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HomeMy WebLinkAbout96-0355/0708 civilDEAN B. SHIPE and KIP ARTHUR BROWN, As Co-Executors of the ESTATE OF BARBARA J. BROWN, DECEASED Vo DAIMLERCHRYSLER CORPORATION and LES DIANE WILSON · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · NO. 96-0355 CIVIL TERM · DEAN B. SHIPE and : KIP ARTHUR BROWN, : As Co-Executors of the : ESTATE OF : BARBARA J. BROWN, : DECEASED : go DAIMLERCHRYSLER CORPORATION · NO. 96-0708 CIVIL TERM And c/o CT CORPORATION' SYSTEMS and ' LESA DIANE WILSON · IN RE: DEFENDANT DAIMI~ERCHRYSLER CORPORATION'S MOTION TO PREC!~UDE EXPERTS AND FOR SUMMARY JUDGMENT BEFORE BAYLEY~ GUIDO~ JJ.. AND NOW, this ORDER OF COURT day of JUNE, 2001, for the reasons stated in the foregoing opinion, defendant DamilerChrysler Corporation's Motion to Preclude Experts and for Summary Judgment is DENIED. Provided, however, that nothing herein shall prevent defendant DaimlerChrysler from filing a Motion in Limine to challenge the opinions set forth by Thomas Lacek, P.E. in his supplemental report dated February 13, 2001. In said event the trial judge may, if deemed necessary, conduct a Frye hearing prior to Mr. Lacek's testimony. By Edward E. Guido, J. Derek R. Layser, Esquire For the Plaintiff Keith D. Heinold, Esquire For the Defendants :sld DEAN B. SHIPE and KIP ARTHUR BROWN, Ag Co-Executors of the ESTATE OF BARBARA J. BROWN, DECEASED Vo DAIMLERCHRYSLER CORPORATION And LES DIANE WILSON · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · · · NO. 96-0355 CIVIL TERM · CIVIL ACTION- LAW DEAN B. SHIPE and KIP ARTHUR BROWN, As Co-Executors of the ESTATE OF BARBARA J. BROWN, DECEASED go DAIMLERCHRYSLER CORPORATION · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · NO. 96-0708 CIVIL TERM And c/o CT CORPORATION' SYSTEMS And · LESA DIANE WILSON · CIVIL ACTION- LAW IN RE' DEFENDANT DAIMLER CHRYSLER CORPORATION'S MOTION TO PRECLUDE EXPERTS AND FOR SUMMARY JUDGMENT BEFORE BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT Before us is the motion of defendant DaimlerChrysler Corporation (hereinafter defendant) to preclude plaintiffs' experts from testifying at trial and for summary 96-0355 CIVIL, 96-0708 CIVIL judgment. The parties have briefed and argued their respective positions. This matter is now ready for disposition. FACTUAL BACKGROUND This action arises from an automobile accident which occurred on February 14, 1994. Plaintiffs' decedent, Barbara Brown, was operating a Dodge Shadow ES which was involved in a low speed, head on collision with another vehicle. Ms. Brown immediately sought treatment at the hospital emergency room for injuries to her neck and head. She also complained of numbness in her hands from having gripped the steering wheel to brace for impact. She did not recall hitting the steering wheel with any part of her body. She did not notice any pain in her abdominal area until April 10, 1994. The pain was accompanied by diarrhea which was bloody. After extensive hospitalizations and numerous procedures, she was diagnosed with a dissected mesenteric artery. She eventually had to undergo a small bowel and liver transplant. She died of complications from that surgery in July of 1997. Plaintiffs' medical experts, including several of her treating physicians, are of the opinion that the dissected mesenteric artery was caused by blunt trauma to her abdominal area sustained in the automobile accident of February 14, 1994. Plaintiffs' engineering experts have opined that the seat belt restraint system did not function properly and allowed her abdomen to impact with the steering wheel. DISCUSSION Defendant's Motion for Summary Judgment is dependent upon our ruling on its motion to disallow the testimony of plaintiffs' causation experts. Without such expert 96-0355 CIVIL, 96-0708 CIVIL testimony, both parties agree that plaintiffs will be unable to link Ms. Brown's injuries to any wrongdoing on the part of defendant. However, if the testimony is admissible, it is equally clear that there are issues of material fact which would preclude the grant of summary judgment. Defendant seeks to preclude the testimony of plaintiffs' causation experts on two separate grounds. In the first instance, it argues that there is no foundation upon which to base their opinions because, by her own testimony, plaintiff did not strike the steering wheel. Defendant also contends that the scientific evidence fails to meet the F.rye standard.2 We are not persuaded by either argument. Lack Of Foundation. Defendant points to the language of our Supreme Court holding that "(a)n expert cannot base his opinion upon facts which are not warranted by the record. No matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture." Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). It also quotes Kozak v. Struth, 515 Pa. 554, 531 A.2d 420, (1987) for the proposition that "the opinion testimony of an expert must be narrowly limited to evidence of which he has personal knowledge, which is uncontradicted on the record or which is proffered on an assumed state of facts reasonably shown by the record." 531 A.2d at 422. ~ Pa. R.C.P. 1035.2. 2 Frye v. United States, 293 F. 1013 (D.C. Circ. 1923). The Frye standard was adopted in Pennsylvania by our Supreme Court in Commonwealth v. Topa, 471 Pa. 223,369 A.2d 1277 (1977). The Frye test has been replaced in federal court by the Federal Rules of Evidence, as interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 113 S.Ct. 2786, 125 L. Ed 469 (1993). However, for the time being at least, Frye remains the law in Pennsylvania. See Blum v. Merrell Dow Pharmaceuticals, Inc. 705 A.2d 1314 (Pa. Super. 1997) affn'rned ~ Pa. ,764 A.2d 1, (2000). 96-0355 CIVIL, 96-0708 CIVIL Defendant contends Ms. Brown "testified that her body did not make contact'with the steering wheel as a result of the collision.''3 Since Ms. Brown did not hit the steering wheel, there is no basis for her engineering experts to testify that her seat belt failed, thus causing her abdomen to strike the steering wheel. Nor is there any basis for her medical experts to link the dissected mesenteric artery to abdominal trauma sustained in the automobile accident. The weak link in defendant's chain of reasoning is that Ms. Brown did not testify that she did not strike the steering wheel. She merely testified that she did not know' if she struck the steering wheel.4 The fact that she did not remember striking the steering wheel is not conclusive proof that she did not strike the steering wheel. It is certainly within the realm of human experience for a victim not to perceive or remember the etiology of injuries sustained in an accident. Furthermore, there is ample evidence in the record upon which to base the conclusion that the seat belt failed, thereby causing Ms. Brown's abdomen to impact with the steering wheel. For example, plaintiffs' engineering experts point to the lack of visible signs of stress or loading on the lap belt as a clear indication that it did not properly deploy. One expert also points to scientific literature which has documented a propensity for occupants of vehicles equipped with this type of restraint system to strike 3 See p. 16 of Brief in Support of Defendant DaimlerChrysler Corporation's Motion to Preclude Experts and for Summary Judgment citing to pages 14-15 of the Deposition Testimony of Barbara J. Brown. 4 Her exact testimony was as follows' Q. What happened at impact to your body inside the car? A. I don't know, I had to have been thrown against the seatbelt because I ended up with an abrasion on my neck from the seatbelt. · e e Q. Did you hit- did you body hit the steering wheel? A. Not that I know of, not to the best of my knowledge. It shouldn't have. Deposition of Barbara Brown, pages 14-15. (emphasis added). 96-0355 CIVIL, 96-0708 CIVIL the steering wheel in low speed collisions, before the restraint system becomes fully functional. In the Collins case, supra, the Supreme Court disallowed the expert's testimony because there was not "a scintilla of evidence" upon which to base the opinion. In the case at bar, there is certainly ample evidence to allow both the engineering and medical experts to proffer opinion testimony based upon an assumed state of facts reasonably shown by the record. Clearly, the opinions are not based upon a guess or mere conjecture. Frye Standard. Several of plaintiffs' medical experts, including her treating physicians, have opined that the dissection of Ms. Brown's mesenteric artery was caused by trauma to her abdominal area sustained in the automobile accident. Defendant argues that their opinions fail to meet the Frye standard. Therefore, it contends that the opinions should not be admissible at thai. The Frye role "bars novel scientific evidence until it has achieved 'general acceptance' in the scientific community." Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314 (Pa. Super. 1997) affirmed ~ Pa. ~., 764 A.2d 1 (2000). The role was first laid down in Frye v.United States, supra, as follows: 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 to which it belongs. 96-0355 CIVIL, 96-0708 CIVIL 293 F. 1013, 1014. The Frye standard is to be applied "where scientific advances produce new types of evidence." Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, at 399 (1994). Crews dealt with the "new" technique of DNA testing. In Thomas v. West Bend Company, Inc.., 760 A.2d 1174 (Pa. Super. 