RICHARD THOMAS WALSH, EXECUTOR OF THE ESTATE OF THOMAS J. WALSH, DECEASED Appellant
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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,
[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.
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
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
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
(b) The expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence ...