The Eleventh Circuit Court of Appeals has revived negligence claims filed against Laboratory Corp. of America for allegedly failing to identify abnormalities in the plaintiff’s Pap smears thus causing a delayed cancer diagnosis, finding that the district court erroneously excluded the plaintiff’s expert testimony. Adams v. Lab. Corp. of Am., No. 13-10425 (11th Cir., decided July 29, 2014). The expert had been retained to testify about whether the lab’s employees breached the standard of care for cytotechnologists when reviewing the plaintiff’s slides.
The appeals court determined, among other matters, that the district court erred when ruling that the expert’s methodology in reviewing the slides was unreliable because she did not conduct a blinded review as recommended by the College of American Pathologists (CAP) and American Society of Cytopathology (ASC) in their litigation guidelines. Finding that the expert’s methodology was reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702, the court disagreed that the guidelines set the standard for the profession.
In this regard, the court stated, “As far as we are aware, this is the first time that an industry group has promulgated a set of guidelines that attempts to define and limit the evidence courts should accept when the group’s members are sued. The members of the CAP and ASC have a substantial interest in making it more difficult for plaintiffs to sue based on alleged negligence in their Pap smear screening, and their guidelines do just that.”
According to the court, while the guidelines would require plaintiffs’ experts to conduct a “blind” review, they do not impose the same obligation on the defen- dant’s reviewers and, more importantly, impermissibly require an expert witness to eliminate any potential “review bias” in her opinion, which is “usually a credibility issue for the jury.”The court further stated, “[T]he ‘acceptance’ to which Daubert refers is the acceptance that the technique or theory has in the community’s own field of practice when the science is being applied outside the litigation context, not the scientific community’s opinion about the standard or type of proof that should be required in litigation.”
The court suggested that if such organizations could define what constitutes admissible expert testimony, nothing would stop pharmaceutical companies, for example, from adopting “guidelines setting high standards of proof for establishing that a plaintiff’s injury was caused by a given drug and justify[ing] doing so based on their experience with the complex nature of pharmacology and their expertise in the field.”
A concurring panel member would also have vacated the lower court’s summary judgment ruling, but would have done so because the issue was not the meth- odology the expert used. Rather, it was a matter of the application of professional judgment and scientific knowledge. “Because the admissibility of Dr. Rosenthal’s testimony hinges on the reliability of her knowledge of a cytotechnologist’s stan- dard of care rather than the reliability of any ‘methodology,’ her competence renders her testimony admissible under McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004),” in this jurist’s view. Under this approach, “the competency of a standard-of-care expert satisfies the demands of Rule 702 and Daubert.”