897 So.2d 504 (Fla.App. 2 Dist. 2005), 2D03-3826, Gelsthorpe v. Weinstein

Docket Nº2D03-3826.
Citation897 So.2d 504, 30 Fla. L. Weekly D 571
Opinion JudgeThe opinion of the court was delivered by: Canady, Judge.
Party NameFarrah GELSTHORPE and Travis Bacus, as mother and father of Gavyn Bacus, and Farra Gelsthorpe and Travis Bacus, individually, Appellants, v. Lawrence I. WEINSTEIN, M.D., Paul R. Levine, M.D., Tampa Obstetrics, P.A., Galen Care, Inc., d/b/a Brandon Regional Hospital, Exodus Women's Center, Inc., and Columbia Brandon Regional Medical Center, Appellee
AttorneyArnold R. Ginsberg of Ginsberg & Schwartz, and Theodore H. Enfield, Miami, for Appellants.
Case DateMarch 02, 2005
CourtCourt of Appeal of Florida (US), Second District

Page 504

897 So.2d 504 (Fla.App. 2 Dist. 2005)

30 Fla. L. Weekly D 571

Farrah GELSTHORPE and Travis Bacus, as mother and father of Gavyn Bacus, and Farra Gelsthorpe and Travis Bacus, individually, Appellants,

v.

Lawrence I. WEINSTEIN, M.D., Paul R. Levine, M.D., Tampa Obstetrics, P.A., Galen Care, Inc., d/b/a Brandon Regional Hospital, Exodus Women's Center, Inc., and Columbia Brandon Regional Medical Center, Appellees.

No. 2D03-3826.

Florida Court of Appeal, Second District

March 2, 2005

Page 505

[Copyrighted Material Omitted]

Page 506

Arnold R. Ginsberg of Ginsberg & Schwartz, and Theodore H. Enfield, Miami, for Appellants.

Marlene S. Reiss and Cory W. Eichhorn of Stephens Lynn Klein LaCava Hoffman & Puya, P.A., Miami, for Appellees.

CANADY, Judge.

The plaintiffs in a medical malpractice action appeal the summary judgment in favor of the defendants which was entered after the trial court excluded the testimony of the plaintiffs' sole expert witness on the issue of causation. Because we conclude that the trial court erred in excluding the testimony of the expert, we reverse the summary judgment.

I. BACKGROUND

In their medical malpractice action the plaintiffs alleged that the infant plaintiff who was born on October 2, 1997, sustained significant brain damage at birth due to the failure of the defendant physicians to promptly perform a caesarean operation ("c-section") on his mother. The trial court granted the defendants' Frye 1 motion to bar, as not scientifically established and reliable, the testimony of the plaintiffs' only proposed witness on causation, Leon Charash, M.D., a neurologist specializing in pediatrics. The trial court granted summary judgment after the plaintiffs conceded that absent the testimony of that witness summary judgment was warranted for the defendants. On appeal the plaintiffs challenge the ruling barring the testimony by Dr. Charash on which the summary judgment was based.

A. Trial Court Order and Judgment

In this matter, after extensive oral argument, the trial court orally ruled that the testimony of Dr. Charash was not "based on a scientific principle or discovery sufficiently established to have gained general acceptance in the medical field." Neither party requested an evidentiary hearing or objected to this manner of disposition. Plaintiffs argued before the trial court that the testimony of Dr. Charash did not require Frye analysis because his opinion on causation of the child's condition was based solely on his experience and training, not on any novel scientific principle or procedure.

The court considered the deposition of Dr. Charash, a chapter of a medical text mentioned by Dr. Charash at his deposition, the deposition of David P. McGraney, M.D. (another plaintiffs' expert medical witness), and the deposition of the injured infant's mother, as well as three short affidavits submitted by the defendants from physicians (a neuroradiologist, a pediatric neurologist, and a pediatric geneticist).

Page 507

Each of these affidavits stated in conclusory fashion that Dr. Charash's opinions did not reflect generally accepted principles in the affiant's field of expertise.

