Grady v. Frito-Lay, Inc.

Justice NEWMAN,

concurring.

While I agree with the majority’s determination that the trial court properly excluded the testimony of Dr. Beroes, I cannot agree with its conclusion that the standard announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), rather than the balancing test articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), should control the admissibility of scientific expert testimony in this Commonwealth.

The Frye standard has as its genesis the following language from the 1923 Opinion of the United States Court of Appeals for the District of Columbia Circuit:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye, 293 F. at 1014 (emphasis added). Frye provided universal governance of the admissibility of expert testimony until Congress adopted the Federal Rules of Evidence. Rule 702, entering the fray in July of 1973, originally provided as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

F.R.E. 702 (West 1993).

In 1993, the United States Supreme Court determined that Rule 702 superseded Frye, concluding that the text of the rule *565does not require that the scientific principle or discovery has gained “general acceptance.” The Court reasoned that because the drafters of Rule 702 did not mention Frye, “and a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules[,] ... the assertion that the Rules somehow assimilated Frye is unconvincing.” Daubert, 509 U.S. at 588-589, 113 S.Ct. 2786. The Court held that Frye’s exclusive “general acceptance” test was an “austere standard, absent from, and incompatible with, the Federal Rules of Evidence, [and] should not be applied in federal trials.” Id. at 589, 113 S.Ct. 2786 (emphasis added).

Recognizing the potential for courts to use Daubert to buck uniform application of the law, the Court clarified the parameters of Rule 702. “Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Id. at 592, 113 S.Ct. 2786. “This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-593, 113 S.Ct. 2786. The Court explained that many factors could bear on these questions, but articulated the following four “general observations” that consistently have been viewed as the primary principles governing the admissibility of expert testimony:

(1) “Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.”
(2) “Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-*566grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected.”
(3) “Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation.”
(4) “Finally, ‘general acceptance’ can yet have a bearing on the inquiry. A reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community. Widespread acceptance can be an important factor in ruling particular evidence admissible, and a known technique which has been able to attract only minimal support within the community may properly be viewed with skepticism.”

Id. at 593-594, 113 S.Ct. 2786 (internal citations and quotations omitted).

This Court adopted the Pennsylvania Rules of Evidence on May 8,1998, and determined that they would be effective as of October 1st of that year. Pennsylvania Rule of Evidence 702 provides as follows:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa.R.E. 702 (emphasis added). As noted in the Comment to Rule 702, the phrase emphasized above, “beyond that possessed by a layperson,” is the only difference between the Federal Rule and our version. This proviso was added to ensure that Rule 702 did not vary the common law rule *567announced in Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992), that “[e]xpert testimony is admitted to aid a jury when the subject matter of the testimony is related to a science, skill or occupation beyond the knowledge or experience of the average layperson.” Id. at 843 n. 3. Regarding the Frye/Daubert conflict, this Court explained that:

Adoption of Pa.R.E. 702 does not alter Pennsylvania’s adoption of the standard in [Frye ], which requires scientific evidence to have “general acceptance” in the relevant scientific community. See Commonwealth v. Dunkle, supra; Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). In 1993, the United States Supreme Court held that Frye was superseded in the federal courts by the adoption of F.R.E. 702. [Daubert, ]. Pennsylvania courts have not yet decided whether the rationale in Daubert supersedes or modifies the Frye test in Pennsylvania. Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994).

Comment to Rule 702.

In Creivs, decided a year after the Supreme Court of the United States issued its decision in Daubert, we applied Frye, but refused to address whether Daubert supersedes or modifies Frye, noting that Daubert interpreted F.R.E. 702 and that the trial and appellate argument in Crews was complete prior to the ruling in Daubert. Crews, 640 A.2d at 400 n. 2. In Blum v. Merrell Dow Pharmaceuticals, Inc., 564 Pa. 3, 764 A.2d 1 (2000), we granted allocatur “to consider whether the Frye rule still governs the admissibility of expert scientific testimony in Pennsylvania or whether the Daubert rule has superseded it.” Blum, 764 A.2d at 2 (internal footnotes omitted). We explained the difference between the two tests as follows:

Frye requires the scientific community to reach some consensus as to reliability then relies on such consensus to determine the admissibility of the challenged scientific evidence. Daubert, on the other hand, examining the same factors which lead to general acceptance in the scientific community, abandons the standard of “general acceptance” *568and substitutes a judicial evaluation and determination of scientific reliability.

