Cummins v. Rosa

846 A.2d 148, 2004 Pa. Super. 72, 2004 Pa. Super. LEXIS 268

• Court: Superior Court of Pennsylvania
• Decided: March 22, 2004
• Status: Published

Opinion

OPINION BY

POPOVICH, J.:

¶ 1 Martha Cummins (Wife) and Harry H. Cummins, Jr. (Husband) (collectively Appellants) appeal the judgment entered in favor of Appellees Deborah M. Rosa, M.D., and Wasfy F. Fahmy, M.D., on April 15, 2003, in the Court of Common Pleas of Philadelphia County. On appeal, Appellants contend that the trial court committed reversible error when it failed to rule inadmissible certain expert testimony presented by Appellees pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and its Pennsylvania equivalent, Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). Upon review, we affirm.

¶2 The relevant facts and procedural history of this case are as follows: Appellants commenced the present medical malpractice action against Appellees and the Phoenixville Hospital of the University of Pennsylvania Health System 1 via complaint filed May 24, 1999. Appellants’ complaint alleged that Appellees cut, burned, or crushed Wife’s right ureter 2 negligently during a 1997 aortobifemoral bypass procedure. As a result of the Wife’s injury, urine leaked into her abdomen causing the loss of her right kidney and nerve damage in her left leg. In response, Appellees contended that Wife’s injury was the result of a non-negligent complication of surgery, i.e., that the injury was the result of a loss of blood supply to the ureter that occurred when the ureter was mobilized during her surgery.

¶ 3 The case proceeded through pre-trial pleadings and discovery, and, on May 7, 2003, a three-day jury trial commenced. As part of their case-in-chief, Appellees wished to present at trial the testimony of two medical experts, Neal B. Phillips, M.D., a urologist, 3 and Michael S. Weingarten, M.D., a vascular surgeon. However, after the close of Appellants’ case-in-chief, Appellants filed on May 10, 2002, a motion that requested the trial court to exclude the testimony of Dr. Phillips and Dr. Weingarten pursuant to Frye. 4 , 5 On that same day, the trial court denied Appellants’ Frye motion without a hearing.

¶ 4 Trial concluded on May 13, 2002, and the jury rendered a verdict in favor of Appellees. Thereafter, on May 22, 2002, Appellants filed a post-trial motion that contended requested a new trial on the following bases: (1) the trial court committed reversible error when it denied Appellants’ Frye motion; and (2) the verdict was against the weight of the evidence. The trial court denied Appellants’ post-trial motions on February 28, 2003. Appellants filed a notice of appeal to this Court on March 13, 2003, and the trial court ordered Appellants to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). 6 Appellants complied with the trial court’s order and filed the Pa.R.A.P. 1925(b) statement. Thereafter, on June 5, 2003, the trial court authored an opinion pursuant to Pa.R.A.P. 1925(a) that addressed Appellants’ matters.

¶ 5 We turn to an analysis of Appellants’ claim. Appellants argue that they were entitled to a new trial because the conclusions of Dr. Phillips and Dr. Weingarten with respect to the cause of Wife’s injuries were not generally accepted by the medical community, and, therefore, were inadmissible pursuant to Frye and Topa. Our review is governed by the following standard:

When presented with an appeal from the denial of a motion for a new trial, our standard of review is whether the trial court committed an error of law that controlled the outcome of the case or committed an abuse of discretion. An abuse of discretion is not merely an error of judgment; it must be shown that the law was misapplied or overridden, or that the judgment exercised was manifestly unreasonable or the result of bias, ill will, prejudice, or partiality. Moreover, when a party requests a new trial based on the trial court’s evidentia-ry rulings, such rulings must be shown to have been erroneous and harmful to the complaining party. If the evidentia-ry rulings in question did not affect the verdict, we will not disturb the jury’s judgment.

Cacurak v. St. Francis Med. Ctr., 823 A.2d 159, 164-65 (Pa.Super.2003) (citations omitted).

¶ 6 Recently, in M.C.M. v. Milton S. Hershey Med. Ctr. of the PA State Univ., 834 A.2d 1155 (Pa.Super.2003), we presented the following summary of the law of this Commonwealth regarding the application of the exclusionary rule set forth in Frye:

[T]he Frye test sets forth an exclusionary rule of evidence that applies only when a party wishes to introduce novel scientifíc evidence obtained from the conclusions of an expert scientific witness. [Trach v. Fellin ], 817 A.2d [1102, 1108-09 (Pa.Super.2002) ] (emphasis added). Under Frye, a party wishing to introduce such evidence must demonstrate to the trial court that the relevant scientific community has reached general acceptance of the principles and methodology employed by the expert witness before the trial court will allow the expert witness to testify regarding his conclusions. [Trach], 817 A.2d at 1108-09, 1112 (emphasis added). However, the conclusions reached by the expert witness from generally accepted principles and methodologies need not also be generally accepted. Id,., 817 A.2d at 1112. Thus, a court’s inquiry into whether a particular scientific process is “generally accepted” is an effort to ensure that the result of the scientific process, i.e., the proffered evidence, stems from “scientific research which has been conducted in a fashion that is generally recognized as being sound, and is not the fanciful creations [sic] of a renegade researcher.” See id., 817 A.2d at 1111 (quoting Blum v. Merrell Dow Pharms., Inc., 564 Pa. 3, 9-10, 764 A.2d 1, 5 [2000] (Cappy, C.J., dissenting)).

