Adams v. Lab. Corp.

• Decision Date: 29 July 2014
• Docket Number: No. 13–10425.,13–10425.
• Citation: 760 F.3d 1322
• Parties: Christina Nicole ADAMS, Christopher L. Adams, Plaintiffs–Appellants, v. LABORATORY CORPORATION OF AMERICA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

760 F.3d 1322

Christina Nicole ADAMS, Christopher L. Adams, Plaintiffs–Appellants,

v.LABORATORY CORPORATION OF AMERICA, Defendant–Appellee.

No. 13–10425.

United States Court of Appeals, Eleventh Circuit.

July 29, 2014.

Charles Madden Cork, III, Law Office of Charles M. Cork, III, Macon, GA, Lawrence Bernard Schlachter, The Schlachter Law Firm, Roswell, GA, James O. Wilson, Jr., Law Offices of James O. Wilson, Marietta, GA, for Plaintiffs–Appellants.

Lillian Nash Caudle, Laura Christine Buchanan, Laura Christine Lawson, Olivia E. Marbutt, Robin A. Schmahl, Jones Day, Atlanta, GA, Carol Ann Hogan, Jones Day, Chicago, IL, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:10–cv–03309–WSD.

Before CARNES, Chief Judge, MARTIN and GARZA,^* Circuit Judges.

PER CURIAM:

Christina and Christopher Adams (“the Adamses”) filed a lawsuit against LaboratoryCorporation of America (“LabCorp”), alleging that its cytotechnologists were negligent in failing to identify abnormalities in Ms. Adams's Pap smears and that this negligence caused a delay in her cancer diagnosis. LabCorp moved to exclude the testimony of Dr. Dorothy Rosenthal concerning the alleged breach of the cytotechnologists' standard of care and moved for summary judgment based on the resulting absence of evidence regarding the standard of care. The district court granted both motions, and the Adamses now appeal. We reverse the district court's evidentiary ruling, vacate the grant of summary judgment to LabCorp, and remand for further proceedings.

I.

In the 32-month period from January 2006 to September 2008, Ms. Adams received five Pap smear tests. Her doctor took scrapings from her cervix, put them on a slide, and sent that slide to LabCorp for review to determine if there were abnormalities in the cells on the slide. Ms. Adams was not diagnosed with cervical cancer until August 2009, when she went to her doctor complaining of vaginal bleeding. By then, the cancer had metastasized in Ms. Adams's lymph nodes. The Adamses brought suit against LabCorp, alleging that, between 2006 and 2008, the LabCorp employees who viewed slides of Ms. Adams's cells failed to properly identify the abnormal cells on those slides that indicated precancerous conditions or cancer. They contend that those mistakes by LabCorp's employees delayed the diagnosis and treatment of her condition for several years until after her cancer had developed and metastasized.

LabCorp's method of reviewing samples is as follows. A cytotechnologist reviews each Pap smear slide by examining it under a microscope. Cytotechnologists are not doctors; they are laboratory professionals trained to examine cells using microscopes and to recognize cells that appear abnormal. ¹ If any of the cells on the slide has precancerous abnormalities or other indications of cancer, the cytotechnologist sends the slide to a pathologist ² for review. If the cytotechnologist does not see or recognize any abnormal cells, no pathologist reviews the slide.

The Adamses retained Dr. Rosenthal as an expert witness to testify about whether LabCorp's employees breached the standard of care for cytotechnologists when reviewing Ms. Adams's slides. Dr. Rosenthal's qualifications are extensive. She has been a Professor of Pathology at the Johns Hopkins School of Medicine since 1995 and served as Director of Cytopathology for the Johns Hopkins Medical Institutions from 1995 to 2003. She has two board certifications from the American Board of Pathology: one in Anatomic and Clinical Pathology, and another described as an Added Qualification in Cytopathology.³ She served on the initial task force that developed the Bethesda System terminology, which is the classification system that pathologists and cytotechnologists—including those working at LabCorp—use for reporting Pap smear results.⁴ She testified in her deposition that she also has “over 40 years of experience of training cytotechs.”

