Haney v. Pagnanelli

830 A.2d 978, 2003 Pa. Super. 261, 2003 Pa. Super. LEXIS 2073

• Court: Superior Court of Pennsylvania
• Decided: July 14, 2003
• Status: Published

Opinions

MONTEMURO, J.

¶ 1 This is an appeal from the Order entered July 31, 2002, in the Montgomery County Court of Common Pleas granting summary judgment to Appellee/Defendant, David N. Pagnanelli, M.D., in this medical malpractice action. For the reasons set forth below, we reverse.

¶2 On May 10, 1995, Appellee performed a decompressive lumbar laminec-tomy at the L4-L5 nerve root level on Appellant/Plaintiff, Betty Haney, in an attempt to relieve her back and leg pain. Appellant had undergone a similar procedure in 1991 resulting in temporary relief. In his operative report, Appellee noted that he tore Appellant’s dural membrane, which covers additional nerves and protects the spinal fluid, but that he repaired the tear without incident.

¶ 3 Within a few weeks after surgery, Appellant complained of urinary and stool incontinence and loss of sensation in her vaginal area resulting in sexual dysfunction. On May 1, 1997, Appellant filed this medical malpractice action¹ contending that Appellee negligently caused permanent damage to her sacral nerves at levels S2, S3, and S4, during the surgery. As Appellant’s expert explained,' these nerves are “in the same area as the L5 nerve root, and they’re encased within the spinal dura compartment and bathed by the spinal fluid.” (Defendant’s Frye Motion, filed 4/19/02, Exhibit F, Videotape Deposition of Donald C. Austin, M.D. at 146).

¶ 4 On April 19, 2002, Appellee filed a Frye² Motion seeking preclusion of the testimony of Appellant’s medical expert, Dr. Donald C. Austin, a neurological surgeon. Although the motion was originally granted by Order dated April 25, 2002, the court subsequently vacated that Order because it had neglected to give Appellant an opportunity to respond. See Order, dated 4/29/02. Following the submission of briefs by both parties, the trial court once again granted Appellee’s Frye Motion by Order dated June 18, 2002. Appellee subsequently moved for summary judgment based on the preclusion of Dr. Austin’s testimony and Appellant’s resulting lack of expert testimony to support her medical malpractice action. By Order dated July 31, 2002, summary judgment was granted in favor of Appellee, and this timely appeal follows.

¶ 5 Appellant raises two issues for our review:

I. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION, OR AN ERROR OF LAW BY APPLYING A FRYE ANALYSIS TO THE OPINIONS OF APPELLANTS’ EXPERT, WHEN THE EXPERT OPINIONS DO NOT RELY [ON] ANY NOVEL SCIENTIFIC THEORIES THAT PRODUCE NEW EVIDENCE.

II. WHETHER THE TRIAL COURT, ASSUMING THAT THE FRYE PRINCIPALS [sic] ARE APPLICABLE, COMMITTED AN ABUSE OF DISCRETION OR AN ERROR OF LAW BY PRECLUDING APPELLANT’S EXPERT MEDICAL OPINION REGARDING THE CAUSE OF THE APPELLANT, BETTY HANEY’S INJURY TO THE SACRAL NERVES (S2, 8, 4) FOLLOWING NERVE DECOMPRESSION AT THE L4-5 LEVEL, WHEN THE METHOD FOR DETERMINING THE CAUSE OF THE SACRAL NERVE INJURY IS RELIABLE AND SOUND.

(Appellant’s Brief at 4).

¶ 6 Our standard for reviewing a trial court’s grant of summary judgment is well-established: “we view the record in the light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact in its favor.” Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650, 655 (Pa.Super.1999).

[A] non-moving party must adduce sufficient evidence on an issue essential to [her] case and on which [she] bears the burden of proof such that a jury could return a verdict in [her] favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Checchio v. Frankford Hospital-Torresdale Div., 717 A.2d 1058, 1059 (Pa.Super.1998), appeal denied, 566 Pa. 633, 781 A.2d 137 (2001) (quoting Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, 1042 (1996), cert denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996)).

¶ 7 Here, the trial court entered summary judgment after Appellant’s medical expert testimony was precluded. See Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 892 (1990) (“A plaintiff [in a medical malpractice action] is ... required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.”).³ Appellant’s issues on appeal, therefore, challenge the court’s preclusion of her expert testimony.

¶ 8 In her first issue, Appellant contends that the trial court misapplied the Frye rule because the rule pertains only to “novel” scientific evidence. Here, Appellant argues that her expert, Dr. Austin, used simple deductive reasoning to opine that Appellee must have injured Appellant’s sacral nerves during the May 10th surgery, and that in doing so, Appellee acted negligently. Because we agree that the Frye rule is inapplicable to the proposed expert testimony here, we reverse.

¶ 9 In the seminal case Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (Cir. 1923), the Circuit Court for the District of Columbia considered whether a trial court erred in precluding expert testimony regarding a systolic blood pressure deception test performed on the defendant, which the defendant claimed could determine whether a subject was telling the truth based on changes in the subject’s blood pressure.⁴ Id. at 1013-14. The Circuit Court upheld the trial court’s ruling, finding that the test had not yet gained such general acceptance by relevant authorities as to warrant admission of expert testimony on the subject.

