Grant v. Boccia

• Citation: 133 Wn. App. 176,137 P.3d 20
• Decision Date: 28 March 2006
• Docket Number: No. 24320-6-III.,24320-6-III.
• Court: Court of Appeals of Washington
• Parties: Adam GRANT and Tami Grant, individually and as husband and wife, Appellants, v. Gertrude BOCCIA and John Doe Boccia, individually and as wife and husband, Respondents.

137 P.3d 20

133 Wn. App. 176

Adam GRANT and Tami Grant, individually and as husband and wife, Appellants, v. Gertrude BOCCIA and John Doe Boccia, individually and as wife and husband, Respondents.

No. 24320-6-III.

Court of Appeals of Washington, Division 3.

March 28, 2006.

Publication Ordered June 6, 2006.

Steven P. Krafchick, Krafchick Law Firm, Seattle, Charles K. Wiggins, Wiggins & Masters PLLC, Bainbridge Island, for Appellants.

Andrew B. Williams, James P. Richmond/Managing Attorney, Tacoma, M. Colleen Barrett, Barrett & Worden PS, William A. Olson, Charles Edward Siljeg, Aiken, St. Louis & Siljeg PS, Seattle, Robert C. Tenney, Yakima, for Respondents.

KATO, C.J.

¶1 Adam and Tami Grant appeal the trial court's summary dismissal of their negligence suit. They contend the court erred by excluding expert testimony that Mr. Grant's fibromyalgia¹ was caused by an automobile accident and by dismissing their suit for lack of causation. We affirm.

¶2 On October 23, 1997, Gertrude Boccia collided with Mr. Grant's vehicle while she was changing lanes. The collision forced Mr. Grant's vehicle onto the curb. On October 9, 2000, the Grants sued Ms. Boccia, claiming the accident caused Mr. Grant's fibromyalgia.

¶3 On December 15, 2003, Ms. Boccia moved to exclude any expert medical testimony the trauma from the accident caused Mr. Grant's fibromyalgia. Ms. Boccia argued under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), the proposition that trauma causes fibromyalgia is not generally accepted in the relevant scientific community and such testimony should be excluded. The court granted the motion and dismissed the lawsuit because the Grants could not otherwise prove causation. This appeal follows.

¶4 The Grants contend the court erred by excluding the expert opinion testimony that trauma causes fibromyalgia. Id at 1014. A witness qualified as an expert may testify on the basis of "scientific, technical, or other specialized knowledge" if the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." ER 702. But the admission of novel scientific evidence involves two related inquiries: (1) whether the scientific principle or theory from which the testimony is derived has garnered general acceptance in the relevant scientific community under the Frye standard; and (2) whether the expert testimony is properly admissible under ER 702. See State v. Riker, 123 Wash.2d 351, 359, 869 P.2d 43 (1994); State v. Copeland, 130 Wash.2d 244, 261, 922 P.2d 1304 (1996) (affirming Washington's adherence to Frye despite U.S. Supreme Court's adoption of a different test in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)); see State v. Dunn, 125 Wash.App. 582, 590, 105 P.3d 1022 (2005).

¶5 In examining a Frye question, the court must determine: "(1) whether the underlying theory is generally accepted in the scientific community and (2) whether there are techniques, experiments, or studies utilizing that theory which are capable of producing reliable results and are generally accepted in the scientific community." Riker, 123 Wash.2d at 359, 869 P.2d 43. Under the Frye test, we do not determine if the scientific theory underlying the proposed testimony is correct. Rather, we must look to see whether the theory has achieved general acceptance in the appropriate scientific community. Id. at 359-60, 869 P.2d 43. If there is significant dispute in the relevant scientific community about the validity of the scientific theory, it may not be admitted. State v. Cauthron, 120 Wash.2d 879, 887, 846 P.2d 502 (1993), overruled in part by State v. Buckner, 133 Wash.2d 63, 941 P.2d 667 (1997).

¶6 The review of a trial court's decision to admit or exclude novel scientific evidence is de novo. Id. A reviewing court will undertake a searching review that is not confined to the record and may involve consideration of scientific literature. Copeland, 130 Wash.2d at 255-56, 922 P.2d 1304. "Decisions from other jurisdictions may be examined as well, but the relevant inquiry is the general acceptance by scientists, not by the courts." Cauthron, 120 Wash.2d at 888, 846 P.2d 502.

¶7 The Grants first contend the court erred in applying Frye because the doctrine is inapplicable here. They argue that because the experts' opinions were derived from accepted clinical methodologies consisting of common and well-accepted evidence to support a conclusion on causation, Frye has no application. Although the core concern of Frye is only whether the evidence being offered is based on established scientific methodology, the analysis requires both an accepted theory and a valid technique to implement that theory. Cauthron, 120 Wash.2d at 889, 846 P.2d 502. "`[T]he thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Id. at 887, 846 P.2d 502 (quoting Frye, 293 F. at 1014).

