*1 839A.2d 1038 Wife, Appellees, Grady, his and Diana R. GRADY Carl Appellant. Foreign Corporation, FRITO-LAY, INC., a Pennsylvania. Supreme Court 4, 2003. Argued March 31, 2003. Dec. Decided *2 Forbes, Robb, vice, A. pro John Morton G. hac for appel- Inc., lant, Frito-Lay, foreign corporation.
Mary Wells, vice, A. pro Beck, hac James Michael for for appellant, Liability Advisory amicus curiae Product Coun- cil, Inc. Joyce, P. Pittsburgh, appellee, Grady,
John for R. Carl et al. C.J., CAPPY, CASTILLE, NIGRO, RALPH Before J. and NEWMAN, SAYLOR, LAMB, and JJ.
OPINION Chief Justice CAPPY. case, present
In the we consider the Superior whether correctly Court the trial court’s to reversed decision exclude expert scientific evidence. We also consider whether to retain States, in Frye the rule announced United F. 1013 (D.C.Cir.1923), for determining whether such evidence ad- that Frye provide missible. We conclude continues to the rule Pennsylvania. for decision We also conclude that reversing Court erred the trial court’s ruling. April 5, Grady Carl R. (“Mr.Grady”) wife, On and his Grady (collectively, “Appellees”) Diana commenced a lawsuit against appellant, Frito-Lay, (“Frito-Lay”). Inc. In their Dori- Grady Mr. several alleged that ate Appellees complaint, (“Doritos”) designed, Frito-Lay Chips Tortilla tos brand chips sold; Grady though manufactured, that Mr. felt and sought emergency throat; Grady that Mr. lodged in his had Grady Mr. care; showed that procedures hospital medical physical that resulted serious esophageal an tear suffered caused the Grady Doritos Mr. had eaten and that the injuries; Frito-Lay’s Doritos further that Alleging tear. esophageal hard, into they fracture and defective because are unsafe esophagus lacerating of fragments capable that are sharp negligence, strict eaten, forth claims in Appellees set when warranty. liability, and of breach closed, Frito-Lay filed Defendant’s pleadings
When asserting Appellees Summary Judgment, Motion for satisfy their burden sufficient produce failed to evidence defect; Doritos were had a that the that the Doritos proving manufactured; that the Doritos and improperly designed Frito-Lay further to tear. Grady’s esophagus Mr. caused necessary prove each expert testimony was alleged that these issues. Summary Judg- Frito-Lay’s Motion response
In their reports ment, reports. One of the filed two Appellees Beroes, Ph.D., (the prepared by Charles Report”) “Beroes engineering P.E., of chemical professor an associate emeritus Dr. Pittsburgh. report, Beroes University of his at the phys- hidden-hazardous possessed that Doritos “several stated properties” and described ical-strength physical-shape Doritos, including types on several performed he had tests Grady Mr. had bag chips from Doritos that came *4 2). (Beroes at Report eaten, propensities. these quantify to tests, compressive of Dr. Beroes measured In one series tests, Dr. a Beroes held dry Doritos. these strength triangular tip down on pressed his hand and its Dorito in until the pad was covered with a gram balance that platform to downward force needed snapped. He calculated the chip pounds, that to grams, converted force each Dorito break developed] that under average pressure forth and set “the to breaking applied average [he had] force chip tips” and “the (Beroes 9). 5, 7, tips”. Report at Dr. Beroes summarized this establishing series tests as that “[l]arge pressures pounds applied result when few of force triangular are to the chips. shaped chip points The to high were able endure pressures fracturing. sharp triangular before The chips can readily pierce esophagus when into driven the walls of the (Beroes 3). esophagus by peristaltic Report action.” at tests, In a second series of Dr. Beroes measured it the time took saliva to soften Doritos. These tests were conducted test, dry chip the same manner as the except that Dr. Beroes used Doritos he had wetted with saliva holding them in seconds, seconds, seconds, his mouth for 15 and 60 According Beroes, seconds. Dr. these tests showed that tips of triangular chips “the did not soften sufficiently to prevent esophagus laceration of the expo- after 60 seconds of sure of saliva. Each triangular chip fractures into smaller triangular chips sharp tips. tips with These spears. resemble pressures Enormous occur on sharp tips these needle which (Be- any can lacerate almost digestive tissues tract.” 10.) Report roes at tests,
Based his Dr. Beroes concluded that the Doritos dangerous were and they defective because broke into smaller triangular chips thick, sharp, were too too and too hard passage esophagus. safe opined He also within a degree certainty reasonable Frito-Lay failed to warn of dangers eating Doritos; that it failed studies; conduct appropriate safety that it to pro- failed duce and sell Doritos with uniform compressive and strength hardness; that Doritos were not fit consumption; for safe Doritos negligently designed manufactured; were and that their uneven and dangerous characteristics caused Mr. (Beroes Grady’s esophageal resulting injuries. tear and Re- 21-23).1 port at Appellees expert’s report filed prepared by Augusto also an N. De- lerme, M.D., response Frito-Lay’s Summary F.A.C.S. in Motion for Judgment. report, opined In his Dr. Delerme that the Doritos that Mr. stomach, Grady esophagus passage ate lacerated his on their to his Grady's injuries. that the laceration caused Mr. *5 10, 1998, trial court denied
By order dated December Summary Judgment. Frito-Lay’s Motion for parties respective pretrial January In filed their an Appellees identified Dr. Beroes as statements.
witness.
