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					                        ADMISSIBILITY OF EXPERT TESTIMONY


                                  JOSEPH R. FOWLER, ESQUIRE
                                    LEE H. ECKELL, ESQUIRE


I.     IN PENNSYLVANIA, THERE ARE TWO POSSIBLE STANDARDS TO
       DETERMINE THE ADMISSIBILITY OF EXPERT TESTIMONY

              The standards are set forth in Frye v. United States, 293 F.1013 (D.C. Cir. 1923)
and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

       A.      State Court Standard “General Acceptance”

1.     Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the Circuit Court for the

District of Columbia held that expert scientific testimony is barred from admission into evidence

unless the expert’s opinion has achieved “general acceptance” in the relevant scientific

community. In this case, the Defendant was convicted of second degree murder. During his

trial, the defendant attempted to submit expert testimony as to the result of a systolic blood

pressure deception test taken and “passed” by the defendant prior to trial. The trial court

decision, which was affirmed by the appellate court, held that because the defendant failed to

show that the systolic blood pressure test was generally accepted in the field of psychology

and/or physiology, such testimony was inadmissible at trial.

2.     Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). In Topa, the Supreme Court of

Pennsylvania adopted the Frye test as the test to be used to determine the admissibility of

scientific evidence in Pennsylvania courts. Topa appealed his first degree murder conviction by

arguing that expert testimony which identified his voice on an incriminating call was

impermissibly allowed to go to the jury. In applying the Frye test to the facts, the Topa court

found that because voiceprint technology was not yet generally accepted in the relevant field,

expert testimony regarding this technology was inadmissible at trial. The Supreme Court looked
to Law Journal articles and articles published by the scientific community in determining

“general acceptance”.

3.     Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994) In Crews, the defendant appealed

a death sentence following a jury trial in which he was convicted of murdering two hikers in

Perry County. The defendant’s main issue on appeal was the admissibility of DNA evidence

which was used against him at trial. Specifically, at trial, an FBI DNA expert testified that the

defendant’s DNA matched that of DNA patterns of semen samples taken from one of the

victims’ vagina. The defendant argued on appeal that he was denied a separate hearing on the

admissibility of the DNA evidence (a “Frye hearing”), and that the trial court improperly relied

on judicial decisions from other jurisdictions to establish the general acceptance of DNA testing.

The Supreme Court of Pennsylvania disagreed, and affirmed the lower court decisions.

Prior to handing down its decision, the Crews court discussed the applicability of Daubert to its

impending decision. While the court recognized that Daubert held that the Frye standard had

been superseded by the Federal Rules of Evidence, the Crews court reiterated that the narrow

holding in Daubert did not affect the court’s decision. Rather, the decision whether to admit or

exclude scientific expert testimony in Pennsylvania is gauged by the Frye test.

       As for the defendant’s argument that he was denied a Frye hearing, the court did not

reach the issue of whether a defendant has a right to such a hearing. Rather, the court found that

the trial court heard two days of testimony from experts in all fields related to DNA testing.

Although the court hinted that this was not a formal Frye hearing, the court found that this was

sufficient to protect the defendant.

       As for the DNA evidence’s admissibility under Frye, the Crews court held that the use of

DNA evidence was generally accepted in its field. Specifically, the court recognized that the
trial court was correct in its review of acceptability of DNA testing in the scientific community

and in American courts of many jurisdictions. Moreover, the court found nothing wrong with

the trial court’s use of case law from outside of the jurisdiction in making the decision.

4.      Blum v. Merrell Dow Pharmaceuticals, 764 A.2d 1 (Pa. 2000). In Blum, much like in

Daubert, the plaintiffs filed suit alleging that their son was born with a birth defect due to the

ingestion of the drug Bendectin by plaintiff-mother during pregnancy. At trial, plaintiffs

presented expert scientific evidence in an attempt to link the ingestion of the drug to the child’s

injuries. The trial court admitted the expert testimony under the standard espoused in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). On appeal, the Superior Court

reversed. The Superior Court held that the proper standard for admitting expert testimony in

Pennsylvania is that found in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that under

the Frye standard, the expert testimony used by the plaintiffs was inadmissible.

        The Pennsylvania Supreme Court held that a decision between the two standards was

unnecessary because plaintiffs’ expert testimony failed under both standards. Therefore, the

Court affirmed the Superior Court’s finding that judgment should be entered for the defendant.

