ADMISSIBILITY OF EXPERT TESTIMONY JOSEPH R. FOWLER, ESQUIRE LEE H. ECKELL, ESQUIRE I. IN PENNSYLVANIA, THERE ARE TWO POSSIBLE STANDARDS TO DETERMINE THE ADMISSIBILITY OF EXPERT TESTIMONY The standards are set forth in Frye v. United States, 293 F.1013 (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). A. 1. State Court Standard “General Acceptance” Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the Circuit Court for the District of Columbia held that expert scientific testimony is barred from admission into evidence unless the expert’s opinion has achieved “general acceptance” in the relevant scientific community. In this case, the Defendant was convicted of second degree murder. During his trial, the defendant attempted to submit expert testimony as to the result of a systolic blood pressure deception test taken and “passed” by the defendant prior to trial. The trial court decision, which was affirmed by the appellate court, held that because the defendant failed to show that the systolic blood pressure test was generally accepted in the field of psychology and/or physiology, such testimony was inadmissible at trial. 2. Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). In Topa, the Supreme Court of Pennsylvania adopted the Frye test as the test to be used to determine the admissibility of scientific evidence in Pennsylvania courts. Topa appealed his first degree murder conviction by arguing that expert testimony which identified his voice on an incriminating call was impermissibly allowed to go to the jury. In applying the Frye test to the facts, the Topa court found that because voiceprint technology was not yet generally accepted in the relevant field, expert testimony regarding this technology was inadmissible at trial. The Supreme Court looked to Law Journal articles and articles published by the scientific community in determining “general acceptance”. 3. Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994) In Crews, the defendant appealed a death sentence following a jury trial in which he was convicted of murdering two hikers in Perry County. The defendant’s main issue on appeal was the admissibility of DNA evidence which was used against him at trial. Specifically, at trial, an FBI DNA expert testified that the defendant’s DNA matched that of DNA patterns of semen samples taken from one of the victims’ vagina. The defendant argued on appeal that he was denied a separate hearing on the admissibility of the DNA evidence (a “Frye hearing”), and that the trial court improperly relied on judicial decisions from other jurisdictions to establish the general acceptance of DNA testing. The Supreme Court of Pennsylvania disagreed, and affirmed the lower court decisions. Prior to handing down its decision, the Crews court discussed the applicability of Daubert to its impending decision. While the court recognized that Daubert held that the Frye standard had been superseded by the Federal Rules of Evidence, the Crews court reiterated that the narrow holding in Daubert did not affect the court’s decision. Rather, the decision whether to admit or exclude scientific expert testimony in Pennsylvania is gauged by the Frye test. As for the defendant’s argument that he was denied a Frye hearing, the court did not reach the issue of whether a defendant has a right to such a hearing. Rather, the court found that the trial court heard two days of testimony from experts in all fields related to DNA testing. Although the court hinted that this was not a formal Frye hearing, the court found that this was sufficient to protect the defendant. As for the DNA evidence’s admissibility under Frye, the Crews court held that the use of DNA evidence was generally accepted in its field. Specifically, the court recognized that the trial court was correct in its review of acceptability of DNA testing in the scientific community and in American courts of many jurisdictions. Moreover, the court found nothing wrong with the trial court’s use of case law from outside of the jurisdiction in making the decision. 4. Blum v. Merrell Dow Pharmaceuticals, 764 A.2d 1 (Pa. 2000). In Blum, much like in Daubert, the plaintiffs filed suit alleging that their son was born with a birth defect due to the ingestion of the drug Bendectin by plaintiff-mother during pregnancy. At trial, plaintiffs presented expert scientific evidence in an attempt to link the ingestion of the drug to the child’s injuries. The trial court admitted the expert testimony under the standard espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). On appeal, the Superior Court reversed. The Superior Court held that the proper standard for admitting expert testimony in Pennsylvania is that found in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that under the Frye standard, the expert testimony used by the plaintiffs was inadmissible. The Pennsylvania Supreme Court held that a decision between the two standards was unnecessary because plaintiffs’ expert testimony failed under both standards. Therefore, the Court affirmed the Superior Court’s finding that judgment should be entered for the defendant. As the Court refused to decide between the two standards, it appears that Frye is still good law in Pennsylvania. This fact is further bolstered by the fact that two justices, Cappy and Castille, wrote separate dissenting opinions stating that Frye should remain the law in Pennsylvania despite the United State Supreme Court’s findings in Daubert. 