Bunting v. Jamieson, 98-287.

Decision Date16 July 1999
Docket NumberNo. 98-287.,98-287.
PartiesMary Lou BUNTING and Nicholas Bunting, as guardians and natural parents of Raef A. Bunting, a minor, Mary Lou Bunting and Nicholas Bunting, Petitioners, v. Charles JAMIESON, M.D., Respondent.
CourtWyoming Supreme Court

Representing Petitioners: P. Richard Meyer of Meyer and Williams, Jackson, WY, Argument by Mr. Meyer.

Representing Respondent: Robert M. Shively and Amy M. Taheri of Shively Law Offices, Casper, WY, Argument by Ms. Taheri.

Representing Amicus Curiae: Donald I. Schultz of Holland & Hart, Cheyenne, WY, Defense Trial Counsel.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Petitioners, the Buntings, filed a medical malpractice action on behalf of themselves and their son, Raef. They claim the Respondent's failure to timely refer Raef to a genetic specialist delayed a proper diagnosis of Hurler Syndrome. Petitioners allege the delay caused a permanent and substantial deterioration in Raef's prognosis. After taking the deposition of the Appellant's expert, Respondent Dr. Jamieson filed a motion in limine to preclude the expert's testimony. Respondent contends the opinion is not reliable and, therefore, inadmissible under Rule 702 of the Wyoming Rules of Evidence. After hearing argument by counsel, the district court granted Respondent's motion, thereby excluding Petitioners' only proffered causation witness. We granted a writ of review, and here adopt the approach propounded by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. We find the district court abused its discretion, however, in its application of Daubert, and remand this case for a proper analysis.

ISSUES

Petitioners present the following issue for review:

1. In a case where treating physicians and scientists are unanimous that early treatment produces better outcomes, was it proper for the trial court to exclude the opinion of the Plaintiff's treating physician concerning Plaintiff's improvement if earlier treatment had been rendered?
2. Where Plaintiff's treating physician and preeminent expert on the disease from which Plaintiff is suffering testified that he would have been improved through an earlier diagnosis and treatment, was it proper for the trial court to prevent him from testifying to his opinion because quantification of the degree of improvement is subject to dispute?
3. Do Rule 702 or Daubert criteria apply to exclude the opinions of treating physicians who are applying medical knowledge which is within their expertise?
4. Was it proper for the trial court to make factual findings in the nature of summary judgment findings in ruling upon a motion in limine, when there were no facts presented to the court which would have justified them?

Respondent proposes a single issue:

Did the Honorable Hunter Patrick of the Fifth Judicial District abuse his discretion in ruling that plaintiffs' expert's causation testimony did not meet the requirements for admissibility of expert testimony?

Amicus Wyoming Association of Defense Trial Counsel phrase the issues as follows:

A. Should the district court's order excluding expert opinion testimony be reviewed under an abuse of discretion standard?
B. Should the proffered medical expert opinions be scrutinized under the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993)?
C. Given questions raised about reliability of the medical expert's conclusions, was it an abuse of discretion for the district court to exclude opinions as to how much better off this plaintiff would likely have been, assuming an earlier bone marrow transplant?
D. Did the district court act within its discretion, given the lack of foundation, when it excluded the opinion that this plaintiff would have been better off with an earlier bone marrow transplant?
FACTS

This case centers on the effect of a delayed diagnosis of Hurler Syndrome. The incidence of Hurler Syndrome is approximately 1 in 100,000 and is one of about 30 diseases known as "storage diseases." Although the infant appears normal at birth, the child lacks the ability to produce a specific enzyme, a-L-iduronidase. In the absence of this enzyme, deposits of glycosaminglycan accumulate in the body's organs and skeletal system, impeding their function. Eventually, the accumulation produces skeletal deformities, cardiac problems, neurological dysfunction, mental retardation, hearing loss, and corneal opacification. Untreated, the disease causes death at a median age of 5 years, and children rarely survive beyond ten years.

Hurler Syndrome occurs only when both a child's mother and father are genetic carriers. A person who is a carrier produces about half the amount of the enzyme that a non-carrier produces, while the person afflicted with the disease produces none. Raef's mother, father, and younger sister are carriers who produce about 50% of the normal production of the enzyme.

The accepted treatment for Hurler Syndrome is a bone marrow transplant. Although always a risky procedure, the relative complications and outcome depend in large part on the origin of the donor. There are three possibilities: (1) a donor with identical human lymphocyte histocompatibility (HLA-identical); (2) a donor related to the patient who is HLA similar; and (3) a donor unrelated to the patient who is HLA similar. The object of the bone marrow transplant is to provide the recipient with a new blood system containing the capability of producing the absent enzyme. The transferred capability is roughly equivalent to the production found in the donor. Thus, a successful bone marrow transplant from a carrier donor (heterozygous donor) would provide the capability to produce about 50% of normal levels of production, while a successful transplant from a noncarrier donor (homozygous donor) would theoretically allow 100% production. Research indicates that the bone marrow transplant, if successfully engrafted without major complications, will halt the usual progression of the disease and may, in some cases, improve the recipient's condition. Prior to a bone marrow transplant, the recipient is provided preparatory treatment, including chemotherapy, to enhance the chances of successful engraftment and reduce the risks associated with the procedure. This involves a period of approximately 14 weeks from diagnosis to transplant for recipients of unrelated donors. Some of the serious risks to the recipient are surgical trauma, post-surgical pneumonia, and graft versus host disease (GVHD). These risks are more common when the donor is not HLA-identical.

Raef Bunting was born on February 28, 1994. As his physician, Dr. Jamieson treated Raef for continuous medical problems, and on June 27, 1996, Dr. Jamieson wrote a letter referring Raef to a geneticist for evaluation. A genetic counselor from Shodair Hospital in Montana diagnosed Raef as having Hurler Syndrome. Following his diagnosis, Raef was transferred to the care of Dr. Krivit at the University of Minnesota Medical School for a bone marrow transplant. At that time, it was discovered that Raef's then nine-month-old sister, born when Raef was 21 months old, was a compatible carrier donor. Dr. Krivit performed a bone marrow transplant from Raef's sister in September 1996. The transplant has successfully engrafted, and Raef now produces approximately 50% of the enzyme.

Petitioners filed suit against Dr. Jamieson on January 9, 1997, claiming that Respondent's untimely referral significantly compromised Raef's recovery ability. They offered Dr. Krivit's expert testimony to establish that, had Raef received a transplant following an accurate diagnosis at approximately 12 months, rather than allowing the disease to progress until he received his transplant at 31 months old, Raef would have higher intelligence and fewer physical problems in the future. Dr. Jamieson objected to this testimony, claiming Dr. Krivit's opinion was based on a program experimental in nature, that it lacked scientific foundation, and it contradicted his own published statements and research. After hearing the motion on June 15, 1998, the district court held Dr. Krivit's testimony inadmissible. We granted a petition for writ of review of the district court's order.

STANDARD OF REVIEW

Petitioners contend that the standard of review should be akin to that of summary judgment, since the trial court made findings of fact which disposed of the case. This is similar to the "hard look" approach formerly utilized in some federal jurisdictions where the exclusion of expert testimony was dispositive. In re Paoli, 35 F.3d 717, 733 (3rd Cir.1994). This approach, however, has been rejected by the United States Supreme Court in General Electric Company v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997).

The standard when reviewing the application of Daubert was recently clarified by the United States Supreme Court:

The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable. Our opinion in Joiner [General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)] makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "review[s] a trial court's decision to admit or exclude expert testimony." 522 U.S. at 138-39, 118 S.Ct. 512. That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion.... Thus, whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.

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