing court).

As earlier discussed, Illinois follows the Frye standard for the admission of "novel scientific evidence." Miller, 173 Ill. 2d at 187, 670 N.E.2d at 731. The Frye court explained the standard as follows: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014.

Professor Graham has written that imposing the Frye admissibility standard serves to accomplish the following:

"(1) ensure that a minimal reserve of experts exist who can critically examine the validity of a scientific determination in a particular case, (2) promote a degree of uniformity of decision, (3) avoid the interjection of a time[-]consuming and often misleading determination of the reliability of a scientific technique into the litigation, (4) assure that scientific evidence introduced will be reliable, [citation], and thus relevant, (5) provide a preliminary screening to protect against the natural inclination of the jury to assign significant weight to scientific techniques presented under circumstances where the trier of fact is in a poor position to place an accurate evaluation upon reliability, and (6) impose a threshold stan- dard of reliability, in light of the fact that cross-examination by opposing counsel is unlikely to bring inaccuracies to the attention of the jury." Handbook of Evidence §702.4, at 562. See also J. Strong, Questions Affecting the Admissibility of Scientific Evidence, 1970 U. Ill. L. F. 1, 14 (the Frye standard seeks "prevention of the introduction into evidence of specious and unfounded scientific principles or Conclusions based upon such principles").

In First Midwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 427, 701 N.E.2d 1107, 1114 (1998), citing Handbook of Evidence §702.4, at 562-63, this court, citing Professor Graham, recently discussed the application of the Frye standard and wrote the following:

"In applying the Frye standard, the trial court must determine that (1) the scientific test is reliable; and (2) the test's reliability is generally accepted in the particular ...

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