2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Frye is abuse of discretion. The appellate court is not to consider all the evidence and reach itsown conclusion.Applying these principles to the case at bar, the Supreme Court concluded that theSuperior Court had ignored the trial court’s ruling and had substituted its own judgment. Ratherthan remand the case back to the Superior Court to apply the correct standard, the SupremeCourt, “in the interests of judicial economy” applied the proper standard of review itself. In sodoing, the court held that plaintiffs’ chemical engineer’s methodology “misses the mark”because while the testing methods used were generally accepted for certain purposes, they were“not also necessarily a generally accepted method that scientists in the relevant field (or fields)use for reaching a conclusion as to whether Doritos remain too hard and too sharp as they arechewed and swallowed to be eaten safely.” The Court found that plaintiffs failed to prove thatthe experts’ methodology was generally accepted “as a means for arriving at such a conclusion.”Based on this finding, the Supreme Court concluded that the trial court did not abuse itsdiscretion in precluding the expert’s testimony, and reversed the Superior Court’s decision.In Trach v. Fellin, 817 A.2d 1102 (Pa. Super. Ct. 2003), appeal denied, 847 A.2d 1288(Pa. 2004), an en banc panel of the Superior Court revisited in detail the issue of when “a partyseeking to exclude expert scientific evidence may test the admissibility of that evidence pursuantto Frye v. United States.” In doing this, the court discussed and criticized several aspects ofrecent panel decisions of the court. Specifically, the Trach Court disagreed with past statements,which it found inaccurate, to the effect that Frye applies “every time science enters thecourtroom.” The Trach Court stated emphatically, to the contrary, that “Frye only applies whena party seeks to introduce novel scientific evidence.” Moreover, the Court held that Frye appliesonly to determine if the relevant scientific community has generally accepted the principles andmethodology an expert employs, not the conclusions an expert reaches. Trach, 817 A.2d at1112. Under that analysis, only “the thing from which the deduction is made must besufficiently established to have gained general acceptance in the particular field in which itbelongs.” Trach, 817 A.2d at 1118. The deduction itself does not have to have gained generalacceptance, and is not subject to scrutiny under Frye.In reaching its decision, the Superior Court relied in part on the dissenting opinionauthored by Justice Cappy in Blum, 764 A.2d 1 (Pa. 2000), in which the justice criticized thedecision of the Superior Court in McKenzie v. Westinghouse, 674 A.2d 1167 (Pa. Commw. Ct.1996). In McKenzie, the Commonwealth Court ruled that the expert’s conclusion, as well as themethodology, must be generally accepted.In Trach, the Superior Court was asked to review the trial court’s order granting a newtrial, which it had done on the grounds that Plaintiff’s expert’s testimony regarding causation didnot meet the Frye test and had been improperly admitted at trial. The trial court noted that therewas no evidence that other members of the medical community shared the expert’s conclusion orreasoning process. The expert had testified that an overdose of the anti-depressant Doxepin can,and did in Plaintiff, cause glaucoma. Plaintiff had, because of a pharmacy error, taken massiveoverdoses of this drug. Plaintiff challenged the admissibility of the expert’s testimony on thegrounds that the expert’s methods and conclusions were not generally accepted in the relevantscientific community, and noted that no studies exist indicating that an overdose can cause thetype of glaucoma from which Plaintiff suffered.23