¶8 Here, the Grants provided no evidence their experts' methodologies to conclude trauma causes fibromyalgia were sufficiently established to have gained general acceptance. Indeed, the record reflects medical science is still unclear as to the processes that trigger fibromyalgia. The simple assertion that their experts' methodologies are common and well-accepted to prove causation does not take their opinions outside the ambit of Frye. The "use of a general methodology cannot vindicate a conclusion for which there is no underlying medical support." Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir.1999).

¶9 The Grants next assert Frye is inapplicable because the theory that physical trauma causes fibromyalgia is not new or novel. "[E]vidence that does not involve new methods of proof or new scientific principles is not subject to the Frye test." State v. Baity, 140 Wash.2d 1, 10, 991 P.2d 1151 (2000). This is because full acceptance of a process in the relevant scientific community obviates the need for a Frye hearing. State v. Russell, 125 Wash.2d 24, 41, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995). But here, the record reflects there is no definitive acceptance as to the cause of fibromyalgia. The theory that fibromyalgia is caused by trauma is a new scientific principle subject to the Frye analysis.

¶10 Citing Reese v. Stroh, 128 Wash.2d 300, 907 P.2d 282 (1995), a medical malpractice case, the Grants also assert that expert opinion on the cause of a medical condition is not subject to the Frye test. Because their expert was offering testimony on causation, they argue Frye is inapplicable here.

¶11 In Reese, a doctor sought to exclude under Frye the patient's expert testimony that the doctor's failure to treat the patient with a specific drug therapy caused decreased lung capacity. Id. at 303-04, 907 P.2d 282. Our Supreme Court held Frye was inapplicable because the doctor did not argue that the theory or methodology involved in the therapy lacked acceptance in the scientific community. Id. at 307, 907 P.2d 282. But in Ruff v. Department of Labor & Industries, 107 Wash.App. 289, 301, 28 P.3d 1 (2001), Division One was confronted with the issue whether an expert could testify that odor-level chemicals present during a remodeling job caused the plaintiff's porphyria—a rare, mostly hereditary disorder of blood enzymes. The plaintiff cited Reese and claimed the expert's causation testimony was not subject to Frye. Id. The Ruff court distinguished Reese and held that because the defendants argued the plaintiff's theory lacked general acceptance in the medical community, the causation opinion squarely implicated Frye. Id.

¶12 Like Ruff, the central question here is whether the Grants' theory on causation was an accepted theory. It is therefore distinguishable from Reese. Ms. Boccia claimed that the theory that trauma caused Mr. Grant's fibromyalgia lacked general acceptance in the medical community. She also provided supporting evidence that opinions purporting to link physical trauma with fibromyalgia were not based on accepted scientific methodology or theory. Because the Grants' expert opinions were subject to Frye, we must now determine whether evidence that trauma causes fibromyalgia is generally accepted in the relevant scientific community.

¶13 The Grants contend physical trauma as the cause of fibromyalgia is generally accepted. Based on the record, they claim an overwhelming majority of fibromyalgia experts accept physical trauma as one of the causes of fibromyalgia.

¶14 But the studies and articles cited by both parties and contained in the record suggest there is still significant dispute over whether physical trauma causes fibromyalgia. See DAN BUSKILA, M.D. & LILY NEUMANN, PHD, MUSCULOSKELETAL INJURY AS A TRIGGER FOR FIBROMYALGIA/ POSTTRAUMATIC FIBROMYALGIA (2000) (stating "[f]ibromyalgia (FM) syndrome is a chronic, painful musculoskeletal disorder of unknown cause. Despite extensive research, the etiology and pathophysiology of FM are still unclear. . . . A traumatic incident has been suggested as a possible etiological factor relating to the onset of FM. Overall data from the literature are insufficient to indicate whether causal relationships exist between trauma and FM." Clerk's Papers (CP) at 140, 141.); KEVIN P. WHITE ET AL., PERSPECTIVES ON POSTTRAUMATIC FIBROMYALGIA: A RANDOM SURVEY OF CANADIAN GENERAL PRACTITIONERS, ORTHOPEDISTS, PHYSIATRISTS, AND RHEUMATOLOGISTS (1999) (stating "[t]here may be no issue more contentious in [fibromyalgia] than the causative role of trauma," and further studies are required to verify the conclusion that trauma may cause fibromyalgia. CP at 180.); DAN BUSKILA, M.D. ET AL., INCREASED RATES OF FIBROMYALGIA FOLLOWING CERVICAL SPINE INJURY (1996) (stating "[f]ibromyalgia syndrome [FMS] is a chronic, painful musculoskeletal disorder of unknown etiology" and "[d]espite extensive research, the etiology and...