Out of Wack: The Abuse of the Frye Rule Applied To Medical Causation in Civil Cases

By Mark R. Cuker - Williams, Cuker & Berezofsky

Mrs. Menarde was a passenger on a bus in a major urban area. The bus collided with another vehicle and Mrs. Menarde was thrown forward, striking her breast against the pole. Her breast was badly bruised, but she didn’t think there was any other harm until she had it more fully evaluated by a doctor. Over the next few weeks the doctors determined that she suffered from breast cancer. She sued the bus company, not only for her bruises, but for the cancer. A jury awarded her substantial damages for the breast cancer and the bus company appealed to the state supreme court. The bus company argued that even though Mrs. Menarde had two treating physicians testify that her breast cancer was caused by the bus accident that this evidence should not have been allowed to go to the jury. The state supreme court rejected that argument and affirmed the verdict.

Is the above story:

A. An exaggeration concocted by a consortium of insurance companies campaigning for tort reform?

B. An example of how junk science has run rampant in the courtroom in recent years, allowing plaintiffs to recover for illnesses unrelated to their claims? Or

C. Utterly false?

It’s none of the above.

But wait, you say. What state court would have allowed a claim so obviously lacking in scientific basis to go to the jury? Didn’t the U.S. Supreme Court decision in Daubert v. Merrell Dow 509 U.S. 579 (1993) require courts to scrutinize junk science and keep it from getting to juries? Moreover, those states, which have not accepted Daubert, still apply the old, rule in Frye v. United States 293 F.1013 (D.C. Cir 1923). Doesn’t that keep expert opinions from going to the jury unless they are based on scientific theories which are generally accepted, a test even more stringent than that in Daubert? What crazy state Supreme Court allowed this verdict to stand?

One thing you know for sure, it definitely cannot be Pennsylvania. After all, the comments in your copy of the new Pennsylvania Rules of Evidence mention that even though (1) U.S. Supreme Court interpreted the federal Rule 702 (worded identically to the state rule) as superseding Frye and allowing a new standard for the admissibility for scientific evidence, and even though (2) as a result of Daubert, the Frye rule is no longer good law in the very jurisdiction which originated it, the commentators proclaim that Aadoption of Pa. R 702 does not alter Pennsylvania’s adoption of the standard in Frye which requires scientific evidence to have general acceptance in the relevant scientific community. You also know that, in a series of recent decisions, the Pennsylvania intermediate appellate courts have rigidly interpreted the Frye rule to bar any opinion on medical causation unless the opinion is generally accepted. Thus, in Mackenzie v. Westinghouse, 674 A.2d. 1167, Pa. Cmwlth (1996), the plaintiffs produced a well qualified expert to testify that studies show a relationship between a chemical and a birth defect, but the testimony was excluded because other leading experts in the field do not accept the theory. In Checchio v. Frankford Hospital, 717 A.2d 1058 (Pa Super 1998), a claim that cerebral palsy caused autism was precluded for the same reason. Finally, most recently, in Wack v. Farmland Industries, Inc., 1999 Pa. Super, LEXIS 4635, the Superior Court held that testimony that benzene, a known human carcinogen, caused buccal cancer was excluded because it is not generally accepted, even though some studies suggest an increased risk of buccal cancer with chronic exposure. Surely the Pennsylvania intermediate appellate courts would never act so aggressively to exclude testimony on medical causation in these cases, if the Pennsylvania Supreme Court had held that a single act of trauma would be sufficient to support a jury verdict on causation of breast cancer.

Yet, that is exactly what has happened. Menarde v. Philadelphia Trans. Co, 376 Pa. 497, 103 A.2d 681, was decided by the Pennsylvania Supreme Court in 1954. It has never been overruled and is still frequently cited for the principle that medical expert testimony on causation must be made with reasonable medical certainty. See e.g. Montgomery v. South Philadelphia Medical Group, 656 A.2d 1385, 1390 (1995).

What’s more, Menarde was clearly no fluke. Ten years later in Baker v. DeRosa, 413 Pa. 164, 196 A.2d 382 (1964), the Pennsylvania Supreme Court again allowed the victim of a car accident to recover for a claim that his accident had caused lung cancer. Baker was even the subject of an ALR article, and also has never been overruled. 2 ALR 3d 376.

