J-A06042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MATTHEW T. DEIVERT                    :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 PITTSBURGH CHAUFFEUR, LLC.            :
                                       :
                    Appellant          :   No. 1314 WDA 2017

           Appeal from the Judgment Entered September 1, 2017
     In the Court of Common Pleas of Allegheny County Civil Division at
                         No(s): GD No 15-019904


BEFORE:    BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

DISSENTING MEMORANDUM BY SHOGAN, J.:           FILED: April 2, 2018

      The learned Majority found no abuse of discretion in the trial court’s

admission of testimony by the plaintiff’s expert, Dr. Gregory Habib.       I,

however, question how Dr. Habib’s opinion translated to legal causation based

on accepted scientific methodology. Finding inadequate support in the law

and the record at hand for the admission of Dr. Habib’s testimony, I

respectfully dissent.

      Pa.R.E. 702 governs the admissibility of expert testimony on scientific

knowledge, which includes medical knowledge, and provides as follows:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

      (a) the expert’s scientific, technical, or other specialized
      knowledge is beyond that possessed by the average layperson;



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     (b) the expert’s scientific, technical, or other specialized
     knowledge will help the trier of fact to understand the evidence or
     to determine a fact in issue; and

     (c) the expert’s methodology is generally accepted in the relevant
     field.

Pa.R.E. 702. Rule 702 embodies the Frye test, derived from Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923), and adopted in Pennsylvania in

Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). “Frye only applies to

determine if the relevant scientific community has generally accepted the

principles and methodology the scientist employs. . . .” Grady v. Frito-Lay,

Inc., 839 A.2d 1038, 1043–1044 (Pa. 2003). The Frye test does not require

proof “that the scientific community has also generally accepted the expert’s

conclusion.” Id. at 1045. In light of Frye, “expert testimony must be based

on more than mere personal belief and must be supported by reference to

facts, testimony or empirical data.” Snizavich v. Rohm & Haas Co., 83 A.3d

191, 195 (Pa. Super. 2013) (internal quotation marks and citations omitted).

     I take issue in this case with the methodology Dr. Habib employed to

reach his causation conclusion.   This Court has addressed the meaning of

“methodology” as follows:

     As The Supreme Court observed in [Daubert v. Merrell Dow
     Pharmaceuticals, Inc., 509 U.S. 579 (1993)], “‘Scientific
     methodology today is based on generating hypotheses and testing
     them to see if they can be falsified; indeed, this methodology is
     what distinguishes science from other fields of human inquiry.’”
     Daubert, 509 U.S. at 593, . . . quoting Green, Expert Witnesses
     and Sufficiency of Evidence in Toxic Substances Litigation: The
     Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U.L.Rev.
     643, 645 (1992). Stated differently, the scientific method is “a

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      method of research in which a problem is identified, relevant data
      are gathered, a hypothesis is formulated from these data, and the
      hypothesis is empirically tested.”        Webster’s Encyclopedic
      Unabridged Dictionary of the English Language (“Webster’s”)
      1279 (1989). Within the meaning of the definition of the scientific
      method, “empirical” means “provable or verifiable by experience
      or experiment.” Id. [at] 468. Key aspects of the scientific method
      include the ability to test or verify a scientific experiment by a
      parallel experiment or other standard of comparison (control) and
      to replicate the experiment to expose or reduce error. Id. [at]
      318–319, 1217.

Trach v. Fellin, 817 A.2d 1102, 1113 (Pa. Super. 2003) (en banc).

      Dr. Habib used the methodology of extrapolation. “Extrapolation is not

science: in fact, it is a logical method used to estimate the value of a variable

outside its tabulated or observed range” or “to infer (that which is not known)

from that which is known.”       Trach, 817 A.2d at 1114 (citation omitted).

Extrapolation has gained general acceptance in the scientific community under

certain limited circumstances:    “[W]hen the medical inquiry is new or the

opportunities to examine a specific cause and effect relationship are limited;

when the number of cases limits study of the disease; or . . . when ethical

considerations prevent exposing individuals to a toxic substance for research

purposes.” Id. at 1116 (citation omitted).

