Pennsylvania Remains a <i>Frye</i> State

Chief Justice Ralph J. Cappy of Pennsylvania's Supreme Court issued an opinion on Dec. 31, 2003, declaring that the State of Pennsylvania would remain a “Frye state” and would not follow suit with much of the rest of the nation in using the Daubert test to qualify expert witnesses. Grady v. Frito-Lay Inc., PICS Case No. 03-2056 (Pa. Dec. 31, 2003) (Cappy, C.J.; Castille, J., concurring; Newman, J., concurring; Saylor, J., concurring; Lamb, J., concurring).

Background

The Grady case involved a suit by a married couple claiming Frito-Lay was liable under theories of strict liability, breach of warranty and negligence for harm occasioned when Mr. Grady tore his esophagus, allegedly while eating a Doritos corn chip. Plaintiff's expert, a chemical engineer, performed tests on Doritos chips using his finger and a platform gram-balance to determine the downward force needed to break a chip. From the results of these tests, he opined that because the chips were triangular, sharp and not easily broken, they caused the tear in Mr. Grady's esophagus.

The trial judge granted Frito-Lay's motion to dismiss, saying plaintiff's expert's testimony was based on junk science that failed to meet the Frye test. The Frye standard, established in Frye v. U.S., 293 F. 1013 (D.C. Cr. 1923), requires that for an expert's testimony to be admitted, the principles on which it is based must have achieved “general acceptance” in the scientific community. (In addition to qualifying under the Frye test, an expert testifying in Pennsylvania must be qualified under Pennsylvania Rule 702 as one with the knowledge, skill, experience and training necessary to experts in the field.) The Daubert standard, in contrast, requires courts to weigh the validity of scientific evidence using such factors as peer review, publication and general acceptance in the scientific community. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

On appeal, the Superior Court reversed the trial court's order, finding that the expert's testimony did pass the Frye test. The Supreme Court held that the reversal was error because the Superior Court's standard of review should not have been to consider plaintiffs' expert's testimony itself but to consider whether the trial court had abused its discretion. The trial court had not, the Supreme Court found, but had properly excluded the chemical engineer's testimony because the plaintiffs didn't prove that the methodology he used was generally accepted; his crushing of a chip on a Styrofoam block with his fingers was irrelevant to helping a finder of fact determine any question at issue, the court found.

Justice Cappy's Opinion

But Justice Cappy's opinion was primarily significant because it clarified that the standard for expert qualification in Pennsylvania remains the Frye rather than the Daubert test, an issue that had become unclear within the state. Cappy wrote that Frye's “general acceptance” rule “is more likely to yield uniform, objective and predictable results among the courts, than is the application of the Daubert standard, which calls for a balancing of several factors … Moreover, the decisions of individual judges, whose backgrounds in science may vary widely, will be similarly guided by the consensus that exists in the scientific community on such matters.”

Justice Sandra Schultz Newman, who wrote a concurring opinion, agreed that the evidence plaintiffs offered was inadequate to support their claims, but was the only judge on the case in favor of Pennsylvania's adopting the Daubert standard.

Chief Justice Ralph J. Cappy of Pennsylvania's Supreme Court issued an opinion on Dec. 31, 2003, declaring that the State of Pennsylvania would remain a “Frye state” and would not follow suit with much of the rest of the nation in using the Daubert test to qualify expert witnesses. Grady v. Frito-Lay Inc., PICS Case No. 03-2056 (Pa. Dec. 31, 2003) (Cappy, C.J.; Castille, J., concurring; Newman, J., concurring; Saylor, J., concurring; Lamb, J., concurring).

Background

The Grady case involved a suit by a married couple claiming Frito-Lay was liable under theories of strict liability, breach of warranty and negligence for harm occasioned when Mr. Grady tore his esophagus, allegedly while eating a Doritos corn chip. Plaintiff's expert, a chemical engineer, performed tests on Doritos chips using his finger and a platform gram-balance to determine the downward force needed to break a chip. From the results of these tests, he opined that because the chips were triangular, sharp and not easily broken, they caused the tear in Mr. Grady's esophagus.

The trial judge granted Frito-Lay's motion to dismiss, saying plaintiff's expert's testimony was based on junk science that failed to meet the Frye test. The Frye standard, established in Frye v. U.S. , 293 F. 1013 (D.C. Cr. 1923), requires that for an expert's testimony to be admitted, the principles on which it is based must have achieved “general acceptance” in the scientific community. (In addition to qualifying under the Frye test, an expert testifying in Pennsylvania must be qualified under Pennsylvania Rule 702 as one with the knowledge, skill, experience and training necessary to experts in the field.) The Daubert standard, in contrast, requires courts to weigh the validity of scientific evidence using such factors as peer review, publication and general acceptance in the scientific community. Daubert v. Merrell Dow Pharmaceuticals Inc. , 509 U.S. 579 (1993).

On appeal, the Superior Court reversed the trial court's order, finding that the expert's testimony did pass the Frye test. The Supreme Court held that the reversal was error because the Superior Court's standard of review should not have been to consider plaintiffs' expert's testimony itself but to consider whether the trial court had abused its discretion. The trial court had not, the Supreme Court found, but had properly excluded the chemical engineer's testimony because the plaintiffs didn't prove that the methodology he used was generally accepted; his crushing of a chip on a Styrofoam block with his fingers was irrelevant to helping a finder of fact determine any question at issue, the court found.

Justice Cappy's Opinion

But Justice Cappy's opinion was primarily significant because it clarified that the standard for expert qualification in Pennsylvania remains the Frye rather than the Daubert test, an issue that had become unclear within the state. Cappy wrote that Frye's “general acceptance” rule “is more likely to yield uniform, objective and predictable results among the courts, than is the application of the Daubert standard, which calls for a balancing of several factors … Moreover, the decisions of individual judges, whose backgrounds in science may vary widely, will be similarly guided by the consensus that exists in the scientific community on such matters.”

Justice Sandra Schultz Newman, who wrote a concurring opinion, agreed that the evidence plaintiffs offered was inadequate to support their claims, but was the only judge on the case in favor of Pennsylvania's adopting the Daubert standard.