Grady v. Frito-Lay, Inc.

Decision Date31 December 2003
Citation839 A.2d 1038,576 Pa. 546
PartiesCarl R. GRADY and Diana Grady, his Wife, Appellees, v. FRITO-LAY, INC., a Foreign Corporation, Appellant.
CourtPennsylvania Supreme Court

John A. Robb, Morton G. Forbes, pro hac vice, for appellant, Frito-Lay, Inc., a foreign corporation.

Mary A. Wells, pro hac vice, James Michael Beck, for appellant, for amicus curiae Product Liability Advisory Council, Inc.

John P. Joyce, Pittsburgh, for appellee, Carl R. Grady, et al.

Before RALPH J. CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, and LAMB, JJ.

OPINION

Chief Justice CAPPY.

In the present case, we consider whether the Superior Court correctly reversed the trial court's decision to exclude expert scientific evidence. We also consider whether to retain the rule announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for determining whether such evidence is admissible. We conclude that Frye continues to provide the rule for decision in Pennsylvania. We also conclude that the Superior Court erred in reversing the trial court's ruling.

On April 5, 1995, Carl R. Grady ("Mr.Grady") and his wife, Diana Grady (collectively, "Appellees") commenced a lawsuit against the appellant, Frito-Lay, Inc. ("Frito-Lay"). In their complaint, Appellees alleged that Mr. Grady ate several Doritos brand Tortilla Chips ("Doritos") that Frito-Lay designed, manufactured, and sold; that Mr. Grady felt as though chips had lodged in his throat; that Mr. Grady sought emergency hospital care; that medical procedures showed that Mr. Grady suffered an esophageal tear that resulted in serious physical injuries; and that the Doritos Mr. Grady had eaten caused the esophageal tear. Alleging further that Frito-Lay's Doritos are unsafe and defective because they fracture into hard, sharp fragments that are capable of lacerating the esophagus when eaten, Appellees set forth claims in negligence, strict liability, and breach of warranty.

When the pleadings closed, Frito-Lay filed Defendant's Motion for Summary Judgment, asserting that Appellees failed to produce evidence sufficient to satisfy their burden of proving that the Doritos had a defect; that the Doritos were improperly designed and manufactured; and that the Doritos caused Mr. Grady's esophagus to tear. Frito-Lay further alleged that expert testimony was necessary to prove each of these issues.

In their response to Frito-Lay's Motion for Summary Judgment, Appellees filed two expert reports. One of the reports (the "Beroes Report") was prepared by Charles Beroes, Ph.D., P.E., an associate professor emeritus of chemical engineering at the University of Pittsburgh. In his report, Dr. Beroes stated that Doritos possessed "several hidden-hazardous physical-strength and physical-shape properties" and described the tests he had performed on several types of Doritos, including Doritos that came from the bag of chips that Mr. Grady had eaten, to quantify these propensities. (Beroes Report at 2).

In one series of tests, Dr. Beroes measured the compressive strength of dry Doritos. In these tests, Dr. Beroes held a Dorito in his hand and pressed its triangular tip down on a platform gram balance that was covered with a pad until the chip snapped. He calculated the downward force needed to break each Dorito in grams, converted that force to pounds, and set forth "the average pressure that develop[ed] under the chip tips" and "the average breaking force [he had] applied to the tips". (Beroes Report at 5, 7, 9). Dr. Beroes summarized this series of tests as establishing that "[l]arge pressures result when a few pounds of force are applied to the triangular shaped chips. The chip points were able to endure high pressures before fracturing. The sharp triangular chips can readily pierce the esophagus when driven into the walls of the esophagus by peristaltic action." (Beroes Report at 3).

In a second series of tests, Dr. Beroes measured the time it took saliva to soften Doritos. These tests were conducted in the same manner as the dry chip test, except that Dr. Beroes used Doritos that he had wetted with saliva by holding them in his mouth for 15 seconds, 30 seconds, 45 seconds, and 60 seconds. According to Dr. Beroes, these tests showed that "the tips of the triangular chips did not soften sufficiently to prevent laceration of the esophagus after 60 seconds of exposure of saliva. Each triangular chip fractures into smaller triangular chips with sharp tips. These tips resemble spears. Enormous pressures occur on these needle sharp tips which can lacerate almost any tissues in the digestive tract." (Beroes Report at 10.)