Thereafter, Frito-Lay
a number of motions in limine.
filed
motions,
to
Dr.
Frito-Lay sought
In
of these
exclude
three
Testimony
testimony.2 In a Motion to Preclude The
Beroes’
Causation, Frito-Lay
Of Charles S. Beroes On The Issue Of
qualified by training
that Dr.
was not
alleged
Beroes
relationship
causal
Mr.
experience
testify
between
In a
Grady’s consumption
esophageal
and his
tear.
Doritos
Beroes,
Expert,
Motion to Preclude Plaintiffs’
Charles S.
Testifying
Regard
From
With
To The Ultimate Issues Of This
Case,
opinions
regard
that Dr.
with
Frito-Lay alleged
Beroes’
they
to ultimate issues were inadmissible because
were based
conflicting
evidence. And
a Motion To
unreliable
Testimony
Expert,
Preclude The
of Plaintiffs’
Charles S.
Beroes,
testimony
Frito-Lay alleged
regard-
that Dr. Beroes’
ing
physical
Doritos’
characteristics was inadmissible because
States,
v.
it did not meet the rule announced
United
(D.C.Cir.1923),
required
On in Limine Frito-Lay had chambers on all of the Motions that raised the granted trial court the Motions The filed.3 that Dr. testimony, ruling Dr. Beroes admissibility of Beroes’ on Doritos or tests conducted testify could not he about them. give opinions they would submit to proffered the evidence
Appellees then evidentiary trial of all of the court’s prove their case view compulsory a non- Frito-Lay moved for rulings. response, motion, Frito-Lay’s concluding granted trial court suit. The would not be able to establish elements Appellees filed a motion to re- Subsequently, Appellees claims.4 their non-suit, which trial court denied. compulsory move the Frito-Lay’s favor. Ultimately, judgment was entered followed, the trial court opinion In a memorandum testimony. Dr. excluding its for Beroes’ explained reasons trial court stated: The Court, taking this of the after finding
It was the member expertise experts, Plaintiffs’ the claimed into account Beroes, methodology methodology of that Beroes’ and the data, utilizing upon methodolo- was based community of scien- generally accepted that was gy Indeed, it was safety. impres- who food tists evaluate methodology of this member of the Court Beroes’ sion fair and did not high project of a school science smacked party when a files a procedure that the trial courts are to follow 3. The presently set forth in Pa.R.C.P. motion to exclude 22, 2001, January effective adopted was 207.1. This Rule Therefore, July Rule 207.1 is not relevant to our as of discussion. Pennsylvania Rules of Civil Procedure 4. We observe that under time, compulsory enter a non- at the the court was authorized to effect upon oral motion of the defendant. See Pa.R.Civ.P. suit at trial trial, grant party's motion the court was authorized to 230.1. Before summary party bore the burden of judgment if an adverse who produce evidence of facts essential to his proof at trial had failed to 1035.2(2). raised in this action. See Pa.R.Civ. P. No issue was cause of procedure that the trial court followed. case as to the any bear relationship reality to the of the mastication and consumption of approached foodstuffs. Beroes the charac- chips teristics of the Dorito ifas it awere static evaluation material, of a rather than a Accordingly, consumable. this member of the Court determined that methodology Beroes’ science,” was akin “junk did not meet the test of [Frye ] progeny, and its and that Beroes’ methodology opinion only would jury. mislead the unquali- Beroes was otherwise fied to an expert render medical opinion as to whether the Doritos caused the husband-plaintiffs injury. The Defen- dant’s motion was, in limine as to opinion Beroes’ accord- ingly, granted.
Grady (Pa.Com.Pl. v. Frito-Lay, 2000 WL *2 33436367 at 2000). April 3, *7 appeal,
On majority the of Superior the Court en banc reversed the trial court’s granting Frito-Lay’s order Motions limine, judgment non-suit, vacated the of and remanded trial. Grady v. Frito-Lay, 789 (Pa.Super.2001). A.2d 735 Beroes,
As to Dr. Superior the Court concluded that he was competent testify to on physical Doritos; the characteristics of that his testimony test; satisfied the Frye compres- that his sion strength calculations used standard principles ex- perts in the can examined; field and have and that any flaws in Dr. testing Beroes’ design could subject be the of cross- examination at trial.5 Superior The Court stated:
Nor do we find that the trial court precluded properly part of expert the testimony of relating Dr. Beroes to the results of tests had he conducted the chips, Doritos specifically, three series of compressive strength tests, and four sets of saliva tests Rather, conducted on chips. whole we are of the mind that Dr. Beroes competent testify physical as to the characteristics of chips by the as revealed time, however, 5. At the same Superior the Court held that the trial ruling court’s portion as to ''[t]hat of the of Dr. relating Beroe’s Grady's [sic] to the cause of esophageal Mr. tear was properly engineer excluded as competent a chemical qualified is not Inc., provide testimony.” Grady Frito-Lay, medical causation (citation omitted). A.2d at 742 n. 9 part This Court's decision and order is not before us. products the upon he had conducted the standard tests appellee. expert testimony makes admission of
The test general acceptance validity of its “upon dependent which active in the field to the evidence those scientists belongs.”
