Pennsylvania Supreme Court Rejects Junk Science

by Jerrold P. Anders and Edward M. Koch

On December 31, 2003, the Pennsylvania Supreme Court issued an opinion that reaffirms and clarifies the general acceptance standard for admissibility of scientific expert testimony in Pennsylvania state courts. In Grady v. Frito-Lay, Inc., 839 A.2d 1038, the Supreme Court held that a scientific experts methodology must enjoy general acceptance among the scientific community. That requirement can be a substantial obstacle for courtroom purveyors of junk science.

The Competing Frye and Daubert Standards for Admissibility of Scientific Testimony

Historically, Pennsylvania courts have adhered to the Frye standard in determining the admissibility of expert scientific testimony. Derived from Frye v. United States, 293 F. 1013 (D.C.Cir.1923), the Frye standard requires the scientific community to reach some consensus as to reliability. Unsettled prior to Grady was whether a scientific experts methodology or conclusions or both had to enjoy that general acceptance.

By contrast, federal courts adhere to standards announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert abandons Fryes general acceptance standard and substitutes a judicial determination of the scientific reliability. Formulated by the United States Supreme Court, the Daubert standard offers a less rigid standard which considers a number of factors about the proposed expert testimony. The Daubert standard inquires into whether the scientific theory can be or has been tested, whether it has been subjected to peer review and publication, its the known or potential error rates, and its general acceptance in the relevant scientific community.

Grady v. Frito-Lay

In Grady, a consumer tore his esophagus while eating a popular brand of tortilla chips. The injured consumer alleged that the chips were unsafe and defective for human consumption because when chewed and swallowed, they fracture into hard, sharp fragments capable of lacerating the esophagus. In support of his theory of liability, the consumer sought to introduce the testimony of an associate professor in chemical engineering who developed his own methodology for testing. He pressed the tortillas triangular tip downward to determine the downward force necessary to break the chips. The professor then placed the tortilla chips in his mouth for various time intervals, after which he re-performed the first test to determine the downward force required to break each now-softened chip. Based on these tests, the professor concluded that the tortilla chips were dangerous.

At trial, the chip manufacturer moved for judgment as a matter of law. The trial court granted the motion, reasoning that the experts methodology of testing was not generally accepted in the relevant scientific community, and thus it was inadmissible junk science. On appeal, the intermediate appellate court disagreed and reinstated the consumers case. It reasoned that the scientific principles employed by the professor were based on valid scientific principles, and thus his evidence was admissible under Frye.

The Pennsylvania Supreme Court reinstated the trial courts decision in favor of the manufacturer. The Court revisited the issue of whether Frye or Daubert should be the standard. The Court reaffirmed and praised the Frye standard because its general acceptance test is a proven and workable rule, which when faithfully followed, fairly serves its purposes in assisting the courts in determining when scientific evidence is reliable and should be admitted. Moreover, it held that adherence to Frye, rather than Daubert, is more likely to yield uniform, objective, and predictable results. The Court also held that Fryes general acceptance test applies only to a scientific experts methodology of testing, and not to the experts conclusions based on that testing. The experts methodology must be generally accepted in the relevant field. Because the Grady plaintiffs could not produce evidence to suggest that their experts methodology was generally accepted in the field of food science, the testimony was not sufficiently reliable for admissibility.

The Pennsylvania Supreme Courts reaffirmation of Fryes general acceptance threshold clarifies that the standard will only provide scrutiny for the manner in which the expert tests or researches to form the proffered opinion. Frye motions a pretrial request for the court to determine whether a proposed experts testimony enjoys generally accepted in the relevant sci-entific community remain a critical tool for those in the defense community to prevent plaintiffs from relying on junk science to prove their cases.

Jerry Anders is a member of the Product Liability Practice Group and can be reached at 215-864-7003 or andersj@whiteandwilliams.com.

Ed Koch is in the Appellate Practice Group and can be reached at 215-864-6319 or koche@whiteandwilliams.com.