5. McKenzie v. Westinghouse Electric Corp., 674 A.2d 1167 (Pa. Commw. 1996). In McKenzie, the plaintiffs filed suit alleging that their child died as a result of a ventricular septal defect which was caused by the mother’s ingestion of contaminated water during pregnancy. Specifically, the plaintiffs contended that the water was contaminated with trichloroethylene (TCE), a substance that was utilized and stored at a warehouse near the plaintiffs home. Plaintiffs averred that the TCE contaminated the groundwater, and such groundwater was provided to the township where plaintiffs resided, and in turn, was given to the residents by the township for use. The court’s opinion arose out of a motion in limine filed by defendants to preclude the testimony of plaintiffs’ expert who was prepared to testify as to the deleterious effects of TCE. Specifically, defendants argued that the opinion proffered by the expert was not generally accepted by the teratological community. The trial court granted the motion in limine, and this issue was appealed to the Commonwealth Court. In handing down its decision, the appellate court relied on the Frye standard to affirm the lower court ruling. Namely, the Court held that Plaintiffs failed to set forth evidence showing that their experts opinion was generally accepted in the teratological community. To the contrary, the defendants’ experts stated that such an opinion was not generally accepted in the field. Therefore, the court refused to find that the trial court abused its discretion in disallowing the testimony. 6. Wack v. Farmland Industries, Inc., 744 A.2d 264 (Pa. Super. 1999) In this case, the plaintiffs alleged that drinking water contaminated by gasoline caused the death of their mother. Specifically, plaintiffs contended that water which was contaminated by gasoline from defendants’ leaking storage tank exposed the decedent to contaminants which caused her to develop a rare form of cancer. The trial court, however, found that plaintiffs’ expert failed to meet the requirements of expert testimony, and therefore excluded the evidence. Namely, the studies cited by the expert neither supported a causal link between the exposure and the cancer suffered by the decedent, nor were generally accepted in the scientific community. The Wack decision made clear that both the methodology used by the expert, and the expert’s conclusions must be generally accepted in the scientific community. Here, the court found that neither prong of the analysis was met. Specifically, while the expert’s conclusions dealing with causation were backed somewhat by the studies proffered, the opinion espoused by the expert was not generally accepted throughout the scientific community. Moreover, the court also questioned whether the methodology used to reach the conclusions was generally accepted. Namely, while the expert had done epidemiological evaluations on the effects of benzene, he had not done such studies on actual patients to a point where he could reach or publish any conclusions. Moreover, the Wack court questioned whether the expert testimony would even meet the less-stringent Daubert test since it was not published and/or subjected to peer review. Therefore, the court upheld the lower court’s decision to exclude the expert testimony. 7. Grady v. Frito-Lay, Inc., 2001 Pa. Super 382, 789 A.2d 735 (Pa. Super. 2001). Plaintiff, Carl Grady, filed suit against Defendant, Frito-Lay, alleging that he sustained an esophageal tear after eating Doritos snack chips. Defendant filed a Motion in Limine to exclude Plaintiffs’ expert reports, arguing that they were inadmissible under Frye. The trial court granted the Motion and Plaintiffs appealed. Dr. Augusto Delerme issued a report which concluded that the Doritos chips caused the esophageal tear. Dr. Delerme relied in part on the expert report of Dr. Charles Beroes, a chemical engineer who had conducted several tests on Doritos indicating they were capable of causing an esophageal tear. The trial court precluded Dr. Beroes’ report because the methodologies he used in testing the Doritos were not generally accepted in the scientific community. Dr. Delerme’s report was also found to be inadmissible because it depended in part on Dr. Beroes’ report, which was not scientifically sound. On appeal, the decision of the trial court was reversed and both doctors’ reports were found to be admissible. The Superior Court