Marcum v. Adventist Health System/West, No. CC 040505205.

• Decision Date: 16 September 2008
• Docket Number: No. CA A129660.,No. CC 040505205.,No. SC S055431.
• Citation: 345 Or. 237,193 P.3d 1
• Parties: Deborah MARCUM, Petitioner on Review, v. ADVENTIST HEALTH SYSTEM/WEST, a foreign corporation, dba Adventist Health; Northwest Medical Foundation of Tillamook, an Oregon corporation, dba Tillamook County General Hospital; Alliance Imaging, Inc., a foreign corporation; Alliance Imaging Management, Inc., a foreign corporation; and Alliance Imaging Centers, Inc., a foreign corporation, Respondents on Review.
• Court: Oregon Supreme Court

193 P.3d 1

345 Or. 237

Deborah MARCUM, Petitioner on Review, v. ADVENTIST HEALTH SYSTEM/WEST, a foreign corporation, dba Adventist Health; Northwest Medical Foundation of Tillamook, an Oregon corporation, dba Tillamook County General Hospital; Alliance Imaging, Inc., a foreign corporation; Alliance Imaging Management, Inc., a foreign corporation; and Alliance Imaging Centers, Inc., a foreign corporation, Respondents on Review.

No. CC 040505205.

No. CA A129660.

No. SC S055431.

Supreme Court of Oregon, En Banc.

Argued and Submitted June 4, 2008.

Decided September 16, 2008.

On review from the Court of Appeals.^*

Jeffrey B. Wihtol, Portland, argued the cause and filed the brief for petitioner on review.

Janet M. Schroer, Hoffman Hart & Wagner, LLP, Portland, and Lisa E. Lear, Bullivant Houser Bailey, P.C., Portland, argued the cause and filed the brief for respondents on review. With them on the brief was Marjorie A. Speirs, Hoffman Hart & Wagner, LLP, Portland.

Linda K. Eyerman, Gaylord Eyerman Bradley, P.C., Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. With her on the brief was Leslie W. O'Leary, Williams Love O'Leary & Powers, Portland.

BALMER, J.

This medical malpractice action requires us to review and apply the standards for admission of expert medical testimony. Under the applicable evidentiary rules, as interpreted in this court's cases, an expert's medical testimony must meet a test of "scientific validity." Plaintiff here experienced symptoms of pain, swelling, and discoloration in her left hand immediately after injection of a chemical called gadolinium; her pain and the discoloration have continued. At trial, plaintiff proffered the testimony of a medical expert that the gadolinium, instead of going into the vein, went into an area of her hand outside the vein, a circumstance known as "extravasation." As a result, according to the expert, the toxicity of the gadolinium caused both her immediate and her ongoing symptoms. Defendants objected to the expert's proffered testimony, and the trial court ruled that the testimony did not meet the legal standard for scientific validity. The Court of Appeals affirmed. Marcum v. Adventist Health System/West, 215 Or.App. 166, 168 P.3d 1214 (2007). We granted review and now reverse.

The Court of Appeals described the facts and the procedural background of the case:

"In March 2003, after plaintiff was involved in an auto accident, suffering a possible head injury, her doctor ordered an MRI. Plaintiff went to Tillamook County General Hospital and was escorted to an MRI trailer just outside. The MRI technologist, employed by Alliance, informed plaintiff that he would be injecting her with a contrast chemical, gadolinium, used to enhance the MRI image.

"Alliance's MRI technologists are trained to advise patients that, if the injection of a contrast chemical causes pain or any other discomfort, they should immediately inform the technologist. If a patient makes such a complaint, the technologists are trained to check for extravasation. `Extravasation' occurs when a substance exits the vein and enters the surrounding tissue. See Stedman's Medical Dictionary 635 (27th ed. 2000) (defining `extravasate' as, inter alia, `[t]o exude from or pass out of a vessel into the tissues'). The general standard of care applicable to MRI technologists requires that they explain the procedure to the patient and ask the patient to inform them if they feel pain. However, neither plaintiff's technologist nor her treating physician explained the injection procedure, asked her to report pain, or explained to her any risks associated with the injection.

"After attempting the injection on each of plaintiff's arms unsuccessfully, the technologist attempted to make the injection on the back of plaintiff's left hand. Immediately after the needle went into her hand, plaintiff complained that her hand felt `like a glove filling up.' She explained to the technologist that `if he was to take the tip of my fingers off he would see the stuff running on the floor. That's how full it felt.' The technologist acknowledged plaintiff's complaint but told her it would be okay and finished the procedure.

