Grady v. Frito-Lay, Inc.

McEWEN, President Judge Emeritus.

¶ 1 This appeal has been taken from the order which denied the motion of Carl and Diana Grady, hereinafter appellants, to remove a compulsory non-suit entered against them following the conclusion of the trial judge that appellants could not establish causation, an essential element of their cause of action, by reason of the pretrial ruling excluding the testimony of their two expert witnesses. We are constrained to reverse and remand.

¶ 2 Appellants filed a six-count complaint¹ against appellee Frito-Lay, Inc., claiming that Mr. Grady had suffered an esophageal tear after eating five or six Doritos brand corn chips on April 5, 1993. The appellants alleged in the complaint that while eating the corn chips, Mr. Grady

experienced a sense of something getting stuck in the swallowing process in the area of his esophagus. After trying to alleviate the sensation of the Doritos being stuck and to further swallow what was stuck in his esophagus, Carl R. Grady drank four glasses of water to attempt to alleviate the pricking sensation he felt where some content of the Doritos snack had lodged, with eventual relief of the sensation. After returning home from work on April 6, 1993, Carl R. Grady felt weak, which resulted in his emergency hospitalization later that day, when it was revealed that he had been bleeding internally from an acute gas-troesophageal tear.

Mr. Grady, who remained hospitalized for ten days after being diagnosed with a gas-tro-esophageal mucosal tear which had resulted in massive bleeding, instituted this action to recover damages for personal injuries and lost wages.

¶ 3 Once the pleadings were closed, ap-pellee filed a motion for summary judgment based on the failure of appellants to produce, in response to discovery requests, any “medical testimony that would demonstrate that there is 'a causal relationship between the husband-plaintiffs consumption of Doritos chips and his resulting esophageal tear.” Appellee also sought summary judgment on the basis of appellants’ failure to produce any expert report, relating to the products liability claim, to establish that the corn chips were defective at the time they were manufactured and/or delivered to appellants, and that that defect caused the harm alleged by appellants.

¶ 4 Appellants, in their answer to the motion for summary judgment, attached the expert reports of Augusto N. Delerme, M.D., FA.C.S, J.D., and Charles Beroes, Ph.D., P.E. Dr. Delerme, an otolaryngologist, stated in his expert report that after a review of the medical records and deposition of Mr. Grady, the discovery responses of Frito-Lay, and “research”, he had concluded that

[biased upon the data available to me, it is clear that the Doritos Nacho chips, which Mr. Grady was attempting to eat, lacerated his esophagus on its passage down to the stomach. The laceration of the esophagus resulted in the bleeding that occurred thereafter.. The absence of a history of severe retching or vomiting associated with this incident is against the laceration being a Mallory-Weiss tear or ulcer. The fast healing of the laceration goes along with those reported in the literature. The absence of a stricture or other esophageal abnormalities also fits the reported cases. Based even upon the limited records of injuries provided by Frito-Lay, it is clear that its Nacho chips are physically capable of creating injuries to the mouth, including that of breaking and chipping teeth. The hardness of some of these Nacho chips and the sharpness of their edges as they are broken down, as demonstrated . in a report from Charles S. Beroes, Ph.D., P.E., are sufficient to cause the injuries reported. There are several cases reported in medical literature which substantiate the danger to the digestive tract structures which tortilla type chips can cause including lacerations of the esophagus.

In my opinion, within a reasonable degree of medical certainty, the ingestion of the Doritos Nacho chips by Mr. Grady caused him to suffer a laceration of the esophagus. The manner in which Mr. Grady described his chewing of these chips was what would be normally expected in that process. It was the chip, or chips, which due to its peculiar characteristics, caused the injury to Mr. Grady as described. Finally, the care provided to Mr. Grady by St. Clair Hospital was necessary, and its bills were reasonable and appropriate.

¶ 5 The 23-page expert report of Dr. Beroes, Ph.D., P.E., an associate professor emeritus of chemical engineering at the University of Pittsburgh, opined, in part, that

The Doritos Tortillas Natural Cheese Flavored corn chips have several hidden-hazardous physical-strength and physical-shape properties which make them unreasonably dangerous. The majority of the chips are thick, hard, strong and because of oil coatings, do not quickly absorb the necessary saliva for softening the hard tips. The fact that sharp tips can build up considerable pressures at the tip when force is applied on the chip, [sic] An analogy is that a sharp chisel can cut hard steel. During chewing of the chips, the larger chips break into triangular smaller chips and very sharp tips. Experiments were conducted to measure and quantify these dangerous properties.