reiterated that a person may be qualified as an expert despite a lack of formal training, as long as the person can demonstrate knowledge greater than that of a lay individual. The Court also noted that medical specialties often overlapped and that a doctor may be qualified in several areas of expertise. Furthermore, the Court indicated that the jury was responsible for evaluating the qualifications of an expert when determining the credibility of the expert’s testimony. As a result, for purposes of the Motion in Limine, the Court found that Dr. Delerme, a board-certified, otolaryngologist, was qualified to offer an opinion regarding the cause of Plaintiff’s esophageal tear. In addition, the Court pointed out that Dr. Delerme relied on the published articles attached to Dr. Beroes’ report, and stated that an expert could reasonably rely on other medical literature in formulating an opinion. The Court also held that Dr. Beroes’ report was admissible because the tests he conducted on the Doritos were standard tests accepted in the scientific community. The criticisms of the tests offered by Defendant were argument for trial, not a basis for precluding the report. The Court explained that its role as gatekeeper was not to determine the correctness of an expert opinion, but to ensure the reliability and relevancy of expert testimony. Defendant appealed the decision of the Superior Court, and the Supreme Court granted a limited appeal to determine only whether the Superior Court correctly applied the law in reversing the trial court’s preclusion of Dr. Beroes’ report. The appeal is still pending. 8. Commonwealth v. Foreman, 2002 Pa. Super. 125, 797 A.2d 1005 (Pa. Super. 2002). Defendant, Joseph Foreman, was convicted of multiple counts of receiving stolen property. Defendant appealed his convictions on several grounds, including that the testimony of one of the Commonwealth’s experts should have been precluded. Pennsylvania State Trooper Kurt J. Tempinski, testified as an expert in forensic and tool mark identification and concluded that certain metal punch stamps found in Defendant’s auto shop were used to alter serial numbers on stolen motorcycles also located in the shop. Defendant alleged that Trooper Tempinski’s testimony did not meet the Frye standard for admissibility because the technique used by the trooper to relate the stamps to the alterations on the motorcycles was not generally accepted in the scientific community. The trial court ruled that Trooper Tempinski’s testimony should have been precluded, and reversed Defendant’s convictions for twelve of the criminal counts. The Superior Court disagreed and held that Trooper Tempinski’s testimony was admissible under Frye. The Court cited numerous Pennsylvania cases in which tool mark identification was previously determined to be a scientifically recognized area for expert testimony. As a result, the trial court’s order for judgment of acquittal was overturned and the case remanded for sentencing. 9. Commonwealth v. Davies, 2002 Pa. Super. 355, 811 A.2d 600 (Pa. Super. 2002). Defendant, John E. Davies, was detained twice by police officers because he was driving erratically, and was subsequently arrested each time when he failed sobriety tests performed by the officers. Defendant’s blood was tested by a laboratory technician at Analytic BioChemistries, Inc. (ABC) after his first arrest, and revealed .16 milligrams of morphine and a .039 blood alcohol content (BAC). After his second arrest, Defendant’s blood was tested by the director of ABC, and showed .14 milligrams of morphine. The cases were consolidated and Defendant was convicted of two counts of driving under the influence of alcohol and/or controlled substance, as well as related summary offenses. Defendant appealed the convictions arguing that the testimony of ABC’s director that Defendant could not safely operate a motor vehicle with either a .039 BAC and .16 mg morphine in his system or .14 mg morphine in his system, should have been excluded because his results were not generally accepted in the field of toxicology. The Superior Court quoted portions of the trial court’s opinion regarding the admission of the director’s testimony. The director testified that the scientific community recognized that morphine would affect a person’s ability to operate a vehicle, and cited articles relied on to support his conclusion. According to the director, he also relied on the laboratory findings which were compared to prior studies of morphine and the actions of the individual matching with the laboratory findings. Finally, the trial court pointed out that Defendant’s expert admitted that the director’s methodology was generally accepted in the community. As a result, the Superior Court held that the director’s testimony was properly introduced. 10. Trach v. Fellin v. Thrift Drug, Inc., 2003 Pa. Super. 