If Baker were not enough to make the point, read the language in Nissley v. Pennsylvania Railroad, 435 Pa. 503, 259 A.2d 451 (1969) cert. den., 397 U.S. 1078 (1970). Nissley is frequently cited for the principle that experts who are not disclosed in answers to interrogatories will not be allowed to testify at trial and that was its principal holding. What we often forget is that the expert in Nissley testified that the plaintiff’s back injury was the proximate cause of the leukemia that lead to his death. In precluding the expert because he was not disclosed in discovery, the Supreme Court in Nissley blithely noted in a footnote “Both plaintiff’s experts admitted they knew of no medical authority who had expressed on opinion for the claim that a back injury could cause leukemia.” Id. at 454 n.7. Yet, the Supreme Court never suggested that the expert should not have been allowed to testify on that grounds.

Indeed, in the Baker and Nissley cases, then Chief Justice John Bell, one of the most anti-plaintiff justices in the history of the Pennsylvania Supreme Court, concurred in Nissley and dissented in Baker on the grounds that the plaintiff’s verdicts in those cases were against the weight of the evidence and that a new trial should have been awarded on that basis. Baker 196 A.2d at 392. Concurring in Nissley, Chief Justice Bell stated:

The testimony of plaintiff experts to prove causation, while technically meeting the standard of proof, ... was so exceptionally weak and unsupported by any medical authority, that a new trial should undoubtedly be given in the interests of justice. 259 A.2d at 455. (emphasis supplied) (citations omitted.)

It is extremely significant that even Chief Justice Bell believed that the only proper relief for the defendant was the award of a new trial and not an entry JNOV against the defendant.

Before 1974 a minority, although respectable, group of physicians believed that cancer could be triggered by a single trauma. Daly v. Bergstedt, 267 Minn. 244, 126 NW.2d 242 (1964); Monkman, et al., Trauma and Oncogenesis, 49 Mayo Clinic Proc 157 (1974). Thus, the plaintiff’s theories in the Menarde and Baker cases could never have satisfied the Frye standard, although they may well have satisfied the more lenient Daubert standard. Yet, the Supreme Court, and even Chief Justice Bell, thrice ignored Frye.

Nor were Menarde, Baker and Nissley aberrations of pre-1990 Pennsylvania jurisprudence. In Abrams v. Philadelphia Suburban Transportation Company, 438 Pa. 115, 264 A.2d 702 (1970) Ms. Abrams was a passenger on a trolley car, which was struck from behind. She suffered a blow to her left wrist and was eventually diagnosed as having a ganglion cyst, which needed to be surgically removed. Both of plaintiff=s treating physicians testified at trial, but one of them testified for the defendant, and disagreed as to whether a single act of trauma could cause a ganglion. The court still held that the case properly went to the jury.

In Kubacki v. Metropolitan Life Insurance Company, 193 Pa. Super 138, 164 A.2d 48 (1960), the question was whether the decedent died of a myo-cardial infarction or cerebral hemorrhage triggered by an accident. In deciding the sufficiency of the evidence, the court used language which directly flies in the face of McKenzie and Wack the court stated: AMedicine is not an exact science, in its totality, but a mixture of science and art. There may be and frequently are areas in which physicians of unquestioned integrity and competency may reach different conclusions on the same facts...Certainly the members of this court cannot set themselves up as super experts in the field of medicine and announce as a matter of law that the evidence was insufficient to support the verdict. 193 Pa. Super at 145. (emphasis supplied). The court upheld the jury verdict because Athe value and weight of the testimony was for the jury. Id.

In Simmons v. Mullen, 231 Pa. Super 199, 331 A.2d 892 (1974) Judge Spaeth upheld a verdict based on the expert testimony of a clinical psychologist who said that a child had suffered organic brain damage in an accident. Judge Spaeth stated that “a witness’s statement of opinion [does not] have to be positive or absolutely certain. The law does not require that expert testimony amount to dogma. ...The reason for this rule is that if a source of knowledge is insufficient, its weakness may be exhibited to the jury, which can then determine for itself how much weight to accord the testimony.” Id. at 899. Judge Spaeth cautioned that “the admonition of Dean Wigmore must always be kept in mind. The risk of excluding a useful...item of testimony is greater than admitting testimony that is capable of exaggeration.” Id. citing Wigmore Law of Evidence Section 659.

