San Francisco v. Wendy's Intern., Inc.

• Decision Date: 21 November 2007
• Docket Number: No. 33284.,33284.
• Court: West Virginia Supreme Court
• Parties: Clinton SAN FRANCISCO and Jessie San Francisco, his wife, Plaintiffs Below, Appellants v. WENDY'S INTERNATIONAL, INC., Defendant Below, Appellee.

656 S.E.2d 485

Clinton SAN FRANCISCO and Jessie San Francisco, his wife, Plaintiffs Below, Appellants v. WENDY'S INTERNATIONAL, INC., Defendant Below, Appellee.

No. 33284.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 2007.

Decided November 21, 2007.

Concurring Opinion of Chief Justice Davis November 26, 2007.

Dissenting Opinion of Justice Benjamin December 19, 2007.

Syllabus by the Court

1. "In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify." Syllabus Point 5, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

2. "In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can be and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community." Syllabus Point 2, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994).

3. "When scientific evidence is proffered, a circuit court in its `gatekeeper' role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994), must engage in a two-part analysis in regard to the expert testimony. First, the circuit court must determine whether the expert testimony reflects scientific knowledge, whether the findings are derived by scientific method, and whether the work product amounts to good science. Second, the circuit court must ensure that the scientific testimony is relevant to the task at hand." Syllabus Point 4, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

4. Because the summary judgment process does not conform well to the discipline and analysis that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993) impose, the Daubert/Wilt regime should be employed only with great care and circumspection at the summary judgment stage. Courts must be cautious—except when defects are obvious on the face of a proffered expert opinion—not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility. Given the plain language of the West Virginia Rules of Evidence, the side trying to defend the admission of expert evidence must be given an adequate chance to do so.

5. A medical opinion based upon a properly performed differential diagnosis is sufficiently valid to satisfy the reliability prong of the Rule 702 inquiry under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993). A differential diagnosis is a tested methodology, has been subjected to peer review/publication, does not frequently lead to incorrect results, and is generally accepted in the medical community. Opinions based on differential diagnosis must be analyzed on a case-by-case basis, ensuring that the medical expert's application of the technique is reliable and proper in each case.

Guy R. Bucci, Esq., D. Blake Carter, Jr., Esq., Bueci, Bailey & Javins, Charleston, WV, Pamela A. Lambert, Esq., Lambert & Associates, Gilbert, WV, Attorneys for Appellants.

Teresa A. Kleeh, Esq., Scott E. Johnson, Esq., Joanna I. Tabit, Esq., Steptoe & Johnson, Charleston, WV, Attorneys for Appellee.

STARCHER, J.

In this appeal from the Circuit Court of Kanawha County, we are asked to examine an order precluding the plaintiffs below from presenting the testimony of two expert witnesses in a case of food poisoning. The circuit court then went on to grant summary judgment to the defendant, on the basis that the plaintiffs did not have sufficient evidence to support their claim. On appeal, the parties debate whether the two experts—a treating physician and a director of a university food safety program—were qualified to testify and whether their opinions were sufficiently reliable to be admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).

After careful review of the record, and of the excellent briefs and arguments by the parties, we find that the circuit court erred in excluding the two experts. As set forth below, we reverse the circuit court's summary judgment order, and remand the case for further proceedings.

I. Facts & Background

Around noon on May 1, 2002, appellants Clinton and Jessie San Francisco visited a restaurant in Charleston, West Virginia, owned by the appellee, Wendy's International, Inc. ("Wendy's"). At the restaurant's drive-through window, Mr. San Francisco purchased, among other items, a "single"sized hamburger with mustard, onions, pickles and tomato. The appellants then drove off and began eating their meals in the car.

Mr. San Francisco had eaten approximately one-quarter of his hamburger when he noticed that the burger was "red inside and wasn't done, it was raw," "tasted funny" and that the texture was "soft." After this observation, Mr. San Francisco discarded the remainder of the hamburger.

Shortly thereafter, Mr. San Francisco became ill. His stomach began to bother him and he began to sweat profusely. Within one-and-a-half to two hours after eating the hamburger, Mr. San Francisco began experiencing vomiting and diarrhea.

Two days later, after continued pain and discomfort, on May 3, 2002, Mr. San Francisco was admitted to Logan General Hospital.¹ He remained in the hospital until May 13, 2002.

While at Logan General, Mr. San Francisco was treated by Dr. Peter Gregor, a physician who is board certified in internal medicine and cardiology and is familiar, based on his clinical experience, with a food poisoning diagnosis. Dr. Gregor conducted a work up and analysis of Mr. San Francisco and performed a "differential diagnosis" to determine the cause of his illness. Using this method of diagnosis, during his examination, Dr. Gregor considered and then ruled out other potential causes of Mr. San Francisco's illness, such as pre-existing gastrointestinal problems, alcohol use, peptic ulcer disease or diverticulitis. After considering Mr. San Francisco's history and condition—particularly noting that he vomited 1.8 liters of material while in the emergency room, an amount which Dr. Gregor considered substantial—Dr. Gregor concluded to a reasonable degree of medical certainty that Mr. San Francisco was suffering from a foodborne illness caused by the Wendy's hamburger. As Dr. Gregor later stated in his deposition:

If you ask me, do I think a hamburger at a restaurant with diarrhea, vomiting and fluid loss shortly thereafter was the cause of the hospitalization, I would say yes. . . . It was the hamburger.

On April 19, 2004, Mr. and Mrs. San Francisco filed the instant lawsuit against appellee Wendy's, alleging that the appellee had caused injury to Mr. San Francisco by selling an "unsafe, unwholesome, or unfit food product."

During discovery, the appellants identified two experts. The appellants identified Dr. Gregor as an expert who would testify that Mr. San Francisco suffered from a foodborne illness caused by the Wendy's hamburger. The appellants also identified Ewen Todd, Ph.D., an expert in food safety and toxicology from Michigan State University. Dr. Todd testified in a deposition that although the symptoms of Mr. San Francisco's illness were most consistent with verotoxin produced by E. coli 0157:H7 bacteria, he became ill too quickly for a typical E. coli infection to have occurred; E. coli bacteria apparently require incubation of three to seven days from ingestion to produce enough verotoxin to induce symptoms. Instead, Dr. Todd was of the opinion that E. coli bacteria was present on the ground beef in the Wendy's hamburger; that the bacteria had produced verotoxin; and that the ingestion of the verotoxin in the Wendy's hamburger had produced the rapid onset of Mr. San Francisco's symptoms. Dr. Todd's opinion was based upon a published scientific study which found that four days after E. coli bacteria was added to ground beef, verotoxins formed in the beef.²

After the completion of discovery, appellee Wendy's filed a motion for summary judgment —and subsequently, motions in Iimine —to exclude the testimony of Dr. Gregor and Dr. Todd. The appellee argued that Dr. Gregor was unqualified to render medical testimony on injury and causation, and that neither Dr. Gregor's opinion nor Dr. Todd's opinion met the standards of admissibility under Rule 702 of the West Virginia Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).

In an order dated. March 14, 2006, the circuit court excluded the...