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Walsh v. Basf Corporation

Superior Court of Pennsylvania

June 20, 2018

RICHARD THOMAS WALSH, EXECUTOR OF THE ESTATE OF THOMAS J. WALSH, DECEASED Appellant
v.
BASF CORPORATION; BAYER CORPORATION D/B/A BAYER CROPSCIENCE, L.P., AND BAYER CROPSCIENCE HOLDING, INC., AND/OR BAYER CROPSCIENCE, L.P. AND BAYER CROPSCIENCE HOLDING, INC., IN THEIR OWN RIGHT; BIOSAFE SYSTEMS, L.L.C.; CHEMTURA CORPORATION; CLEARY CHEMICAL CORP.; DOW AGROSCIENCES, L.L.C.; E.H. GRIFFITH, INC.; E.I. DU PONT DE NEMOURS AND CO., INC.; G.B. BIOSCIENCES CORPORATION; JOHN DEERE LANDSCAPING, INC., SUCCESSOR TO LESCO, INC.; MONSANTO COMPANY; NUFARM AMERICAS, INC.; REGAL CHEMICAL CO.; SCOTTS-SIERRA CROP PROTECTION CO.; AND SYNGENTA CROP PROTECTION, INC.

          Appeal from the Order Entered October 14, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): G.D. No. 10-018588

          BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER [*] , J.

          OPINION

          BOWES, J.

         Richard Thomas Walsh, Executor of the Estate of Thomas J. Walsh, Deceased, appeals from the October 14, 2016 order granting summary judgment in favor of Appellees, and challenges the propriety of the trial court's order barring his experts from testifying pursuant to the standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since we conclude that the learned trial court erred in the manner in which it conducted the Frye inquiry herein, we reverse the grant of summary judgment, vacate the order precluding Mr. Walsh's experts from testifying, and remand for further proceedings.[1]

         The record reveals the following. The Decedent, Thomas J. Walsh, was employed for almost forty years as a groundskeeper and golf course superintendent at several golf courses in the Pittsburgh area. During his employment, he frequently and regularly applied insecticides and fungicides (collectively "pesticides") on the golf courses. He kept a diary of the chemicals used on the courses and the dates of their applications. His friend and co-worker, Blaise Santoriello, offered specific details about how the two men applied the pesticides, what pesticides were used, in what concentrations, and the protective gear worn. Most of the applications occurred from May through September.

         Early on, according to Mr. Santoriello, Mr. Walsh came into physical contact with pesticides while holding the hose spraying pesticides. Gloves were the only protective gear used. Later, the men wore masks and rubber boots and overalls that they would re-wear without laundering. He recounted an instance in the mid-1980s when Mr. Walsh experienced an adverse reaction to a product. That prompted a change to disposable protective gear. Yet, Mr. Santoriello explained that, even then, they would be exposed to the dust from the products while opening the bags, mixing the chemicals, and holding the hoses.

         On October 5, 2008, Mr. Walsh presented to the emergency room complaining of fever, chills, and a cough. Three days later, after a bone marrow biopsy, he was diagnosed with Acute Myelogenous Leukemia ("AML"). Subsequent cytogenetic testing at West Penn Hospital showed chromosomal aberrations consistent with secondary leukemias, which are linked to radiation, chemotherapy, or chemical exposure.

         Mr. Walsh died on February 2, 2009. His treating oncologist, James Rossetti, D.O., later opined that Mr. Walsh's extensive chemical exposure, together with "the high-risk karyotype and dyspoietic features associated with [AML] raise a high degree of suspicion that such [occupational pesticide] exposure played a significant role in the development of his disease." Letter Report of James M. Rossetti, D.O., 7/19/12, at 4.

