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Methodology Means Most Under Frye (PA)

April 3, 2018

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On April 2, 2018, the Superior Court of Pennsylvania affirmed the trial court’s decision to admit expert testimony in <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/04/Cardwell-of-interest-opinion-4.3.18.pdf">Deivert v. Pittsburgh Chauffeur, LLC.</a></em>, over the objection of defendants.
On the night of February 1, 2014, plaintiff Matthew Deivert attended a birthday celebration for one of his friends from Allegheny College.  Several other people attended, and they rented a limousine bus to take them to a bar and back.  Around 2:00 a.m., the bus came to pick everyone up.  It could seat ten people, though twenty crammed in.  On the ride back, Deivert’s right leg became pinned between several passengers, causing excruciating pain.  When they managed to exit the bus, Deivert found that the friction from the ride had caused severe burns on his leg, requiring a later skin graft.
A jury returned a verdict against the bus company of $500,000 for Deivert.  Pittsburgh Chauffeur appealed, stating that the court incorrectly admitted Deivert’s medical expert testimony.  The court, and later Superior Court, denied this appeal on the basis that Pittsburgh Chauffeur was merely challenging Deivert’s expert on the basis that his conclusion was not generally accepted by the medical community.  Under the <em>Frye</em> test in Pennsylvania, the court only looks at whether an expert’s <em>methodology</em> is generally accepted, not their conclusion.  The court cited the fact that Deivert’s expert reviewed his records, conducted a physical exam, looked at photos, and reviewed deposition testimony, methodology which is generally accepted in the community.
This case sheds light on issues with the <em>Frye</em> test that is used in Pennsylvania courts.  As stated above, courts will focus on an expert’s <em>methodology</em>, and not the <em>conclusion - </em>however unique it may be from general opinion.  This is important to keep in mind when making <em>Frye</em> challenges in Pennsylvania and putting together motions <em>in limine</em>.  By properly focusing on the methodology used by the other side, instead of their end conclusions however odd, one can properly attack an opponent’s expert and try to keep out testimony from trial. But if the expert "connects the dots" between the accident and the treatment with accepted methodology, the Court will likely allow that testimony.  Thanks to Peter Cardwell for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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