As the Court refused to decide between the two standards, it appears that Frye is still good law in

Pennsylvania. This fact is further bolstered by the fact that two justices, Cappy and Castille,

wrote separate dissenting opinions stating that Frye should remain the law in Pennsylvania

despite the United State Supreme Court’s findings in Daubert.

5.      McKenzie v. Westinghouse Electric Corp., 674 A.2d 1167 (Pa. Commw. 1996). In

McKenzie, the plaintiffs filed suit alleging that their child died as a result of a ventricular septal

defect which was caused by the mother’s ingestion of contaminated water during pregnancy.

Specifically, the plaintiffs contended that the water was contaminated with trichloroethylene
(TCE), a substance that was utilized and stored at a warehouse near the plaintiffs home.

Plaintiffs averred that the TCE contaminated the groundwater, and such groundwater was

provided to the township where plaintiffs resided, and in turn, was given to the residents by the

township for use.

       The court’s opinion arose out of a motion in limine filed by defendants to preclude the

testimony of plaintiffs’ expert who was prepared to testify as to the deleterious effects of TCE.

Specifically, defendants argued that the opinion proffered by the expert was not generally

accepted by the teratological community. The trial court granted the motion in limine, and this

issue was appealed to the Commonwealth Court.

       In handing down its decision, the appellate court relied on the Frye standard to affirm the

lower court ruling. Namely, the Court held that Plaintiffs failed to set forth evidence showing

that their experts opinion was generally accepted in the teratological community. To the

contrary, the defendants’ experts stated that such an opinion was not generally accepted in the

field. Therefore, the court refused to find that the trial court abused its discretion in disallowing

the testimony.

6.     Wack v. Farmland Industries, Inc., 744 A.2d 264 (Pa. Super. 1999)              In this case,

the plaintiffs alleged that drinking water contaminated by gasoline caused the death of their

mother. Specifically, plaintiffs contended that water which was contaminated by gasoline from

defendants’ leaking storage tank exposed the decedent to contaminants which caused her to

develop a rare form of cancer. The trial court, however, found that plaintiffs’ expert failed to

meet the requirements of expert testimony, and therefore excluded the evidence. Namely, the

studies cited by the expert neither supported a causal link between the exposure and the cancer

suffered by the decedent, nor were generally accepted in the scientific community.
       The Wack decision made clear that both the methodology used by the expert, and the

expert’s conclusions must be generally accepted in the scientific community. Here, the court

found that neither prong of the analysis was met. Specifically, while the expert’s conclusions

dealing with causation were backed somewhat by the studies proffered, the opinion espoused by

the expert was not generally accepted throughout the scientific community. Moreover, the court

also questioned whether the methodology used to reach the conclusions was generally accepted.

Namely, while the expert had done epidemiological evaluations on the effects of benzene, he had

not done such studies on actual patients to a point where he could reach or publish any

conclusions. Moreover, the Wack court questioned whether the expert testimony would even

meet the less-stringent Daubert test since it was not published and/or subjected to peer review.

Therefore, the court upheld the lower court’s decision to exclude the expert testimony.

7.     Grady v. Frito-Lay, Inc., 2001 Pa. Super 382, 789 A.2d 735 (Pa. Super. 2001).

Plaintiff, Carl Grady, filed suit against Defendant, Frito-Lay, alleging that he sustained an

esophageal tear after eating Doritos snack chips. Defendant filed a Motion in Limine to exclude

Plaintiffs’ expert reports, arguing that they were inadmissible under Frye. The trial court granted

the Motion and Plaintiffs appealed. Dr. Augusto Delerme issued a report which concluded that

the Doritos chips caused the esophageal tear. Dr. Delerme relied in part on the expert report of

Dr. Charles Beroes, a chemical engineer who had conducted several tests on Doritos indicating

they were capable of causing an esophageal tear. The trial court precluded Dr. Beroes’ report

because the methodologies he used in testing the Doritos were not generally accepted in the

scientific community. Dr. Delerme’s report was also found to be inadmissible because it

depended in part on Dr. Beroes’ report, which was not scientifically sound.
       On appeal, the decision of the trial court was reversed and both doctors’ reports were

found to be admissible. The Superior Court reiterated that a person may be qualified as an expert

despite a lack of formal training, as long as the person can demonstrate knowledge greater than

that of a lay individual. The Court also noted that medical specialties often overlapped and that a

doctor may be qualified in several areas of expertise. Furthermore, the Court indicated that the

jury was responsible for evaluating the qualifications of an expert when determining the

credibility of the expert’s testimony. As a result, for purposes of the Motion in Limine, the Court

found that Dr. Delerme, a board-certified, otolaryngologist, was qualified to offer an opinion

regarding the cause of Plaintiff’s esophageal tear. In addition, the Court pointed out that Dr.