         Executor commenced this wrongful death and survival action against the manufacturers of various pesticides that Decedent applied over the forty-year period, asserting claims in strict products liability, negligence, and breach of warranty. Summary judgment was granted in favor of the manufacturers and sellers of more than twenty-five of the allegedly defective pesticides on December 11, 2012, based on a lack of expert testimony identifying these pesticides as substantial contributing factors in Mr. Walsh's death. Fifteen products remained in the lawsuit when the rulings that are the subject of this appeal were made.[2]

         On August 5, 2013, the Bayer Defendants filed a motion to exclude Executor's experts, epidemiologist April Zambelli-Weiner, Ph.D., and physician Nachman Brautbar, M.D., pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The other remaining defendants either joined Bayer's Frye motion or filed their own. The substance of the Frye motions was that this case involved novel science, and the methodologies used by these experts were not generally accepted or conventionally applied in the relevant scientific communities.

         The trial court ordered the parties to conduct depositions on the Frye issue. Thereafter, the parties briefed and argued the issues. On October 5, 2016, the trial court granted the Defendants' Frye motions and precluded the testimony of Executor's experts. Since Executor could not prove the requisite causation without the expert testimony, the parties stipulated to the entry of the October 14, 2016 order granting summary judgment, preserving all rights to appeal the Frye determination.

         Executor filed the within appeal on November 3, 2016, and timely complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court issued a supplemental memorandum. Executor presents one issue for our review: "Did the Plaintiff's experts employ generally accepted scientific methodology in arriving at their opinions concerning medical causation in this toxic tort claim?" Appellant's brief at 4.

         Although the appeal herein lies from the entry of summary judgment, the appropriate appellate standard of review is the one pertaining to the underlying ruling that Appellant is challenging. See K.H. v. J.R., 826 A.2d 863, 870-71 (Pa. 2003). Since the correctness of the Frye evidentiary ruling is at issue herein, the abuse of discretion standard applies. Betz v. Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012). "[A]n abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Id. at 45.

         At issue in the underlying litigation is whether Decedent's forty-year occupational exposure to Defendants' insecticides and fungicides, collectively pesticides, some of which contain known carcinogens and teratogens, was a substantial contributing factor in his death due to AML. The precise issue before us involves the propriety of the trial court's ruling that Frye barred Executor's experts from testifying as to causation.

         The Frye standard originally was intended to prevent the situation in which a party would seek to introduce scientific evidence that was so new that it would be impossible to "produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique." United States v. Addison, 498 F.2d 741, 744 (D.C. App. 1974). Frye contemplated a judicial inquiry, informed by experts, into the general acceptance of the scientific methods used. The standard required that "the thing from which the [expert's] deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, supra at 1014. At issue in Frye was admissibility of the systolic blood pressure deception test, commonly known as the lie detector test. The trial court excluded the evidence, and the court affirmed that ruling on appeal, explaining:

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, supra at 1014. Pennsylvania adopted the Frye standard in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977), a case involving the propriety of the trial court's admission of voice print identification evidence through an expert, Lieutenant Nash, of the Michigan State Police. Our High Court, applying Frye, reasoned that

[t]he requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice. Additionally, the Frye test protects prosecution and defense alike by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case. Since scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen, the ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential.

Topa, supra at 1282 (quoting Addison, supra at 744). The Topa Court went on to conclude that the testimony of one expert could not satisfy this standard, citing commentaries questioning the reliability of sound spectrographs and voiceprints and demonstrating that it was not generally accepted within the field of acoustical science.

         Thus, the Frye standard originally was intended to prevent a party from introducing scientific evidence that was so new that it would be impossible to "produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique." Addison, supra at 744. 498 F.2d 741, 744 (D.C. App. 1974). Frye contemplated a judicial inquiry, informed by experts, into the general acceptance of the scientific methods used.

         In the years since the adoption of the Frye standard, this Court has clarified that "Frye only applies to determine if the relevant scientific community has generally accepted the principles and methodology the scientist employs, not the conclusions the scientist reaches." Trach v. Fellin, 817 A.2d 1102, 1112 (Pa.Super. 2003) (en banc). The Frye test has been incorporated into Pennsylvania Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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