Blum, 764 A.2d at 3. However, because we determined that the expert testimony was flawed and unreliable, we concluded that the evidence would have been inadmissible under either standard and, accordingly, concluded that “a choice between the two standards [was] unnecessary to the resolution of [the] appeal.” Id. at 4, 764 A.2d 1. Therefore, our prior decisions in this arena do not constrain our consideration of whether to adopt Daubert or retain Frye.

Pa.R.E. 702 was modeled after F.R.E. 702 and uses the exact same language, with the exception of the addition of the phrase “beyond that possessed by a layperson” to the Pennsylvania version. This additional phrase, however, has no bearing on the ultimate issue sub judice — whether scientific knowledge about which an expert wishes to testify must have gained general acceptance. Therefore, as the Pennsylvania Rules of Evidence were modeled after the Federal Rules of Evidence, see Preface to the Pennsylvania Rules of Evidence, and the language employed by both F.R.E. 702 and Pa.R.E. 702 is effectively identical, I cannot affix my name to any decision that fails to give appropriate deference to an interpretation of identical language forwarded by the United States Supreme Court. That tribunal, in interpreting F.R.E. 702, expressly stated that Frye was an “austere standard, absent from, and incompatible with, the Federal Rules of Evidence.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786 (emphasis added). While I recognize that the Federal Rules of Evidence may have a more “liberal thrust” in terms of admitting evidence, if Frye is “absent from ... and incompatible with” F.R.E. 702,1 fail to see how Frye could fit within the parameters of Pa.R.E. 702.

Moreover, the Daubert rule properly retracts from the antiquated notions of Frye and recognizes that new scientific methods and theories could be of benefit while still ensuring that the evidence sought to be considered is supported by sufficient indicia of reliability. The Daubert Court cited approvingly to several amicus briefs, which indicated that “sci*569entists do not assert that they know what is immutably ‘true’ — they are committed to searching for new, temporary, theories to explain, as best they can, phenomena.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. An additional amicus brief stated that [sjcience is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement. Id. (emphasis in original). But, in order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i.e., good grounds, based on what is known. In short, the requirement that an expert’s testimony pertain to scientific knowledge establishes a standard of evidentiary reliability. Id. With these safeguards in place, I believe that we must loosen the standards for the introduction of scientific evidence — otherwise we would have had to reject Galileo and Newton in their times. Accordingly, I believe that Daubert should control in this Commonwealth.1

Ultimately, however, I must concur in the result reached by the majority because I do not believe that the compression strength and crush strength studies sought to be introduced by Dr. Beroes constitute “scientific, technical or other specialized knowledge [that] will assist the trier of fact.” Pa.R.E. 702. Daubert requires weighing the following factors: (1) whether or not the technique or methodology can be or has been tested; (2) whether the technique or methodology has been subjected to peer review and publication; (3) known or potential rate of error; and (4) the existence and maintenance of standards controlling the technique’s operation. However, we need not consider these factors, because the technique the Gradys sought to introduce, crushing nacho chips with one’s finger and a Styrofoam block, could not assist a jury in *570determining any fact in issue. As noted by Judge Eakin (now, Mr. Justice Eakin) in his dissent in the Superior Court, these tests wholly fail to account for the processes of mastication. How fast and effectively a person chews, the characteristics of teeth used, how teeth differ from a finger and a Styrofoam block, and how saliva would break down the chip are important questions that Dr. Beroes fails to consider. By not recognizing these inherent limitations in the methods of Dr. Beroes, the Gradys have not presented reliable evidence regarding the effect the nacho chips in question could have had on the esophagus of Carl R. Grady. Thus, albeit based on different grounds, I must concur with my colleagues that the trial court did not err in excluding the testimony of Dr. Beroes.

. The majority notes that all of the parties and amicus curiae in this case advocated for the retention of Frye. Our responsibility in this case, however, is to determine the proper standard of admissibility for the entire Commonwealth, and we should not limit our consideration merely because those involved in this case agree on the applicable standard.