In the following series of tests, the arrow head shaped tips were held in the fingers pressed down on a platform gram balance. The balance was an OHAUS PRECISION STANDARD GRAM BALANCE, Model TS4KS, SERIAL NO. 5713, readability: 0.1 gram, capacity 4000 grams. The scale was tarred for each individual test with a soft Styrofoam pad. The chip was held firmly by the fingers and pressed down on the pad until the point snapped or crushed. The downward force necessary to crush the chip was measured in grams. The tips or point diameters were measured in microns and assumed to be circles. The force required to break the chip tip was read in grams and recorded. The fragments of the chip were then stored for further examination. The test results establish that large pressures result when a few pounds of force are applied to the triangular shaped chips. The chip points were able to endure high pressures before fracturing. The sharp triangular chip tips can readily pierce the esophagus when driven into the walls of the esophagus by peristaltic action. This action on the flat wall of the chip drives the tip of the chip through the opposite esophagus wall.

¶ 6 The trial court, in response to the production of these reports, denied the motion for summary judgment by order dated December 9,1998.

¶ 7 Appellee thereafter filed two motions in limine challenging the admissibility, under Frye², of the proposed expert testimony of Dr. Delerme and Dr. Beroes. The trial court granted these motions, finding:

In this case, the Plaintiffs sought to “stack” the testimony of their two experts, Charles S. Beroes (hereinafter Beroes) and Augusto N. Delerme (hereinafter Delerme). In this case, the opinion of Delerme was not freestanding and depended for its efficacy upon the opinion of Beroes. On the other hand, the opinion of Beroes, taken alone, was insufficient to establish a nexus between the produce and the putative injury.

It was the finding of this member of the Court, after taking into account the claimed expertise of the Plaintiffs’ experts, and the methodology of Beroes, that Beroes’ methodology was not based upon scientific data, or utilizing a methodology that was generally accepted in the community of scientists who evaluate food safety. Indeed, it was the impression of this member of the Court that Beroes’ methodology smacked of a high school science fair project and did not bear any relationship to the reality of the mastication and consumption of foodstuffs. Beroes approached the characteristics of the Dorito chips as if it were a static evaluation of a material, rather than a consumable. Accordingly, this member of the Court determined that Beroes’ methodology was akin to “junk science,” did not meet the test of Frye v. U.S., 54 App.D.C. 46, 293 F. 1013 (D.C.1923) and its progeny, and that Beroes’ methodology and opinion would only mislead the jury. Beroes was otherwise unqualified to render an expert medical opinion as to whether the Doritos caused the husband-plaintiffs injury. The Defendant’s motion in li-mine as to Beroes’ opinion was, accordingly, granted.

This member of the Court further determined that Delerme, as a medical professional, was not qualified to opine as to whether the Doritos chip caused the gastroesophageal tear which the husband-plaintiff apparently suffered. In his report, Delerme necessarily relied upon the opinion of Beroes. Without Beroes, Delerme’s testimony had no support and was not competent on the issues raised in this case. Accordingly, the Defendant’s motion in limine as to Delerme was granted.

¶ 8 Appellants argue that the reasoning of the trial court was flawed, and urge this Court to reverse that ruling and, concomitantly, the resulting non-suit entered on the grounds of the absence of any causation testimony.

¶ 9 The expert testimony³ of Dr. Delerme was excluded as incompetent by the trial court based on the determination that “Delerme, as a medical professional, was not qualified to opine as to whether the Doritos chip caused the gastro-esophageal tear which the husband-plaintiff apparently suffered.” We are unable to concur in this conclusion.

¶ 10 The purpose of a Frye inquiry is to enable the trial court, acting as a gatekeeper and not as a fact-finder, to ensure the reliability and relevancy of “scientific, technical or other specialized” expert testimony. Pa.R.E. 702. Dr. Delerme, a medical doctor trained in otolaryngology and Board Certified in that specialty, was qualified by reason of his education and experience to offer an expert opinion on the cause of Mr. Grady’s injury.

¶ 11 The standard governing a trial court’s decision on the admissibility of the testimony of an expert is well established:

Whether a witness has been properly qualified to give expert witness testimony is vested in the discretion of the trial court. McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436 (1987). Pennsylvania’s standard for qualifying a witness as an expert is rather liberal — if the witness possesses knowledge with regard to a subject matter that is beyond the knowledge, information or skill possessed by the ordinary juror, he or she may testify. Ruzzi v. Butler Petroleum Co. 527 Pa. 1, 588 A.2d 1 (1991).

