No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

and be likely to assist the trier of fact. Novak, 163 Ill.2d at 104; see also MICHAEL H.
GRAHAM, CLEARY & GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE § 702.2, at 614-15 (7th
ed. 1999); id. § 702.4, at 620-21. In its recent decision in Donaldson v. Central Illinois
Public Service Co., 2000 WL 268307 (5th Dist. 2000), this Court held that the touchstone
of admissibility in Illinois continues to be the Frye requirement of general acceptance within
the scientific community. 38/
In this case, the ultimate opinions offered by plaintiffs’ experts — that all non-OEM
parts are inherently inferior to OEM parts — should not have been admitted because they
were not based on any reliable methodology recognized in the relevant scientific community.
The global opinions offered by plaintiffs’ experts all suffered from a common flaw: they
were unreliable generalizations drawn from nonrepresentative and skewed samples. A
“statistically valid sample” must be both “representative . . . and random.” Protestant Mem.
Med. Ctr., Inc. v. Department of Pub. Aid, 295 Ill.App.3d 249, 255 (5th Dist. 1998). Courts
routinely reject expert opinions when they are based on inadequate, nonrepresentative or
biased samples. 39/
38/
In Donaldson, the Court disagreed with the Fourth District’s adoption of a “Frye-plus
reliability standard” in Harris v. Cropmate Co., 302 Ill.App.3d 364 (1999). State Farm
respectfully disagrees with the Court’s decision and urges it to adopt the standard articulated
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In any event, as
demonstrated below, plaintiffs’ expert testimony should have been excluded whether the
standard is Frye, Frye-plus reliability, or Daubert.
39/
See, e.g., O’Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1396 (C.D.
Ill. 1992) (physician’s opinion based on a sample of only five patients was inadmissible
because such “limited personal experience simply cannot provide a sufficient scientific basis
upon which any scientific reasoning process can discover a ‘binding universal rule’”), aff’d,
13 F.3d 1090 (7th Cir. 1994); Comer v. American Elec. Power, 63 F. Supp.2d 927, 934 (N.D.
Ind. 1999); Muzzey v. Kerr-McGee Chem. Corp., 921 F. Supp. 511, 519 (N.D. Ill. 1996); cf.
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