Lavelle v. Laboratory Corp. of America

MCFADDEN, Judge. Plaintiff Timothy Lavelle, individually and as the surviving spouse and executor of the estate of Cathleen Lavelle, brought this action against a physician, a medical practice, appellee Laboratory Corporation of America (“LabCorp”), and John Does 1-10, seeking damages for alleged ordinary and professional negligence in failing to diagnose and treat Cathleen Lavelle’s cervical cancer in a timely fashion. This appeal concerns only the single allegation against LabCorp that its employee was negligent in failing to detect abnormal cells on a Papanicolaou (“Pap”) smear test slide submitted to it in April 2006. Lavelle appeals three rulings of the trial court: (1) the denial of a motion to compel further deposition of a witness; (2) the grant of a motion excluding the testimony of an expert witness; and (3) the grant of partial summary judgment in favor of LabCorp on the issue of breach of the standard of care. For the reasons stated below, we affirm the denial of the motion to compel but vacate the grant of the motion to exclude the expert testimony and the grant of partial summary judgment, and we remand the case to the trial court for further proceedings not inconsistent with this opinion. The parties have engaged in extensive discovery and have presented over 4,000 pages of record to this court, including numerous depositions of fact and expert witnesses. During the discovery period, Lavelle filed a motion to compel and for sanctions regarding the testimony of a LabCorp employee, which was denied. On September 7, 2011, the trial court entered a consent “Scheduling Order” setting dates for, among other things, the disclosure and deposition of expert witnesses and the filing of Daubert motions, see Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993), and motions for summary judgment. LabCorp filed timely motions to exclude the testimony of three expert witnesses and for summary judgment. The trial court granted those motions in part, and this appeal followed. 1. Motion to compel. Lavelle first enumerates as error the denial of his motion to compel. In 2011, Lavelle deposed the cytotechnologist (“cytotech”) at LabCorp who, in 2006, performed the initial review of the Pap smear — 143 — test slide at issue here. At that time, the cytotech reviewed approximately 140 slides per day, using a computer-guided microscope that selected 22 sample fields of view for her examination. She had no recollection of having reviewed the particular slide at issue here. During her deposition, she was shown photomicrographs of the slide and asked if, in her opinion, the cells presented any abnormalities. Counsel for LabCorp objected and instructed the witness not to answer the question. The witness testified that she did not screen slides by examining photomicrographs, and that the photomicrographs presented a different appearance from the slides she normally reviewed. In addition, as Lavelle acknowledged, there is no way to tell if the photomicrographs show the same cells that the computer-generated views displayed in 2006. Moreover, the witness explained, she would look at the slide today “with different eyes... [b] ecause you look at things with bias hindsight. You look at things — you look at things differently that way.” The trial court denied Lavelle’s motion to compel, finding that this line of questioning was not discoverable or likely to lead to the discovery of admissible evidence because no proper foundation was established to show that the photomicrographs were representative of what the witness saw at the time, because she was a fact witness being asked for an expert opinion, and because hindsight bias affected what “she would see now, looking at something she didn’t look at back in 2006.” “The trial court’s discretion in dealing with discovery matters is very broad, and this Court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” Powers v. Southern Family Markets, 320 Ga. App. 478, 482 (3) (740 SE2d 214) (2013) (citations, punctuation and footnote omitted). Given the applicable standard and the significant differences between the witness’s original review of the slide and the review which Lavelle sought to elicit on her deposition, as well as the witness’s expressed hindsight bias given her knowledge of the outcome, we cannot say that the trial court abused its broad discretion in limiting the examination of the witness. We therefore affirm the ruling denying the motion to compel. 