West Philadelphia Therapy Center v. Erie Insurance Group, 751 A.2d 1166, 1167-1168 (Pa.Super.2000). “It is not a necessary prerequisite that the expert be possessed of all the knowledge in a given field, only that he possess more knowledge than is within the ordinary range of training, knowledge, intelligence or experience.” Miller v. Brass Rail Tavern, 541 Pa. 474, 481, 664 A.2d 525, 528 (1995) (internal citation omitted). See Pa.R.E. 702.⁴ The test that the trial court is to apply when qualifying an expert is “whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation.” McClain v. Welker, 761 A.2d 155, 156-57 (Pa.Super.2000) (emphasis in original) appeal denied, 565 Pa. 647, 771 A.2d 1286 (2001). If so, the witness may testify and the weight to be given such testimony is for the trier of fact to determine. Id.

¶ 12 The courts of this Commonwealth have frequently allowed individuals to provide expert testimony, despite a lack of formal training, provided that the individual can demonstrate knowledge of the subject which is greater than that of a lay individual. In Miller v. Brass Rail Tavern, supra, our Supreme Court held that a non-medically trained coroner could testify as to time of death, despite his lack of formal medical training, because his experience as a coroner had provided him with specialized knowledge regarding the calculation of time of death which would not otherwise be known to a lay individual. Id. at 483, 664 A.2d at 529. In McClain v. Welker, supra, the trial court ruled that expert testimony on the causation of cognitive defects from an individual with a Ph.D. in neuroscience was inadmissible because the expert did not possess a medical degree. This Court reversed, finding that although the expert did not possess formal medical training, he possessed “more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience.” Id. at 157. This Court in Gunn v. Grossman, 748 A.2d 1285 (Pa.Super.2000), appeal denied, 564 Pa. 711, 764 A.2d 1070 (2000), affirmed the decision of the trial court to allow an infectious disease specialist to testify as to the standard of care required of a cardiologist in prescribing antibiotics. In so holding, we noted that despite the difference in areas of specialty, the relevant issues were within the realm of knowledge of any doctor who prescribes drugs. Id., 748 A.2d at 1244. See also: Poleri v. Salkind, 453 Pa.Super. 159, 683 A.2d 649 (1996), appeal denied, 548 Pa. 672, 698 A.2d 595 (1997) (where this Court held that a board certified orthopedic surgeon was qualified to testify regarding the applicable standard of care of a physiatrist because wound care is an area in which the specialties overlap).

¶ 13 As our distinguished colleague Judge Joseph A Hudock recited in Rauch v. Mike-Mayer, 783 A.2d 815 (Pa.Super .2001).

In the field of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. Bindschusz v. Phillips, 771 A.2d 803, 808-09 (Pa.Super.2000). Different doctors will have different qualifications. Id. at 809. Some doctors will be more qualified than others to provide evidence about specific medical practices. Id. However, it is for the jury to determine the weight to be given to expert testimony in fight of the qualifications presented by the witness. Id.

The expert reports in this case were both provided by medical doctors. James R. Merikangas, M.D., represents that he is certified in Neurology by the American Board of Psychiatry and Neurology. See Expert Report of James R. Merikangas, M.D., 10/15/99, at 2. Appel-lees do not dispute that Dr. Merikangas has been board certified as a neurologist. However, Appellees do contend that Dr. Merikangas has devoted his time over the last decade to the practice of psychiatry and not neurology. Such a contention goes to the degree of trust to be placed in Dr. Merikangas’ testimony, but not to the question of whether he is a qualified medical expert. See footnote 6, infra.

Id. at 821, Accord: Smith v. Grab, 705 A.2d 894, 900 (Pa.Super.1997); Taliferro v. Johns-Manville Corp., 421 Pa.Super. 204, 617 A.2d 796, 803 (1992). Thus, Dr. De-lerme, as a board-certified otolaryngologist, was qualified to express an opinion as to the cause of the esophageal tear suffered by Mr. Grady.

¶ 14 Dr. Delerme also referred to the articles attached to Dr. Beroes’ report detailing similar injuries caused by corn chips. These articles were all published in prestigious peer-reviewed journals, including The American Journal of Gastroenterology ⁵, the New England Journal of Medicine⁶, (the article described corn chip esophageal tear of 63-year-old patient and included the information that the author was able to easily incise the mucosa of the esophagus of a cadaver with a broken tortilla chip); Annals of Emergency Medicine'⁷, and the American Roentgen Ray Society⁸.

In the absence of his own study, an expert reasonably can turn to medical literature in the relevant field as the basis for reaching an opinion. See: Mazur v. Merck & Co., Inc., 742 F.Supp. 239 (E.D.Pa.1990) (expert relied on medical studies discussing possible link between vaccine and disease).

Taliferro v. Johns-Manville Corp., supra at 803 (Pa.Super.1992). Thus, it was error to preclude the expert opinion of Dr. De-lerme.