Delerme relied on the published articles attached to Dr. Beroes’ report, and stated that an expert

could reasonably rely on other medical literature in formulating an opinion. The Court also held

that Dr. Beroes’ report was admissible because the tests he conducted on the Doritos were

standard tests accepted in the scientific community. The criticisms of the tests offered by

Defendant were argument for trial, not a basis for precluding the report. The Court explained

that its role as gatekeeper was not to determine the correctness of an expert opinion, but to ensure

the reliability and relevancy of expert testimony.

       Defendant appealed the decision of the Superior Court, and the Supreme Court granted a

limited appeal to determine only whether the Superior Court correctly applied the law in

reversing the trial court’s preclusion of Dr. Beroes’ report. The appeal is still pending.

8.     Commonwealth v. Foreman, 2002 Pa. Super. 125, 797 A.2d 1005 (Pa. Super. 2002).

Defendant, Joseph Foreman, was convicted of multiple counts of receiving stolen property.

Defendant appealed his convictions on several grounds, including that the testimony of one of

the Commonwealth’s experts should have been precluded. Pennsylvania State Trooper Kurt J.
Tempinski, testified as an expert in forensic and tool mark identification and concluded that

certain metal punch stamps found in Defendant’s auto shop were used to alter serial numbers on

stolen motorcycles also located in the shop. Defendant alleged that Trooper Tempinski’s

testimony did not meet the Frye standard for admissibility because the technique used by the

trooper to relate the stamps to the alterations on the motorcycles was not generally accepted in

the scientific community. The trial court ruled that Trooper Tempinski’s testimony should have

been precluded, and reversed Defendant’s convictions for twelve of the criminal counts.     The

Superior Court disagreed and held that Trooper Tempinski’s testimony was admissible under

Frye. The Court cited numerous Pennsylvania cases in which tool mark identification was

previously determined to be a scientifically recognized area for expert testimony. As a result, the

trial court’s order for judgment of acquittal was overturned and the case remanded for

sentencing.

9.     Commonwealth v. Davies, 2002 Pa. Super. 355, 811 A.2d 600 (Pa. Super. 2002).

Defendant, John E. Davies, was detained twice by police officers because he was driving

erratically, and was subsequently arrested each time when he failed sobriety tests performed by

the officers. Defendant’s blood was tested by a laboratory technician at Analytic Bio-

Chemistries, Inc. (ABC) after his first arrest, and revealed .16 milligrams of morphine and a .039

blood alcohol content (BAC). After his second arrest, Defendant’s blood was tested by the

director of ABC, and showed .14 milligrams of morphine. The cases were consolidated and

Defendant was convicted of two counts of driving under the influence of alcohol and/or

controlled substance, as well as related summary offenses. Defendant appealed the convictions

arguing that the testimony of ABC’s director that Defendant could not safely operate a motor

vehicle with either a .039 BAC and .16 mg morphine in his system or .14 mg morphine in his
system, should have been excluded because his results were not generally accepted in the field of

toxicology.

       The Superior Court quoted portions of the trial court’s opinion regarding the admission of

the director’s testimony. The director testified that the scientific community recognized that

morphine would affect a person’s ability to operate a vehicle, and cited articles relied on to

support his conclusion. According to the director, he also relied on the laboratory findings which

were compared to prior studies of morphine and the actions of the individual matching with the

laboratory findings. Finally, the trial court pointed out that Defendant’s expert admitted that the

director’s methodology was generally accepted in the community. As a result, the Superior

Court held that the director’s testimony was properly introduced.

