Menarde v. Philadelphia Trans. Co, 103 A.2d 681, was decided by the Pennsylvania Supreme Court in 1954.
Menarde has never been overruled and is still frequently cited for the principle that medical expert testimony on causation must be made with reasonable medical certainty. See e.g. Montgomery v. South Philadelphia Medical Group, 656 A.2d 1385 (Pa. 1995).
What’s more, Menarde was clearly no fluke. Ten years later in Baker v. DeRosa, 196 A.2d 382 (Pa. 1964), the Pennsylvania Supreme Court again allowed the victim of a car accident to recover for a claim that his accident had caused lung cancer. Baker also has never been overruled.
If Baker were not enough to make the point, read the language in Nissley v. Pennsylvania Railroad, 259 A.2d 451 (Pa. 1969) cert. denied, 397 U.S. 1078 (1970). Nissley is frequently cited for its principal holding that experts who are not identified in discovery are not allowed to testify at trial.
But we often forget that the expert in Nissley testified that the plaintiff’s back injury was the proximate cause of the leukemia that led to his death. In precluding the expert because he was not disclosed in discovery, the Supreme Court in Nissley blithely noted in a footnote “both plaintiff’s experts admitted they knew of no medical authority who had expressed on opinion for the claim that a back injury could cause leukemia.”
Yet, the Supreme Court never suggested that the expert should not have been allowed to testify on that ground.
Indeed, then Chief Justice John Bell, one of the most anti-plaintiff justices in the history of the Pennsylvania Supreme Court, concurred in Nissley and dissented in Baker on the grounds that the plaintiff’s verdicts in those cases were against the weight of the evidence and that a new trial should have been awarded on that basis.
Concurring in Nissley, Chief Justice Bell never argued that judgment NOV should have been entered for defendant: “The testimony of plaintiff experts to prove causation, while technically meeting the standard of proof, … was so exceptionally weak and unsupported by any medical authority, that a new trial should undoubtedly be given in the interests of justice.”
Before 1974, a respectable minority of physicians really believed that cancer could be triggered by a single trauma. Thus, although they may well have satisfied the more lenient Daubert standard, the plaintiff’s experts in the Menarde and Baker cases could never have satisfied the Frye standard. Yet, the Supreme Court, and even Chief Justice Bell, thrice ignored Frye.
Nor were Menarde, Baker and Nissley aberrations of pre-1990 Pennsylvania jurisprudence.
In Abrams v. Philadelphia Suburban Transportation Co., 264 A.2d 702 (Pa. 1970), a passenger on a trolley car that was struck from behind suffered a blow to her left wrist and was eventually diagnosed with a ganglion cyst.
Both of plaintiff’s treating physicians testified at trial, but one testified for the defendant and disagreed that a single act of trauma could cause a ganglion. Although there was no scientific consensus on the issue, the court still held that the case properly went to the jury.
In Simmons v. Mullen, 331 A.2d 892 (Pa. Super. 1974), Judge Spaeth upheld a verdict based on the expert testimony of a clinical psychologist who said that a child had suffered organic brain damage in an accident. Judge Spaeth stated that “the law does not require that expert testimony amount to dogma. … The reason for this rule is that if a source of knowledge is insufficient, its weakness may be exhibited to the jury, which can then determine for itself how much weight to accord the testimony.”
Judge Spaeth cautioned that “the admonition of Dean Wigmore must always be kept in mind. The risk of excluding a useful … item of testimony is greater than admitting testimony that is capable of exaggeration.”
Similarly, in Kubacki v. Metropolitan Life Insurance Co., 164 A.2d 48 (Pa. Super. 1960), the court stated, “Medicine is not an exact science, in its totality, but a mixture of science and art. There may be and frequently are areas in which physicians of unquestioned integrity and competency may reach different conclusions on the same facts. … Certainly the members of this court cannot set themselves up as super experts in the field of medicine and announce as a matter of law that the evidence was insufficient to support the verdict.”
Indeed, even the pre-Daubert federal courts, supposedly bound by the Frye rule, did not apply it to exclude expert opinions about causation.
Federal Courts
In Brett v. J.M. Carras Inc., 203 F.2d 451 (3d Cir. 1953) the court heard a scientific dispute as to whether a seaman’s back injuries were the cause of Paget’s Disease. The plaintiff’s own witnesses admitted that the cause of the disease is not definitely known, but “ventured” the opinion that the accident was its cause in the plaintiff.
The court said that it was “unaware of any rule that there can be no recovery, based on negligence for a disease, the cause of which is not yet known with absolute certainty to medical science.”
Since the court was not unaware of the Frye rule, it must have thought it did not apply to this situation. Instead, quoting Professor Wigmore, the Third Circuit said, “If physicians are willing to estimate certain consequences as probable or possible, it is hardly proper for judges to affirm the untrustworthiness of these conclusions.”
The court concluded, “The burden of the scientific limitations of our society should not be cast on injured plaintiffs in circumstances such as existed in the instant case.”
Now fast forward 30 years after Baker and Nissley to the case of Blum v. Merrell Dow, PICS Case No. 97-2755 (Pa. Super. Dec. 29, 1997) Beck, J. (28 pages), where the minor plaintiff claimed that he suffered the birth defect of club feet as a result of bendectin.
The trial judge, Philadelphia Common Pleas Court Judge Mark I. Bernstein, held it was wrong for the court to take the scientific issues away from the jury. On appeal, the Superior Court applied the Frye rule, found that the jury should not have heard testimony from the plaintiff’s expert and directed an entry of judgment NOV in favor of the defendant.
In doing so, the Superior Court used language that flies in the face of Kubacki and Simmons and stated that “cross examination is not the appropriate tool to test the speciousness or accuracy of the expert testimony” and that a judge, not a jury, must decide “whether the expert is offering sufficiently reliable, solid, trustworthy science.”
Blum is currently on appeal to the Pennsylvania Supreme Court, which must decide whether the Superior Court was properly applying precedent or making new law.
Frye was decided back in 1923. Why then did the Pennsylvania courts steadfastly ignore Frye through the 50s and 60s, and why have the Pennsylvania intermediate appellate courts suddenly applied it to the issue of medical causation?
The second installment of this article, which will appear in the March 7 Law Weekly, will take a look at the criminal cases decided after Frye, and discuss why those cases shouldn’t necessarily lead to the conclusion that “general acceptance” in the scientific community is a prerequisite to proving medical causation in civil cases.
