gavel.gif (3462 bytes) Supreme Ct: Frye does not apply to extrapolation

The Court of Common Pleas erred in excluding expert testimony based on Frye, the state Superior Court ruled on Feb. 11 in Trach v. Fellin. The Superior Court ruled that in order for Frye to apply, the method used to reach a conclusion must be novel.

The Superior Court said that by reviewing the case it wanted �to determine whether we have extended Frye beyond the parameters our Supreme Court has established, keeping in mind that Frye is an exclusionary rule of evidence. As such, it must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth.�

According to the opinion, the trial court vacated the jury�s verdict of $5 million and granted Thrift Drug a new trial on damages. The court determined it erred when it allowed Trach�s expert to testify. The Superior Court stated, �after a thorough analysis of the circumstances under which a party may invoke Frye to exclude expert testimony�we are constrained to conclude that the trial court erred when it vacated the jury�s verdict because Trach allegedly failed to establish a causal connection between Trach�s long-term medical problems and Thrift Drug�s negligence.�

Trach went to his dentist in July of 1995 complaining of jaw pain. The dentist suspected an infection and gave Trach a prescription for 40 capsules of Amoxil, an antibiotic. Trach took the prescription to Thrift Drug to have it filled. The pharmacy assistant mistakenly gave him 29 capsules of Doxepin, an antidepressant, and told him to return in a few days for the remaining pills, as the pharmacy did not have them in stock.

Doxepin is known to cause serious side effects when taken in the recommended dosage, however Trach was taking it by the dosage prescribed for Amoxil. Trach took 1,800 mg the first day. Recommended dosage is between 75 and 150 mg per day, and a maximum of 300 mg per day.

Trach contacted his physician immediately when he began experiencing side effects, including visual problems. The physician did not believe it was a side effect of the antibiotic. Trach then developed a sore throat, but continued to take ten more capsules of Doxepin over the next 24 hours. He took the medication, although he experienced many side effects, until he had ingested 4,800 mg over a five-day period. When Trach returned to Thrift Drug to pick up the rest of the medication, his wife noticed that the 11 new pills were different from the originals. Upon investigation, the pharmacist found that Trach was given the wrong medication initially. He then went to the hospital for testing. Most of his symptoms disappeared within a month, however Trach continues to have cognitive difficulties, cluster headaches, and vision problems.

In March of 1996, after numerous attempts to determine Trach�s problem with his vision, he was diagnosed with �chronic open-angle glaucoma or even more specifically pigmentary glaucoma.� Trach also has an arcuate scotoma in his right eye as a result of nerve damage from the glaucoma.

The opinion states that, �according to the PDR, adverse reactions to Doxepin when taken in the recommended dosage may include blurred vision, confusion, disorientation, and hallucinations. The PDR also indicates that death or coma may result from an overdose of Doxepin, as well as confusion, disturbed concentration, transient visual hallucination, dilated pupils, and other serious consequences. Additionally, one of Thrift Drug�s medical experts, Michael Naidoff, M.D., an ophthalmologist, acknowledged that Doxepin can cause narrow or closed-angle glaucoma in susceptible individuals.�
The court reasoned that it was obvious why no one had conducted studies to determine the effects of a massive Doxepin overdose. Trach presented testimony from a board certified pathologist and toxicologist, Dr. John Shane. Thrift Drug filed a pretrial motion to preclude the testimony, as it did not meet the Frye standards for scientific evidence. Dr. Shane was allowed to testify, and stated to a reasonable degree of certainty that all Trach�s symptoms, both immediately after ingesting the Doxepin and those that continue, were the direct result of the overdose. Thrift Drug moved to strike the testimony, and the trial court denied the motion.

The trial court directed a verdict for Trach as to negligence and allowed the jury to determine damages. The jury awarded Trach $5 million. Thrift Drug filed a motion for judgment n.o.v. or a new trial, stating that Shane�s testimony should not have been admitted. The trial court denied the motion for j.n.o.v., but granted a new trial on damages, saying that Shane�s testimony did not meet the Frye standard.

The Superior Court considered whether the trial court abused its discretion or committed an error of law in its decision to grant a new trial. The Superior Court stated that, �a review of our Supreme Court�s application of Frye over the past 25 years also supports the proposition that Frye only applies when a party seeks to introduce novel scientific evidence�Thus Frye does not apply every time science enters the courtroom.�

The court went on to say that, �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.� The court also quoted Frye in saying that the method by which the deduction is made must be �sufficiently established to have gained general acceptance in the particular field in which it belongs.�

The court noted the decision in Daubert that Frye only applies to determine if the scientific community has generally accepted the principles and methodology the scientist used, not the conclusions reached, before the court may allow the expert to testify.
�In this case, the trial court relied on the two-bases analysis; however, it intertwined methodology and conclusion in such a way that we must discuss both,� the court wrote in its opinion. �We begin by observing that there is no question that the scientific community has generally accepted the basic principle Dr. Shane employed, The �Dose-Response� principle.�

The court then addressed methodology. �The question then becomes whether extrapolation, although not science, is a methodology generally accepted and used by scientists within the relevant scientific community.� The court looked to Donaldson in saying that the method of extrapolation is not a new technique that may give false confidence or a sense of scientific infallibility. The Donaldson court ruled that the trial court did not err in allowing expert testimony based on extrapolation.

The court said in Trach, �We find the facts of this case even more compelling than the facts of Ferebee or Donaldson based on the even stronger logical inference that a substance known to cause adverse side effects in its recommended dose is likely to cause a heightened level of the same or similar adverse effects when taken in massive overdose.�

In conclusion, the court wrote, �We therefore find that the trial court had the first opportunity to address whether the scientific community has generally accepted extrapolation based on the dose-response principle and erred in its conclusion.�

The court vacated the order granting a new trial on damages, and reinstated the jury�s $5 million verdict. It also affirmed the order denying j.n.o.v. or a new trial. The case was remanded to the trial court to address Thrift Drug�s post-trial motions regarding the excessiveness of the verdict and Trach�s motion for delay damages.



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