53, 2003 Pa. Super. LEXIS 180, 2003 W.L. 282804. In Trach, plaintiff filed suit alleging that defendants misfilled his prescription for the antibiotic Amoxil, and instead dispensed the anti-depressant Doxepin. As a result, plaintiff claimed he suffered from continuing cognitive difficulties, cluster headaches and chronic open-angle glaucoma. At trial, plaintiff presented expert evidence that linked his ingestion of Doxepin to the injuries claimed. There was no dispute that Doxepin could cause the neurological symptoms of which plaintiff complained, although the defendants’ expert testified that the symptoms should have resolved in a month. Additionally, defendants claimed the expert testimony relating plaintiff’s glaucoma to the Doxepin was not based on generally accepted principles in the scientific community. The trial court admitted the testimony and the jury returned a verdict of five million dollars. Defendants filed post-trial motions arguing that the expert’s causation testimony on glaucoma did not meet the standard required by Frye. The trial court agreed and ordered a new trial on damages. Plaintiff appealed and the Superior Court granted an en banc review to address the admissibility of scientific evidence at trial. The Superior Court initially noted that the Frye rule was an exclusionary rule of evidence, and must be construed narrowly. The Court also pointed out that in 2001 the Pennsylvania Supreme Court adopted Pennsylvania Rule of Civil Procedure 207.1, which codified the proper application of Frye. Although Rule 207.1 did not take effect until after this case was tried, it clearly indicated the state of the law in Pennsylvania. As a result, the Superior Court specifically held that Frye was only intended to apply to novel scientific evidence. Blum was overruled to the extent that it stated Frye was applicable “whenever science entered the court.” Next, the Court clarified that only an expert’s methodology, not his conclusion, had to be generally accepted in the scientific community. The Court’s position on this issue was also contrary to the law espoused in McKenzie and Blum, which considered both the methodology and conclusion of the expert. The Court then evaluated the two types of methodology used by plaintiff’s expert, Dose-Response and extrapolation, and determined that they were generally accepted methods in the scientific community. As a result, the Order granting a new trial was vacated and the jury verdict reinstated. The importance of the Trach case was addressed in a recent article by the Honorable Mark Bernstein. 11. Davis v. Steigerwalt, 2003 Pa. Super. 87, 2003 Pa. Super. LEXIS 354. Plaintiffs, John Davis and Kathleen Davis, were co-administrators of their daughter’s estate, and brought wrongful death and survival actions against Defendants. Erin Davis was involved in a motor vehicle accident between Defendants, Holly Metroka and Ronald Steigerwalt. She was a passenger in Ms. Metroka’s vehicle, and both were killed in the accident. The case went to trial and a jury found Defendants negligent and awarded $10,000 in damages on the wrongful death claim, and $30,000 in damages on the survival action. Plaintiffs filed post-trial motions and the court granted a new trial with respect to the damages in the survival action. Defendant Steigerwalt filed an appeal based on three grounds, including that the trial court improperly allowed John Shane, M.D. to testify about the speed of the Steigerwalt vehicle. Dr. Shane testified as an impact pathologist basing his opinion on speed on the injuries sustained by Erin Davis. On appeal, the Court separated Defendant’s argument into two issues: 1) whether Dr. Shane was qualified to offer an opinion on speed; and 2) whether the basis of Dr. Shane’s opinion was valid. First, the Court noted that the qualification of an expert witness is a liberal one. Dr. Shane testified that his training and experience allowed him to determine the kinetic energy necessary to cause the type of skull fractures Ms. Davis sustained. After that determination was made, he used the mass of the Steigerwalt vehicle to perform a simple mathematical calculation of the speed the vehicle had to be traveling to create the kinetic energy required to cause the fractures. Based on this information, the Court found that Dr. Shane clearly had enough specialized knowledge to address the speed of the Steigerwalt vehicle. In addition, Dr. Shane testified that the formula he used in calculating the speed was based on his experience in autopsies, working with police departments, and attending seminars and courses in the field of impact pathology. The Court held that Defendant did not establish why or in what way Dr. Shane’s methods and calculations were improper. An assertion that his calculation of impact pathology differed from other types of accident reconstruction was insufficient to establish that his methodology did not have general acceptance in the scientific community. As a result, the Court ruled that Dr. Shane’s testimony was properly admitted into evidence. B. Federal Court Standard (Reliability and Relevancy). 