Trach v. Fellin

• Citation: 817 A.2d 1102,2003 Pa. Super. 53
• Parties: Allen TRACH, Appellant v. J. FELLIN and Thrift Drug/Eckerd Store, Thrift Drug, Inc. and Eckerd Drug Co. Allen Trach v. Thrift Drug, Inc. (J. Fellin, Thrift Drug/Eckerd Drug Store, and Eckerd Drug Co.), Appellants
• Decision Date: 11 February 2003
• Court: Superior Court of Pennsylvania

817 A.2d 1102

2003 Pa. Super. 53

Allen TRACH, Appellant v. J. FELLIN and Thrift Drug/Eckerd Store, Thrift Drug, Inc. and Eckerd Drug Co.

Allen Trach v. Thrift Drug, Inc. (J. Fellin, Thrift Drug/Eckerd Drug Store, and Eckerd Drug Co.), Appellants

Superior Court of Pennsylvania.

Argued June 27, 2002.

Filed February 11, 2003.

John P. Karoly, Allentown, for Trach.

Alan K. Cotler, Philadelphia, for Thrift Drug/Eckerd Store.

Before: DEL SOLE, P.J., FORD ELLIOTT, JOYCE, STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN, KLEIN, and BENDER, JJ.

Opinion by FORD ELLIOTT, J.

¶ 1 We granted en banc review in this case in order to reevaluate the circumstances under which a party seeking to exclude expert scientific evidence may test the admissibility of that evidence pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In the process, we are required to revisit several recent panel decisions of this court to determine whether we have extended Frye beyond the parameters our supreme court has established, keeping in mind that Frye is an exclusionary rule of evidence. As such, it must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth. See Pa.R.E. 702, 42 Pa.C.S.A. ("If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise[]"). See also id. at Comment—1998 (noting that Rule 702 does not alter Pennsylvania's adoption of the Frye standard; also noting that the Rule does not change the rule for qualifying a witness as an expert enunciated in Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-481, 664 A.2d 525, 528 (1995) (holding, "The test to be applied ... is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.")).

¶ 2 In this case, the trial court vacated the jury's verdict of $5 million and granted Thrift Drug, Inc. a new trial as to damages, having determined that it erred when it allowed Allen Trach's scientific expert to testify. Thrift Drug challenged the expert's methodologies and conclusions, claiming neither had been generally accepted in the scientific community. After a thorough analysis of the circumstances under which a party may invoke Frye to exclude expert testimony, however, we are constrained to conclude that the trial court erred when it vacated the jury's verdict because Trach allegedly failed to establish a causal connection between Trach's long-term medical problems and Thrift Drug's negligence.

¶ 3 The facts of this case are not in dispute. Allen Trach ("Trach"), a healthy, 47-year-old man, went to his dentist on July 11, 1995, complaining of pain in his jaw. The dentist, suspecting an infection, gave Trach a prescription for forty 250-mg. capsules of Amoxil, an antibiotic, which Trach then took to a Thrift Drug Store pharmacy to fill. A pharmacy assistant mistakenly gave Trach 29 capsules of the antidepressant Doxepin, and told him to return for the remaining 11 capsules in a few days, as the pharmacy did not have 40 capsules in stock.

¶ 4 Doxepin has the potential to cause serious adverse reactions in individuals who take it in the recommended dosage. Trach, however, took the Doxepin according to the dosage his dentist prescribed for Amoxil, for which the dosage was appropriate.¹ According to Trach's expert's report, Trach took 1,800 milligrams ("mg.") of Doxepin on the first day. (Expert report of John J. Shane, M.D. ("Shane's expert report"), citing Physician's Desk Reference ("PDR") for Doxepin, R. at 31 Exhibit A.) The recommended optimal dose range for Doxepin is between 75 mg. and 150 per day, while the maximum recommended dose is 300 mg. per day. Physicians' Desk Reference ("PDR") at 2408 (53rd ed.1999).²

¶ 5 When Trach immediately experienced side effects, including visual symptoms, he consulted his physician, who diagnosed the problem as trigeminal neuralgia, but did not believe it was a side effect of the antibiotic. (Plaintiff's complaint at 3 ¶ 12, R. at 7.) Trach subsequently developed a sore throat, and, believing the sinus infection caused it, took an additional ten capsules of Doxepin over the next 24 hours. (Id.) Despite suffering hallucinations, heartburn, confusion, and extreme difficulty concentrating, Trach continued to take the medication until, according to Dr. Shane, he had consumed 4,800 mg. of Doxepin over a five-day period. (Shane's expert report at 1.)

