Garced v. United Cerebral Palsy of Phila., 2023 Pa. Super. LEXIS 583 (December 7, 2023) (Stabile, J.).
BEFORE: STABILE, J., MCCAFFERY, J. and PELLEGRINI, J.
OPINION BY STABILE, J.
In this civil action, Appellants Samuel Garced (“Mr. Garced”) and Gladys Delgado-Garced (“Mrs. Garced”) allege that Mr. Garced suffered injuries from exposure to a disinfectant cleaner known as HaloSpray manufactured by Appellee Halosil International, Inc. that was applied to a sealed room by employees of Appellee United Cerebral Palsy of Philadelphia (“UCP”) using a “fogger” provided by Halosil. Mr. Garced claimed that he suffered permanent lung damage by inhaling HaloSpray fog that escaped through gaps between the sealed room and an adjacent room where he was cleaning. A jury awarded Mr. Garced $500,000.00 in damages for future medical expenses and $500,000.00 for past and future noneconomic loss but awarded no damages as to past lost earnings or future lost earning capacity. The trial court granted Halosil’s and UCP’s motions for judgment notwithstanding the verdict (“JNOV”) on Mr. Garced’s future medical expenses and future noneconomic loss based upon a failure to establish causation through competent expert testimony. The court denied Halosil’s motion seeking JNOV on the ground that Appellants’ action was preempted under the Federal Insecticide Fungicide Rodenticide Act (“FIFRA”), 7 U.S.C. § 136(v). The court ordered a new trial limited to the amount of past noneconomic loss related to Mr. Garced’s emergency room visits and follow-up treatment. Sanctions also were ordered as against Appellants and their counsel for conduct relating to the use of an interpreter at trial. Appellants appeal from the order disposing of post-trial motions. We affirm.
On October 7, 2021, the jury returned a verdict in favor of Mr. Garced in the amount of $1,000,000.00, finding UCP eighty percent (80%) liable and Halosil twenty percent (20%) liable. The verdict sheet reflected awards of $500,000.00 for “future medical expenses” and $500,000.00 for “past, present, and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life.” All parties filed post-trial motions. On December 7, 2021, the court entered an order denying Appellants’ post-trial motions as well as Halosil’s motion for JNOV under FIFRA. The court granted Halosil’s and UCP’s motions for JNOV for Appellants’ failure to submit sufficient evidence of causation. The court concluded that Appellants’ experts failed to meet the Frye and Rule 7023 standard for opining on proximate cause to support future medical expenses and future noneconomic loss, and that the jury therefore had no valid basis for these awards. Accordingly, the court vacated the jury’s verdict and ordered a new trial limited solely to the issue of any past noneconomic loss that Mr. Garced could recover related to his initial emergency room visit and its immediate aftermath, which in the court’s opinion, represented the only injury for which Mr. Garced had admissible medical opinions to establish causation in fact. Consequently, the court struck the award of future medical expenses and future noneconomic loss, and granted a new trial limited to the amount of past noneconomic loss related to Mr. Garced’s emergency room visits and follow-up treatment. The court denied UCP’s motion for JNOV based on Appellants’ misconduct during trial relating to the interpreter for Mr. Garced’s testimony. The court did, however, in granting a new trial, grant relief on the issue of this misconduct, providing:
[In the new trial,] the Court’s prior preclusions of evidence are imposed as the law of the case, the Jury’s determination that [Mr. Garced] failed to prove any damages based upon lost income is binding, [Appellants’] experts are PRECLUDED from offering testimony as to any current or future medical conditions, [Mrs.] Garced is PRECLUDED from bringing claims on her own behalf and [Mr. Garced] must produce his complete tax returns or suffer dismissal of his case.
Order, 12/7/21, at 2. The court further imposed two sanctions: an order requiring Appellants’ counsel to pay $5,000.00, and an order directing Appellants to pay counsel fees to Appellees relating to litigation concerning the interpreter.
The exercise of scientific expertise requires inclusion of scientific authority and application of the authority to the specific facts at hand. Thus, the minimal threshold that expert testimony must meet to qualify as an expert opinion rather than merely an opinion expressed by an expert, is this: the proffered expert testimony must point to, rely on or cite some scientific authority—whether facts, empirical studies, or the expert’s own research—that the expert has applied to the facts at hand and which supports the expert’s ultimate conclusion. When an expert opinion fails to include such authority, the trial court has no choice but to conclude that the expert opinion reflects nothing more than mere personal belief.