[*] [*] [*] [*] [*] [*] both process consuming food involves mechanical The processes mechanical involve processes. and chemical The food swallowing breaking and down of chewing while Thus, as Dr. engineer an such processes. involves chemical describing qualified provide expert opinion [an] Beroes is and product food composition and characteristics and processes chewing mechanics of the involved by Dr. Beroes swallowing. The series of tests conducted any principles, but did not involve or new scientific novel strength strength compression' crush calculations rather which, “as as the by appellants, possibly are old noted pyramids.” appellee provided aspects has valid criticisms of
While tests, not attack basic Dr. Beroes’ those criticisms do conducted, but principles involved the tests chip of a challenge things such as the use whole rather by chewing. fragments yielded than rather [*] [*] [*] [*] sis sii. tests, calculations, standard can employed The which *8 critically by readily and evaluated have been examined field, in including by appellee. those retained experts the science”, “junk any are and flaws measurements not Such design compilation of the data can be the of the tests or readily by appellee. critiqued (footnote omitted).6 Id. at 742-43 and citations followed, appeal This to whether the Court limited reversing trial correctly applied the law in the court’s decision Judge Concurring Judge 6. Del Sole Statement that President filed a Judge joined Judge joined. Del the Ford Elliot and Orie Melvin Sole challeng- majority opinion pre-trial when and stated that that a motion 555 physical expert testimony to Dr. certain Beroes’ exclude of Doritos. characteristics Pennsylva- our with the Rule 702 the begin discussion
We admissibility Rule 702 nia of Evidence. controls Rules expert testimony knowledge, on scientific and states: experts Testimony by
Rule 702. scientific, beyond specialized knowledge or other If technical to layperson will assist the of fact possessed that a trier issue, a or to fact understand evidence determine skill, expert by knowledge, experi- qualified as an witness form ence, training may testify or thereto in the education opinion of an otherwise. 702.
Pa.R.E.
States,
v. United
test,
293
Frye
Frye
announced in
The
first
Commonwealth
1013,
Pennsylvania in
F.
and
adopted
at
223,
(Pa.1977),
Topa, part
Pa.
A.2d 1277
is
of Rule
Frye,
if
scientific
is admissible
702.7 Under
novel
evidence
general accep-
methodology that
has
underlies
evidence
See Common-
community.
in the
tance
relevant
scientific
Blasioli,
(1998).8
149,
1117,
wealth v.
552 Pa.
713 A.2d
filed,
ing
expert is not
an
the movant must establish that the
qualified
testify.
744.
Id. at
Joyce
Concurring
Dissenting
Judge
Judge
filed Statement.
joined
part
majority opinion
Joyce
permitted
that
that
Dr.
(now
testimony
Judge
joined
part
Delerme’s
of then
Eakin's
Eakin’s)
that would
court's
Justice
dissent
have affirmed the trial
testimony.
exclude
Id.
decision to
Dr. Beroes'
(now Justice)
Judge
Judge
Dissenting Opinion
Then
Eakin filed a
joined.
Appellees
He
that Dr.
Stevens
believed
failed
show
test,
Frye
properly
Beroes’
and that the trial court
met
finding
qualified
exercised its discretion in
Dr. Delerme
Therefore,
testify
esophagus.
about the
he would have affirmed the
entirety.
Id.
trial court’s order
its
at 744-47.
Pennsylvania
adopted
we did
When we
Rules of Evidence in
7.
Topa,
prior
A.2d at
not alter our
decision
Commonwealth v.
determining
admissibility
to use the
rule for
at trial
Comment,
scientifically-adduced expert
Pa.R.E.
evidence. See 1998
702.
Frye opinion:
following passage
test
from the
in the
The
comes
discovery
principle
when a
crosses
line between
Just
experimental
stages
define.
and demonstrable
is difficult to
*9
time,
For a
the Frye
guided
rule
number
courts in
deciding whether scientific evidence is admissible.9 In Dau
Pharmaceuticals,
bert v. Merrell
Inc.,
Dow
579,
509 U.S.
2786, 125
(1993),however,
S.Ct.
L.Ed.2d 469
the United States
Supreme
rejected
Court
Frye. The Court determined that
“general
Frye’s
acceptance” rule had
superceded
been
adoption of
Evidence,
the Federal
Rules
arid reasoned that
it was no longer consistent with the federal
law’s liberal
thrust.