M.C.M., 834 A.2d at 1158-59 (emphasis in original).

¶ 7 When we apply M.C.M. to the present case, we conclude that Appellants’ claim is without merit. The record indicates that Appellants’ Frye motion did not challenge the methodology used by Dr. Phillips and Dr. Weingarten to reach their conclusions regarding the cause of Wife’s injury. Rather, the motion challenged the conclusions that Dr. Phillips and Dr. Weingarten reached regarding the cause of Wife’s injury. See Appellants’ motion to bar the expert testimony of defendants’ experts, 5/10/2002, at 1, 5. As stated above, the Frye test does not require that the relevant scientific community generally accept the conclusions of an expert witness. Id., 834 A.2d at 1158-59. Instead, the party seeking exclusion of the witness’ testimony must demonstrate that the methodology used to reach the expert witness’ conclusion was not generally accepted by the relevant scientific community. Id., 834 A.2d at 1158-59. Thus, Appellants’ challenge to the testimony of Dr. Phillips and Dr. Weingarten was an attack upon the weight of the testimony rather than a challenge to its scientific validity. See, e.g., id., 834 A.2d at 1158-59.

¶ 8 Moreover, a review of the record indicates that the methodology employed by Dr. Phillips and Dr. Weingarten in reaching their conclusions consisted of analysis of Wife’s medical records and reliance upon their respective personal expertise to reach a conclusion regarding the source of her injuries. Clearly, this type of methodology is accepted generally among the medical community for diagnosis and treatment. Accordingly, Frye was not applicable in this case. See M.C.M., 834 A.2d at 1158-59; see also Track, 817 A.2d at 1114 (properly qualified expert may rely on them expertise as part of their analysis of issue); cf. Tucker v. Cmty. Med. Ctr., 833 A.2d 217, 224 (Pa.Super.2003) (review of medical records to reach conclusion regarding source of plaintiffs injuries not novel). Therefore, the trial court did not abuse its discretion when it denied Appellants’ motion.

¶ 9 In the appeal before us, Appellants attempt to re-assert this argument and contend additionally that “[i]n cases that turn on scientific causation, the causal relation itself must be accepted as a general matter in the relevant scientific community before expert testimony of the existence of causality in the particular case may be properly admitted.” Appellants’ brief, at 16. As support for this argument, Appellants rely on a series of cases that this Court disapproved specifically in Track. See Track, 817 A.2d at 1112. Consequently, Appellants’ argument is contrary to the case law of this Commonwealth with respect to Frye and, therefore, fails.

¶ 10 Inasmuch as Appellants’ sole claim fails, we affirm the judgment of the trial court.

¶ 11 Judgment affirmed.

1 . The cause of action against Phoenixville Hospital was dismissed with prejudice by stipulation of the parties on May 7, 2003, and, accordingly, Phoenixville Hospital is not a party to the present appeal.

2 . The ureter is a tube which carries urine from the kidneys to the bladder.

3 . Dr. Phillips' testimony was presented via videotape at trial.

4 . We note that Appellants’ Frye motion did not request a Frye hearing to determine the admissibility of Dr. Phillips’ and Dr. Weingar-ten’s testimony, but, instead, the motion argued that, ”[t]he opinions of [Dr. Phillips and Dr. Weingarten] do not pass the Frye general acceptance test and must be precluded.” See Appellants’ motion to bar the expert testimony of defendants’ experts, 5/10/2002, at 7.

5 .We also note that Appellants’ Frye motion does not appear in the certified record, and the motion was never docketed with the Pro-thonotary. Instead, Appellants presented their Frye motion to the trial court directly on May 10, 2002, and the trial court ruled on the motion on that same day. In their reproduced record, Appellants provided this Court with a copy of their Frye motion. It is Appel lants’ responsibility to provide a complete certified record on appeal. McNeal v. Eaton Corp., 806 A.2d 899, 904 n. 4 (Pa.Super.2002). Nevertheless, our review of this matter is not hampered because Appellants placed their Frye motion in its reproduced record, and Appellee has cited to the Frye motion within its brief. We find Appellee’s reference to the Frye motion in its argument to be a tacit agreement of its authenticity. Therefore, we will address the merits of Appellants' claim. Id., 806 A.2d at 904 n. 4.

6 . Judgment was not entered on the jury’s verdict until April 15, 2003. Accordingly, we deem Appellants' premature March 13, 2003 notice of appeal timely filed on April 15th. See Pa.R.A.P. 905(a).