Indeed, even the pre-Daubert federal courts, supposedly bound by the Frye rule, did not apply it to exclude expert opinions about causation. In Brett v. J.M. Carras, Inc., 203 F.2d 451 (3d Cir. 1953) the court heard a scientific dispute as to whether a seaman’s back injuries were the cause of Paget’s Disease. There was a bitter battle of the experts in which the plaintiff’s own witnesses admitted that the cause of the disease is not definitely known. Nonetheless plaintiff’s experts “ventured” the opinion that the accident was the cause of the disease and had some support in the medical literature. Even though this was not generally accepted in the scientific community, the court said that it was Aunaware of any rule that there can be no recovery, based on negligence for a disease, the cause of which is not yet known with absolute certainty to medical science.@ Id. at 452. Since the court was not unaware of the Frye rule, it obviously thought it did not apply to this situation. Instead, quoting Professor Wigmore, the Third Circuit said “if physicians are willing to estimate certain consequences as probable or possible, it is hardly proper for judges to affirm the untrustworthiness of these conclusions.” Id. at 453. The court concluded “the burden of the scientific limitations of our society should not be cast on injured plaintiffs in circumstances such as existed in the instant case.” Id. See also Armit v. Loveland, 115 F.2d 308 (3d Cir. 1940) (expert testimony sufficient to establish that plaintiff's emphysema proximately resulted from a fall, notwithstanding contrary testimony by three defense experts).

Fast forward thirty years after Baker and Nissley in the case of Blum v. Merrell Dow, 705 A.2d 1314 (Pa. Super 1997), where the minor plaintiff claimed that he suffered the birth defect of club feet as a result of bendectin. Using language that echoed Kubacki, Judge Mark I. Bernstein allowed the plaintiff’s expert testimony to go to the jury. 33 Phila. 193 (1996). On appeal, the Superior Court applied the Frye rule, found that the plaintiff’s expert should not have been heard by the jury, and directed an entry of judgment NOV in favor of the defendant. In doing so, the Superior Court held that “cross examination is not the appropriate tool to test the speciousness or accuracy of the expert testimony” and that a judge, not a jury, must decide “whether the expert is offering sufficiently reliable, solid, trustworthy science.” 705 A.2d at 1321. Blum is currently on appeal to the Pennsylvania Supreme Court, which must decide whether the Superior court was really applying precedent or making new law.

Frye was decided back in 1923. Why, then did the Pennsylvania Supreme Court steadfastly ignore Frye through the 50s and 60s and why have the Pennsylvania intermediate appellate courts suddenly decided to apply it to the issue of medical causation? After all, in Pennsylvania, intermediate appellate courts never make new law and do not deviate from established state Supreme Court precedent. Malinder v. Jenkins Elevator & Machine Co., 371 Pa. Super 414, Felton v. Spratley 433 Pa. Super 414, 640 A.2d 1358 (1993).

Was it because Frye was not officially adopted in Pennsylvania until Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977)? Did Topa sub silentio overrule this trilogy of traumatic cancer cases? Take a look at Topa and the cases that followed it. They did not involve subjective opinions of medical causation in civil cases. They were all criminal cases, and almost all involved the admissibility of evidence derived from scientific devices used to establish critical facts of guilt of innocence. In Topa, the Supreme Court excluded evidence of the results of a voice spectrograph, stating that strict application of the Frye standard when scientific proof is offered is essential if the defendant is to receive a fair trial. 369 A.2d 1282. The court was also concerned that evidence of Aobjective test@ results might have undue influence on a jury. Id.

All of the other Supreme Court cases, which have applied Frye, have involved such scientific devices and tests. Commonwealth v. Crews, 536 Pa. 508, 540 A.2d 395 (1994) (DNA evidence). Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117 (1998) (Admitting DNA evidence, but holding that statistical DNA assessments were not generally accepted). Commonwealth v. Nazaravitch 496 Pa. 97, 436 A.2d 170 (1981); (hypnotically refreshed memory not admissible); Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1(1992); cert. denied, 113 SCt 1420 (1993) (Electrophoresis of dried blood stains admissible). The same is true of virtually all pre-1996 Superior Court decisions as well. Commonwealth v. Browdie, 59 Pa. Super 647, 654 A.2d 159 (liver enzyme test admissible); Commonwealth v. Khamphouseane, 434 Pa. Super 93, 642 A.2d 490 (1994) (HLA test for paternity admissible); Commonwealth v. Moore, 430 Pa. Super, 575 635 A.2d 625 (1994); Commonwealth v. Apollo , 412 Pa. Super 453, 603 A.2d 1023 (1992) (both holding the horizontal gaze nystagmus test for intoxication inadmissable); Commonwealth v. Rogers, 415 Pa. Super 498, 605 A.2d 1228 (1992) (DNA evidence by RFLP method generally accepted); Commonwealth v. Reed, 400 Pa. Super 207, 583 A.2d 459 (1990) (testimony under hypnosis inadmissable); Commonwealth v. McCaulley, 403 Pa. Super 262, 588 A.2d 94 (1991) (microscopic hair evidence admissible); Commonwealth v. Garcia 403 Pa. Super 280, 588 A.2d 951 (1991); Commonwealth v. Stringer, 451 Pa. Super 180 (1996) (HGN test inadmissible); Commonwealth v. Graves. 310 Pa. Super 184, 456 A.2d 561 (1983) (identification of fingernail marks generally accepted).

