United States: Pennsylvania Superior Court Rules Expert Testimony Inadmissible To Prove Causation In Toxic Tort Case Absent Supporting Scientific Authority Applied To Facts Of Case

Last Updated: December 19 2013
Article by John J. DiChello,Jr.

In a precedential ruling on the admissibility of expert testimony that is particularly significant to defendants in toxic tort matters, a three-judge panel of the Superior Court of Pennsylvania in Snizavich v. Rohm and Haas Co., No. 1383 EDA 2012, 2013 Pa. Super. LEXIS 3192 (Pa. Super. Ct. Dec. 6, 2013), ruled on December 6, 2013 that an expert's opinion regarding the cause of a plaintiff's injury is inadmissible under Pennsylvania Rule of Evidence 702 and the Frye standard if it is not based on scientific authority, such as facts, empirical studies, or the expert's research, that the expert has applied to the facts of the case and that supports the expert's opinion. This is so even if the expert relied upon many years of experience in medical or scientific fields and his or her own knowledge.

In Snizavich, the decedent was employed as a contractor at Rohm and Haas' facility in Spring House, Pennsylvania for 13 years, during which time he worked on air conditioning, refrigeration, and environmental chambers and allegedly came into contact with various chemicals. He subsequently died from brain cancer. The plaintiff, who was the decedent's wife, sued Rohm and Haas, contending that her husband's brain cancer was caused by exposure to chemicals at the Spring House facility and that Rohm and Haas was liable for her husband's death under the Wrongful Death and Survival Acts, 42 Pa.C.S. §§ 8301(a) and 8302.

Rohm and Haas moved for summary judgment due to the absence of expert testimony on causation, an essential element of the plaintiff's claims. That motion prompted the plaintiff to submit the expert report of Thomas H. Milby, M.D. and resulted in the denial of Rohm and Haas' motion. Thereafter, Rohm and Haas moved to exclude Dr. Milby's testimony under Pa. R. E. 702 and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The trial court ruled that Dr. Milby's testimony was inadmissible because it was not based on any scientific or technical methodology accepted by the scientific community; was not based on a reasonable degree of scientific certainty; and would not assist the trier of fact in understanding the evidence or facts. Significantly, the trial court noted that Dr. Milby purportedly relied upon a report by the University of Minnesota ("Minnesota Report") that found a statistically higher occurrence of brain cancer among individuals who worked at the Spring House facility. That report finding, however, ultimately was inconclusive as to the cause of brain cancer in the Spring House workers and the causal relationship between chemicals at the Spring House facility and the increased incidence of brain cancer—a critical fact that Dr. Milby ignored in reaching his contrary conclusion as to the decedent. Because Dr. Milby's opinion contained no evidence that the decedent's brain cancer was caused by chemicals at the Spring House facility and was not based on any scientific methodology supporting his conclusion, the trial court granted Rohm and Haas' Frye motion. The trial court also granted summary judgment for Rohm and Haas because the plaintiff could not offer any other evidence to prove causation. The plaintiff appealed.

In affirming the trial court's ruling excluding Dr. Milby's opinion, the Pennsylvania Superior Court concluded that the opinion "failed to meet the basic admissibility requirements for expert testimony" under Rule 702. Op. at *15. Specifically, to be admissible as expert opinion under Pennsylvania law, the proffered 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. Thus, expert testimony as to a causal relationship may be admissible, even if based solely on the expert's review of medical records and his experience and expertise in the applicable medical field, when the expert can point to some scientific authority that supports the causal connection.

Op. at *13 (emphasis added). The Superior Court reasoned that Dr. Milby's opinion that the chemicals at the Spring House facility caused the decedent's brain cancer lacked any scientific basis or authority—i.e., any facts, testimony, or empirical data—supporting his conclusion regarding the alleged causal relationship between exposure to chemicals at the Spring House facility and brain cancer. Instead, Dr. Milby offered an opinion based solely on documents relating to the decedent's medical and work histories and work conditions, the Minnesota Report (which was inconclusive as to the causal relationship between the Spring House facility chemicals and brain cancer and contradicted Dr. Milby's opinion), and his subjective beliefs, knowledge, and experience in the fields of epidemiology, toxicology, and occupational medicine. Because Dr. Milby did not rely upon any medical or scientific literature that actually found a causal relationship between exposure to chemicals at the Spring House facility and brain cancer, and did not provide any reason to doubt the scientific veracity of the Minnesota Report, the Superior Court concluded that Dr. Milby's opinion was nothing more than lay opinion offered by an expert and therefore was inadmissible.

The Superior Court's decision in Snizavich reaffirms the minimum standard under Pennsylvania law that proffered testimony must meet to qualify as expert opinion and be admissible. Critically, the decision also heightens, or at least reinforces, the burden of plaintiffs in toxic tort cases to proffer expert testimony with a sufficient scientific basis, applied to the facts of the case, to establish the requisite causal link between the alleged injury and exposure to the defendant's product. This burden will be particularly difficult for plaintiffs to meet where, as in Snizavich, the scientific and medical literature has not found a conclusive nexus between a given product and the alleged injury. Defendants in toxic tort cases therefore have another weapon in their arsenal to refute liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

John J. DiChello,Jr.
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions