trends in the law

The ostensible goal of the Pennsylvania Frye rule is to allow the scientists to judge the scientists. If the scientists accept the science, then the courts will follow suit. Pennsylvania courts consider this method superior to the Daubert standard, which, as the Blum court complained, “substitutes a judicial evaluation and determination of scientific reliability.”

Is that, in fact, how the Superior Court has applied Frye?

To place Trach and Grady in their proper perspective, we must review two cases which preceded the Supreme Court’s decision in Blum: Wack v. Farmland Industries Inc., 744 A.2d 265 (1999) and Thomas v. West Bend Co., 760 A.2d 1174 (1999).

In Wack, the plaintiff claimed to have developed adenocarcinoma of the buccal cavity as a result of drinking water contaminated with gasoline. The court reviewed the studies proffered by the plaintiff’s expert and found that they were “not in the form of a firm conclusion.” The court stated “at best, the studies suggest a possible link between exposure to petroleum products and the incidence of buccal carcinoma.”

“Neither Dr. DiGregorio, nor the studies on which he relied, make a distinction between Mrs. Wack’s rare type of adenocarcinoma and the more common squamous cell carcinoma of the buccal cavity,” the Wack court observed. “Thus, even if we accept the proposition that the cited studies support a general causal connection between exposure of petroleum products and buccal cancer, the studies plainly do not support a causal link between benzene and Mrs. Wack’s specific and rare of form of cancer.”

This statement is extraordinary for two reasons. First, it suggests that reasonable people may have interpreted the studies as showing a stronger association than the court did, for at another point, the court stated “it is arguable whether (plaintiff’s expert) appropriately analyzed the results of the studies on which he relied.”

This implies that it is also arguable that he analyzed the results appropriately. Those are the kinds of arguments which used to be heard by juries.

The court also admitted that the medical literature draws no distinction between squamous cell and adenocarcinoma of the buccal cavity. A logical conclusion is that this is because epidemiologists who studied buccal cancer could find no valid scientific reason to separate out the two cell types. Instead, the court jumped to its own pseudoscientific conclusion – that squamous cell carcinoma and adenocarcinoma have different causes – without any basis on the record to support it.

In reviewing Wack, we must revisit the critical language in Frye that gave birth to this whole line of case law:

“Just when a scientific principle or discovery crosses the line between the experimental and the demonstrable stage is difficult to define,” the Frye court said. “Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gain generally acceptance in a particular field in which it belongs.”

Brilliant Deductions

What is the “thing” from which the deduction is made? If studies show that benzene causes buccal cancer generally, can an expert deduce from those studies that benzene caused adenocarcinoma of the buccal cavity as well? The Wack court allowed no such deduction.

Justice Ronald D. Castille, in his dissent in Blum, viewed expert interpretation of medical literature differently than the Wack court. As long as the studies themselves were reliable, experts were free to draw different conclusions from them. Castille said “[both experts] utilized the generally accepted, albeit different methodologies, to analyze the raw data. The only difference is that [they] took into account different factors, which produced different results and led to different conclusions on causation …. As to this hotly contested issue, each side accused the other’s experts of reaching conclusions that were biased by their litigation interest. This issue was a classic matter for the jury to resolve”

In Thomas v. West Bend Co., the plaintiff claimed that a voltage shock from an electrical appliance caused cardiomyopathy, a condition for which plaintiff’s expert, a cardiologist, examined him, reviewed his medical records and found no other explainable cause. Citing two articles showing that high voltage electrical current could cause cardiomyopathy, the expert actually prepared a medical article, which he intended to submit for publication.

Although the trial court in Thomas found that this proposed article “will advance medical knowledge” the court excluded the evidence on the grounds that the doctor’s theory was a “newly described etiology” and not generally accepted. On appeal to Superior Court, the plaintiff argued that because the expert used all of the traditional tools of cardiology – EKG results, biopsy studies, echocardiagram, bloodwork, the patient’s history and films – his resulting conclusion should be admissible even if it had not yet been generally accepted.

The Thomas court, citing the Superior Court’s decisions in Blum and Wack, stated that: “[w]hile Dr. DePace has taken the first step towards establishing general acceptance of that proposition (by drafting an article for publication) it was not generally accepted at the time of the trial court’s decision. The trial court, therefore, did not err by excluding this untested hypothesis.”.

What did the court mean by this? Would Thomas have been decided differently if Depace’s article had been published before he was involved in litigation? What scientific (let alone legal) sense does that make?

In Grady, the Superior Court’s first decision after the Supreme Court’s pronouncement in Blum, the plaintiff claimed that a defectively jagged tortilla chip caused an esophageal tear. The trial court excluded his expert’s testimony as insufficient under Frye. The Superior Court reversed, holding that the expert could reasonably rely on medical literature to support the opinion. In this case, the literature consisted of several case reports (but no epidemiologic studies) associating esophageal tears with corn chips. The court also allowed into evidence tests done by another expert on the subject of tortilla chips showing that they could cause esophageal tears.

In admitting the evidence, the Grady court, citing the U.S. Supreme Court’s decision in Kumho Tire v. Carmichael, 526 U.S. 137 (1999), stated that the role of the trial court is “to ensure that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in a relevant field.” The Grady court, in its en banc opinion found the tests employed basic calculations and used basic scientific principles, although their conclusions were hotly disputed.

Significantly, Judge (now Justice) J. Michael Eakin, the author Wack opinion, dissented in Grady. According to Eakin, the “manifest difference between this methodology and basic mastication cry out for more than is found here. [The expert's] analysis makes a leap of logic in this and other questions, and the trier of fact could not be expected to fill up the gaps.”

In short, the majority in Grady allowed the plaintiff’s expert to extrapolate from his mechanical tests to the actions of the mouth. The dissent would not abide this extrapolation.

‘Intellectual Rigor’