83 A.3d at 197. Instead, the Court concluded that Plaintiff’s expert report could “be aptly described as ‘scrupulously avoid[ing] the medical literature,’ and based ‘entirely on subjective assessments of both cause and effect,’ as it does not include any ‘research, conducted by [the plaintiff’s expert] or anyone else, to support [his] assertion[ ] on causation.'” Id., citing Checchio v. Frankford Hospital-Torresdale Division, 717 A2d 1058, 1062 (Pa. Super. 1998).
Id. at 6.
We concur with the trial court’s conclusion that Appellant’s failed to establish a causal connection between Mr. Garced’s initial exposure to HaloSpray on May 26, 2016, and his subsequent development of RADS. Essentially, Appellants’ experts simply gave their own opinions that Mr. Garced developed RADS due to an initial exposure of a known irritant, and that based upon a reported history of no prior respiratory problems, that his current diagnosis of RADS, as diagnosed through testing, was due to the HaloSpray exposure. This was insufficient. Appellants failed to present credible expert testimony comporting with Rule 702(c), in that the experts failed to rely upon any generally accepted scientific methodology to arrive at their opinions and failed to consider all relevant facts to support a causal link between Mr. Garced’s initial exposure and subsequent development of RADS, his claimed permanent injury.
It must be emphasized that the proponent of expert scientific evidence bears the burden of establishing all the elements for its admission under Rule 702, which includes (when applicable) a showing that the Frye test is satisfied. Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A. 2d 1038, 1045 (Pa. 2003).
The Frye test was adopted in Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (Pa. 1977), and “is part of Rule 702.” Grady, 839 A.2d at 1042. The Frye test provides that novel scientific evidence is admissible “if the methodology that underlies the evidence has general acceptance in the relevant scientific community.” Id. Our Supreme Court has made it clear however, that Frye is not implicated every time science comes into the courtroom; rather, it applies only to proffered expert testimony involving novel science. Commonwealth of Pennsylvania v. Dengler, 586 Pa. 54, 890 A. 2d 372, 382 (Pa. 2005). Therefore, while the methodology underlying expert testimony must generally be accepted in the relevant field, it is only when testimony is based upon novel science that the Frye test also must be met. Moreover, the Frye test applies to an expert’s methods, not to conclusions. Grady, 839 A.2d at 1047. Presently, we find that there is no need to determine whether any methodologies utilized by Appellants’ experts passed the Frye test to admit novel science, since no methodologies at all were identified to support causation in their testimonies.
The exercise of scientific expertise requires inclusion of scientific authority and application of the authority to the specific facts at hand. Thus, the minimal threshold that expert testimony must meet to qualify as an expert opinion rather than merely an opinion expressed by an expert, is this: the proffered expert testimony must point to, rely on or cite some scientific authority—whether facts, empirical studies, or the expert’s own research— that the expert has applied to the facts at hand and which supports the expert’s ultimate conclusion. When an expert opinion fails to include such authority, the trial court has no choice but to conclude that the expert opinion reflects nothing more than mere personal belief[.]
Our review of the record in this case establishes that Appellants’ experts presented no methodology—or in the words of Sniavich, no “facts,” no “empirical studies,” and none of their “own research,” 83 A.3d at 197—in support of their ultimate conclusions that HaloSpray caused Mr. Garced’s long-term injuries, i.e., RADS.
Conspicuously absent from any of their expert testimony, however, is any attempt to cite any credible or accepted scientific studies that link a single exposure of unknown quantity or intensity of the irritant identified in HaloSpray that caused an immediate injury that subsequently resolved, to the delayed response they opined as RADS due to the initial exposure. Neither expert presented any facts, studies or research that established (or even estimated) the concentration of any respiratory irritant to which Mr. Garced was exposed, or to establish a nexus between any irritant and Mr. Garced’s long-term conditions. To the extent any literature was referenced, that literature indicated that most people with RADS due to an acute exposure resolve quickly. Consistent with this was testimony and other evidence that Mr. Garced had normal findings at the emergency room after the incident and thereafter. The fact that Mr. Garced’s methacholine challenge tests produced results consistent with asthma did nothing more than establish that fact but do nothing in and of themselves to establish a causal link between the HaloSpray exposure and delayed onset of RADS. It appears both experts’ opinions reflect nothing more than their own personal beliefs, or at best, a working diagnosis.