10.    Trach v. Fellin v. Thrift Drug, Inc., 2003 Pa. Super. 53, 2003 Pa. Super. LEXIS 180,

2003 W.L. 282804. In Trach, plaintiff filed suit alleging that defendants misfilled his

prescription for the antibiotic Amoxil, and instead dispensed the anti-depressant Doxepin. As a

result, plaintiff claimed he suffered from continuing cognitive difficulties, cluster headaches and

chronic open-angle glaucoma. At trial, plaintiff presented expert evidence that linked his

ingestion of Doxepin to the injuries claimed. There was no dispute that Doxepin could cause the

neurological symptoms of which plaintiff complained, although the defendants’ expert testified

that the symptoms should have resolved in a month. Additionally, defendants claimed the expert

testimony relating plaintiff’s glaucoma to the Doxepin was not based on generally accepted

principles in the scientific community. The trial court admitted the testimony and the jury

returned a verdict of five million dollars. Defendants filed post-trial motions arguing that the

expert’s causation testimony on glaucoma did not meet the standard required by Frye. The trial
court agreed and ordered a new trial on damages. Plaintiff appealed and the Superior Court

granted an en banc review to address the admissibility of scientific evidence at trial.

       The Superior Court initially noted that the Frye rule was an exclusionary rule of

evidence, and must be construed narrowly. The Court also pointed out that in 2001 the

Pennsylvania Supreme Court adopted Pennsylvania Rule of Civil Procedure 207.1, which

codified the proper application of Frye. Although Rule 207.1 did not take effect until after this

case was tried, it clearly indicated the state of the law in Pennsylvania. As a result, the Superior

Court specifically held that Frye was only intended to apply to novel scientific evidence. Blum

was overruled to the extent that it stated Frye was applicable “whenever science entered the

court.” Next, the Court clarified that only an expert’s methodology, not his conclusion, had to be

generally accepted in the scientific community. The Court’s position on this issue was also

contrary to the law espoused in McKenzie and Blum, which considered both the methodology

and conclusion of the expert. The Court then evaluated the two types of methodology used by

plaintiff’s expert, Dose-Response and extrapolation, and determined that they were generally

accepted methods in the scientific community. As a result, the Order granting a new trial was

vacated and the jury verdict reinstated.

       The importance of the Trach case was addressed in a recent article by the Honorable

Mark Bernstein.
11.    Davis v. Steigerwalt, 2003 Pa. Super. 87, 2003 Pa. Super. LEXIS 354. Plaintiffs, John

Davis and Kathleen Davis, were co-administrators of their daughter’s estate, and brought

wrongful death and survival actions against Defendants. Erin Davis was involved in a motor

vehicle accident between Defendants, Holly Metroka and Ronald Steigerwalt. She was a

passenger in Ms. Metroka’s vehicle, and both were killed in the accident. The case went to trial

and a jury found Defendants negligent and awarded $10,000 in damages on the wrongful death

claim, and $30,000 in damages on the survival action. Plaintiffs filed post-trial motions and the

court granted a new trial with respect to the damages in the survival action. Defendant

Steigerwalt filed an appeal based on three grounds, including that the trial court improperly

allowed John Shane, M.D. to testify about the speed of the Steigerwalt vehicle. Dr. Shane

testified as an impact pathologist basing his opinion on speed on the injuries sustained by Erin

Davis. On appeal, the Court separated Defendant’s argument into two issues: 1) whether Dr.

Shane was qualified to offer an opinion on speed; and 2) whether the basis of Dr. Shane’s

opinion was valid.

       First, the Court noted that the qualification of an expert witness is a liberal one. Dr.

Shane testified that his training and experience allowed him to determine the kinetic energy

necessary to cause the type of skull fractures Ms. Davis sustained. After that determination was

made, he used the mass of the Steigerwalt vehicle to perform a simple mathematical calculation

of the speed the vehicle had to be traveling to create the kinetic energy required to cause the

fractures. Based on this information, the Court found that Dr. Shane clearly had enough

specialized knowledge to address the speed of the Steigerwalt vehicle. In addition, Dr. Shane

testified that the formula he used in calculating the speed was based on his experience in
autopsies, working with police departments, and attending seminars and courses in the field of

impact pathology. The Court held that Defendant did not establish why or in what way Dr.

Shane’s methods and calculations were improper. An assertion that his calculation of impact

pathology differed from other types of accident reconstruction was insufficient to establish that

his methodology did not have general acceptance in the scientific community. As a result, the

Court ruled that Dr. Shane’s testimony was properly admitted into evidence.

