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In a New Year’s Eve ruling, the Pennsylvania Supreme Court published an opinion resolving to continue the application of Frye as the state standard for judging the admissibility of expert testimony, rejecting a move to the multi-prong Daubert test used by federal courts and some other state jurisdictions. “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. The Frye standard was established in a 1923 federal case called Frye v. United States and 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 the 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. At oral arguments in Pittsburgh last March, lawyers for the parties urged the court to keep the Frye test — as opposed to adopting the standard articulated by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. in 1993. 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 plaintiffs in Grady. “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 separately in a concurring opinion, was the only justice to favor the Daubert standard over Frye, although she agreed with the majority that the testimony at issue should have been excluded. In Cappy’s opinion last week, 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.” 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 non-suit after excluding the plaintiffs’ expert opinion, calling it “junk science” and finding it failed to meet the Frye standard. The methodology used by the plaintiffs’ expert, a chemical engineer named 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 court concluded. It was the burden of the plaintiffs to prove that Beroes’ method was a generally accepted one for arriving at his conclusion, Cappy said. That is, plaintiffs 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. One justice did not participate in the ruling. That justice, J. Michael Eakin, was a Superior Court judge in 2001 when he considered the case as part of an en banc panel and disagreed with the majority’s decision that Beroes’ testimony did pass Frye. Eakin said in his 2001 dissent that he would have affirmed the Allegheny County trial court’s order, which found Beroes’ testimony inadmissible because the plaintiffs had not shown his methodology to be generally accepted. The Superior Court’s en banc ruling in Grady had reversed the trial court’s order, but the state Supreme Court said this was an error. The Superior Court’s standard of review in this case was not to consider Beroes’ testimony itself but to consider whether the trial court had abused its discretion. The trial court had not, the state Supreme Court said. Cappy explained in his opinion that one of the reasons the court originally embraced the Frye test in its 1977 decision, Commonwealth v. Topa, was “its assurance that judges would be guided by scientists when assessing the reliability of a scientific method,” Cappy wrote. “We believe now, as we did then, that requiring judges to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific theory and technique when ruling on the admissibility of scientific proof, as the Frye rule requires, is the better way of insuring that only reliable expert scientific evidence is admitted at trial.” In Justice Thomas G. Saylor’s concurring opinion, he noted that in applying the Frye test to Grady he would not have framed the issue as narrowly as Cappy did. “I am more in line with the trial court’s conclusion that Dr. Beroes’ methodology represented faulty science, thus lacking in general acceptance, although I fully acknowledge that there is a dynamic to his assessment that comports with the common sense notion that it is necessary to properly chew hard foodstuffs prior to swallowing,” Saylor wrote. In his separate concurring opinion, Justice Ronald D. Castille said he felt that the “general acceptance” test may require some flexibility in examining the relevant scientific community and the legitimacy of the scientific “consensus” that is invoked in an attempt to exclude “the minority views of otherwise-qualified experts.” Justice William H. Lamb wrote separately to say he agreed with Castille that courts should exercise flexibility in the application of the Frye standard. Lamb also included a caveat to Cappy’s analysis, noting that conclusions and methodology are not always entirely distinct from one another. “In the usual case, consensus by the relevant scientific community that a particular methodology is appropriately employed to reach a particular conclusion, will also imply a consensus as to the conclusion itself,” Lamb wrote. 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,” Newman 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,” Newman wrote. Instead, Daubert should be the controlling standard in Pennsylvania, she explained. In the end, Newman believed Beroes’ testimony should be excluded because his methodology, “crushing nacho chips with one’s finger and a Styrofoam block, could not assist a jury in determining any fact in issue,” she concluded. Counsel for Frito-Lay, John Robb with Robb Leonard & Mulvihill in Pittsburgh, was not available for comment Monday.

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