Only once did the Pennsylvania Supreme Court invoke Frye to discuss the admissibility of subjective expert opinions, as opposed to objective facts determined by scientific devices. That was in Commonwealth v. Dunkle, 529 Pa. 168, 173, 602 A.2d 83 (1992), where an expert opined that “child sexual abuse syndrome” consisted of a certain constellation of symptoms. Although the court held that the testimony should have been excluded because “child sexual abuse syndrome@ was not Agenerally accepted” among scientists in the community, the court also correctly noted that the testimony was just plain irrelevant. The symptoms, which formed the constellation of child sexual abuse syndrome, were also symptoms that appeared in many other conditions and resulted from any type of psychic trauma. Thus one could base no conclusion from the presence of these symptoms in the victim, because they could have been caused by other kinds of trauma. Commonwealth v. Dunkle, 529 Pa. 168, 173, 602 A.2d 830; See also Commonwealth v. Smith, 389 Pa. Super 626, 567 A.2d 1080 (1989) (also holding child sexual abuse syndrome to be inadmissible).

Well, you say, just because the Pennsylvania Supreme Court happens to have applied the Frye rule only in criminal cases doesn’t mean it can’t apply it in civil cases. Why should there be a different standard for opinion testimony about causation in civil cases?

The Supreme Court answered that question in discussing the sufficiency of plaintiff’s causation evidence in Shearer v. Insurance Company of North American, 397 Pa. 566, 156 A.2d 182 (1950).

In a criminal prosecution the Commonwealth must establish its theorem beyond a reasonable doubt. In a civil case the plaintiff is only required to produce such quality and quantum of evidence as will preponderate, in weight and credibility, over that adduced in behalf of a defendant. 156 A.2d at 184.

This also explains why there should be a different standard for scientific devices and subjective scientific opinions. Scientific devices purport to determine “objective facts” are often virtually dispositive of guilt or innocence: Is the defendant lying? Is his blood at the crime scene? Was he intoxicated while driving? Is he the father of the child?

What’s more, you can’t cross examine a lie detector, a RFLP DNA analysis, a voiceprint or an electrophoresis machine. A jury is far more likely to cede the aura of “mystic infallibility” to such devices. Topa, 369 A.2d at 1282. By contrast, experts offering subjective opinions can be thoroughly cross-examined and then rebutted by other experts. Thus, before 1996, no Pennsylvania court saw any need to exclude any qualified experts from testifying about causation because their opinions were not “generally accepted.”

No one said it more eloquently than Judge Bernstein in Blum v. Merrell Dow. In a stunning sixty-five page opinion which should be read cover to cover by anyone who cares about equal justice under law, Judge Bernstein noted that in Blum as in so many cases, the dueling experts based their opinions on the same studies. They simply interpreted the results of those studies differently and come to different conclusions. Under our system of justice, a system rooted in the principles of democracy and constitutional law, a jury of lay people should hear the testimony, listen to the skillful cross-examination of both experts, and decide which interpretation they wish to adapt. It is fundamentally undemocratic for a judge to take that decision away from a jury based upon the judge’s notions of science. 33 Phila. at 228-235.

The evils of usurping the jury’s function can be seen by contrasting the Mackenzie case with Blum. In Mackenzie, the plaintiff’s expert based his opinion that the chemical at issue caused the plaintiff=s birth defect on six peer reviewed studies he published. Nonetheless, the Commonwealth Court ordered the testimony thrown out because the plaintiff’s expert had the temerity to disagree with one Dr. Edward Brent, the alleged “father of teratology,” who was a witness for the defense. In effect, the Commonwealth Court abdicated its judicial responsibility and allowed this “father of teratology” to decide what should or should not go to the jury.