Based on his tests, Dr. Beroes concluded that the Doritos were dangerous and defective because they broke into smaller triangular chips that were too sharp, too thick, and too hard for safe passage in the esophagus. He also opined within a reasonable degree of scientific certainty that Frito-Lay failed to warn of the dangers of eating Doritos; that it failed to conduct the appropriate safety studies; that it failed to produce and sell Doritos with uniform compressive strength and hardness; that Doritos were not fit for safe consumption; that Doritos were negligently designed and manufactured; and that their uneven and dangerous characteristics caused Mr. Grady's esophageal tear and resulting injuries. (Beroes Report at 21-23).1

By order dated December 10, 1998, the trial court denied Frito-Lay's Motion for Summary Judgment.

In January 1999, the parties filed their respective pretrial statements. Appellees identified Dr. Beroes as an expert witness.

Thereafter, Frito-Lay filed a number of motions in limine. In three of these motions, Frito-Lay sought to exclude Dr. Beroes' testimony.2 In a Motion to Preclude The Testimony Of Charles S. Beroes On The Issue Of Causation, Frito-Lay alleged that Dr. Beroes was not qualified by training or experience to testify as to the causal relationship between Mr. Grady's consumption of Doritos and his esophageal tear. In a Motion to Preclude Plaintiffs' Expert, Charles S. Beroes, From Testifying With Regard To The Ultimate Issues Of This Case, Frito-Lay alleged that Dr. Beroes' opinions with regard to ultimate issues were inadmissible because they were based on conflicting and unreliable evidence. And in a Motion To Preclude The Testimony of Plaintiffs' Expert, Charles S. Beroes, Frito-Lay alleged that Dr. Beroes' testimony regarding Doritos' physical characteristics was inadmissible because it did not meet the rule announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which required Dr. Beroes to show that the method he used to test the Doritos was generally accepted in the relevant scientific community. Frito-Lay's latter two Motions incorporated, inter alia, the report of one of its experts, Martin R. Okos, a professor of biochemical and food processing at Purdue University. In his report, Dr. Okos questioned the validity of Dr. Beroes' tests and the accuracy of his results. Appellees did not counter Frito-Lay's assertion that Dr. Beroes' testimony failed to meet Frye or Dr. Okos' critical appraisal of Dr. Beroes' tests with evidence from Dr. Beroes or any other source.

On January 26, 1999, the trial court heard argument in chambers on all of the Motions in Limine that Frito-Lay had filed.3 The trial court granted the Motions that raised the admissibility of Dr. Beroes' testimony, ruling that Dr. Beroes could not testify as to the tests he conducted on Doritos or give opinions about them.

Appellees then proffered the evidence they would submit to prove their case in view of all of the trial court's evidentiary rulings. In response, Frito-Lay moved for a compulsory non-suit. The trial court granted Frito-Lay's motion, concluding that Appellees would not be able to establish the elements of their claims.4 Subsequently, Appellees filed a motion to remove the compulsory non-suit, which the trial court denied. Ultimately, judgment was entered in Frito-Lay's favor.

In a memorandum opinion that followed, the trial court explained its reasons for excluding Dr. Beroes' testimony. The trial court stated:

It was the finding of this member of the Court, after taking into account the claimed expertise of the Plaintiffs' experts, and the methodology of Beroes, that Beroes' methodology was not based upon scientific data, or utilizing a methodology that was generally accepted in the community of scientists who evaluate food safety. Indeed, it was the impression of this member of the Court that Beroes' methodology smacked of a high school science fair project and did not bear any relationship to the reality of the mastication and consumption of foodstuffs. Beroes approached the characteristics of the Dorito chips as if it were a static evaluation of a material, rather than a consumable. Accordingly, this member of the Court determined that Beroes' methodology was akin to "junk science," did not meet the test of [Frye ] and its progeny, and that Beroes' methodology and opinion would only mislead the jury. Beroes was otherwise unqualified to render an expert medical opinion as to whether the Doritos caused the husband-plaintiff's injury. The Defendant's motion in limine as to Beroes' opinion was, accordingly, granted.

Grady v. Frito-Lay, 2000 WL 33436367 at *2 (Pa.Com.Pl. April 3, 2000).

On appeal, the majority of the Superior Court en banc reversed the trial court's order granting Frito-Lay's Motions in limine, vacated the judgment of non-suit, and remanded for trial. Grady v. Frito-Lay, 789 A.2d 735 (Pa.Super.2001).

As to Dr. Beroes, the Superior Court concluded that he was competent to testify on the physical characteristics of Doritos; that his testimony satisfied the Frye test; that his compression strength calculations used standard principles that experts in the field can and have examined; and that any flaws in Dr. Beroes' testing design could be the subject of cross-examination at trial.5 The...

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