1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The Daubert case also arises out of a suit filed by parents of a child who was born with defects allegedly the result of the mother ingesting Bendectin. In this landmark case, the United States Supreme Court held that the Frye standard for expert evidence admissibility was superseded by the adoption of the Federal Rules of Evidence. Specifically, according to the Court, nothing in the Federal Rules requires that the expert opinion be “generally accepted” to be admissible at trial. Rather, the Federal Rules conceived of a much more liberal standard. According to Daubert, it is the trial judge’s duty to ensure that the expert will testify to scientific knowledge that will assist the trier of fact to understand or determine a fact at issue. This entails a preliminary assessment of whether the reasoning and/or methodology underlying the testimony is scientifically valid (reliability), and whether that reasoning or methodology can be applied to the facts at issue (relevancy). The Court then identified four factors which might aid a trial court in determining whether expert testimony is reliable: a. Whether the theory or methodology can be, and has been, tested; b. Whether the theory or methodology has been subjected to peer review or publication; c. What is the known or potential rate of error for a particular scientific technique; and d. Whether the theory or technique has been generally accepted in the relevant scientific community. The Court did not expect that the above list was all inconclusive and other factors could be reviewed. The Court stressed that the inquiry is flexible, and its focus should be on principles and methodology, and not on the conclusions that they generate. Federal Rule of Civil Procedure 702 was amended in December, 2000 to specifically adopt the analysis set forth in Daubert and KumhoTire v. Carmichael, 526 U.S. 137 (1999). 2. Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000). In this case, plaintiff was seriously injured in a one-car accident when his truck struck a guardrail and bridge abutment. Plaintiff sued by the truck’s chassis manufacturer, and the designer and manufacturer of the finished truck. The lower court granted defendants’ motion for summary judgment because it found that plaintiff’s expert testimony failed the Daubert analysis. Plaintiff then appealed to the Third Circuit. The basis of plaintiff’s expert testimony was that the truck’s defectively designed front bumper allowed the underside of the truck to ride up or “ramp” onto the guardrail and strike the bridge abutment. Plaintiffs expert also opined that alleged defects in the truck’s cab had caused the flooring to bend upon impact with the abutment, which caused plaintiff’s legs to be crushed. One of plaintiff’s experts was a bio-mechanist, while the other was an engineer. Initially, the court held that where a trial judge has sufficient information with which to make a decision on the admissibility of expert testimony, a separate “in limine” hearing is not required. With respect to the admissibility of the expert testimony in this case, the court upheld the lower court’s ruling that the testimony was inadmissible. In applying the Daubert factors to the expert’s testimony, the court found that none of the expert’s conclusions had ever been subject to prior testing. The expert’s opinions alone, without additional evidence to support it, was insufficient to pass the Daubert analysis. Therefore, the court reasoned, such conclusions could not assist the trier of fact as required by the Federal Rules. 3. Kent v. Howell Electric Motors, 1999 U.S. Dist. LEXIS 10940. In Kent, plaintiffs filed a wrongful death/survival action against defendant manufacturer for alleged design defects in an electric sander. According to plaintiffs, the electric sander malfunctioned, and electrocuted the decedent. In this regard, plaintiffs sought to have a professor testify as to causation. The defendants, however, attacked the admissibility of this testimony on several grounds, including the professor’s qualifications as an expert and his methodology. The Eastern District initially discussed the requirements of the Federal Rules for admissibility of expert testimony. First, the expert must possess a minimal amount of knowledge, skill, experience, or training on which he/she basis the testimony. The court recognized, however, that this is a liberal requirement, and a witness may be qualified even if the opposing party can point to various deficiencies in the witnesses qualifications. Second, the expert must testify to scientific, technical, or other specialized knowledge which will assist the trier of fact. Specifically, the expert’s opinion must be based on reliable methodology and/or technique. In making this determination, the court reasoned, the trial