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