Id. at
After decided, Daubert was a number of state courts adopted We, the Daubert however, standard.10 have contin ued to Frye. follow In granting allocatur to Superi- review the present decision, Court’s we determined that it provided us with the opportunity to assess our continued adherence to Frye. Accordingly, we parties directed the to address the effect the Frye and Daubert cases on the issue we are deciding. respective briefs, their Appellees both and Fri to-Lay preference indicated a for Frye and neither them urged us to move to Daubert.11 twilight Somewhere in this zone the evidential principle force of the recognized, must be go long and while way courts will admitting expert testimony well-recognized deduced from a principle scientific discovery, thing which the deduction is made must be from sufficiently gained general established to have acceptance par- in the belongs. ticular field in which it
Frye,
added).
(emphasis
After careful view, Pennsylvania. In our applied will continue to be proven is a and workable acceptance” test “general Frye’s followed, purpose its rule, faithfully fairly serves which when scientific evidence determining when assisting the courts of and should be admitted. is reliable test Frye we embraced the primary of reasons
One
the
by
guided
would be
judges
that
was its assurance
Topa
reliability of a
method.
assessing the
when
scientists
Addison,
States v.
(quoting
Thus, efficacy persuaded of wisdom and of as we are rule, “general acceptance” we hold that it continues Frye’s Pennsylvania.12 control in 24-27). Appellees (Appellant’s asserted that Pa.R.E.
standard.
Brief at
rule,
702,
Frye
(Appellees' Brief at 17-
which codifies the
is effective.
Council,
21).
Liability
The Product
Inc. in its Brief of Amicus Curiae
Frye
support
Support Appellant
voiced its
for the
rule.
also
adhering
among the
Our
for
to the
rule are
reasons
reasons
respective
given
views that
the rule is
other courts have
for their
24,
People
Kelly,
e.g.,
17
130
effective. See
Cal.3d
sensible and
State,
144,
1240,
(1976);
Cal.Rptr.
1244-45
Stokes v.
548
549 P.2d
244,
188,
(Fla. 1989);
Copeland,
922
193-94
State v.
130 Wash.2d
So.2d
now turn to
importance
Frye’s proper
We
First,
application,
following points.
and make the
consistent
general evidentiary
with our traditional adherence to the
tenet
of a
proponent
proposition
bears
burden of
Johnson,
it,
142,
proving
347,
In re
see
509 Pa.
502 A.2d
(1985),
case,
principle
type
and the
that is evident in this
see,
Zook,
e.g.,
Second,
rule,
applying
the Frye
required
we have
require
and
that
proponent
continue
of the evidence
prove that
an
methodology
expert
generally
used is
ac
cepted by scientists in the relevant field as a method for
arriving
expert
at the conclusion the
testify
will
to at trial.
See,
Blasioli,
e.g.,
This does not proponent must prove community that the scientific generally accept- has also expert’s ed the conclusion.13 We required have never and do This, view, a require showing. not such in our is the sensible approach, imposes appropriate for it restrictions on admis- evidence, stifling sion of scientific without creativity and inno- thought. vative
Third, 702, Frye requirement under Pa.R.E. is one terms, By mandates, of several criteria. its the Rule also alia, inter testimony given by scientific “a be witness who qualified expert by skill, is as an knowledge, experience, training or Pa.R.E. education----” a Whether witness is qualified to opinions render and his testimony passes whether inquiries test are two distinct that must be raised 1304, (1996); Tharaldson, 800,
P.2d 1312-1315 Goeb v. 615 N.W.2d (Minn.2000). 812-814 any contrary, they 13. To the extent that are wrongly decisions to the are See, Co., e.g., Westinghouse decided. v. Electric 674 A.2d McKenzie (Pa.Cmwlth. 1996). 1167
559
parties,
upon
and ruled
by the
developed separately
Arroyo,
v.
courts. See Commonwealth
by the trial
separately
(1999).14
162,
125,
555 Pa.
723 A.2d
finally,
appellate
as to the standard of
Fourth and
issue, we have
that the
to the
stated
applies
review
testimony
evidentiary
is an
admission
not be
trial court’s discretion
should
matter
for the
the trial court abuses its discretion.
appeal
disturbed on
unless
Zook,
We As abuse of discretion the standard of review *12 matter, Superior this it was the Court’s function to deter- trial court’s decision to Dr. mine whether the exclude Beroes’ unreasonableness, testimony constituted par- under bias, ill-will, tiality, prejudice, support or such lack of so as id. clearly opinion, to be erroneous. See Nowhere its however, Superior did the Court undertake this function. 14. We make observation because we are unable this to discern from the respective opinions record and the lower courts’ whether the trial court Superior or the Court a decision on whether Dr. Beroes was made testify qualified physical under 702 to as an Pa.R.E. Doritos' properties in Each court these circumstances. made statements that suggested ruling upon qualifications that it was Dr. Beroes’ in this inextricably regard, analysis were but those statements intertwined with Frye question. light disposition of the In of our of the in this issue appeal, we need not address this matter.
