Holy Cross Hosp., Inc. v. Marrone

• Decision Date: 19 December 2001
• Docket Number: No. 4D01-1140.,4D01-1140.
• Citation: 816 So.2d 1113
• Parties: HOLY CROSS HOSPITAL, INC., d/b/a Holy Cross Medical Group, and Salvatore DiGiorgi, M.D., Appellants/Cross-Appellees, v. Eleanor MARRONE, Appellee/Cross-Appellant, and Melbourne J. Smith, M.D., Appellee.
• Court: Florida District Court of Appeals

816 So.2d 1113

HOLY CROSS HOSPITAL, INC., d/b/a Holy Cross Medical Group, and Salvatore DiGiorgi, M.D., Appellants/Cross-Appellees, v. Eleanor MARRONE, Appellee/Cross-Appellant, and Melbourne J. Smith, M.D., Appellee.

No. 4D01-1140.

District Court of Appeal of Florida, Fourth District.

December 19, 2001.

Opinion on Grant of Clarification March 20, 2002.

Opinion on Denial of Clarification May 17, 2002.

Louise McMurray and Michael A. Petruccelli of Mcintosh, Sawran, Peltz & Cartaya, P.A., Miami, for appellants/cross-appellees.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellee/cross-appellant.

POLEN, C.J.

Holy Cross Hospital, Inc., and Salvatore DiGiorgi, M.D., timely appeal a jury verdict of $900,000 in favor of Eleanore Marrone in a medical malpractice action. Dr. DiGiorgi contends the court committed reversible error in receiving testimony of one of Mrs. Marrone's expert witnesses without first conducting a Frye¹ hearing. We agree, and thus, reverse.

This medical malpractice action arose from Dr. DiGiorgi's alleged negligent misdiagnosis of Mrs. Marrone's lung cancer before 1999. Mrs. Marrone had been visiting Dr. DiGiorgi since 1994, in his capacity as a cardiologist, to help her oversee a preexisting valve disorder. Annual visits followed each year from 1996-1999, at which Dr. DiGiorgi took chest x-rays as part of the examination. On each occasion Dr. DiGiorgi informed Mrs. Marrone that everything was fine. However, two weeks after the 1999 visit, he contacted Mrs. Marrone, recommending that she get a follow-up CAT scan. Mrs. Marrone learned she had lung cancer and needed surgery.

Mrs. Marrone subsequently brought suit against Holy Cross Hospital, Dr. DiGiorgi, and radiologist Melbourne Smith, M.D., alleging that DiGiorgi and Smith had failed to diagnose her lung cancer in 1997 and/or 1998. Specifically, Marrone alleged that her lung tumor had been visible on her 1997/1998 x-rays, and should have been detected before 1999. At trial, the expert testimony clearly established that Dr. DiGiorgi had breached the standard of care owed to Mrs. Marrone, by reading her x-rays himself instead of sending them to specialist. Yet, the issue of causation was hotly contested.

Dr. DiGiorgi argued that his breach of the standard of care, i.e., failing to properly read Mrs. Marrone's x-ray, did not proximately cause her any damage. When removed in 1999, Mrs. Marrone's tumor represented a T1N1M0 cancer.² Dr. DiGiorgi argued Marrone would have needed surgery anyway had her tumor been detected in 1997/1998, and further, that the surgery performed in 1999 was no more invasive than it would have been in 1997/1998. Mrs. Marrone offered the expert testimony of Dr. Gerald Sokol to refute this assertion. Dr. Sokol stated he could determine within a reasonable degree of medical certainty when Mrs. Marrone's lung cancer had spread to her lymph nodes. Dr. DiGiorgi vigorously objected to the allowance of Dr. Sokol's expert testimony. Specifically, he contended that any opinion Dr. Sokol would provide was based on new and novel scientific principles and, therefore, should be subjected to a preliminary Frye hearing. Mrs. Marrone responded that Dr. Sokol's testimony would consist of his "pure opinion," based upon his clinical experience and training, and therefore was not subject to Frye. The trial court denied the request to conduct a Frye hearing, allowing Dr. Sokol to state his opinion, providing his opinions could be "adequately explored" on cross-examination.

In forming his opinion, Dr. Sokol relied entirely on the representations of another expert, Dr. Cohen, who had estimated that Marrone's tumor as represented on the x-rays had grown from approximately 1.3 cm. in 1997, to 1.6 cm. in 1998, to 2.5 cm. in 1999 before it was removed. Dr. Sokol opined that it was more likely than not that Marrone's cancer had spread to her lymph nodes some time after 1998. Dr. Sokol explained his reasoning as follows:

"We know from lots of data which I'm sure we are going to go over that when a tumor is small that the chances of lymph nodes being involved is small so most of those patients are cured. As the tumor gets bigger, the chance of the lymph nodes being involved gets greater, and we know that from lots of staging studies." (Emphasis added.)