B. The Proffered Expert Testimony

Dr. Charash testified at his deposition that he has been a physician since 1950, after graduating from Cornell Medical School. He is board certified in pediatrics, practices child neurology, and is a member of the Child Neurology Society. He has previously testified in court about 400 times as an expert witness, testifying as an expert in 10 states, including Florida, and has been deposed in approximately 400 additional cases.

Dr. Charash's deposition testimony was based on a review of medical records and a conversation with the infant's mother. He stated it was not necessary to examine the child because the child's current condition would not indicate the cause of that condition and that he accepted the findings in the medical records provided to him. In reaching his opinion, Dr. Charash did not review any medical literature. He relied on his experience practicing child neurology for forty-six years, as well as his reading of journals and texts and attendance at many seminars, roundtables, conferences, and lectures. In his career, he had treated approximately twenty children who suffered brain injury as a result of brain ischemia 2 related to cephalopelvic disproportion (CPD), 3 the alleged mechanism of the injury to the infant plaintiff, but none of the cases was exactly the same as that of the infant plaintiff. In other cases, the same mechanism of injury produced such conditions as cerebral palsy, epilepsy, and cortical blindness. On questioning as to whether any literature supported his opinion, he cited chapter 11 of the textbook Neurology of the Newborn by Joseph J. Volpe, M.D. Dr. Charash indicated at his deposition that he was aware that the chapter he cited discussed premature infants, while the infant plaintiff was a full term baby.

Dr. Charash concluded that the infant suffered brain damage as a result of ischemia during a traumatic birth caused by CPD. The brain damage was manifested by the child's rather severe mental retardation, with an IQ of less than 50. The child was unable to speak meaningfully, had severe problems with locomotion, as well as strabismus, 4 and was not toilet trained or able to feed himself.

Dr. Charash stated that the medical records indicated that the child's mother was having her first child, the mother had difficulty in labor, and ultimately a c-section was ordered based on readings from fetal heart monitoring. An expert in obstetrics was prepared to testify that the c-section was unduly delayed. Dr. Charash's testimony would have shown the adverse result to the infant arising from the delay.

Dr. Charash stated that the mechanism of the child's brain damage was a significant head compression, causing changes in cerebrovascular autoregulation which produced ischemia. Due to the failure to promptly order a c-section, the child remained too long...

