Pennsylvania Supreme Court Reaffirms Fealty to Frye Standard

Although our nation and our courts are still very much in the midst of addressing the acute aspects and effects of the COVID-19 pandemic, there will come a time when our courts return to more “normal” operations. It is likely that this will coincide with an influx of new litigation relating to COVID-19 claims of many kinds, including, of course, personal injury and, tragically, wrongful death claims. For many of those claims, the use of experts and expert testimony to address issues of causation will be critical—just as they are in many non-COVID-19 claims that companies, including those in the life sciences industry, have faced for years.

It is always good practice to know and understand the standards by which the scope and admissibility of expert testimony will be addressed when litigating a case. At the federal level, and in many state courts as well, the Daubert standard governs. In other states, the older Frye standard still prevails.

This week, the Pennsylvania Supreme Court issued an opinion in Walsh v. BASF Corporation, et al., that reaffirmed that state’s fealty to the Frye standard. A full analysis of the nuances and implications of the court’s majority opinion, together with the separate concurring opinion, the separate concurring-and-dissenting opinion, and the separate dissenting opinion, is beyond the scope of this post. However, suffice it to say that under the majority’s opinion, it appears that Pennsylvania state court judges are admonished only to assess an expert’s methodology and not to examine whether the expert has sufficient factual support for her or her opinions. This obviously entails a much less rigorous gatekeeping role than judges applying a Daubert standard are afforded.

Life science companies, and the attorneys who defend them, facing personal injury and wrongful death claims pending in Pennsylvania state courts should thus understand and frame their expert proofs, as well as their challenges to their adversaries’ expert proofs, under the Frye standard and the more limited judicial gatekeeping role that standard entails.


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