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In a new year’s eve ruling concerning the potentially dangerous properties of a popular brand of tortilla chips, the Pennsylvania Supreme Court reaffirmed its belief that the Frye standard for admission of scientific evidence was preferable to the federal courts’ Daubert doctrine. “In our view, Frye‘s ‘general acceptance’ test is a proven and workable rule, which when faithfully followed, fairly serves its purpose of assisting the courts in determining when scientific evidence is reliable and should be admitted,” Chief Justice Ralph J. Cappy wrote for the court last week in Grady v. Frito-Lay Inc., No. 43 WAP 2002. The Frye standard was established in a 1923 U.S. Circuit Court for the District of Columbia case, Frye v. United States, 293 F. 1013. It requires that, for an expert’s testimony to be admitted in court, the scientific principle on which the expert’s testimony is based must have achieved “general acceptance” in its particular scientific community. Cappy’s opinion emphasized that the Frye test applies to an expert’s methods -not his conclusions-and that Frye is only one of two prongs required by state rules of evidence for admissibility. Pennsylvania Rule 702 also requires that scientific experts be qualified in knowledge, skill, experience and training or education, Cappy noted. “It was clear that Cappy made this issue an important one to address because in the past it hasn’t been clear which standard applies in Pennsylvania,” said John A. Robb Jr., counsel for Frito-Lay and an attorney at Pittsburgh’s Robb Leonard Mulvihill. At oral arguments last March, lawyers for both sides urged the court to keep the Frye test-as opposed to adopting the standard articulated by the U.S. Supreme Court in its 1993 case, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579. Daubert requires courts to weigh the validity of scientific evidence using such factors as hypothesis testing, a known error rate, peer review and publication and general acceptance in the scientific community. “Initially, Daubert was viewed as a more relaxed standard than Frye,” said John P. Joyce, an attorney at Joyce & Joyce in Pittsburgh who represented the Grady plaintiffs. “Since that initial appraisal, it seems the requirements needed to meet the Daubert standard have grown, and there are more things to consider and deal with before you can get your evidence before a jury.” Justice Sandra Schultz Newman, who wrote a concurring opinion, was the only justice to favor Daubert over Frye, although she agreed with the majority that the testimony at issue should have been excluded. In Cappy’s Dec. 31 opinion, he explained 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,” Cappy wrote. “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.” Injured by a chip The testimony at issue in Grady was that of a chemical engineer who performed tests on Doritos tortilla chips and concluded that the sharp corners of the triangular chips had caused a tear in plaintiff Carl R. Grady’s esophagus when he ate them, according to the opinion. Grady and his wife had sued Frito-Lay, the Doritos manufacturer, for negligence, strict liability and breach of warranty, according to the opinion. The trial judge had granted Frito-Lay’s motion for compulsory nonsuit after excluding the plaintiffs’ expert opinion, calling it “junk science” and finding that it failed to meet the Frye standard. The state’s intermediate Superior Court had reinstated the expert’s opinion. The methodology used by the expert, chemical engineer Charles Beroes, was a calculation of the downward force needed to break a Dorito, using his finger and a platform gram-balance. This method measured the physical qualities of the chips but was not necessarily a generally accepted method used by scientists to determine whether Doritos remain too hard and too sharp as they are chewed to be eaten safely, the Pennsylvania Supreme Court concluded. It was the plaintiffs’ burden to prove that Beroes’ method was a generally accepted one for arriving at his conclusion, Cappy said. That is, they should have explained why Beroes’ tests failed to account for the process of chewing on the tortilla chips. The plaintiffs did not. Three justices, excluding Newman, wrote separately to concur with Cappy’s holding and analysis that the trial court had properly excluded the chemical engineer’s testimony because the plaintiffs had not proved that the methodology was generally accepted. Newman’s opinion noted the similarity between the state’s Rule 702 of Evidence and Federal Rule of Evidence 702-the state rule being modeled after the federal rule. In Daubert, the U.S. Supreme Court expressly concluded that Frye was an “austere standard, absent from, and incompatible with, the Federal Rules of Evidence,” she wrote. Therefore, if Frye is incompatible with the federal rule then it must be incompatible with the state rule as well, Newman explained. “I fail to see how Frye could fit within the parameters of Pa.R.E. 702,” she wrote. Instead, Newman asserted, Daubert should be the controlling standard in Pennsylvania. Still, she concluded that Beroes’ testimony should be excluded because his methodology of “crushing nacho chips with one’s finger and a Styrofoam block, could not assist a jury in determining any fact in issue.”

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