J-A06042-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW T. DEIVERT

v.

PITTSBURGH CHAUFFEUR, LLC. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1314 WDA 2017

Appeal from the Judgment Entered September 1, 2017

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD No 15-019904

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED: April 2, 2018

The learned Majority found no abuse of discretion in the trial court’s 

admission of testimony by the plaintiff’s expert, Dr. Gregory Habib. I, 

however, question how Dr. Habib’s opinion translated to legal causation based 

on accepted scientific methodology. Finding inadequate support in the law 

and the record at hand for the admission of Dr. Habib’s testimony, I 

respectfully dissent.

Pa.R.E. 702 governs the admissibility of expert testimony on scientific 

knowledge, which includes medical knowledge, and provides as follows:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized 

knowledge is beyond that possessed by the average layperson;
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(b) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant 

field.

Pa.R.E. 702. Rule 702 embodies the Frye test, derived from Frye v. United 

States, 293 F. 1013 (D.C. Cir. 1923), and adopted in Pennsylvania in 

Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). “Frye only applies to 

determine if the relevant scientific community has generally accepted the 

principles and methodology the scientist employs. . . .” Grady v. Frito-Lay, 

Inc., 839 A.2d 1038, 1043–1044 (Pa. 2003). The Frye test does not require 

proof “that the scientific community has also generally accepted the expert’s 

conclusion.” Id. at 1045. In light of Frye, “expert testimony must be based 

on more than mere personal belief and must be supported by reference to 

facts, testimony or empirical data.” Snizavich v. Rohm & Haas Co., 83 A.3d 

191, 195 (Pa. Super. 2013) (internal quotation marks and citations omitted).

I take issue in this case with the methodology Dr. Habib employed to 

reach his causation conclusion. This Court has addressed the meaning of 

“methodology” as follows:

As The Supreme Court observed in [Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993)], “‘Scientific 

methodology today is based on generating hypotheses and testing 

them to see if they can be falsified; indeed, this methodology is 

what distinguishes science from other fields of human inquiry.’” 

Daubert, 509 U.S. at 593, . . . quoting Green, Expert Witnesses 

and Sufficiency of Evidence in Toxic Substances Litigation: The 

Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U.L.Rev. 

643, 645 (1992). Stated differently, the scientific method is “a 
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method of research in which a problem is identified, relevant data 

are gathered, a hypothesis is formulated from these data, and the 

hypothesis is empirically tested.” Webster’s Encyclopedic 

Unabridged Dictionary of the English Language (“Webster’s”) 

1279 (1989). Within the meaning of the definition of the scientific 

method, “empirical” means “provable or verifiable by experience 

or experiment.” Id. [at] 468. Key aspects of the scientific method 

include the ability to test or verify a scientific experiment by a 

parallel experiment or other standard of comparison (control) and 

to replicate the experiment to expose or reduce error. Id. [at] 

318–319, 1217.

Trach v. Fellin, 817 A.2d 1102, 1113 (Pa. Super. 2003) (en banc).

Dr. Habib used the methodology of extrapolation. “Extrapolation is not 

science: in fact, it is a logical method used to estimate the value of a variable 

outside its tabulated or observed range” or “to infer (that which is not known) 

from that which is known.” Trach, 817 A.2d at 1114 (citation omitted).

Extrapolation has gained general acceptance in the scientific community under 

certain limited circumstances: “[W]hen the medical inquiry is new or the 

opportunities to examine a specific cause and effect relationship are limited; 

when the number of cases limits study of the disease; or . . . when ethical 

considerations prevent exposing individuals to a toxic substance for research 

purposes.” Id. at 1116 (citation omitted).

Dr. Habib, an orthopedic surgeon, did not treat the plaintiff and did not 

reference any literature or cases of burns arising from this specific type of 

situation. In fact, he repeatedly characterized the plaintiff’s burn as a “unique 

situation.” Dr. Habib’s Deposition, 5/3/17, at 19, 27, 32, 44, 47, 48, 50, 60. 