      Dr. Habib, an orthopedic surgeon, did not treat the plaintiff and did not

reference any literature or cases of burns arising from this specific type of

situation. In fact, he repeatedly characterized the plaintiff’s burn as a “unique

situation.” Dr. Habib’s Deposition, 5/3/17, at 19, 27, 32, 44, 47, 48, 50, 60.

In extrapolating that the plaintiff’s injuries resulted from the same


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biomechanics as a bed sore or a friction burn, Dr. Habib failed, however, to

divulge the underlying scientific foundation for his opinion.       Contrary to

established scientific methodology, Dr. Habib did not “assemble all of the

information,” “perform a weight of the evidence evaluation,” and decide,

“based on the most credible work, what story is being told” as to the creation

of a full-thickness friction burn from a twenty-minute ride in a cramped

limousine.   See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 38 (Pa. 2012)

(illustrating how medical expert’s extrapolated conclusion that any inhalation

of asbestos fiber was substantial factor in causing mesothelioma was not

based on accepted scientific method).       See also Checchio v. Frankford

Hospital–Torresdale Division, 717 A.2d 1058 (Pa. Super. 1998) (affirming

inadmissibility of experts’ testimony that was based “entirely on [their] own

observations and experience in the field without any reference to outside

sources on which [they] might predicate [their] findings”); Snizavich, 83

A.3d 191 (rejecting expert’s testimony because it failed to demonstrate “any

scientific basis, other than his own subjective beliefs”). Cf. Harris v. NGK

North American, Inc., 19 A.3d 1053 (Pa. Super. 2011) (reversing exclusion

of expert’s testimony that referenced outside data that supported the causal

relationship he asserted).

      Indeed, I see no indication in Dr. Habib’s report of the scientific method:

Dr. Habib did not provide any description of a complete review of the wound

care, friction burn, or dermatology literature that exists. He did not discuss


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whether the literature was adequate or not.           He did not summarize that

literature. In fact, Dr. Habib made no mention, let alone synthesis, of the

literature.    Additionally, Dr. Habib did not discuss the strengths and

weaknesses of various studies or case reports related to wound care, friction

burns, or dermatologic reactions that he relied upon. In fact, Dr. Habib did

not rely on any studies or case reports.1          Dr. Habib provided no specific

information regarding how much pressure, heat, and time are required to

cause a full-thickness wound; how the patient’s age and health affect the

formation of a full-thickness wound; how environmental, genetic, and/or pre-

existing conditions affect the formation of a full-thickness wound. In short,

Dr. Habib offered no science in support of his conclusion that a twenty-minute

ride in a cramped limousine caused a full-thickness wound.

       What I do see is an opinion based “on subjective assessments of both

cause and effect.” Checchio, 717 A.2d at 1062. Dr. Habib jumped from a

general hypothesis, i.e., pressure and heat can cause sores, to a specific

conclusion, i.e., the plaintiff’s twenty-minute ride in a cramped limousine

caused a full-thickness wound.            This approach disregards the generally

accepted methodology for looking at causation in that Dr. Habib’s opinion was


____________________________________________


1  Cf. Trach, 817 A.2d at 1119 (affirming admission of medical testimony as
to causation where expert reviewed patient’s medical records and medical
literature and extrapolated from the documented adverse effects of Doxepin
in recommended doses, which effects were derived from clinical trials and
clinical experience with Doxepin at therapeutic levels, to conclude that
patient’s injuries resulted from a massive overdose of Doxepin).

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not based upon extrapolating from a sound scientific principle logically applied

in a manner that can be affirmatively articulated, referenced, reviewed,

tested, and empirically verified.    Betz, 44 A.3d at 39 (citing trial court

opinion). Rather, his testimony strikes me as the “best estimate,” the “gut

instinct,” or the “educated guess” of an orthopedic surgeon in the context of

a unique fact pattern. Id.

      This Court has opined, “[T]he breadth and character of an expert’s

extrapolations are relevant to the scientific acceptance of his methodology.

The alternative is to permit experts to evade a reasoned Frye inquiry merely

by making references to accepted methods in the abstract.” Betz, 44 A.3d at

58. Dr. Habib’s methodology is based on the use of abstract assertions about

the formation of bedsores or friction burns to reach a specific conclusion about

the plaintiff’s injury. At a minimum, the trial court should have conducted a

Frye hearing. Therefore, I respectfully dissent.




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