Instead, directly testimony, at Dr. decided it looked Beroes’ it, it the trial court because thought what it reversed Thus, testimony differently. we conclude assessed the Superior Court erred. point proceedings, At this these we believe if judicial economy apply will be best served we interests ruling, standard of review to the trial court’s rather proper to do so. remanding than this case to the Court See Ass’n, v. Danville Area Educ. Danville Area School Dist. (2000). Pa. 754 A.2d There- PSEA/NEA fore, will the trial court abused its we consider whether testimony Dr. it decided to exclude Beroes’ discretion when satisfy not Frye. it did because decision, reaching its the trial court viewed Dr. Beroes’ tests, evaluating his as aimed at certain testimony, and hence process of Doritos while physical characteristics being perspective, chewed and swallowed. Based on this trial concluded that Dr. Beroes’ was inadmis- court it shown that the means he used to sible because was not by generally accepted those characteristics was scien- evaluate safety. food supra tists who evaluate See argue that trial court’s determination cannot Appellees court to understand that Dr. stand because failed the.trial strength of Doritos applying Beroes measured the crush any would the standard calculations that scientist use test Frito-Lay strength the crush of material. asserts allegedly focus on standard nature of Appellees’ exclusive Dr. in his tests is the calculations Beroes used beside insofar as it fails to account for the fact that Dr. Beroes’ point, shape they of Doritos as conclusions went the hardness eaten, physical condition in a vacuum. are their agree Frito-Lay Appellees’ argument regard- with We mark, light ing methodology Dr. Beroes’ misses going present about Doritos that Dr. Beroes was conclusion not, jury Appellees’ to the at trial. That conclusion was average downward force that it takes to position implies, the *13 Rather, it that types various of Doritos. was Doritos break sharp being remain too hard and too when chewed for eating. may swallowed safe While Dr. Beroes’ calculations represent in fact a standard method that scientists use reach a conclusion about the downward force needed break Doritos, they are not also necessarily generally accepted (or fields) method that scientists in the relevant field for use reaching a conclusion as to whether Doritos remain too hard sharp they and too are chewed and swallowed to be eaten safely. was, therefore, It upon Appellees incumbent to prove (or fields) scientists the relevant field generally accept Dr. Beroes’ methodology as a for arriving means at such a however, Appellees, conclusion. filed no evidence whatsoever regard. Thus, this Appellees satisfy failed to their burden of proving that Dr. Beroes’ evidence Frye met rule. Accordingly, we conclude that the trial court did not abuse its discretion in deciding that Dr. testimony Beroes’ was inadmis- sible, and hold that the in reversing Court erred trial court’s ruling.15 summary, we reaffirm our rule; adherence to Frye
clarify that applies the rule to an expert’s methods, not his conclusions; emphasize proponent that the of the scien- tific proof issue; evidence bears the burden of on Frye reiterate that the of appellate standard Frye review on the issue is the abuse of discretion standard. reasons,
For all foregoing part we reverse that Superior Court’s order that reversed the trial court’s order granting Frito-Lay’s Motions in limine as to Dr. Beroes’ physical Doritos, characteristics and re- mand this case to the trial court proceedings consistent opinion. with this opinion,
15. We observe only its the trial court did not conclude Appellees failed to show that Dr. Beroes’ evidence satisfied the rule. affirmatively The trial court also concluded that Dr. Beroes’ methodology "junk essentially, is generally science” and accepted not by scientists in the relevant support field. The record does not this Frito-Lay prove conclusion. did not that Dr. Beroes' method not field, generally accepted scientists in the required relevant nor was it out, point to do Appellees' so. As we it prove was burden to satisfied, Frito-Lay’s prove burden to otherwise. *14 562 in the consideration participate not EAKIN did
Justice of this case. decision concurring opinion. a files CASTILLE
Justice
opinion.
concurring
a
files
NEWMAN
Justice
opinion.
concurring
a
files
Justice SAYLOR
concurring opinion.
LAMB files
Justice
CASTILLE, concurring.
Justice
position
with the
Opinion is consistent
Majority
Because the
Dow
v. Merrell
in Blum
my dissenting opinion
I
outlined
(2000),
join.
1
I
Pharmaceuticals,
A.2d
564 Pa.
764
First,
points.
I made three basic
dissenting opinion,
In that
States, 293 F.
Frye
v. United
set forth
I noted that the test
(D.C.Cir.1923),
by this Court
Common-
adopted
1013
(1977),
1277, 1281
223, 369 A.2d
471 Pa.
Topa,
wealth v.
admitting
evidentiary standard
general
“should remain
Blum,
in this Commonwealth.”
expert scientific
I
Second, I
(Castille,
noted
dissenting).
at 6
J.
764 A.2d
of the Commonwealth
disapproved
explicitly
have
would
Electric
Westinghouse
in McKenzie
opinion
novel
Court’s
denied,
Pa.
