Shepard v. Barnard, 5D05-1447.

• Decision Date: 12 January 2007
• Docket Number: No. 5D05-1447.,5D05-1447.
• Citation: 949 So.2d 232
• Parties: Donald Wayne SHEPARD, Appellant, v. Thomas A. BARNARD, M.D., et al., Appellee.
• Court: Florida District Court of Appeals

949 So.2d 232

Donald Wayne SHEPARD, Appellant, v. Thomas A. BARNARD, M.D., et al., Appellee.

No. 5D05-1447.

District Court of Appeal of Florida, Fifth District.

January 12, 2007.

Barbara Green of Barbara Green, P. A., Coral Gables, and Timothy M. Martin of Martin, Lister & Alvarez, P.A., Miami Lakes, for Appellant.

Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellee.

PALMER, J.

In this medical malpractice lawsuit, Donald Shepard appeals the trial court's final order entering summary final judgment in favor of the appellees. Because we agree with the trial court that Shepard's proffered expert testimony did not meet the Frye¹ standard for admissibility, we affirm.

Shepard's complaint averred that appellee, Dr. Thomas Barnard, rendered negligent medical treatment to Shepard by administering photodynamic therapy with the drug, Verteporfin. Shepard's complaint averred that Shepard suffered a permanent photoallergy as a result of Barnard's administration of Verteporfin.

Shepard's two causation experts were deposed pretrial. Dr. Wurpel, an associate professor of pharmaceutical sciences, testified he had never engaged in any research with regard to photosensitizing drugs or with Verteporfin. He further stated that, prior to this case, he had never heard of anyone suffering a photoallergy as a result of being exposed to Verteporfin. Wurpel testified that there was no mention in any of his research of any patient ever suffering a permanent photoallergy from Verteporfin, nor had any such phenomenon ever been reported in any scientific literature. He nonetheless concluded that, in his opinion, Dr. Barnard's use of Verteporfin lead to a photoreaction in Shepard. When asked to explain the basis for his opinion, Wurpel stated that it was the "temporal relationship" between the date Shepard took the drug and the date he sustained his injuries, combined with the fact that Verteporfin is a "photosensitizing drug."

Shepard's second expert was his treating physician, Dr. Chun, a physician specializing in dermatology. Chun explained that Shepard came to his office complaining he was suffering from severe sunburns after having ingested Verteporfin. Chun stated he had not had any experience with Verteporfin and therefore he began to do some reading. He did not, however, read anything about a direct relationship between Verteporfin and skin sensitivity. Chun further stated he was not aware of any scientific studies of Verteporfin where there had been a permanent photosensitive reaction. Chun stated that he had never done any research on Verteporfin and he never used the drug in his practice, but that he believes that the Verteporfin did play a role in Shepard's condition.

The defendants filed a motion to strike the causation testimony of both Dr. Wurpel and Dr. Chun, pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), arguing that their opinions that use of Verteporfin could cause permanent photoallergy were not generally accepted in the relevant scientific community and, as such, the opinions did not have sufficient reliability to permit admission at trial. Additionally, the motion alleged that, since these two witnesses were the only witnesses to provide opinions regarding any causal link between Shepard's alleged injury and the medical treatment rendered by Dr. Barnard, entry of summary judgment against Shepard was warranted.

Following the...