Dr. Rosenthal formed her opinion by traveling to Atlanta and reviewing Ms. Adams's slides at LabCorp's laboratory. She spent about 90 minutes examining Ms. Adams's Pap smear slides, using the same model of microscope that LabCorp's cytotechnologists used. She did not mix in slides from other patients, and she already knew that Ms. Adams had been diagnosed with cervical cancer. Dr. Rosenthal ultimately concluded that LabCorp's cytotechnologists' review of Ms. Adams's slides fell short of the applicable standard of care by failing to identify abnormal cells that should have been identified.

After the discovery period had closed, LabCorp moved to exclude Dr. Rosenthal's testimony concerning the alleged breach of the cytotechnologists' standard of care. In its motion, LabCorp contended that Dr. Rosenthal's review of Ms. Adams's Pap smear slides was tainted by an unreliable methodology. Assuming that Dr. Rosenthal's testimony were excluded, LabCorp also moved for summary judgment based on the absence of evidence regarding the cytotechnologists' standard of care, an essential element of the professional negligence claim.

The district court granted LabCorp's motion to exclude Dr. Rosenthal's testimony based on its conclusion that her methodology did not meet the reliability requirement of Federal Rule of Evidence 702.⁵ The court characterized her methodology as an ipse dixit assessment that could not be meaningfully reviewed by other experts. It insisted that she should have used a blinded review to evaluate Ms. Adams's slides,⁶ citing the litigation guidelines approved by the College of American Pathologists (“CAP”) and American Society of Cytopathology (“ASC”) as evidence that a blinded review was the standard set by the profession. The district court was troubled by the risk of bias in Dr. Rosenthal's assessment, based on the general risk of review bias in non-blinded reviews,⁷ as well as Dr. Rosenthal's deposition statementsabout her “philosophical bent” toward patients later diagnosed with cancer. Finally, the district court observed that Dr. Rosenthal's methodology did not adequately simulate a cytotechnologist's working conditions and circumstances, and that her role as a pathologist is “materially different in function and scope” from that of a cytotechnologist.

After Dr. Rosenthal's opinion on the standard of care was excluded, the district court granted LabCorp's motion for summary judgment.

II.

We review for abuse of discretion a district court's evidentiary ruling under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–42, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). We defer to the district court unless its ruling was “manifestly erroneous.” Tampa Bay Water v. HDR Eng'g, Inc., 731 F.3d 1171, 1183 (11th Cir.2013) (quoting Joiner, 522 U.S. at 142, 118 S.Ct. 512). The deference we show includes giving the court “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Even where a ruling excluding expert testimony is “outcome determinative” and the basis for a grant of summary judgment, our review is not more searching than it would otherwise be. Joiner, 522 U.S. at 142–43, 118 S.Ct. 512.

III.

The Adamses contend that the district court abused its discretion in excluding Dr. Rosenthal's testimony.

In Daubert, the Supreme Court explained that trial courts must act as “gatekeepers” tasked with screening out “speculative, unreliable expert testimony.” Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir.2010) (citing Daubert, 509 U.S. at 597, 113 S.Ct. 2786). In that role, trial courts may consider a non-exhaustive list of factors including (1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential error rate of the technique; and (4) whether the technique is generally accepted in the scientific community. Id. Later, in Kumho, the Court explained that the gatekeeping function governs all expert testimony based on “scientific technical, or other specialized knowledge,” not just scientific testimony. 526 U.S. at 147–49, 119 S.Ct. 1167 (quoting Fed.R.Evid. 702). The Court also stressed that the factors identified in Daubert “do not constitute a definitive checklist or test.” Id. at 150, 119 S.Ct. 1167 (internal quotation marks omitted). While those factors may help in assessing the reliability of scientific or experience-based expert testimony, the district court's “gatekeeping inquiry must be tied to the facts of a particular case.” Id. (internal quotation marks omitted). Furthermore, Kumho emphasized that the goal of gatekeeping is to ensure that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152, 119 S.Ct. 1167.

Federal Rule of Evidence 702, as amended in response to Daubert and Kumho, provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

We have distilled from Daubert, Kumho, and Rule 702 these three requirements: First, “the expert must be qualified to testify competently regarding the matter he or she intends to address”; second, the expert's “methodology ... must be reliable as determined by a Daubert inquiry”; and third, the expert's ...