(Pa.Cmwlth.1996),
allocatur
Co.,
A.2d 1167
that a scientific
(1997),
require
which “would
The flexibility in some may require test “general acceptance” legitima- community and the examining the relevant attempt in an is invoked “consensus” which cy of the scientific experts. otherwise-qualified minority views to exclude Blum, a need for there is readily demonstrated As was when, in a such as as case rule exception limited scientific ortho- Blum, to show that the there evidence “a result minority to exclude views was doxy that was invoked party.” influenced an interested research proprietary fol- Opinion My Dissenting upon elaborated concern lows: drug manufac- [the record here shows defendant
[T]he orthodoxy” largely “generally accepted created the turer] litigation viewpoints contrary to [its] that would freeze out in- subsidized otherwise [The manufacturer] interests. drug] most of studies that concluded that [its fluenced *15 in role [The not cause birth defects. manufacturer’s] does commu- virtually creating, slanting, and then the “scientific analysis. Frye be a factor in the nity” should relevant I Accordingly, exception Frye would create a to limited contrary to expert opinions the introduction of permit would generally by community,” opinions held the “scientific those opinions proprietary a of research when those are result party. an influenced interested entity not a an something little offensive about
There biased, “orthodoxy,” creating litigation-driven a scientific qualified expert to being permitted any and then silence “unorthodoxy.” holding dissenting grounds view on community is a com- the would-be relevant scientific Where interests, that litigation to the defendants’ munity beholden to dis- community permitted squelch should biased be senting opposing opinions. properly trial court here The unjust to allow to occur. result refused Majority Opinion Id. brief in Blum at A.2d The 16-17, 764 concern, notwithstanding its failed to address this entirely in prominent reasoning judge. role of the Blum trial the today understandably pro- not discuss this The Court does at issue. I prietary interest scenario because it is not write I I only the continue to what point note believe today’s Majority in expressed nothing in Blum and that my set Opinion operates preclude analysis the forth properly presenting next the issue. Dissent case Subject qualification, join Opin- above I Majority ion. NEWMAN, concurring.
Justice
I
with
agree
majority’s
While
determination that the
Beroes,
trial court properly
testimony
excluded the
I
Dr.
agree
cannot
with its conclusion
standard announced
States,
(D.C.Cir.1923),
United
The standard has as its following language from the 1923 Opinion Appeals States United Court for the District of Columbia Circuit:
Just
principle
discovery
when a scientific
crosses the line
experimental
between the
is diffi-
stages
demonstrable
cult to
twilight
define.
Somewhere
this
zone
eviden-
principle
tial force of the
recognized,
must be
and while
go
long way
courts will
in admitting expert
well-recognized
deduced from a
principle
dis-
covery,
thing
from which the deduction is made must be
sufficiently
general acceptance
*16
established to
gained
have
in
in
particular
belongs.
the
field which it
added).
Frye,
(emphasis
If or specialized other will knowledge assist the fact to trier understand the or to evidence issue, qualified determine a fact a expert by witness as an skill, knowledge, experience, education, training, may or testify thereto form opinion of an or otherwise. (West 1993). F.R.E. 702 Supreme United States Court that determined superseded
Rule 702 that Frye, concluding the text of the rule discovery has or principle require that the scientific does that be- reasoned The Court “general acceptance.” gained “and a Frye, not mention of Rule 702 did drafters cause the with be at odds requirement would acceptance’ rigid ‘general Rules[,] ... assertion Federal thrust’ of the the ‘liberal unconvincing.” is assimilated Rules somehow that Court held Daubert, 588-589, 113 2786. The at S.Ct. 509 U.S. an “aus- “general acceptance” test Frye’s exclusive with, from, incompatible standard, and absent tere applied Evidence, should not be [and] Rules of Federal added). (emphasis 589, 113 Id. at S.Ct. trials.” federal to buck to use Daubert for courts Recognizing potential parame- law, clarified the the Court application uniform expert scientific proffer with a 702. “Faced of Rule ters at the outset then, must determine judge trial testimony, (1) testify to expert proposing ... whether the or (2) understand of fact to will assist the trier knowledge that 2786. “This at 113 S.Ct. Id. a fact issue.” determine reasoning or of whether the assessment preliminary entails scientifically valid testimony is methodology underlying the can be methodology properly reasoning or of whether that and 592-593, 113 S.Ct. in issue.” Id. at to the facts applied on these factors could bear many explained The Court observa- “general four following but articulated the questions, primary as the consistently have been viewed tions” testimony: admissibility governing principles (1) determin- key question to be answered “Ordinarily, a knowledge technique is scientific theory ing whether it can be will whether trier of fact be will assist the today is been) methodology (and tested. Scientific has if testing them see hypotheses generating based indeed, is what falsified; methodology this they can be inquiry.” of human from other fields science distinguishes theory (2) is whether the pertinent consideration “Another publica- subjected peer review technique has been *17 review) (which peer of is but one element Publication tion. admissibility; it not necessari- does a sine non of qua is not well- in some instances reliability, ly correlate with grounded but innovative theories will not publish- have been propositions, moreover, ed. Some particular, are too too new, or of too limited published. interest be But submis- sion to scrutiny community a compo- is science,’ ‘good nent of in part it because increases the likelihood that substantive flaws in methodology will be detected.”
(3) “Additionally, in
particular
the case of a
scientific tech-
nique,
ordinarily
the court
should consider the known or
potential
error,
rate of
and the existence and
maintenance
standards controlling
technique’s
operation.”
