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The Pennsylvania Superior Court upheld the dismissal of a case against United Airlines Wednesday in which the plaintiffs alleged the airline should have warned passengers that flying may damage passengers’ eardrums when they fly with an upper respiratory infection or sinusitis. The three-judge panel in Ginsburg v. United Airlines Inc. affirmed a Philadelphia trial court judge’s decision to bar the plaintiffs’ expert from testifying about his theory that eardrums damaged during flight can cause bacterial meningitis. The trial judge had ruled the expert’s methodology hadn’t been generally accepted by the medical community and wasn’t admissible under Frye v. United States. In an unpublished decision, the court said that while the plaintiffs’ expert Leroy P. Gross cited “17 different pieces of literature” in his expert report, “none of them, however, suggested a causal relationship between barotraumatic injury and bacterial meningitis.” “Dr. Gross conceded at the Frye hearing that none of the literature upon which he relied actually concluded that flying can cause bacterial meningitis,” the panel — consisting of Superior Court judges Richard Klein, Seamus McCaffery and Jack Panella — wrote in its opinion. “Dr. Gross did not conduct any studies or tests of his own to support his theory, nor did he cite any statistical evidence or data. “Dr. Gross also admitted that he knew of no other case where a person suffered bacterial meningitis as a result of barotraumas and stated that in his opinion, [the plaintiff's] is a ‘unique case.’” The ruling was a victory for Daniel Hessel and Denise Houghton of Cozen O’Connor, who represented the airline. Doctors diagnosed plaintiff Robert Ginsburg with bacterial meningitis following a 1997 flight from Denver to Philadelphia, according to the court’s opinion. He and his wife filed suit against the airline, United Airlines. In May 2002, counsel for Ginsburg and his wife were planning to introduce testimony at trial of an expert in aerospace medicine — Gross — who theorized that the drop in cabin pressure during the plane’s decent had popped Ginsburg’s right eardrum. Gross believed the rupture allowed the infection in Ginsburg’s ear to travel through the mastoid portion of his inner ear to his brain, causing the bacterial meningitis, according to the opinion. Right before the case went to trial, United filed a motion to preclude Gross from testifying about the issue of causation. Common Pleas Senior Judge Thomas Watkins held a two-day Frye hearing in May 2002. He subsequently granted the airline’s motions to preclude Gross’ testimony on the issue of causation, as well as any evidence regarding United’s duty to warn its passengers. According to the Superior Court opinion, United then asked Watkins to dismiss all the claims against it because the plaintiffs lacked a prima facie case without the testimony. Watkins agreed and entered summary judgment for the airline. Ginsburg and his wife appealed. According to the opinion, Ginsburg felt pain in his right ear due to the changing barometric pressure in the plane cabin as it descended into Philadelphia. He had a headache for a couple of days after the flight before hospital doctors diagnosed Ginsburg — a physician himself — with bacterial meningitis. Ginsburg was hospitalized for three months and has since been unable to work, sustaining partial paralysis, loss of hearing, cognitive impairments and personality changes, according to the opinion. Ginsburg and his wife sued the airline, “alleging that the airline negligently failed to warn them of the injuries that could result from flying with an upper respiratory infection or sinusitis,” according to the opinion. The couple also sued Pennsylvania Hospital and two of its physicians, alleging medical malpractice in their treatment of Ginsburg. Those parties settled before trial, according to the opinion. Soon after the close of discovery, United moved for summary judgment, but Common Pleas Judge Norman C. Ackerman denied the request. Closer to trial, United moved to preclude Gross’ expert testimony under Frye. At the hearing, Watkins heard from three expert witnesses and was presented with deposition transcripts, as well as many articles and medical records, according to the opinion. Gross’ methodology had consisted of reviewing 17 pieces of medical literature and selected medical records from Ginsburg’s treatment at Pennsylvania Hospital, according to the opinion. But as the Superior Court observed in its opinion, Gross admitted that none of the literature he reviewed came to the same conclusion he did: that flying can cause bacterial meningitis. He also conceded that Ginsburg’s case was “unique.” Watkins also heard from an otolaryngologist, who was the airline’s expert. Charles Thomas Yarington said he found no medical research to suggest that meningitis could be a consequence of barotrauma or that barotrauma could exacerbate existing situations and cause meningitis, according to the opinion. The plaintiffs rebutted Yarington with a neurologist, Edgar J. Kenton, whose videotaped report suggested that barotrauma could indeed cause bacterial meningitis, citing a 30-year-old case in which Kenton had “assumed” that barotrauma caused a patient to develop bacterial meningitis. Kenton also recalled an article discussing two patients who developed “air-travel-induced” bacterial meningitis following surgery, according to the opinion. Watkins concluded the requirements of Frye weren’t met, saying he was “not at all satisfied with [Gross'] methodology.” The Superior Court panel said Watkins had neither abused his discretion nor committed an error of law. Ginsburg and his wife were represented by Thomas R. Hurd and Tom P. Monteverde of Monteverde McAlee & Hurd. Hurd said yesterday it was unfortunate that the court concluded Gross’ theory was novel. “It is well known in the airline industry that having a cold or a respiratory infection makes you subject to barotraumas,” Hurd said. “The fact that [bacterial meningitis] is a rare consequence doesn’t transform the opinion into a novel scientific theory.” Hurd also noted that the court may have “smudged” the distinction between Gross’ opinion and his methodology. “From what I understand, the court is supposed to determine whether the methodology, not the opinion, is novel. The methodology is the same methodology all physicians use.” The Superior Court panel also rejected the plaintiffs’ contention that the trial court’s summary judgment ruling violated the coordinate jurisdiction rule, even though Ackerman had denied a prior motion for summary judgment from United before Watkins granted the airline’s second motion for summary judgment. The appeals court noted that the admissibility of Gross’ testimony wasn’t raised in United’s earlier motion and, furthermore, Ackerman hadn’t decided the issue. “The general prohibition against revisiting a prior holding by a judge of coordinate jurisdiction is not absolute,” the Superior Court wrote, citing a 2002 state Supreme Court opinion, Ryan v. Berman. “A trial judge may depart from the rule in a narrow set of circumstances, including where there has been ‘a substantial change in the facts or evidence giving rise to the dispute in the matter.’ As Judge Watkins noted, he was presented with additional evidence that was not presented to Judge Ackerman, the most significant of which was Dr. Gross’ own testimony.”

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