Counsel representing plaintiffs’ interests recently weighed in on the Eleventh Circuit Court of Appeals ruling in Adams v. Laboratory Corp. of America, which determined that industry guidelines on how plaintiff’s experts must review Pap tests in the litigation context could not be applied to assess the reliability of an expert witness’s testimony under Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Further details about the Adams opinion appear in the August 14, 2014, issue of this Report. Some called the guidelines part of an “unprecedented attempt to limit access to the courts for women who are injured because of the negligent misreading of Pap smears.” Others indicated that the opinion will be helpful in persuading other courts that they should not “defer to professional groups with interest in the outcome of litigation.”
Some defense counsel argued that the Eleventh Circuit was wrong to criticize the professional societies that developed the guidelines, which were apparently designed to ensure that member testimony is “fair, reliable and represents the consensus of understanding within their community.” The College of American Pathologists (CAP), a group that prepared one of the guidelines on which the trial court based its decision to exclude the plaintiff expert’s testimony, reportedly indicated that it was “reviewing its policy” in light of Adams.
What particularly disturbed the Eleventh Circuit was that the rules applied only to plaintiffs’ experts; a plaintiff’s lawyer noted that they had not always been that way, and when drafted in 1998, the CAP rules were to apply to “both plaintiff and defense consultants and experts.” In 2000, when the American Society of Cytopathologists adopted its version, the group “dropped the requirement that experts who defend its members should reach their opinions in an unbiased or nonprejudicial manner.”
Harvard Medical School Associate Professor of Medicine Aaron Kesselheim, who is also an attorney, said that such guidelines can help professional societies self-regulate, but the trial court should not have used them as “a hard and fast exclusionary rule that would take the place of the judge’s judgment.” He supported the Eleventh Circuit’s decision and said it sent a “strong message to societies about guidelines that ‘cross the line’ and directly seek to position themselves inside litigation processes (which this court saw as beyond the scope of the medical professional societies) as well as to district courts about relying solely on these guidelines as the only way of assessing expertise.” See Bloomberg BNA Product Safety & Liability Reporter™, September 4, 2014.