Merrell Dow, knowing a good thing when it saw one, used the same Dr. Brent to be its expert in the Blum case. Judge Bernstein, however, refused to hand his robes and gavel to Dr. Brent. The trial judge ruled that Dr. Brent was not judge, nor jury, but simply and expert witness who was entitled to no more credibility, power or authority in a courtroom than any other expert witness, even if he is the “father of teratology.” Indeed, the evidence showed that Dr. Brent had a pro-defense bias which left the credibility of his opinions peculiarly within the province of the jury. Judge Bernstein noted that Dr. Brent’s “science” of teratology

was born with a simple and basic premise upon which a consensus of teratologists agreed: the impermeability of the maternal womb. Only after thousands of babies were born with stubs for arms and legs, ... caused by maternal use of “Thalidomide” did the teratological “scientific community” consider that, possibly, it was mistaken in the basic organizing principle of their “science.” ...The impermeability of the placenta is a scientific principle tested and proven inaccurate through epidemiologic studies and human misery. “Science” can wait for its truths become tested and rejected. No just court system can permit orthodoxy to preclude redress.

33 Phila. at 234.

Judge Bernstein concluded it not only inappropriate, but irresponsible, for a trial judge to decide what are the “generally accepted scientific principles” and to bar non-conforming scientists from the courtroom.

As we have seen, Judge Bernstein’s decision was not an aberration, but entirely consistent with established Pennsylvania case law. See Feldman, Pa. Trial Guide '14.4 (1996). Yet it was reversed by the Superior Court, which has again, most recently in Wack, held that expert opinions on causation must be excluded unless they are generally accepted. Although Wack invokes Frye, it is, as we have seen, completely out of whack with Frye and directly at odds with numerous appellate decisions, which have consistently refused to apply Frey to medical causation issues.

How did Frye, a 1923 case, suddenly acquire this meaning after 1996? One never knows what is in the hearts and minds of appellate judges. But one can=t help but note that during this same period, the judiciary, (and the general public) was subjected to a public relations onslaught by a coalition of pharmaceutical, chemical and insurance companies and the “think tanks” they subsidize with one overriding purpose in mind: to take tort cases away from juries. See Chesebro, Galileo’s Retort, Peter Huber’s Junk Scholarship 42 American U.L. Rev. 1637, 1705-26. (1993) Although this campaign has argued that there is an epidemic of junk science and junk juries meting out junk justice in our court rooms, their arguments are not based on science, scholarship or statistics, but mere anecdotal evidence. Even then, the anecdotes are often distorted. Chesebro, Galileo’s Retort supra; Saks, Do We Really Know Anything about the Behavior of the Tort Litigation System; and Why Not? 140 U. Pa. L. Rev. 1147 (1992). If anecdotal evidence can’t support a plaintiff’s claim for medical causation, one wonders why the Pennsylvania courts would use anecdotal data to reverse 50 years of precedent.

AWell,@ you might agree, “it’s certainly disturbing that the courts have stood the case law on its head while purporting to obey precedent. But maybe it is time for the law to change.” After all, by today’s standards, it certainly seems that Mrs. Menarde’s case should never have gone to the jury. What’s wrong with keeping this evidence out if its not generally accepted?

The answer can be found in Pritchard v. Liggett & Myers Tobacco Co. 295 F.2d 292 (3d Cir. 1961), another then federal case applying Pennsylvania law when Frye was in its heyday. Pritchard sued Liggett on the novel scientific theory that cigarettes gave him lung cancer. Although Liggett argued that this theory of causation was not generally accepted, the Third Circuit held that it had Ano intention@ of overruling wellestablished precedent. “At best,” it concluded, “defendant’s contention is one for the jury.”

Citing Pritchard, Judge Bernstein asked “what does history reveal about orthodoxy and establishment consensus of scientific principles?” 33 Phila at 257. A consensus of teratologists believed the womb was impermeable against Thalidomide. “A clear scientific consensus confirmed the safety of radiation so children’s feet were routinely x-rayed in a shore store.” Id. The same can be said, not only for tobacco, but asbestos, lead and dozens of other products. In Blum, the evidence showed that Merrell Dow actually planted articles in peer reviewed journals as a litigation tactic, then used the articles to claim that plaintiff’s case was based on junk science. 33 Phila. at 217-223.

As Blum, Pritchard and many other cases demonstrate, reliance on a “consensus” of “scientific opinions” in the relevant “scientific community” can be and has been manipulated when the financial stakes warrant the effort. 33 Phila. at 249. We can only conclude, as Judge Bernstein did, that “only an independent court system, accessible to all, can ever be a refuge against an oppressive, entrenched establishment orthodoxy.” 33 Phila. at 259. To demand “general acceptance” as a pre-condition to admitting opinion testimony on medical causation would destroy that refuge.