Court Opens New Year of Arguments In Pittsburgh

Another major case asks the high court to reconcile several strands of case law governing scientific evidence.

In the high court’s order granting allocatur in Grady v. Frito-Lay Inc., PICS Case No. 01-2706 (Pa. Super. Dec. 31, 2001) McEwen, J.; Eakin, J., dissenting (25 pages), the litigants have been directed to address not only the demands of the old test articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), but also the refined federal evidence test set forth in Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579 (1993).

In a footnote to the recent Superior Court opinion Trach v. Fellin, PICS Case No. 03-0183 (Pa. Super. Feb 11, 2003) Ford Elliott, J.; Del Sole, J., concurring; Klein, J., dissenting (56 pages), Judge Kate Ford Elliott, writing for the majority, said she expects the Grady case to address the effect of both Frye and Daubert on the admission of expert testimony.

Daubert and its progeny said that the traditional Frye standard had been essentially replaced by the requirements of the Federal Rules of Evidence. Under Daubert, courts are to weigh the validity of scientific evidence using four factors: hypothesis testing, a known error rate, peer review and publication and general acceptance in the scientific community. The Frye test calls for general acceptance in the scientific community as the standard for admissibility.

A majority of U.S. jurisdictions has accepted the Daubert line of precedent in dealing with scientific evidence, but a considerable minority, including Pennsylvania has retained the Frye standard.

But Pennsylvania jurisprudence is in flux on the issue, and the Grady case presents an opportunity for the justices to issue a clear statement of law.

The scientific evidence in Grady involved a plaintiff’s expert’s opinion that Doritos brand corn chips are unreasonably dangerous. Without the evidence, the plaintiff could not prove causation, a necessary element for the cause of action.

The plaintiff in Grady said that the corn chip caused an esophageal tear. The expert planned to testify that Doritos, because of their shape and rigidity, carry an unreasonably high risk of injury to consumers.

The trial court had used scorching terms in granting a motion in limine to exclude the scientific evidence, at one point calling the expert’s methodology “junk science.”

A split panel of the Superior Court — with current Supreme Court Justice Michael Eakin in dissent — said that the opinion was sufficiently reliable to pass the Frye test.

Judge Stephen McEwen, writing for the majority in Grady, held that the expert reasonably relied on medical literature to support the opinion. The medical literature consisted of several case reports associating esophageal tears with corn chips.

There were also mechanical tests simulating the effect of human consumption of food. McEwen said that the tests, which purported to show that corn chips could cause esophageal tears, used basic scientific principles and could also form the basis of the expert’s opinion.

Eakin, who would have excluded the expert opinion, said that the tests pointed to by the expert bore little relationship to human food consumption and were therefore of no value in presenting an expert opinion to the jury. He would not, in other words, extrapolate from a simulation to real-world food consumption.

Limitations

In another case, the high court will consider the statute of limitations governing contract actions alleging latent real estate construction defects.

In Gustine Uniontown Associates Ltd. v. Anthony Crane Rental Inc., PICS Case No. 01-2133 (Pa. Super. 2001) Cavanaugh, J. (18 pages), a Superior Court panel ruled in a case of first impression that the actions are covered by a six-year statute of limitations.

The appellate court’s decision reversed part of a Wettick decision that a four-year statute of limitations was applicable.

Prior to 1982, the Judicial Code established a six-year statute of limitations for contract actions. The Legislature then amended the law to provide a four-year statute of limitations in contract cases.

But the amended code also provides a catch-all provision that says: “Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by Section 5531 (relating to no limitation) must be commenced within six years.”

Judge James R. Cavanaugh said claims based on construction defects fell under the catch-all provision and were subject to a six-year limitations period.

Gustine Uniontown Associates owns a retail shopping center in Fayette County that was built on land above a former coal mine. In April 1995, floor slabs began to heave and buckle, causing damage to the mall. The owner filed suit in January 2000 alleging breach of contract and several other claims.

The fight over whether a four-year or six-year statute of limitations applies, therefore, determines whether the lawsuit may go forward at all.

Edward B. Gentilcore of Reed Smith Shaw & McClay in Pittsburgh have represented Gustine in the case. Jeffrey A. Ramaley, Dolores Innamorato, Robert J. Ray, John K. Lind, Kelly Brooks Bakayza, Michael J. Cremonese, Carol L. Hesz, Ralph A. Finizio, Leo G. Daly, Bethann R. Lloyd, Franklin L. Bialon, Joseph J. Bosick, Robert J. Blumling, Stephen P. McCloskey, William D. Clifford, Ray F. Middleman, David Raves and Kevin J. McKeon have served as defense counsel.

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