(4) “Finally, ‘general acceptance’
yet
can
a bearing
have
on
inquiry.
reliability
A
require,
assessment does not
although
permit,
it does
explicit identification of a relevant
scientific community and an express determination of a
particular degree
acceptance
within that community.
Widespread acceptance can
important
be an
ruling
factor in
particular
admissible,
evidence
and a known technique
which has been
only
able
attract
minimal support within
community may properly
skepticism.”
be viewed with
593-594,
(internal
Id. at
This Court adopted Pennsylvania Rules Evidence May 8,1998, and they determined that would be effective as of October 1st year. Pennsylvania of that Rule Evidence provides as follows: scientific,
If technical or specialized other knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or issue, determine fact in qualified witness as an by knowledge, skill, experi- ence, training or may education testify thereto in the form opinion of an or otherwise. added).
Pa.R.E. (emphasis As noted in the Comment to Rule phrase emphasized above, “beyond that pos- sessed a layperson,” only difference between Federal Rule and our version. proviso This was added to ensure that Rule did not vary the common law rule
567
Dunkle,
168,
in
announced Commonwealth v.
529 Pa.
602 A.2d
(1992),
“[e]xpert
830
testimony
jury
is admitted to aid a
subject
testimony
when the
matter of the
to a
related
science,
occupation beyond
knowledge
skill or
experi-
average layperson.”
ence of the
Id. at 843 n. 3. Regarding the
conflict,
Frye/Daubert
explained
this Court
that:
Adoption of
Pennsylvania’s adop-
Pa.R.E. 702 does not alter
],
in [Frye
requires
tion of the standard
which
scientific
“general acceptance”
evidence to have
in the relevant scien-
Dunkle,
community.
tific
Commonwealth v.
supra;
See
Nazarovitch,
97,
Commonwealth v.
Pa.
496
United States issued its decision in
we
Frye,
but refused to
supersedes
address whether Daubert
or modi-
Frye, noting
fies
that Daubert interpreted F.R.E. 702 and that
appellate argument
the trial and
complete prior
Crews was
Crews,
ruling
to the
in Daubert.
Frye requires community the scientific to reach some con- reliability sensus then relies on such consensus to admissibility challenged determine the scientific evi- Daubert, hand, dence. examining on the other the same general acceptance factors which lead to in the scientific community, abandons “general the standard of acceptance” and determination judicial evaluation substitutes reliability. However, determined
Blum, because we A.2d at 3. unreliable, we concluded testimony was flawed inadmissible under either been would have that the evidence that “a choice between and, concluded accordingly, standard unnecessary [the] resolution of standards [was] two Therefore, prior our decisions A.2d 1. Id. at appeal.” *19 of whether to consideration do not constrain our this arena Frye. or retain adopt Daubert 702 and uses the after F.R.E. 702 was modeled
Pa.R.E.
of the addition
exception
with the
language,
exact same
Penn-
by
layperson”
to the
possessed
“beyond
phrase
however, has no
phrase,
This additional
version.
sylvania
scientific
judice
issue sub
bearing on the ultimate
—whether
testify must have
expert wishes to
which an
knowledge about
Therefore,
Pennsylvania
general acceptance.
gained
Rules of
modeled after the Federal
Evidence were
Rules of
Evidence,
Pennsylvania Rules of
Evidence,
to the
see Preface
and Pa.R.E.
by both F.R.E. 702
language employed
and the
any
identical,
my
I
affix
name to
cannot
effectively
is
702
interpre-
to an
deference
give appropriate
that fails to
decision
by the United States
forwarded
language
tation of identical
702,
tribunal,
interpreting
in
F.R.E.
That
Supreme Court.
standard,
an “austere
absent
expressly
Frye
stated
incompatible with,
Rules of Evidence.”
from,
the Federal
and
added).
(emphasis
Daubert,
2786
at
S.Ct.
U.S.
may
Rules of Evidence
recognize
I
that the Federal
While
evidence, if
admitting
thrust” in terms of
a more “liberal
have
702,1
F.R.E.
incompatible
...
with”
from
and
is “absent
Frye
of Pa.R.E.
parameters
fit within the
how
could
fail to see
from the
Moreover,
properly
Daubert
rule
retracts
recognizes that new scientific
and
antiquated notions
ensuring
still
while
could be
benefit
theories
methods
supported by
is
to be considered
sought
the evidence
ap-
cited
reliability. The Daubert Court
indicia of
sufficient
briefs,
that “sci-
indicated
amicus
which
to several
provingly
they
entists do not assert
immutably
know what
is
they
new,
to searching
temporary,
are committed
for
‘true’—
explain,
they can,
Daubert,
theories to
phenomena.”