¶ 15 Nor do we find that the trial court properly precluded that part of the expert testimony of Dr. Beroes relating to the results of tests he had conducted on the Doritos chips,⁹ specifically, three series of compressive strength tests, and four sets of saliva tests conducted on whole chips. Rather, we are of the mind that Dr. Be-roes was competent to testify as to the physical characteristics of the chips as revealed by the standard tests he had conducted upon the products of appellee.

¶ 16 The Frye test makes the admission of expert testimony dependent “upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1281 (1977).

In short, the gatekeeping responsibility of the trial court is not to weigh the correctness of an expert’s opinion, or to choose between conflicting opinions, or to analyze and study the science in question in order to reach its own conclusions from materials in the field. Ultimately, it is the role of the trial court as gatekeeper to

ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167.

Travelers Property & Casualty Co. v. General Electric Co., 150 F.Supp.2d 360, 364 (D.C.Conn.2001).

¶ 17 The process of consuming food involves both mechanical and chemical processes. The mechanical processes involve chewing and swallowing while the breaking down of the food involves chemical processes. Thus, an engineer such as Dr. Beroes is qualified to provide expert opinion describing the composition and characteristics of the food product and the mechanics of the processes involved in chewing and swallowing. The series of tests conducted by Dr. Beroes did not involve any novel or new scientific principles, but rather crush strength and compression strength calculations which, as noted by appellants, are possibly “as old as the pyramids.”

¶ 18 While appellee has provided valid criticisms of aspects of Dr. Beroes’ tests, those criticisms do not attack the basic scientific principles involved in the tests conducted, but rather challenge such things as the use of a whole chip rather than the fragments yielded by chewing.

The 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.

Wack v. Farmland Industries, Inc., 744 A.2d 265, 269 (Pa.Super.1999), appeal denied, 565 Pa. 649, 771 A.2d 1287 (2001) (citations omitted).

¶ 19 The tests, which employed standard calculations, can and have been readily examined and critically evaluated by experts in the field, including those retained by appellee. Such measurements are not “junk science”, and any flaws in the design of the tests or compilation of the data can be readily critiqued by appellee.

¶ 20 As noted by the U.S. District Court for the District of Connecticut in discussing the gatekeeping role of the trial court:

although GE has raised some very strong points about the way in which [the expert] conducted his investigation, the data he collected and the way it was analyzed — including the probative value of certain tests he performed after the issuance of his report — the court believes that those concerns are, under the circumstances of this case, more appropriately the subject of what will no doubt be a rigorous cross-examination. See, e.g., Advisory Committee Notes, 2000 Amendments, Fed.R.Evid. 702 (“The trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.”) (quoting United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir.1996)). As the Court in Daubert stated: “Vigorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786; In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994) (proponents “do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of the evidence that their opinions are reliable .... The evidentia-ry requirement of reliability is lower than the merits standard of correctness.”) Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir.1998).

Travelers Property and Casualty Co. v. General Electric, supra at 366.

¶ 21 Thus, as we are constrained to reverse the order which granted the motions in limine, we vacate the judgment of non-suit and remand for trial.

¶ 22 Order vacated. Case remanded. Jurisdiction relinquished.

¶ 23 DEL SOLE, President Judge files a Concurring Statement in which Ford Elliott and Orie Melvin, JJ., join. ¶ 24 JOYCE, J. files a Concurring and Dissenting Statement. ¶ 25 EAKIN, J. files a Dissenting Opinion in which Stevens, J., joins.

1 . The complaint set forth causes of action in negligence, strict liability, and breach of warranty, and included claims for loss of consortium and punitive damages.

2 . Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923).

3 . No hearing was held in the instant case in response to the Frye motion. While a hearing is not necessarily required, the better practice in complex cases would appear to provide for such a hearing. See: Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). See also: Rauch v. Mike-Mayer, 783 A.2d 815, 823 fn. 6 (Pa.Super .2001).

4 . The Pennsylvania Rules of Evidence, specifically Rule 702, address the admissibility of testimony by experts. Rule 702 provides:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa.R.E. 702.

5 . "Tortilla Corn Chip — Associated Esophageal Perforation: An Unusual Presentation ACH ALASIA.”

6 . "Esophageal Tear Caused by a Tortilla Chip.”

7 . “Corn Chip Laceration of the Esophagus or Evaluation of Suspected Esophageal Perforation.”

8 . "Food Laceration of the Esophagus: The Taco Tear.”

9 .That portion of the expert testimony of Dr. Beroe’s relating to the cause of Mr. Grady's esophageal tear was properly excluded as a chemical engineer is not competent or qualified to provide medical causation testimony. See: Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997).