"Plaintiff manages a restaurant. She normally performs various functions in the business, including food preparation, which involves going to the restaurant's walk-in refrigerator. The day after the MRI, however, when she went to the walk-in refrigerator she had a difficult time handling the cold food and complained that her left hand hurt. Her coworker described her hand as appearing purple, orange, and swollen. After a couple of hours, plaintiff went to the emergency room. She has experienced pain ever since, which has impaired her ability to work. Plaintiff's hand has remained discolored near where she received the gadolinium injection.

"* * * * *

"Plaintiff filed this action against defendants. In her operative complaint, she alleged that defendants had negligently injured her and negligently failed to obtain her informed consent before injecting her with gadolinium. * * *

"[A]t trial, the court excluded portions of the testimony of plaintiff's two expert witnesses, Dr. Weldon Williamson and Karen Marburger. Williamson, a medical doctor specializing in hand disorders, would have testified concerning medical causation. Marburger, an MRI technologist, would have testified that defendants should have made and kept various records and that, had plaintiff been able to obtain those records, they might have been beneficial in proving plaintiff's claims.

"With respect to Williamson's testimony, the court held an OEC 104 hearing to determine whether Williamson's opinion regarding causation—specifically that gadolinium extravasation caused plaintiff's [vasospastic disorder¹]—was `scientifically valid' under the standards prescribed in [State v.] Brown [, 297 Or. 404, 687 P.2d 751 (1984)] and [State v.] O'Key [, 321 Or. 285, 899 P.2d 663 (1995)]. The court ultimately concluded that that testimony did not satisfy the requisites of foundational admissibility. * * *

"Defendants moved for a directed verdict on plaintiff's medical negligence claim based on plaintiff's failure to produce evidence of causation. Plaintiff, while maintaining that the exclusion of Williamson's testimony was error, agreed that without that testimony, she had not produced evidence of causation. * * * The court directed a verdict in defendants' favor * * * and entered judgment accordingly."

Marcum, 215 Or.App. at 169-72, 168 P.3d 1214.

Plaintiff appealed, and the Court of Appeals affirmed. The central issue on appeal was whether the testimony of plaintiff's expert as to the likely cause of plaintiff's injury met the test of scientific validity.² The Court of Appeals reasoned that the expert had failed to identify a scientifically valid cause of the injury—one that linked plaintiff's exposure to gadolinium to the vasospastic disorder that she experienced. In particular, the court noted that the expert had failed to show, either through studies showing a high degree of correlation between gadolinium exposure and the kind of injury that plaintiff had suffered or through a scientifically demonstrable mechanism of causation, that the gadolinium extravasation could have caused plaintiff's vasospastic disorder. Id. at 184-88, 168 P.3d 1214. Judge Armstrong dissented. While conceding that the issue was a close one, he thought that the expert's testimony was sufficiently scientific in nature and helpful to the trier of fact to warrant its admission. Id. at 193-98, 168 P.3d 1214 (Armstrong, J., concurring in part, dissenting in part).³

We begin by reviewing the standards that this court has used to determine whether scientific evidence will be admitted. In Jennings v. Baxter Healthcare Corp., 331 Or. 285, 301, 14 P.3d 596 (2000), the court noted that its prior cases had held that expert testimony is admissible if it is relevant under OEC 401,⁴ would assist the trier of fact under OEC 702⁵ and is not subject to exclusion under OEC 403⁶ because its probative value is outweighed by the danger of unfair prejudice or jury confusion. In this case, as in many others involving the admissibility of scientific evidence, we must determine "whether scientific evidence is probative under OEC 401" and conduct the "`relevancy and prejudice analysis implicated in OEC 702's helpfulness standard[.]'" Jennings, 331 Or. at 302, 14 P.3d 596 (quoting Brown, 297 Or. at 417, 687 P.2d 751); see also Brown, 297 Or. at 409, 687 P.2d 751 (court must "identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truthfinding is better served by exclusion or admission").

In O'Key, 321 Or. at 291, 899 P.2d 663, this court explained the principles underlying the application of the evidentiary rules to scientific evidence:

"Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate. The value of proffered expert scientific testimony critically depends on the scientific validity of the general propositions utilized by the expert."

(Footnote omitted.) In ruling on admissibility, the trial court performs the "vital role" of "gatekeeper," id. at 307, 899 P.2d 663, screening proffered scientific testimony to determine whether it is sufficiently valid, as a matter of science, to legitimately assist the trier of fact and "exclud[ing] `bad science' in order to control the flow of confusing, misleading, erroneous, prejudicial, or useless information to the trier of fact." Id. at 306, 899 P.2d 663.

This court has set out a number of factors that may be considered in determining the admissibility of scientific evidence:

"(1) The technique's general acceptance in the field;

"(2) The expert's qualifications and stature;

"(3) The...