Expert Testimony: Frye

Janssen Pharmaceutical Products, L.P. v. Hodgemire, ___ So. 3d ___, 35 Fla. L. Weekly D1855 (Fla. 5th DCA 8/13/10)

The plaintiff’s wife died of an overdose of fentanyl, a powerful narcotic painkiller, delivered by a Duragesic patch.  The plaintiff theorized that the patch was defective because it delivered “too much of the drug too quickly.”  In order to prove this theory, the plaintiff’s expert calculated the amount of postmortem redistribution, the release of drugs stored in the body’s tissues back into the bloodstream after death.  The manufacturer objected to this testimony under Frye.  Because the parties agreed that “the theory underlying postmortem redistribution is generally accepted” and “the methodology for determining how the postmortem redistribution ratio is calculated is generally accepted,” the “experts’ opinions concerning the amount of redistribution did not have to be generally accepted as well.”  “As long as the expert’s opinion is based upon “generally accepted scientific principles and methodology, it is not necessary that the expert’s deductions based thereon and opinion also be generally accepted as well.”  In this case “none of the science underlying postmortem redistribution [was] being challenged.”  Therefore, Frye did not preclude the testimony of the plaintiff’s expert.