Robinson v. Wolters Kluwer Health Inc.

47 Pa. D. & C.5th 273, 2015 Phila. Ct. Com. Pl. LEXIS 714
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 1, 2015
DocketNo. 778
StatusPublished

This text of 47 Pa. D. & C.5th 273 (Robinson v. Wolters Kluwer Health Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. Wolters Kluwer Health Inc., 47 Pa. D. & C.5th 273, 2015 Phila. Ct. Com. Pl. LEXIS 714 (Pa. Super. Ct. 2015).

Opinion

BERNSTEIN, J.,

—Mia Robinson was bom with severe heart defects. During pregnancy her mother took Zoloft for depression. The defendants claim the testimony of plaintiff’s experts on general and specific causation fail to meet the methodological requirements for admissibility of scientific opinion testimony and should be precluded at trial.1

The Frye test, adopted into Pennsylvania in the case of Commonwealth v. Topa,2 has been clearly explained by the Supreme Court of Pennsylvania in Grady v. Frito-Lay,3 and the Superior Court in Trach v. Fellin.4

The Frye5 test is an evidentiary standard for determining whether the methodology employed by a proposed witness is considered scientific by others in a relevant scientific field. The Frye standard to determine whether scientific expert testimony will “help” the jury6 is not applicable to all expert testimony. Although the proponent of evidence bears the burden of proving admissibility,7 this admissibility standard applies only when “novel science” is proposed. The Frye standard does not involve any judicial finding of the accuracy of the ultimate opinion.8 It is only the methodology employed which is to be evaluated, not the conclusions reached.9 The initial formulation of the Frye Court continues to be instmctive:

[276]*276“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.”

The Pennsylvannia Frye test for admissibility does not require this court to independently determine the judge’s understanding of the science of epidemiology, teratology or statistics as applied to the facts of Mia Robinson’s birth defects. Unlike courts which have adopted the Daubert10 standard, this court may not independently analyze or evaluate peer reviewed journal articles or other scientific material except as they relate to the methodology employed by the proposed expert witnesses in reaching conclusions. Thus as detailed by Justice Cappy in Grady v. Frito-Lay, the Frye test is comparable to other common judicial functions.

Writing for the court in Grady v. Frito-Lay justice Cappy said:

“One of the primary reasons we embraced the Frye test in Topa was its assurance that Judges would be guided by scientists when assessing the reliability of a scientific method.”
“We believe now, as we did then, that requiring judges to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific [277]*277theory and technique when ruling on the admissibility of scientific proof, as the Frye rule requires, is the better way of insuring that only reliable expert scientific evidence is admitted at trial.”
“We also believe that the Frye test, which is premised on a rule — that of “general acceptance” — is more likely to yield uniform, objective, and predictable results among the courts, than is the application of the Daubert standard, which calls for a balancing of several factors. Moreover, the decisions of individual judges, whose backgrounds in science may vary widely, will be similarly guided by the consensus that exists in the scientific community on such matters.”

Although both the Frye and Daubert standards relate to methodology and not conclusions, the differences are dramatic. Under the Frye standard this court is required to perform factfinding only as to the synchronicity ofproposed expert testimony with acceptable scientific investigation.11 Pursuant to the Daubert standard scientific consensus does not per se permit opinion testimony. A scientific consensus that proper methodology was employed is only one of several nonexclusive criteria for determining whether the expert testimony will “assist” the jury. The Daubert standard requires the court to make an independent judicial scientific judgment whether the methodology is scientifically sound even if a scientific consensus of propriety exists. Judges with different understanding of scientific processes can make different rulings on the same opinion subject only to an abuse of discretion appellate [278]*278review standard.12 Pursuant to the Frye standard the court need only determine whether an appropriate scientific community considers the methodology used to reach an opinion is scientifically sound. To be available for jury evaluation the methodology employed by the expert must be scientifically acceptable.13

Real scientific knowledge is not and never has been static. Even using proper methodology, scientists routinely disagree and even reach different conclusions while accepting the same underlying data as accurate. Through the interaction of differing but scientifically appropriate conclusions derived from commonly accepted data, knowledge progresses. Likewise different scientific disciplines may properly opine on the same questions using different but proper methodologies.

Thus, the trial court faces two primary questions in any Frye analysis:

1. Is the data and other underlying information relied upon the type of data properly relied upon in a scientific discipline appropriate to the question presented for jury determination? And;
2. Was this proper data analyzed in accord with a scientific discipline appropriate to the question presented for jury determination?

In this case plaintiffs’ expert Dr. Jewell’s methodology used to conclude that Zoloft taken during pregnancy can be the cause of heart birth defects is challenged.14 Dr. [279]*279Jewell based his analysis upon the same publicly available peer reviewed medical literature used by defense experts and by defendant Pfizer itself in internal documents. Dr. Kimmel, the primary defense expert witness at the Frye hearing agreed that the appropriate first step in determining whether Zoloft is teratogenic is to identify the relevant literature.15 Dr. Kimmel agreed that Dr. Jewell reviewed the appropriate literature: “Yes I listened so I certainly know Dr. Jewell and I looked at the same literature.”16 Pfizer’s qualified expert employees also looked at that same literature. These expert employees found 81 potentially relevant studies, abstracts, and papers of which 68 were not determined to be useful. The same thirteen studies formed the relevant literature used by plaintiff’s experts, defense experts, and Pfizer scientists.

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Related

Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (Supreme Court, 1993)
General Electric Co. v. Joiner
522 U.S. 136 (Supreme Court, 1997)
Grady v. Frito-Lay, Inc.
839 A.2d 1038 (Supreme Court of Pennsylvania, 2003)
Trach v. Fellin
817 A.2d 1102 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Topa
369 A.2d 1277 (Supreme Court of Pennsylvania, 1977)
Haney v. Pagnanelli
830 A.2d 978 (Superior Court of Pennsylvania, 2003)
Donaldson v. Central Illinois Public Service Co.
767 N.E.2d 314 (Illinois Supreme Court, 2002)
Betz v. Pneumo Abex LLC
44 A.3d 27 (Supreme Court of Pennsylvania, 2012)
Hogg v. Hogg
816 A.2d 314 (Superior Court of Pennsylvania, 2003)
Snizavich v. Rohm & Haas Co.
83 A.3d 191 (Superior Court of Pennsylvania, 2013)
Klein v. Aronchick
85 A.3d 487 (Superior Court of Pennsylvania, 2014)
Frye v. United States
293 F. 1013 (D.C. Circuit, 1923)

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Bluebook (online)
47 Pa. D. & C.5th 273, 2015 Phila. Ct. Com. Pl. LEXIS 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-wolters-kluwer-health-inc-pactcomplphilad-2015.