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Admissibility Of Scientific Evidence: Grady v. Frito Lay Keeps Frye And Clarifies General Acceptance Standard
By Carol L. Vassallo, Esquire*

The admissibility of scientific evidence has been a challenge for many courts since the time the Pennsylvania Supreme Court first adopted the general admissibility test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). The Pennsylvania Supreme Court, in Grady v. Frito Lay, 839 A.2d 1038 (Pa. 2003), retained the Frye standard and clarified the unanswered questions raised by Frye in an effort to make consistent the test's application in Pennsylvania.

In Grady , the plaintiff sought to introduce expert testimony that a snack product (a Dorito) was sharp enough to injure a human esophagus. By way of demonstration, the plaintiff's expert had planned to crush a Dorito between his finger and a Styrofoam pad. The trial court refused to allow him to do so because it found that the expert’s methodology was not generally accepted in the scientific community. A non-suit was entered against the plaintiff. The Superior Court reversed, and the defendant manufacturer appealed.

The Pennsylvania Supreme Court held that the Frye test would continue to be the standard for admissibility of expert opinion evidence in Pennsylvania because "Frye’s 'general acceptance' test is a proven and workable rule, which when faithfully followed, fairly serves its purpose of assisting the courts in determining when scientific evidence is reliable and should be admitted.” The Court determined that Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993) was a less restrictive approach but was a less workable standard because it requires a balancing of several factors (reliability, validity, general acceptance, and whether it will assist the trier of fact). This contrasts with Frye, which focuses solely on general acceptance. The Grady Court stated that focusing on this single factor will lead to more uniform, objective, and predictable results among the courts.

Another key aspect of the Grady case is that the Pennsylvania Supreme Court has finally determined that the party propounding the scientific evidence bears the burden of proof. Rejecting the Superior Court’s suggestion to the contrary, the Supreme Court stated affirmatively that “the proponent of expert scientific evidence bears the burden of establishing all of the elements for its admission under Pa. R.Evid. 702, which includes showing that the Frye rule is satisfied.”

The meaning of "general acceptance" has been one of the most critical and challenged aspects of the Frye test and has led to inconsistent rulings in lower courts. The Pennsylvania Supreme Court, squarely addressing the issue, held that only the expert’s methodology, not the expert’s conclusions, must be generally accepted by the scientific community. This does not mean, however, that all conclusions, no matter how novel, will be admissible when the methodology in and of itself is generally accepted. The Supreme Court reaffirmed that "in applying the Frye rule, we have required and continue to require that the proponent of the evidence prove that the methodology an expert used is generally accepted by scientists in the relevant field as a method for arriving at the conclusion the expert will testify to at trial ." Without this nexus, the testimony will not be admitted. The Supreme Court noted that this analysis provided "the most sensible approach, for it imposes appropriate restrictions on the admission of scientific evidence without stifling creativity and innovative thought.”

The Grady Court reaffirmed two independent standards of admissibility of scientific evidence. First, the expert must be qualified; second, the admissibility of the evidence lies within the discretion of the trial court. Indeed, the Grady Court emphasized that the Frye standard does not supplant the basic requirement that an expert must be qualified to offer the expert testimony. It found that the determination of an expert’s qualifications are distinct from whether the opinion evidence satisfies the Frye test. It also found that, as with other evidentiary matters, the question of admissibility of scientific evidence lies within the court’s discretion and its decision will not be reversed absent an abuse of discretion.

* Carol, an associate in our Philadelphia, PA office, can be reached at (215) 575-2654 or cvassallo@mdwcg.com.