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13 practice notes
  • Challenging expert witness testimony in Florida products liability cases under Frye.
    • United States
    • Florida Bar Journal Vol. 81 Nbr. 3, March 2007
    • March 1, 2007
    ...that attached to both the ciguatera toxin and the sodium channels. Id. at 545. (38) Id. at 549. (39) Id. (40) Gelsthorpe v. Weinstein, 897 So. 2d 504, 509 (Fla. 2d D.C.A. 2005)(expert witness testimony based on analysis of medical records and differential diagnosis should not have been subj......
  • Trial Court Rehearings Compared with Appellate Court Rehearings.
    • United States
    • Florida Bar Journal Vol. 94 Nbr. 2, March 2020
    • March 1, 2020
    ...to the nature of man, and the rule respecting rehearings is based upon this trait of human nature."). (62) Gelsthorpe u. Weinstein, 897 So. 2d 504, 509 n.9 (Fla. 2d DCA 2005) ("When a witness gives his personal opinion on the stand--even if he qualifies as an expert --the jurors m......
  • 67 N.E.3d 890 (Ill.App. 1 Dist. 2016), 1-15-0312, People v. Schuit
    • United States
    • Illinois United States Appellate Court of Illinois
    • September 30, 2016
    ...diagnosis technique *** is generally accepted in the scientific community.' [Citations.]" Gelsthorpe v. Weinstein, 897 So.2d 504, 509-10 (Fla.Dist.Ct.App. 2005) superseded by statute as stated in Perez v. Bell South Telecommunications, Inc., 138 So.3d 492, 497 ......
  • 110 So.3d 66 (Fla.App. 2 Dist. 2013), 2D11-3314, State Farm Mut. Auto. Ins. Co. v. Thorne
    • United States
    • Florida Court of Appeal of Florida (US) Second District
    • March 8, 2013
    ...subject to Frye analysis— when it is based solely on the expert's training and experience.’ " Id. (quoting Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005)). And Ms. Thorne's counsel specifically admitted at the hearing that biomechanics is not a new or novel science. Bec......
  • Request a trial to view additional results
9 cases
  • 67 N.E.3d 890 (Ill.App. 1 Dist. 2016), 1-15-0312, People v. Schuit
    • United States
    • Illinois United States Appellate Court of Illinois
    • September 30, 2016
    ...diagnosis technique *** is generally accepted in the scientific community.' [Citations.]" Gelsthorpe v. Weinstein, 897 So.2d 504, 509-10 (Fla.Dist.Ct.App. 2005) superseded by statute as stated in Perez v. Bell South Telecommunications, Inc., 138 So.3d 492, 497 ......
  • 110 So.3d 66 (Fla.App. 2 Dist. 2013), 2D11-3314, State Farm Mut. Auto. Ins. Co. v. Thorne
    • United States
    • Florida Court of Appeal of Florida (US) Second District
    • March 8, 2013
    ...subject to Frye analysis— when it is based solely on the expert's training and experience.’ " Id. (quoting Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005)). And Ms. Thorne's counsel specifically admitted at the hearing that biomechanics is not a new or novel science. Bec......
  • 939 So.2d 319 (Fla.App. 4 Dist. 2006), 4D05-3250, Cordoba v. Rodriguez
    • United States
    • Florida Court of Appeal of Florida (US) Fourth District
    • October 18, 2006
    ...pure opinion testimony and admissible when it is based solely on the expert's training and experience. See Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005). However, expert testimony which "relies on some scientific principle or test ... implies infallibility not fou......
  • 933 So.2d 568 (Fla.App. 1 Dist. 2006), 1D04-3227, Johnson v. State
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • April 27, 2006
    ...is not subject to a Frye analysis. See Herlihy v. State, 927 So.2d 146 (Fla. 1st DCA 2006) (citing Gelsthorpe v. Weinstein, M.D., 897 So.2d 504, 509 (Fla. 2d DCA 2005)). In Herlihy, we held that the appellant's trial counsel was not ineffective for failing to object to medic......
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4 books & journal articles
  • Challenging expert witness testimony in Florida products liability cases under Frye.
    • United States
    • Florida Bar Journal Vol. 81 Nbr. 3, March 2007
    • March 1, 2007
    ...that attached to both the ciguatera toxin and the sodium channels. Id. at 545. (38) Id. at 549. (39) Id. (40) Gelsthorpe v. Weinstein, 897 So. 2d 504, 509 (Fla. 2d D.C.A. 2005)(expert witness testimony based on analysis of medical records and differential diagnosis should not have been subj......
  • Trial Court Rehearings Compared with Appellate Court Rehearings.
    • United States
    • Florida Bar Journal Vol. 94 Nbr. 2, March 2020
    • March 1, 2020
    ...to the nature of man, and the rule respecting rehearings is based upon this trait of human nature."). (62) Gelsthorpe u. Weinstein, 897 So. 2d 504, 509 n.9 (Fla. 2d DCA 2005) ("When a witness gives his personal opinion on the stand--even if he qualifies as an expert --the jurors m......
  • Confronting experts whose opinions are neither supported nor directly contradicted by scientific literature.
    • United States
    • Florida Bar Journal Vol. 80 Nbr. 6, June 2006
    • June 1, 2006
    ...field in which it belongs." Frye, 293 F. at 1014. (3) Holy Cross, 816 So. 2d at 1117. (4) See, e.g., Gelsthorpe v. Weinstein, 897 So. 2d 504 (Fla. 2d D.C.A. 2005) (Testimony of neurologist that infant's brain damage was caused by physicians failure to promptly perform Caesarian operati......
  • Navigating Florida's Changing Daubert Tide in Business Cases.
    • United States
    • Florida Bar Journal Vol. 93 Nbr. 5, September 2019
    • September 1, 2019
    ...v. United States, 293 F. 1013 (D.C. Cir. 1923). (4) Brim v. State, 695, So. 2d 268, 271 (Fla. 1997). (5) See Gelsthorpe v. Weinstein, 897 So. 2d 504, 510 (Fla. 2d DCA 2005) (pure-opinion testimony not subject to Frye (6) Id. (7) Ch. 2013-107, Laws of Fla. The Florida Senate in its staff ana......

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