B.     Federal Court Standard (Reliability and Relevancy).

1.     Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The Daubert case also

arises out of a suit filed by parents of a child who was born with defects allegedly the result of

the mother ingesting Bendectin. In this landmark case, the United States Supreme Court held

that the Frye standard for expert evidence admissibility was superseded by the adoption of the

Federal Rules of Evidence. Specifically, according to the Court, nothing in the Federal Rules

requires that the expert opinion be “generally accepted” to be admissible at trial. Rather, the

Federal Rules conceived of a much more liberal standard.

       According to Daubert, it is the trial judge’s duty to ensure that the expert will testify to

scientific knowledge that will assist the trier of fact to understand or determine a fact at issue.

This entails a preliminary assessment of whether the reasoning and/or methodology underlying

the testimony is scientifically valid (reliability), and whether that reasoning or methodology can

be applied to the facts at issue (relevancy). The Court then identified four factors which might

aid a trial court in determining whether expert testimony is reliable:

a.     Whether the theory or methodology can be, and has been, tested;

b.     Whether the theory or methodology has been subjected to peer review or publication;

c.     What is the known or potential rate of error for a particular scientific technique; and
d.     Whether the theory or technique has been generally accepted in the relevant scientific

       community.

The Court did not expect that the above list was all inconclusive and other factors could be

reviewed. The Court stressed that the inquiry is flexible, and its focus should be on principles

and methodology, and not on the conclusions that they generate.

       Federal Rule of Civil Procedure 702 was amended in December, 2000 to specifically

adopt the analysis set forth in Daubert and KumhoTire v. Carmichael, 526 U.S. 137 (1999).

2.     Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000). In this case, plaintiff was

seriously injured in a one-car accident when his truck struck a guardrail and bridge abutment.

Plaintiff sued by the truck’s chassis manufacturer, and the designer and manufacturer of the

finished truck. The lower court granted defendants’ motion for summary judgment because it

found that plaintiff’s expert testimony failed the Daubert analysis. Plaintiff then appealed to the

Third Circuit.

       The basis of plaintiff’s expert testimony was that the truck’s defectively designed front

bumper allowed the underside of the truck to ride up or “ramp” onto the guardrail and strike the

bridge abutment. Plaintiffs expert also opined that alleged defects in the truck’s cab had caused

the flooring to bend upon impact with the abutment, which caused plaintiff’s legs to be crushed.

One of plaintiff’s experts was a bio-mechanist, while the other was an engineer.

       Initially, the court held that where a trial judge has sufficient information with which to

make a decision on the admissibility of expert testimony, a separate “in limine” hearing is not

required. With respect to the admissibility of the expert testimony in this case, the court upheld

the lower court’s ruling that the testimony was inadmissible. In applying the Daubert factors to

the expert’s testimony, the court found that none of the expert’s conclusions had ever been
subject to prior testing. The expert’s opinions alone, without additional evidence to support it,

was insufficient to pass the Daubert analysis. Therefore, the court reasoned, such conclusions

could not assist the trier of fact as required by the Federal Rules.

3.     Kent v. Howell Electric Motors, 1999 U.S. Dist. LEXIS 10940. In Kent, plaintiffs

filed a wrongful death/survival action against defendant manufacturer for alleged design defects

in an electric sander. According to plaintiffs, the electric sander malfunctioned, and electrocuted

the decedent. In this regard, plaintiffs sought to have a professor testify as to causation. The

defendants, however, attacked the admissibility of this testimony on several grounds, including

the professor’s qualifications as an expert and his methodology.

       The Eastern District initially discussed the requirements of the Federal Rules for

admissibility of expert testimony. First, the expert must possess a minimal amount of

knowledge, skill, experience, or training on which he/she basis the testimony. The court

recognized, however, that this is a liberal requirement, and a witness may be qualified even if the

opposing party can point to various deficiencies in the witnesses qualifications.

Second, the expert must testify to scientific, technical, or other specialized knowledge which will

assist the trier of fact. Specifically, the expert’s opinion must be based on reliable methodology

and/or technique. In making this determination, the court reasoned, the trial judge should use the

list of factors found in Daubert. In addition, however, the court found that additional factors

could be used in the analysis. These additional factors include, 1) the relationship of the

expert’s methodology to other techniques known to be reliable, 2) the witness’ qualifications as

they relate to the methodology, and 3) the non-judicial uses to which the expert’s methods have

been put.
        Third, and finally, the expert’s testimony must “fit” into the case at hand. In other words,

the testimony must connect the witness’ conclusions, based on the reliable methodology, to an

issue presented in the case. Thus, even if the proposed testimony constitutes reliable scientific

knowledge, the testimony will be excluded if the knowledge has no relevance to the facts of the

case.