judge should use the list of factors found in Daubert. In addition, however, the court found that additional factors could be used in the analysis. These additional factors include, 1) the relationship of the expert’s methodology to other techniques known to be reliable, 2) the witness’ qualifications as they relate to the methodology, and 3) the non-judicial uses to which the expert’s methods have been put. Third, and finally, the expert’s testimony must “fit” into the case at hand. In other words, the testimony must connect the witness’ conclusions, based on the reliable methodology, to an issue presented in the case. Thus, even if the proposed testimony constitutes reliable scientific knowledge, the testimony will be excluded if the knowledge has no relevance to the facts of the case. In Kent, the Eastern District found that despite the professor’s limited qualifications, he was sufficiently qualified to meet the circuit’s liberal standards. Where the testimony failed, the court found, was the reliability of the professor’s methodology. Specifically, the court reasoned that the professor’s testimony was unreliable because he could not rule out alternative theories for what caused the product’s malfunction. Plaintiff’s expert simply could not rule out that either tampering or normal use could have led to the malfunction. Therefore, the court did not allow the professor to testify as to his opinions. 4. Pappas v. Sony Electronics, Inc., 2000 U.S. Dist. LEXIS 19531 (W.D. Pa. 2000). In Pappas, plaintiffs sued a television manufacturer alleging that a defect in a television caused a fire which severely damaged the plaintiffs’ home. In order to prove causation, the plaintiffs attempted to call an expert witness in the field of electrical engineering. The defendants filed a motion for summary judgment claiming that the expert’s testimony should be excluded under Daubert and its progeny. Specifically, defendants argued that the opinion of plaintiffs’ expert was not based on reliable methodology. The court found in favor of the defendant, and denied plaintiffs’ expert from testifying. The court held that it could not find that the methodology used by the expert was reliable because plaintiffs failed to put forth relevant evidence on this issue. Specifically, the court noted that plaintiffs did not introduce specific evidence about how the expert’s method was similar to methods employed by others in the past. Also, plaintiffs failed to submit a single book or article settling forth proper fire causation technique in order to compare same with its expert’s technique. Without such evidence, the court held, it was impossible to determine whether the expert’s methodology in this case was reliable. Therefore, plaintiffs’ expert testimony was excluded from evidence. II. APPLICATION OF DAUBERT STANDARD APPLIES TO BOTH SCIENTIFIC AND NON-SCIENTIFIC EXPERT TESTIMONY 1. Kumho Tire Co., LTD. v. Carmichael, 526 U.S. 137 (1999). In Kumho, the United States Supreme Court again revisited the issues addressed in Daubert. This time, plaintiffs sued a tire manufacturer alleging that a tire blow-out on their minivan caused fatal injuries. Plaintiffs planned to call an engineering expert to testify regarding causation. The district court excluded the testimony based on the Daubert factors, but the court of appeals reversed. On appeal, the Supreme Court held that the Daubert analysis not only applied to scientific expert testimony, but to all types of expert testimony. Moreover, the Kumho court found that the factors used in Daubert should not be strictly construed. Instead, the Court reasoned that not all of the factors may apply to each case. A trial judge, as gatekeeper, may use some or all of the Daubert factors when making a determination as to whether to admit or exclude expert testimony. The Federal Rules, the Court reasoned, give a trial judge wide latitude in deciding how to determine an expert’s reliability and a court of appeals should use an abuse of discretion standard when receiving a trial court’s decision to admit or exclude expert testimony. In Kumho, plaintiff’s expert opined that a defect in the tire caused a blowout. The expert came to this conclusion based upon a failure to find at least two of four physical signs that the blowout had been caused by misuse known as “overdeflection”. The District Court found (and Supreme Court affirmed) the methodology use by the expert to be unreliable. The courts specifically stated that no other experts used the “two factor test” and no articles were published in support of this test. ADMISSIBILITY OF EXPERT TESTIMONY Joseph R. Fowler, Esquire POST & SCHELL, P.C. 1800 John F. Kennedy Boulevard 19th Floor (215) 587-1003 jfowler@postschell.com Lee H. Eckell, Esquire POST & SCHELL, P.C. 1800 John F. Kennedy Boulevard 19th Floor (215) 587-5920 leckell@postschell.com Philadelphia, PA Pittsburgh, PA Allentown, PA Lancaster, PA Harrisburg, PA Princeton, NJ