2000), the Superior Court upheld the decision of the trial court in refusing to allow a noted cardiologist to testify that his patient developed a heart condition as the result of a low voltage electrical shock. In holding that the opinion evidence did not meet the Frye standard, the Superior Court stated: Crews does not expressly limit Frye to new inventions or techniques. On the contrary, the broad language of Crews encompasses not only new inventions, but also new theories which have been developed by traditional techniques. Indeed, our court has often applied Frye to situations where experts use traditional techniques to announce a new syndrome or theory of causation. 760 A.2d at 1178. The instant case does not involve either a new technique or a novel theory of causation. Defendant concedes that abdominal trauma is a recognized cause of mesenteric artery dissection. However, it contends that the facts of this case point to one of several other generally accepted causes of the dissection. Failure of plaintiffs' experts to attribute the dissection to one of those causes, it argues, is not supported by the facts and is, therefore, the result of faulty methodology. That conclusion is neither logical nor supported by the record. This is a classic case in which qualified experts disagree on which of many generally accepted causes gave rise to the injury in question. Defendant argues that the methodology employed by plaintiffs' medical experts is faulty simply because the facts do not precisely fit the textbook examples of trauma induced dissection of the mesenteric 96--0355 CIVIL, 96-0708 CIVIL 'artery. However, neither do the facts precisely fit the textbook examples of the other generally accepted causes. The jury can weigh the opinion of the various experts based upon the facts adduced at trial. There is no need for the court to protect it from "junk science". Under these circumstances, Frye. simply does not apply.5 Defendant's motion lodged a Frye challenge only to the expert medical testimony proffered by plaintiffs. However, in its brief defendant raises an additional Frye challenge to the opinions contained in a supplemental report of Thomas Lacek, P.E. The challenged opinions deal with the possibility that Ms. Brown struck the steering wheel without realizing it, as well as "reaction times that he apparently pulled out of thin air.''6 Since the briefs are not part of the record, that matter is not now properly before us. If defendant wishes to preserve that issue, he should file a motion in limine prior to the commencement of trial. The trial judge can then determine whether or not to conduct a brief Frye hearing prior to Mr. Lacek's testimony. s In Thomas v. West Bend, supra, the Superior Court stated that "Frye applies not only to new inventions, but "whenever science enters the courtroom." 760 A.2d 1179 (emphasis added by Thomas court), quoting from Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314 (Pa. Super. 1997), affirmed ~ Pa. ,764 A.2d 1 (2000). While the language would indicate that the Frye test must be applied to all expert opinion, the actual holding in Thomas is much narrower. A careful reading of Thomas, and every other appellate case addressing the issue, reveals that the Frye test applies only to novel scientific inventions, techniques, or theories, none of which are present in the case at bar. The critical question in Thomas was whether low voltage electrical shock could cause heart disease. The central issue in Blum was whether the drug benedictin could cause birth defects. Neither proposition was generally accepted in the scientific community. Therefore, the evidence was disallowed. In the case at bar, however, it is generally accepted in the scientific community that blunt trauma can cause dissection of the mesenteric artery. 6 Brief in Support of DaimlerChrysler Corporation's Motion to Preclude Experts and For Summary Judgment, p. 17. 96-0355 CIVIL, 96-0708 CIVIL ORDER OF COURT AND NOW, this 20TM day of JUNE, 2001, for the reasons stated in the foregoing opinion, defendant DaimlerChrysler Corporation's Motion to Preclude Experts and for Summary Judgment is DENIED. Provided, however, that nothing herein shall prevent defendant DaimlerChrysler from filing a Motion in Limine to challenge the opinions set forth by Thomas Lacek, P.E. in his supplemental report dated Febmaryl 3,2001. In said event the trial judge may, if deemed necessary, conduct a Frye heating prior to Mr. Lacek's testimony. By the Court, /s/Edward E. Guido Edward E. Guido, J. Derek R. Layser, Esquire For the Plaintiffs Keith D. Heinold, Esquire For the Defendants :sld