Pennsylvania Superior Court Limits Use of Frye When Seeking to Exclude Expert Scientific Evidence - DD 12/03

Defense Digest

Pennsylvania Superior Court Limits Use of Frye When Seeking to Exclude Expert Scientific Evidence

This article examines two 2003 Pennsylvania Superior Court decisions that limit the use of Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923), when defense counsel seek the preclusion of expert testimony in Pennsylvania courts.  Additionally, this article will briefly highlight for defense practitioners how Pennsylvania differs from Federal precedent in keeping "junk science" out of a courtroom.

When expert testimony is offered in Pennsylvania, it must be first evaluated under Pa.R.E. 702 which states:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Federal Rule of Evidence 702, Testimony by Experts, contains the same language as above, but also adds the following which incorporates the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993): "If (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Assuming an expert has been qualified, and the court determines that expert testimony will assist the jury in understanding a factual issue in dispute, how does a defense attorney keep out novel theories, untested methodologies, bald causation opinions, and more?  

The Superior Court rendered two decisions in 2003 – Trach v. J. Fellin and Thrift Drug/Eckerd Store et al, 817 A.2d 1102 (Pa. Super February 11, 2003), and M.C.M. v. Milton S. Hershey Medical Center, 834 A.2d 1155 (Pa. Super Sept. 15, 2003) –  that blunt Frye's efficacy when used as a defense counsel preclusive tool. 

In Trach, a Lehigh County jury awarded the plaintiff $5 million for having ingested a massive overdose of a prescription antidepressant (Doxepin).  Thrift Drug mistakenly gave Doxepin to the plaintiff instead of an antibiotic that the plaintiff's dentist had prescribed for a jaw infection.  After taking the incorrectly filled prescription, the plaintiff suffered severe side effects that included vision difficulties, hallucinations, confusion, heartburn, and more.  After a month of acute side effects, cognitive, vision, and headache difficulties remained.

At trial, the plaintiff contended that the Doxepin caused his permanent cognitive and vision problems.  He offered testimony from a board certified pathologist, Dr. John Shane, who opined that all of the plaintiff's acute and long-term symptoms were caused by the Doxepin and he stated such within a reasonable degree of toxicological certainty.

The trial court denied Thrift Drug's Motion in Limine to preclude Dr. Shane's testimony.  After the jury verdict, however, the trial court granted Thrift Drug's motion for a new trial on damages as it felt that Dr. Shane's testimony regarding the long term effects of Doxepin did not pass the Frye test.  Both parties appealed. 

The Superior Court panel in Trach reviewed the body of Pennsylvania law on the admissibility of expert testimony in Pennsylvania.  It reinstated the $5 million jury verdict award and vacated the order granting a new trial.  In reaching this result, the Superior Court determined:

1. Frye only applies when a party seeks to introduce novel scientific evidence. See, Commonwealth v. Blasioli, 713 A.2d 1117 (Pa. 1998); Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977).
    
2. Pa.R.C.P. 207.1, effective July 1, 2001, provides the procedure pertinent to pre-trial motions governing the admissibility of expert testimony, and as its title implies, the procedure pertains to "novel" scientific evidence.
    
3. The Superior Court's prior pronouncement in Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314 (Pa. Super. 1977), aff'd., 764 A.2d 1 (Pa. 2000), that Frye applies "whenever science enters the courtroom" was questioned.  This panel of the Superior Court stated, "Clearly, however, our Supreme Court did not intend that trial courts be required to apply the Frye standard every time scientific experts are called to render an opinion at trial, a result that is nothing short of Kafkaesque to contemplate."  The court further concluded that "we are merely stating the law in Pennsylvania when we state that Frye applies only to novel science."
    
4. The Superior Court further concluded that "our Supreme Court has never adopted it, and therefore, hold that Frye only applies to determine if the relevant scientific community has generally accepted the principles and methodology the scientist employs, not the conclusion the scientist reaches, before the Court may allow the expert to testify."  Prior to Trach, two permissible methods to analyze causation testimony existed: (1) whether the causal relationship is generally accepted by the scientific community; and (2) whether the methodology employed is generally accepted by the scientific community.  See, Blum at 1322.
    