as best
Ultimately, I must concur in the result reached majority I because do not compression believe that the *20 strength strength and crush sought studies to be introduced by Dr. “scientific, Beroes constitute special- technical or other knowledge ized will assist [that] the trier of fact.” Pa.R.E. (1) requires Daubert weighing following the factors: whether or not technique methodology the can be or has tested; (2) been technique whether the or methodology has (3) subjected peer been to publication; review and known or (4) potential error; rate of and the and existence maintenance controlling standards technique’s operation. However, factors, we need not consider these technique because the Gradys sought introduce, to crushing chips nacho with one’s finger Styrofoam block, and a jury could not assist a in majority 1. The parties notes that all of the and amicus curiae in this case, Frye. case however, responsibility advocated for the retention of Our in this proper is to admissibility determine the standard of for the Commonwealth, entire and we should not limit our consideration merely agree applicable because those involved in this case on the standard. (now, Eakin Judge in As noted
determining any fact issue. Court, Eakin) his in the these Mr. Justice dissent processes of mastication. wholly fail to account for the tests chews, effectively fast a the characteristics of person How and used, finger Styrofoam and a teeth from teeth how differ block, chip impor- down are and saliva would break how By to not questions Dr. fails consider. tant Beroes of Dr. recognizing inherent limitations the methods these Beroes, Gradys have evidence re- presented reliable question could have had chips the nacho garding the effect Thus, Grady. R. albeit based on esophagus on the Carl my colleagues that grounds, I must concur with different excluding testimony of Dr. trial court not err in did Beroes. SAYLOR, concurring.
Justice debate, position Frye/Daubert I take the Concerning the that the is and the law of the Common- Frye rule remains wealth, presented that advocacy and until informed unless direction, due to the would favor a with reference sub- new concerning body developed stantial of information that has under Daubert. experience of the federal courts others regard analysis Frye, under I am With to the substantive inquiry as narrow- not certain that I would frame the relevant Majority Op. at 1047 ly majority. Opinion, as does the See Dr. (stating controlling question as whether Beroes’ calcu- accepted lations are method that scientists generally “a fields) (or reaching a conclusion as to relevant field use they sharp are whether Doritos remain too hard too Indeed, safely.”). to taken chewed and swallowed be eaten extreme, suggest be that a an such a formulation could read plaintiff identify circumstances would need these *21 chewing. In community on Doritos the centered abstract, grounded I and confined why properly no reason see in could not be offered con- opinions engineer a chemical in predicated of a a case junction opinion physician with the from the arising propensities and undisclosed non-obvious of foodstuff.1 strength compressive however, in trial court’s determina-
Here, as reflected grounded nor properly tion, opinions were neither Dr. Beroes’ to instance, attempted report, in his he first confined. (for makeup example, principles incorporate physiological directly to speak to in order functioning esophagus) of the and, thus, opinions offered in case issues the ultimate portion of Concerning the range expertise. of his beyond the Doritos, I properties physical on the report his centered relatively rely to on a going who is plaintiff that a believe chips placing involving single researcher study uncontrolled degree to reflect the only a measure of time in his mouth with for other saliva, attempt no to account to and with exposure mastication, to going is the effect of factors such as relevant methodology convincing a court that such have a difficult time to appropriate as by any category of scientists accepted is of scientific degree to a a conclusion reasonable establish certainty.
Therefore, trial court’s conclusion I am more line with the science, thus methodology represented faulty that Dr. Beroes’ acknowledge fully I general acceptance, although lacking comports with dynamic is a to his assessment that there necessary properly chew common sense notion that it is prior swallowing. hard foodstuffs
Thus, I concur the result. LAMB, concurring.
Justice first, express my join majority separately, I but write flexibility in agreement with Mr. Justice Castille required, particularly application standard product consensus is the those instances where scientific view, dichotomy Additionally, my proprietary research. physician, sought expert testimony from a Notably, Appellees to offer should not have been excluded which the Court determined notes, test; majority determi- such the trial court under the scope of this Court’s discretion- nation not been included within the has ary review. *22 suggested by majority the general acceptance between general acceptance methods and of conclusions will often be, prove instance, as it in helpful practice was this less clarity than the exposition suggest. its would majority, The in discussing proper application the of the standard, proponent states that “the of the evidence prove that methodology expert [must] the an is generally used accepted by scientists in the relevant field as a method for arriving expert testify at the conclusion the will to at trial.” Majority Op. sentences, at 1045. In majority the next mean, however, cautions that propo- “[t]his does that the prove nent must community gener- the scientific has also ally accepted expert’s and generalizes conclusion” required require have never and do not showing.” “[w]e such a Id. at 1045.
Thus,, view, majority’s consensus as to the required witness’s conclusion is not for admissibility but the proponent of that conclusion must establish consensus appropriate witness’s method is “for arriving at the conclusion case, ...” majority Id. this concedes that the methods employed by were, fact, the witness unobjectionable in However, themselves.1 the evidence properly excluded under Frye because these methods were not shown be “the accepted ... reaching methods for a conclusion as to whether Doritos remain too hard sharp they and too as are chewed and swallowed to be eaten safely.” Majority Op. at 1047.
It
majority’s
is clear from the
evidentiary
discussion that
admissibility
Frye requires
under
evidence' of a scientific
consensus the
encompasses
nature
which
elements
proffered conclusion as well as of the method used to reach
understood,
that conclusion.
agreement
As so
I am in
with
analysis.
Joiner,
this
Similarly, in General Electric Co. v.
(1997),
U.S.
S.Ct.