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 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.

Id. at 1014 (emphasis added).

¶ 10 In Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), the Pennsylvania Supreme Court adopted the Frye rule, holding that the “[a]dmissiblity of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs[.]” Id. at 1281. In Topa, the Court concluded that Frye precluded expert testimony concerning sound specto-graph and voiceprint analysis.

¶ 11 Since that time, the courts of this Commonwealth have applied the Frye rule in numerous eases to determine whether scientific evidence has gained general acceptance in the relevant scientific community prior to its submission to a jury. See Blum v. Merrell Dow Pharmaceuticals, Inc., 564 Pa. 3, 764 A.2d 1 (2000) (precluding expert testimony that infant’s clubbed feet resulted from ingestion of drug Ben-dectin by mother during fetal gestation); Commonwealth v. Blasioli 552 Pa. 149, 713 A.2d 1117 (1998) (admitting expert testimony concerning statistical probabilities of DNA match calculated using product rule); Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994) (admitting expert testimony concerning DNA evidence, but precluding testimony concerning statistical analysis of evidence); Track v. Fellin, 817 A.2d 1102 (Pa.Super.2003) (en banc)⁵ (admitting expert testimony that massive overdose of drug Doxepin caused plaintiffs chronic open-ended glaucoma); Grady v. Frito-Lay, Inc., 789 A.2d 735 (Pa.Super.2001) (en banc), appeal granted, 569 Pa. 46, 800 A.2d 294 (2002)⁶ (admitting expert testimony that plaintiffs ingestion of Doritos corn chips caused esophageal tear); Thomas v. West Bend Co., 760 A.2d 1174 (Pa.Super.2000), appeal denied, 566 Pa. 647, 781 A.2d 147 (2001) (precluding expert testimony that plaintiffs low voltage shock from defendant’s popcorn popper caused plaintiffs cardiomyopathy); Checchio, supra (precluding expert testimony that infant’s oxygen deprivation within 12 hours after birth caused autism).

¶ 12 However, despite the wealth of recent caselaw on the subject, application of the Frye rule has remained somewhat misunderstood. Indeed, on at least two occasions, a panel of this Court has stated that Frye applies “whenever science enters the courtroom,” Blum, supra at 1317; see also Thomas, supra at 1179. In Thomas, we considered the same issue raised sub judi-ce, that is, whether the Frye rule applies when expert testimony is not the product of a new scientific invention or technique. Thomas, supra at 1178. Citing the language from this Court’s opinion in Blum, we concluded that the “trial court properly applied Frye because ‘science’ entered ‘the courtroom.’” Id. at 1179. However, a close reading of Thomas reveals that we may not have intended such an expansive application of the rule. Indeed, we noted that “our courts have often applied Frye to situations where experts use traditional techniques to announce a new syndrome or theory of causation.” Id. at 1178 (emphasis added).

¶ 13 In the very recent decision, Track v. Fellin, supra, an en banc panel of this Court held definitively that “Frye only applies when a party seeks to introduce novel scientific evidence.” Track, supra at 1109 (emphasis in original). As we noted, “[c]learly, our supreme court did not intend that trial courts be required to apply the Frye standard every time scientific experts are called to render an opinion at trial, a result that is nothing short of Kafkaesque to contemplate.” Id. at 1110. Although this may seem to be a departure from this Court’s language in Blum and Thomas, we find that a broad reading of that language may have been unsound. In both of those cases, the challenged scientific evidence was indeed novel. See Thomas, supra (no studies proving low voltage electric shock can cause cardiomyopathy); Blum, supra (no studies indicating ingestion of drug Bendectin during fetal gestation can cause birth defects, or specifically, clubbed feet).

¶ 14 Conversely, in the present case, Dr. Austin’s expert testimony does not involve “novel scientific evidence.” The substance of his opinion is as follows: Ap-pellee admitted that, during surgery on May 10, 1995, he entered the dural compartment where the affected nerves are located; there was no other demonstrable cause for Appellant’s nerve damage which manifested itself for the first time after the surgery; therefore, Appellee must have injured Appellant’s nerves during the surgery. Further, Dr. Austin opined that this type of complication would not occur absent negligence. This testimony does not implicate a Frye analysis.

¶ 15 As we stated in Track, supra, “Frye’s general acceptance standard requires only that the scientific community generally accept the principles from which the scientist is proceeding and the methodology the scientist is employing to reach his or her conclusions.” Track, supra at 1114. Here, there is nothing novel about the principles or methodology Dr. Austin utilized to reach his conclusion. He simply used the process of elimination to rule out all other possible causes of Appellant’s injury, and to conclude that her nerves must have been damaged during the surgery. Moreover, he attributed this to Appellee’s negligence.