5. Because Dr. Shane's methodology as related to Mr. Trach's immediate adverse reactions to the Doxepin overdose had been based on the Physician's Desk Reference and other epidemiological studies, the methodology was accepted.
    
6. The Superior Court found fault, however, with the trial court's rejection of Dr. Shane's methodology as to the long-term effects of Doxepin.  Dr. Shane had not referred to studies, text, and other sources indicating general acceptance of his opinions as to those longer-term effects.  The trial court rejected Dr. Shane's opinions on them because they were based on his own reasoning from "general toxicological principles."  The Superior Court found that Dr. Shane's extrapolation methodology was an accepted scientific methodology that should have been introduced to the jury (he extrapolated known adverse effects of Doxepin in recommended doses and concluded that the massive doses ingested directly caused the chronic and long-lasting vision and cognitive problems.)

In a more recent case, M.C.M., a minor v. The Milton S. Hershey Medical Center of the Pennsylvania State University, 834 A.2d 1155 (Pa. Super. 2003), the Superior Court bolstered its view of Frye as expressed in  Trach by stating that "the Frye test sets forth an exclusionary rule of evidence that applies only when a party wishes to introduce novel scientific evidence obtained from the conclusions of an expert scientific witness."  The M.C.M. panel further stated, however, that the "conclusions reached by the expert witness from generally accepted principles and methodologies need not also be generally accepted."  Citing Trach at 817 A.2d 1112.

In M.C.M., the defendant hospital successfully moved in limine and for summary judgment [the plaintiff's experts had opined that, if the hospital had performed a tandem mass spectrometry test, the baby would not have suffered the profound brain damage and severe neurological injury.]  By successfully precluding the plaintiff's expert testimony regarding the use of the tandem mass spectrometry test, the plaintiffs could not present a prima facie case of corporate negligence.

The Superior Court reversed and remanded.  It found that the trial court misapplied Frye, especially in light of the recent Trach holding. 

The Superior Court determined that the trial court erred because the issue as to what hospitals had a policy of using the tandem mass spectrometry test in newborn infants could not be considered "novel" scientific evidence.  It further stated that the evidentiary question regarding the "breadth of use of the MS/MS test in 1994 to screen for GA-1 in newborns was not 'novel scientific evidence . . .'."

Thus, reading the above two Superior Court decisions together, Frye's usefulness as an exclusionary rule of evidence has been narrowed.  For the time being, Frye only applies to determine if the relevant scientific community has generally accepted the principles and methodology the scientist employs, not necessarily the conclusions that the expert reaches. Moreover, it is clear that the Pennsylvania Superior Court reads Frye as only applying to novel scientific evidence; not all science that seeks entry into courtroom.

As the Trach panel mentioned, it re-visited several recent Superior Court decisions to "determine whether we have extended Frye beyond the parameters our Supreme Court has established . . . "  By limiting Frye to only novel scientific evidence, and only focusing upon the expert's principles and methodology, [and] not the conclusions that they generate, the Superior Court has constrained Frye as an exclusionary rule of evidence that must be construed narrowly so as to not impede the admissibility of evidence.

As stated in Trach, "It was for the jury, aware of the fallibility of extrapolation, to decide whether Dr. Shane's testimony was credible.  It was for Thrift Drug, through vigorous cross-examination, to prove that it was not."

Thus, for now, the role of a Pennsylvania judge as a "gatekeeper" of evidence is more limited than a Federal judge.  Under F.R.E. 701, 702, 703; Daubert and Kumho Tire v. Carmichael, 526 U.S. 137 (1999), and their offspring, the Federal Daubert gatekeeping function applies to all expert testimony and not just scientific testimony.  Frye, by contrast, only applies to novel scientific evidence, an amorphous test that will certainly engender more litigation until further clarified.

*Chris is a shareholder and Vice-Chairman of the firm's Professional Liability Department.  He can be reached at (215) 575-2733 or cdougherty@mdwcg.com.