John P. Joyce, Pittsburgh, for appellants.
John A. Robb, Pittsburgh, and Morton G. Forbes, Savannah, GA, for appellee.
Before DEL SOLE, President Judge, McEWEN, President Judge Emeritus, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE, STEVENS, MUSMANNO and ORIE MELVIN, JJ.
McEWEN, President Judge Emeritus.
¶ 1 This appeal has been taken from the order which denied the motion of Carl and Diana Grady, hereinafter appellants, to remove a compulsory non-suit entered against them following the conclusion of the trial judge that appellants could not establish causation, an essential element of their cause of action, by reason of the pre-trial ruling excluding the testimony of their two expert witnesses. We are constrained to reverse and remand.
¶ 2 Appellants filed a six-count complaint1 against appellee Frito-Lay, Inc., claiming that Mr. Grady had suffered an esophageal tear after eating five or six Doritos brand corn chips on April 5, 1993. The appellants alleged in the complaint that while eating the corn chips, Mr. Grady
experienced a sense of something getting stuck in the swallowing process in the area of his esophagus. After trying to alleviate the sensation of the Doritos being stuck and to further swallow what was stuck in his esophagus, Carl R. Grady drank four glasses of water to attempt to alleviate the pricking sensation he felt where some content of the Doritos snack had lodged, with eventual relief of the sensation. After returning home from work on April 6, 1993, Carl R. Grady felt weak, which resulted in his emergency hospitalization later that day, when it was revealed that he had been bleeding internally from an acute gastroesophageal tear.
Mr. Grady, who remained hospitalized for ten days after being diagnosed with a gastro-esophageal mucosal tear which had resulted in massive bleeding, instituted this action to recover damages for personal injuries and lost wages.
¶ 3 Once the pleadings were closed, appellee filed a motion for summary judgment based on the failure of appellants to produce, in response to discovery requests, any "medical testimony that would demonstrate that there is a causal relationship between the husband-plaintiff's consumption of Doritos chips and his resulting esophageal tear." Appellee also sought summary judgment on the basis of appellants' failure to produce any expert report, relating to the products liability claim, to establish that the corn chips were defective at the time they were manufactured and/or delivered to appellants, and that that defect caused the harm alleged by appellants.
¶ 4 Appellants, in their answer to the motion for summary judgment, attached the expert reports of Augusto N. Delerme, M.D., F.A.C.S, J.D., and Charles Beroes, Ph.D., P.E. Dr. Delerme, an otolaryngologist, stated in his expert report that after a review of the medical records and deposition of Mr. Grady, the discovery responses of Frito-Lay, and "research", he had concluded that
[b]ased upon the data available to me, it is clear that the Doritos Nacho chips, which Mr. Grady was attempting to eat, lacerated his esophagus on its passage down to the stomach. The laceration of the esophagus resulted in the bleeding that occurred thereafter. The absence of a history of severe retching or vomiting associated with this incident is against the laceration being a Mallory-Weiss tear or ulcer. The fast healing of the laceration goes along with those reported in the literature. The absence of a stricture or other esophageal abnormalities also fits the reported cases.
Based even upon the limited records of injuries provided by Frito-Lay, it is clear that its Nacho chips are physically capable of creating injuries to the mouth, including that of breaking and chipping teeth. The hardness of some of these Nacho chips and the sharpness of their edges as they are broken down, as demonstrated in a report from Charles S. Beroes, Ph.D., P.E., are sufficient to cause the injuries reported. There are several cases reported in medical literature which substantiate the danger to the digestive tract structures which tortilla type chips can cause including lacerations of the esophagus.
In my opinion, within a reasonable degree of medical certainty, the ingestion of the Doritos Nacho chips by Mr. Grady caused him to suffer a laceration of the esophagus. The manner in which Mr. Grady described his chewing of these chips was what would be normally expected in that process. It was the chip, or chips, which due to its peculiar characteristics, caused the injury to Mr. Grady as described. Finally, the care provided to Mr. Grady by St. Clair Hospital was necessary, and its bills were reasonable and appropriate.
¶ 5 The 23-page expert report of Dr. Beroes, Ph.D., P.E., an associate professor emeritus of chemical engineering at the University of Pittsburgh, opined, in part, that
The Doritos Tortillas Natural Cheese Flavored corn chips have several hidden-hazardous physical-strength and physical-shape properties which make them unreasonably dangerous. The majority of the chips are thick, hard, strong and because of oil coatings, do not quickly absorb the necessary saliva for softening the hard tips. The fact that sharp tips can build up considerable pressures at the tip when force is applied on the chip. [sic] An analogy is that a sharp chisel can cut hard steel. During chewing of the chips, the larger chips break into triangular smaller chips and very sharp tips. Experiments were conducted to measure and quantify these dangerous properties.
In the following series of tests, the arrow head shaped tips were held in the fingers pressed down on a platform gram balance. The balance was an OHAUS PRECISION STANDARD GRAM BALANCE, Model TS4KS, SERIAL NO. 5713, readability: 0.1 gram, capacity 4000 grams. The scale was tarred for each individual test with a soft Styrofoam pad. The chip was held firmly by the fingers and pressed down on the pad until the point snapped or crushed. The downward force necessary to crush the chip was measured in grams. The tips or point diameters were measured in microns and assumed to be circles. The force required to break the chip tip was read in grams and recorded. The fragments of the chip were then stored for further examination. The test results establish that large 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 chip tips can readily pierce the esophagus when driven into the walls of the esophagus by peristaltic action. This action on the flat wall of the chip drives the tip of the chip through the opposite esophagus wall.
¶ 6 The trial court, in response to the production of these reports, denied the motion for summary judgment by order dated December 9, 1998.
¶ 7 Appellee thereafter filed two motions in limine challenging the admissibility, under Frye2, of the proposed expert testimony of Dr. Delerme and Dr. Beroes. The trial court granted these motions, finding:
In this case, the Plaintiffs sought to "stack" the testimony of their two experts, Charles S. Beroes (hereinafter Beroes) and Augusto N. Delerme (hereinafter Delerme). In this case, the opinion of Delerme was not freestanding and depended for its efficacy upon the opinion of Beroes. On the other hand, the opinion of Beroes, taken alone, was insufficient to establish a nexus between the produce and the putative injury.
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 v. U.S., 54 App.D.C. 46, 293 F. 1013 (D.C.1923) 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.
This member of the Court further determined that Delerme, as a medical professional, was not qualified to opine as to whether the Doritos chip caused the gastroesophageal tear which the husband-plaintiff apparently suffered. In his report, Delerme necessarily relied upon the opinion of Beroes. Without Beroes, Delerme's testimony had no support and was not competent on the issues raised in this case. Accordingly, the Defendant's motion in limine as to Delerme was granted.
¶ 8 Appellants argue that the reasoning of the trial court was flawed, and urge this Court to reverse that ruling and, concomitantly, the resulting non-suit entered on the grounds of the absence of any causation testimony.
¶ 9 The expert testimony3 of Dr. Delerme was excluded as incompetent by the trial court based on the determination that "Delerme, as a medical professional, was not qualified to opine as to whether the Doritos chip caused the gastro-esophageal tear which the husband-plaintiff apparently suffered." We are unable to concur in this conclusion.
¶ 10 The purpose of a Frye inquiry is to enable the trial court, acting as a gatekeeper and not as a...