Dr. Sokol's testimony was crucial in that it provided the only evidence that Dr. DiGiorgi's misdiagnosis had proximately caused her damages. Specifically, according to Dr. Sokol, Marrone's cancer more likely than not had been a T1N0M0 in 1997/1998, and Dr. DiGiorgi's failure to diagnose her cancer before 1999 had allowed her cancer to progress to a more advanced stage, T1N1M0 (Stage II), undetected. With a T1N1M0 tumor, Marrone only had a 35-40% chance of survival; had Marrone been operated on when her tumor was still T1N0M0 (no lymph node involvement), her projected survival rate would have been 60-80%.³ It was this aggravation of Marrone's pre-existing injury which constituted the legally cognizable damages caused by DiGiorgi's misdiagnosis.

On cross-examination, Sokol was pressed at length to state the basis for his opinion. Dr. Sokol vacillated, stating first that his opinion was based on "a lot of studies done in staging cancers," but later responding that he was basing his opinion, "on all (his) training and experience, and it includes that (staging studies)."

Dr. DiGiorgi's challenge on appeal that Dr. Sokol's testimony should have been subjected to a Frye hearing is reviewable by this court de novo. Hadden v. State, 690 So.2d 573 (Fla.1997). Frye holds that in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014; Flanagan v. State, 625 So.2d 827 (Fla.1993)(holding novel scientific evidence is not admissible unless it meets the test established by Frye). Yet, the Frye test is not applied to pure opinion testimony, which is based upon the expert's training and clinical experience. Flanagan, 625 So.2d at 827-8(noting an expert's pure opinion testimony comes cloaked with the expert's credibility and the jury can evaluate this testimony in the same way it evaluates other opinion or factual testimony); Florida Power & Light Co. v. Tursi, 729 So.2d 995 (Fla. 4th DCA 1999). Thus, we must first determine at the threshold, whether Dr. Sokol's testimony was "pure opinion." We hold it is not.

"Pure opinion" refers to expert opinion developed from inductive reasoning based on the experts' own experience, observation, or research, whereas the Frye test applies when an expert witness reaches a conclusion by deduction, from applying new and novel scientific principle, formula, or procedure developed by others. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 14 P.3d 1170, 1179-80 (discussing Florida Power, 729 So.2d at 997

). Though Dr. Sokol was careful to testify that his opinion was based on his personal experience and training, we must examine his entire testimony in order to determine whether it actually is "pure opinion." Irving v. State, 705 So.2d 1021, 1023; Hadden, 690 So.2d at 580-81. Upon review of the record, it is clear that Dr. Sokol's opinion was at least in part derived from conclusions drawn from staging studies done by others. See Hadden, 690 So.2d at 579-81 (finding the expert's opinion was based not only upon his experiences, but also on syndromes and related diagnostic criteria, and because the syndrome evidence relied upon conclusions based upon studies and tests, the expert's opinion had to pass the Frye test); cf. Florida Power, 729 So.2d at 996-98 (holding Frye test did not apply where ophthalmologist testified one time exposure to transformer liquid caused plaintiffs cataract that developed four years later at the site of the trauma, based solely on his experience and training that chemical agents in general [not necessarily the agent in question] could cause cataracts, after he had ruled out all other natural causes).

Having determined that Dr. Sokol's testimony was not based on his "pure opinion," we next address whether his testimony concerns "new and novel" scientific principles. We find that it does. Here, Dr. Sokol testified that he could use statistics from staging studies to determine when in time Marrone's lymph nodes became involved. Marrone argues that there is nothing "new and novel" about staging studies, and Dr. Sokol's mere reference to "facts" from these established studies should not trigger the Frye threshold. We disagree.

What was challenged below, and what we believe needed to be Frye tested was, Dr. Sokol's application of staging studies. See Ramirez v. State, 651 So.2d 1164 (Fla.1995)

(holding under Frye the proponent must establish the general acceptance of both the underlying scientific principle and the testing procedure used to apply that principle to the facts of the case at hand); Cella v. United States, 998 F.2d 418, 425 (7th Cir.1993)("the Frye standard requires that the methodology and reasoning used by an expert in reaching a conclusion be generally accepted within the relative scientific community"). Staging cancer consists of grouping together three characteristics of a patient's existent cancer (T, N, M), in order to help the patient's physician demarcate the spectrum of available future treatment options. Here, Dr. Sokol, attempted to utilize staging studies in a "new and novel" manner, namely, to go back in time and determine when a tumor spread to a lymph node.⁴ Dr. Sokol had never examined Marrone or the excised tumor. His opinion was purportedly derived from scientific studies; we hold his methodology needed to be Frye tested. See Flanagan, 625 So.2d at 828 (noting where expert's testimony necessarily relies on some scientific principle or test, the jury will naturally assume that the...