Marsh v. Valyou

• Decision Date: 23 December 2005
• Docket Number: No. 5D03-188.,5D03-188.
• Parties: Jill MARSH, Appellant, v. Robert Earl VALYOU, Jr., et al., Appellee.
• Court: Florida Supreme Court

917 So.2d 313

Jill MARSH, Appellant, v. Robert Earl VALYOU, Jr., et al., Appellee.

No. 5D03-188.

District Court of Appeal of Florida, Fifth District.

December 23, 2005.

John T. Stemberger, of Law Offices of John Stemberger, P.A., Orlando, and Shannon L. Akins, of Law Offices of Shannon L. Akins, Orlando, for Appellant.

Joseph Currier Brock, and Steven W. Igou, Orlando, for Appellees, Robert Earl Valyou, Jr., and Deborah A. Valyou.

Jane H. Clark, of Clark & Pardy, P.A., Ocoee, and Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appellees, Thomas J. Burke and Donna E. Burke.

E. Peyton Hodges and Robert W. Mixson, of Cameron, Hodges, Coleman, LaPointe & Wright, P.A., Orlando, for Appellee, PV Holding Corp.

GRIFFIN, J.

Jill Marsh ["Marsh"], the plaintiff below, appeals a summary final judgment entered against her in a personal injury action. Marsh complains that the trial court erred in refusing to allow her to offer expert testimony that she suffered from fibromyalgia and myofascial pain syndrome caused by trauma. We affirm.

In July 1999, Marsh filed an automobile negligence action against a series of four defendants, alleging that she had sustained injuries arising from four separate and unrelated automobile accidents occurring between August 1995 and January 1998. In Count I, Marsh sued the Valyous based on a collision on August 3, 1995, involving a vehicle driven by Deborah Valyou and owned by her father, Robert Earl Valyou. In Count II, Marsh sued Donna and Thomas Burke ["the Burkes"] based on an accident occurring on April 14, 1996, involving a vehicle driven by Mr. Burke. In Count III, Marsh sued PVC Holding Corp., d/b/a Avis Rent-a-Car ["Avis"] based on a June 20, 1996, accident involving a rental car owned by Avis. In Court IV, Marsh sued Scott David Chilcut based on a fourth accident occurring on January 20, 1998.¹

Marsh sought to recover damages associated with fibromyalgia, a chronic condition from which she suffered and which she claimed had been caused by the accidents, either individually or in combination. "Fibromyalgia" is a clinical term used to described a chronic "syndrome of widespread pain, a decreased pain threshold, and characteristic symptoms, including non-restorative sleep, fatigue, stiffness, mood disturbance, irritable bowel syndrome, headache, paresthesias, and other less common features." Dr. Frederick Wolfe, "The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability," 23:3 THE JOURNAL OF RHEUMATOLOGY 534, 534 (1996) ("Consensus Report"). The parties agree that fibromyalgia is a "legitimate, potentially debilitating, and very painful condition." Avis moved to prevent Marsh from presenting expert testimony that one or more of the accidents caused Marsh's fibromyalgia, asserting that such evidence failed to meet the standards set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), because it had not yet been generally accepted in the relevant scientific community that trauma could cause fibromyalgia. The Valyous and the Burkes joined in the motion.

Marsh opposed defendants' motion, arguing that: (1) Frye does not apply to opinions based on well-established scientific methods, and (2) Frye only requires that an expert's method be reliable, not that his conclusion be generally accepted. Marsh argued that Frye should not be used to exclude expert testimony that her fibromyalgia was caused by trauma, as these expert opinions were based not on new or novel scientific theories, but on an "examination of the patient, the clinical history of the patient, objective findings such as MRI results and muscle spasms, and the symptomology and diagnoses of fibromyalgia."

The trial court held a hearing on the Frye issue on November 6, 2001. Before the court were numerous documents regarding fibromyalgia. These documents showed that fibromyalgia syndrome is not a disease but a clinical construct used to characterize a chronic pain syndrome. In 1990, the American College of Rheumatology ("ACR") published criteria developed by Dr. Frederick Wolfe and others to classify the syndrome for use in a clinical setting. The ACR classification criteria "require generalized musculoskeletal pain and the presence of pain on palpitation at 11 or more of 18 specified tender point sites." Consensus Report, supra at 536.