Nor did any of Appellants’ experts attempt to conduct a credible differential diagnosis to eliminate other possible causes of Mr. Garced’s delayed onset of RADS. A differential diagnosis would have been essential in light of Mr. Garced’s medical history, the normal exams conducted contemporaneously with his exposure and thereafter, and the fact that his lung function did not start to decline until more than a year after the incident. Neither expert considered nor attempted to eliminate as possible causes of RADS any of Mr. Garced’s medical history prior to May 26, 2016.
Appellants clearly failed to satisfy Rule 702(c)’s standard of employing generally accepted methodology in coming to their opinions to establish a causal connection between the May 2016 exposure and Garced’s claimed permanent lung injury. Accordingly, we hold that the trial court properly entered JNOV against Appellants on their claims of future medical expenses and future noneconomic loss.
Appellants assert that the trial court erred by awarding a new trial limited to Mr. Garced’s past noneconomic loss. We agree with the trial court’s decision. The jury awarded $500,000.00 for “past, present, and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life” without distinguishing between the amounts awarded for past, present, and future damages. As discussed above, the trial court properly entered JNOV as to future medical expenses and future noneconomic loss, leaving past noneconomic loss as the only recoverable item of damages. Since the verdict sheet failed to specify this amount, a new trial is necessary to determine what, if any, damages are recoverable for past noneconomic loss.
We find no abuse of discretion by the trial court ordering a new trial based upon Appellants’ use of an ethically compromised interpreter. The Pennsylvania Rules of Professional Conduct for Judiciary Interpreters prescribe that interpreters “shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias or favoritism.” Rule 3, Pennsylvania Rule of Professional Conduct for Judicial Interpreters, 204 Pa. Code, Schedule F. The Comment to Rule 3 further explains that “[d]uring the course of the proceedings, interpreters should not converse with parties, witnesses, jurors, attorneys, or friends or relatives of any party, except in the discharge of their official functions.” Id. Interpreters must also disclose, before they testify, “any prior involvement, whether personal or professional, that could reasonably be construed as a conflict of interest,” and whether “they have been previously retained for private employment by one of the parties in the case.” Id. The interpreter herein failed these requirements. His pretrial meeting with Appellants to help them prepare for trial ended his impartiality and, along with his conversation with them during the trial, created an appearance of bias and favoritism. The interpreter’s violation of the rules, albeit at the behest of Appellants and counsel, requires a new trial, as the trial court held.
Relatedly, we also conclude that the court acted well within its discretion under 42 Pa.C.S.A. § 2503(7), by imposing sanctions upon Appellants’ counsel of $5,000.00 and directing Mr. and Mrs. Garced to pay counsel fees to Appellees relating to litigation concerning the interpreter issue.
[T]he misconduct here involved counsel and clients. However, the misrepresentations and omissions related to the circumstances of hiring the original Court Interpreter are entirely the actions of counsel, warranting the entry of a separate sanction against him. [Counsel’s] statements surrounding the hiring and firing of the Court Interpreter, the convenient absence of Mr. Garced, and the scheduling of Court Interpreters generally and the replacements for [the Interpreter], were, based upon his demeanor and duplicitous responses, wholly incredible, purposefully misleading and unremorseful. The court orders a Sanction of $5,000 against [counsel] to be paid to [Appellees’] counsel as attorneys’ fees.
It likely was improper for the court here to allow questions to Appellants’ economic expert about whether he considered taxes in calculating lost earning capacity. Any error, however, was harmless, since the jury did not award Appellants damages for loss of future earnings or earning capacity, and the court properly entered JNOV for future economic loss, as discussed above.
Appellants request a new trial on the ground that the court erred in allowing Appellees to question Appellants’ life care plan expert about Mr. Garced’s past medication costs, when Appellants were not seeking to recover past medical costs. We find that this cross-examination was appropriate. On direct examination, Appellants’ life care planner testified about projected future medical costs. On cross-examination, defense counsel challenged the planner’s opinions by seeking information regarding the amount of Mr. Garced’s past medical bills. This was permissible cross-examination, since past medical costs are relevant when future medical expenses are at issue.
Dr. Lee’s nonspecific diagnosis of an airway irritation/inflammation, without any attempt purporting to meet the expert criteria under Pa.R.E. 702 for the admission of expert testimony to establish a causal connection to the May 26, 2016 incident, requires that we deny any relief on this claim.