In extrapolating that the plaintiff’s injuries resulted from the same 
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biomechanics as a bed sore or a friction burn, Dr. Habib failed, however, to 

divulge the underlying scientific foundation for his opinion. Contrary to 

established scientific methodology, Dr. Habib did not “assemble all of the 

information,” “perform a weight of the evidence evaluation,” and decide, 

“based on the most credible work, what story is being told” as to the creation 

of a full-thickness friction burn from a twenty-minute ride in a cramped 

limousine. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 38 (Pa. 2012)

(illustrating how medical expert’s extrapolated conclusion that any inhalation 

of asbestos fiber was substantial factor in causing mesothelioma was not 

based on accepted scientific method). See also Checchio v. Frankford 

Hospital–Torresdale Division, 717 A.2d 1058 (Pa. Super. 1998) (affirming 

inadmissibility of experts’ testimony that was based “entirely on [their] own 

observations and experience in the field without any reference to outside 

sources on which [they] might predicate [their] findings”); Snizavich, 83 

A.3d 191 (rejecting expert’s testimony because it failed to demonstrate “any 

scientific basis, other than his own subjective beliefs”). Cf. Harris v. NGK 

North American, Inc., 19 A.3d 1053 (Pa. Super. 2011) (reversing exclusion 

of expert’s testimony that referenced outside data that supported the causal 

relationship he asserted).

Indeed, I see no indication in Dr. Habib’s report of the scientific method: 

Dr. Habib did not provide any description of a complete review of the wound 

care, friction burn, or dermatology literature that exists. He did not discuss
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whether the literature was adequate or not. He did not summarize that 

literature. In fact, Dr. Habib made no mention, let alone synthesis, of the 

literature. Additionally, Dr. Habib did not discuss the strengths and 

weaknesses of various studies or case reports related to wound care, friction 

burns, or dermatologic reactions that he relied upon. In fact, Dr. Habib did 

not rely on any studies or case reports.

1

 Dr. Habib provided no specific 

information regarding how much pressure, heat, and time are required to 

cause a full-thickness wound; how the patient’s age and health affect the 

formation of a full-thickness wound; how environmental, genetic, and/or preexisting conditions affect the formation of a full-thickness wound. In short, 

Dr. Habib offered no science in support of his conclusion that a twenty-minute 

ride in a cramped limousine caused a full-thickness wound.

What I do see is an opinion based “on subjective assessments of both 

cause and effect.” Checchio, 717 A.2d at 1062. Dr. Habib jumped from a 

general hypothesis, i.e., pressure and heat can cause sores, to a specific 

conclusion, i.e., the plaintiff’s twenty-minute ride in a cramped limousine 

caused a full-thickness wound. This approach disregards the generally 

accepted methodology for looking at causation in that Dr. Habib’s opinion was 

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 Cf. Trach, 817 A.2d at 1119 (affirming admission of medical testimony as 

to causation where expert reviewed patient’s medical records and medical 

literature and extrapolated from the documented adverse effects of Doxepin 

in recommended doses, which effects were derived from clinical trials and 

clinical experience with Doxepin at therapeutic levels, to conclude that 

patient’s injuries resulted from a massive overdose of Doxepin). 
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not based upon extrapolating from a sound scientific principle logically applied 

in a manner that can be affirmatively articulated, referenced, reviewed, 

tested, and empirically verified. Betz, 44 A.3d at 39 (citing trial court 

opinion). Rather, his testimony strikes me as the “best estimate,” the “gut 

instinct,” or the “educated guess” of an orthopedic surgeon in the context of 

a unique fact pattern. Id.

This Court has opined, “[T]he breadth and character of an expert’s 

extrapolations are relevant to the scientific acceptance of his methodology. 

The alternative is to permit experts to evade a reasoned Frye inquiry merely 

by making references to accepted methods in the abstract.” Betz, 44 A.3d at 

58. Dr. Habib’s methodology is based on the use of abstract assertions about 

the formation of bedsores or friction burns to reach a specific conclusion about 

the plaintiff’s injury. At a minimum, the trial court should have conducted a 

Frye hearing. Therefore, I respectfully dissent.