¶ 16 Appellee’s expert, Dr. Warren Goldman, Chairman of the Department of Neurosurgery at MCP Hahnemann University, opined that Appellant’s complaints are “known complications of a properly executed surgery ... [that do] not require a misadventure or negligent performance of an operation.” (Defendant’s Supplemental Memoranda in Support of Frye Motion, filed 5/16/02, Videotape of H. Warren Goldman, M.D. at 81). Indeed, he testified that an injury to the sacral nerves could have occurred during surgery whether or not Appellee exercised due care. (Id. at 139-40).

¶ 17 Therefore, there is nothing novel about the principles or methodology Dr. Austin relied upon to reach his conclusion, or indeed, about that conclusion itself. In fact, Appellee’s expert agrees that an injury could have occurred as a result of negligence. Appellee simply challenges the evidence supporting Dr. Austin’s opinion, that is, he contends that there is absolutely no proof that Appellee, here, injured the sacral nerves during surgery. This argument, however, is a basis for cross-examination, not preclusion of the testimony under Frye.

¶ 18 Moreover, we do not agree that the disciplinary action brought against Dr. Austin by the American Association of Neurological Surgeons (AANS) supports preclusion of his testimony under the Frye rule; rather it is relevant only to challenge Dr. Austin’s credibility as an expert. In that action, affirmed by the United States Court of Appeals for the Seventh Circuit, AANS sanctioned Dr. Austin for what it considered to be irresponsible expert testimony in another medical malpractice case. Although the case involved a different medical procedure, Appellee contends, and Dr. Austin agreed, that the premise of his opinion in the former case was the same as here, that is, because a patient suffered an injury following surgery that was not present prior to surgery and the patient exhibited no anatomical abnormality, the injury must have occurred as a result of the surgeon’s negligence.

¶ 19 However, even a cursory review of AANS’ Professional Conduct Committee’s Report reveals striking differences between Dr. Austin’s opinion here and in the former case. Apparently, in the former case Dr. Austin opined, without any support in “literature or logic,” that the permanence of the plaintiffs nerve injury “establishes surgical negligence as its cause.” (Defendant’s Frye Motion, filed 4/19/02, Exhibit C, Report of the Professional Conduct Committee of the American Association of Neurological Surgeons at 5). Moreover, he asserted that a majority of neurosurgeons would agree with his conclusion, a declaration that AANS’ Professional Conduct Committee found to be “entirely false.” (Id.).

¶ 20 Here, Dr. Austin’s opinion is considerably more restrained. Although he begins with a logical and acceptable premise, i.e., that since Appellee admitted he entered the dural compartment during surgery, he could have injured the sacral nerves encased therein, he fails to support this premise with any concrete facts. Moreover, unlike in the former case, here Dr. Austin declines to assign fault to Ap-pellee solely on the basis of the permanence of Appellant’s injury, and does not proclaim that his opinion is held by a majority of neurosurgeons.⁷ Although we recognize that the disciplinary action involved Dr. Austin’s expert testimony in a medical malpractice case which bordered on a res ipsa claim, as does his testimony here, we remind Appellee that it was, indeed, a disciplinary action by a professional organization, not preclusion of testimony by a trial court applying the Frye rule. Therefore, its only function in the case sub judice would be to undermine Dr. Austin’s credibility as an expert.

¶ 21 Accordingly, because we conclude that the trial court misapplied the Frye rule in the present case, and erroneously precluded the testimony of Appellant’s expert at trial, we reverse the July 31, 2002, Order granting Appellee’s motion for summary judgment, and remand for proceedings consistent with this Opinion.⁸

¶ 22 Order reversed; case remanded for proceedings consistent with this Opinion; jurisdiction relinquished.

¶ 23 BENDER, J. files a dissenting opinion.

1 . Although Abington Memorial Hospital was originally named as a defendant, it was voluntarily dismissed from the case by stipulation of the parties entered March 13, 2000.

2 . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

3 . We note that an exception to this general rule can be found in medical malpractice actions based on the doctrine of res ipsa lo-quitur, that is, " ‘where the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even lay persons.’ ” Grandelli v. Methodist Hosp., Ill A.2d 1138, 1146 (Pa.Super.2001) (quoting Hightower-Warren v. Silk, M.D., 548 Pa. 459, 698 A.2d 52, 52 n. 1 (1997)). There was some discussion of application of the doctrine to the facts sub judice during oral argument on the summary judgment motion, and, indeed, Appellee’s counsel indicated to the court that Dr. Austin’s "whole opinion was res ipsa, so to speak.” (N.T. Oral Argument, 7/10/02, at 22). However, Appellant has not pursued a res ipsa claim.

4 .We note that the United States Supreme Court renounced the Frye rule in its 1993 decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), holding that Frye had been superceded by the Federal Rules of Evidence. To date, the Pennsylvania Supreme Court has not abandoned the Frye rule in favor of a Daubert analysis.

5 . A petition for allowance of appeal was filed in the Supreme Court on March 13, 2003.

6 . The Grady case was argued before the Supreme Court on March 4, 2003. When it granted allowance of appeal, the Court asked the parties to address the admissibility of the proposed evidence under both Frye and Dau-bert.

7 . Indeed, he appears to have learned from his past transgressions.

8 . Because of our disposition of this issue, we need not address Appellant's second claim on appeal.