In June 1994, a committee of fibromyalgia syndrome experts was convened by Dr. Wolfe under the auspices of the Physical Medicine Research Foundation at the University of British Columbia, in Vancouver Canada, to address issues pertaining to diagnosis, testing, assessment and progress. During a three-day conference, the committee reviewed available data, including reliability and validity of diagnosis and assessment methods, and then approved recommendations concerning the syndrome which were later published in the Consensus Report. Among the conclusions voted upon and approved by the committee were the following:

Overall, then, data from the literature are insufficient to indicate whether causal relationships exist between trauma and FM. The absence of evidence, however, does not mean that causality does not exist, rather that appropriate studies have not been performed.

Consensus Report, supra at 535. Regarding "Causality," the "Consensus Report" concluded:

The cause(s) of FM are incompletely understood. There may be events reported by the patient as precipitating and/or aggravating, including physical trauma, emotional trauma, infection, surgery, and emotional or physical stress. In determining the relationship between FM and antecedent events, the physician should consider the patient's opinion, and review the events and pertinent collateral information, including current and past medical and psychosocial history. The chronology of symptoms should be documented.

Consensus Report, supra at 536.

Also before the trial court was a 1997 supplement to the Consensus Report by Muhammad B. Yunus, et al., entitled "Fibromyalgia Consensus Report: Additional Comments" ("Additional Comments"). The Additional Comments had also been published in the JOURNAL OF CLINICAL RHEUMATOLOGY, Vol. 3, No. 6 (Dec.1997). The authors, who had attended the original conference, offered the following comments on causality and fibromyalgia:

With regard to injury and FMS, the Report emphasizes scientific causality and becomes involved in the jargons of retrodictive and predictive causal propositions. Causal propositions are rarely established with absolute certainty in the realm of medicine. An alternative (and better known model) is the consideration of consistency of association, strength of association, dose-response relationship, and biologic plausibility....

In the context of a legal setting (where the Consensus Report is likely to be used), causality entails only 51% certainty, usually stated in terms of reasonable medical probability. Based on a consistent clinical pattern, case control or descriptive studies, and biological plausibility of central nervous system plasticity, it seems more than 51% likely that trauma does play a causative role in some FMS patients, as agreed by other independent observers.

Additional Comments, supra at p. 324-325. The authors stated that the 1996 Consensus Report had been prepared based on the opinions of a "simple majority" of conference participants and stated that those using the report "should be aware of its controversial nature, its finite time line, and its inherent limitations." Id. at p. 326. The Additional Comments were signed only by certain members of the conference.

Plaintiffs also offered an article entitled "Musculoskeletal Injury as a Trigger for Fibromyalgia/Posttraumatic Fibromyalgia" ("Musculoskeletal Injury"), which had been published in CURRENT RHEUMATOLOGY REPORTS 2000, Vol. 2 (2000). The article authored by Drs. Dan Buskila and Lily Neumann states at the outset that:

Fibromyalgia (FM) syndrome is a chronic painful muscular disorder of unknown cause. Despite extensive research, the etiology and pathophysiology of FM are still unclear....

Physical and emotional trauma have been reported anecdotally to be precipitating factors in FM, and it is not uncommon for patients with FM to report the onset in relation to an accident or injury. However, evidence that musculoskeletal injury or trauma can cause FM comes from a few case series or case reports, and it is often insufficient to establish causal relationships.

Musculoskeletal Injury, supra at p. 105. Among the authors' conclusions were:

Traumatic incidents have been suggested as a possible etiologic factor relating to the onset of FM. However, evidence that musculoskeletal injury or trauma can cause FM comes from a few case series or anecdotal case reports. Reviewing the current literature reveals that data are insufficient to indicate whether causal relationships exist between trauma and FM.

Id. at p. 107.

Additionally, the court was asked to consider a report prepared by plaintiff's expert, Dr. Thomas J. Romano, entitled "Trauma and Fibromyalgia," which he was scheduled to deliver on November 14, 2001, to the American College of Rheumatology. In the report, Dr. Romano stated:

There has been some confusion in recent years over whether or not trauma can be caused by fibromyalgia[²] because of some conclusions reached by a group of doctors at a Conference in Vancouver in June of 1994. I was present at that conference and can attest that nowhere in the conference synopsis did the committee consensus group state that trauma could not be caused by fibromyalgia. What was stated was that at that time, namely in June of 1994, the majority of physicians attending the meeting could not come to the conclusion that truama [sic] could cause fibromyalgia because they did not feel enough studies had been done up to that time. This was the majority opinion, although many doctors in the group disagreed with it. Since that conference, other studies have indeed...