        In Kent, the Eastern District found that despite the professor’s limited qualifications, he

was sufficiently qualified to meet the circuit’s liberal standards. Where the testimony failed, the

court found, was the reliability of the professor’s methodology. Specifically, the court reasoned

that the professor’s testimony was unreliable because he could not rule out alternative theories

for what caused the product’s malfunction. Plaintiff’s expert simply could not rule out that either

tampering or normal use could have led to the malfunction. Therefore, the court did not allow

the professor to testify as to his opinions.

4.      Pappas v. Sony Electronics, Inc., 2000 U.S. Dist. LEXIS 19531 (W.D. Pa. 2000). In

Pappas, plaintiffs sued a television manufacturer alleging that a defect in a television caused a

fire which severely damaged the plaintiffs’ home. In order to prove causation, the plaintiffs

attempted to call an expert witness in the field of electrical engineering. The defendants filed a

motion for summary judgment claiming that the expert’s testimony should be excluded under

Daubert and its progeny. Specifically, defendants argued that the opinion of plaintiffs’ expert

was not based on reliable methodology.

        The court found in favor of the defendant, and denied plaintiffs’ expert from testifying.

The court held that it could not find that the methodology used by the expert was reliable

because plaintiffs failed to put forth relevant evidence on this issue. Specifically, the court noted

that plaintiffs did not introduce specific evidence about how the expert’s method was similar to
methods employed by others in the past. Also, plaintiffs failed to submit a single book or article

settling forth proper fire causation technique in order to compare same with its expert’s

technique. Without such evidence, the court held, it was impossible to determine whether the

expert’s methodology in this case was reliable. Therefore, plaintiffs’ expert testimony was

excluded from evidence.

II.    APPLICATION OF DAUBERT STANDARD APPLIES TO BOTH SCIENTIFIC

AND NON-SCIENTIFIC EXPERT TESTIMONY

1.     Kumho Tire Co., LTD. v. Carmichael, 526 U.S. 137 (1999). In Kumho, the United

States Supreme Court again revisited the issues addressed in Daubert. This time, plaintiffs sued

a tire manufacturer alleging that a tire blow-out on their minivan caused fatal injuries. Plaintiffs

planned to call an engineering expert to testify regarding causation. The district court excluded

the testimony based on the Daubert factors, but the court of appeals reversed.

       On appeal, the Supreme Court held that the Daubert analysis not only applied to scientific

expert testimony, but to all types of expert testimony. Moreover, the Kumho court found that the

factors used in Daubert should not be strictly construed. Instead, the Court reasoned that not all

of the factors may apply to each case. A trial judge, as gatekeeper, may use some or all of the

Daubert factors when making a determination as to whether to admit or exclude expert

testimony. The Federal Rules, the Court reasoned, give a trial judge wide latitude in deciding

how to determine an expert’s reliability and a court of appeals should use an abuse of discretion

standard when receiving a trial court’s decision to admit or exclude expert testimony. In Kumho,

plaintiff’s expert opined that a defect in the tire caused a blowout. The expert came to this

conclusion based upon a failure to find at least two of four physical signs that the blowout had

been caused by misuse known as “overdeflection”. The District Court found (and Supreme
Court affirmed) the methodology use by the expert to be unreliable. The courts specifically

stated that no other experts used the “two factor test” and no articles were published in support of

this test.
ADMISSIBILITY OF EXPERT TESTIMONY


           Joseph R. Fowler, Esquire
            POST & SCHELL, P.C.
        1800 John F. Kennedy Boulevard
                   19th Floor
                (215) 587-1003
            jfowler@postschell.com




             Lee H. Eckell, Esquire
            POST & SCHELL, P.C.
        1800 John F. Kennedy Boulevard
                   19th Floor
                (215) 587-5920
           leckell@postschell.com




            Philadelphia, PA
             Pittsburgh, PA
             Allentown, PA
             Lancaster, PA
             Harrisburg, PA
             Princeton, NJ

				
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