¶ 6 On July 18, Trach returned to Thrift Drug to pick up the remainder of the prescription, and his wife noticed that the 11 new pills were different from the original 29. She called the pharmacy, and upon investigation, the pharmacist stated that Trach had been given the wrong medication initially, an antidepressant called Doxepin. Trach then went to the hospital for testing. (Trial court opinion, 5/18/00 at 5.) While most of Trach's reactions to the Doxepin subsided within a month, he continues to experience cognitive difficulties, cluster headaches, and vision problems.

¶ 7 In March of 1996, eight months after the Doxepin overdose and following repeated efforts to determine the nature of Trach's problems with his vision, Trach was diagnosed with glaucoma. (Notes of testimony, 6/17/99 at 138.) Mark E. Moran, D.O., the ophthalmologist who treated Trach's glaucoma, described it as "chronic open-angle glaucoma or even more specifically pigmentary glaucoma." (Id. at 116.) Additionally, Trach has a crescent-shaped blind spot, known as an arcuate scotoma, in his right eye as a result of optic nerve damage from the glaucoma. The damage to his eyesight is permanent and affects his ability to read and to engage in the hobbies of photography and hunting that he previously enjoyed. He is also concerned that he may not be able to retain his job because of his vision and cognitive problems.

¶ 8 According to the PDR, adverse reactions to Doxepin when taken in the recommended dosage may include blurred vision, confusion, disorientation, and hallucinations. The PDR also indicates that death or coma may result from an overdose of Doxepin, as well as confusion, disturbed concentration, transient visual hallucination, dilated pupils, and other serious consequences. Additionally, one of Thrift Drug's medical experts, Michael Naidoff, M.D., an ophthalmologist, acknowledged that Doxepin can cause narrow or closed-angle glaucoma in susceptible individuals. (Deposition of Michael A. Naidoff, M.D. ("Naidoff deposition"), 6/8/99 at 25, Defendant's Exhibit 4.) For obvious reasons, however, no one has conducted studies to determine the effects of a massive overdose of Doxepin such as the dose Trach took; therefore, no studies exist indicating that a massive overdose can cause open angle or pigmentary glaucoma, the form of glaucoma from which Trach continues to suffer. Similarly, no studies exist indicating that the usually transient side-effects of Doxepin, such as unsteadiness, confusion, poor memory, cluster headaches, and inability to concentrate, of which Trach still complains, can become permanent when an individual takes a massive overdose of Doxepin.

¶ 9 To support his claim that the Doxepin overdose caused the cognitive and vision problems he continues to experience, Trach proffered expert testimony from a board-certified pathologist and toxicologist, Dr. John Shane. Prior to trial, Thrift Drug filed a motion in limine to preclude Dr. Shane's testimony, claiming it did not meet the requirements for scientific expert evidence set forth in Frye, supra, and its progeny in Pennsylvania (the Frye test). See, e.g., Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117 (1998)

; Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994); and Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), the case in which our supreme court adopted the Frye test. See also Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314 (Pa.Super.1997),

affirmed,

564 Pa. 3, 764 A.2d 1 (2000). The trial court denied Thrift Drug's motion.

¶ 10 Dr. Shane was Trach's only expert witness on the issue of causation. The trial court in its opinion summarized Dr. Shane's expert testimony as follows:

Doxepin is a tricyclic antidepressant... Doxepin works by blocking the amine pump that transmits nerve impulses across synapses, the junction points at which nerve cells hook up with each other. The transmission of nerve impulses across synapses depends on an intact chemical environment. Doxepin interferes with this environment by blocking the transmission of the chemical acetylcholine. This blocking action is known as an anticholinergic effect. There may be adverse reactions or side effects from even a therapeutic dose of Doxepin. There are also contraindications for Doxepin, i.e., symptoms or conditions that may be exacerbated by the drug. The known side effects and contraindications have been determined through clinical trials prior to approval of the drug by the Federal Food and Drug Administration (the `FDA') and also from clinical experience since the drug has been on the market. The side effects and contraindications for a therapeutic dose of Doxepin are identified in the manufacturer's insert and in the Physician's Desk Reference (the `PDR'). The manufacturer's insert is included with each package of a drug that has been approved for marketing by the FDA. The PDR is a compilation of drugs that are available for the treatment of patients. It is considered authoritative and is relied on regularly by physicians in prescribing drugs to patients...

The symptoms experienced by Trach after ingesting Doxepin are consistent with the adverse reactions

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