2. Exclusion of expert testimony. Lavelle next appeals the trial court’s exclusion, in part, of the testimony of expert witness Dorothy Rosenthal, M.D., a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides. She opined that the cytotech’s initial review of the slide in this case breached the applicable standard of care. In both her deposition and a hearing on LabCorp’s Daubert motion, Dr. Rosenthal testified that — 144 — she formed her opinion about a breach of the applicable standard of care from her personal, focused reviews of the slide. She described her experience and the methodology she used in conducting focused reviews, and she opined that the abnormalities she observed in the focused reviews of the slide should have been recognized and identified as such by any certified cytotech. In her deposition, Dr. Rosenthal described this case as a “blatant miss” and testified that another procedure referred to as a blinded review was not necessary to form an opinion in such a case. Nevertheless, at both her deposition and the hearing she testified that the results of two blinded reviews in this case corroborated her already-formed opinion that the applicable standard of care had been breached. After the hearing, the trial court held that Dr. Rosenthal could give expert testimony on several topics, including the applicable standard of care for a cytotech, the abnormalities that Dr. Rosenthal observed on the Pap smear slide, and the requirement that a cytotech refer a slide with such abnormalities to a pathologist. But the trial court held that Dr. Rosenthal could not give an opinion about whether LabCorp’s employee breached the applicable standard of care in this case. In her written order on the Daubert motion, the trial court excluded evidence of the two blinded reviews on the ground that they didnotsatisfythereliabilityrequirementsofformerOCGA § 24-9-67.1 and Daubert. The trial court also ruled in the written order that Dr. Rosenthal could not give an expert opinion on a breach of the applicable standard of care because the blinded reviews were the “only bases for that opinion.” (Emphasis supplied.) Nowhere in the written order did the trial court refer to the focused reviews upon which Dr. Rosenthal testified that she had based her opinion. The trial court’s written order incorporated by reference the hearing transcript, and at the hearing the trial court made some additional oral rulings that were not included in the written order. Again, none of those rulings expressly referred to the focused reviews or addressed the reliability of that methodology. Instead, the trial court stated that blinded reviews were the only methodology that the expert could use to reach an opinion on a breach of the applicable standard of care. The trial court cited standards promulgated by professional associations in support of this ruling. Former OCGA § 24-9-67.1 (b), which applied at the time of the trial court’s ruling in this case, provides: If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness — 145 — qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case. Our Supreme Court has enunciated the standards under which a trial court reviews the testimony of an expert witness for admission under former OCGA § 24-9-67.1: In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony. . . . Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training. There are many different kinds of experts and many • different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case. HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642-643 (1) (697 SE2d 770) (2010) (citations and punctuation omitted). We will not disturb the trial court’s determination absent a manifest abuse of discretion. Id. at 642 (1). In excluding Dr. Rosenthal’s opinion, the trial court abused her discretion in two ways. First, the trial court erred to the extent she held that the only acceptable methodology for reaching an opinion about whether a cytotech breached the applicable standard of care was the blinded review methodology promoted and promulgated by a professional association representing cytotechs. We are aware of no legal authority — legislative or judicial — that directs the specific methodology an expert must use to establish a breach of the standard of care in a professional malpractice case. The objective of the gatekeeping requirement set forth in Daubert and in former OCGA § — 146 — 24-9-67.1 is not to establish or enforce a particular methodology. It is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Kumho Tire Co. v. Carmichael, 526 U. S. 137, 152 (II) (B) (119 SCt 1167, 143 LE2d 238) (1999). See generally former OCGA § 24-9-67.1 (f) (explaining that Georgia courts may draw from federal cases, including Daubert and Kumho Tire Co., to interpret and apply that Code section). Accordingly, in another case involving opinion testimony from Dr. Rosenthal, the United States District Court for the Northern District of Georgia stressed that in excluding her testimony it was not holding that the methodology set forth in the professional association guidelines was “the only methodology that would allow an expert to offer an opinion on the standard of care for a cytotechnologist in reviewing Pap smear slides.” Adams v. Laboratory Corp. of America, 2012 U. S. Dist. LEXIS 13582 at *48-49 (6), n. 11 (N.D. Ga. 2012). Dr. Rosenthal did not testify that blinded reviews were the only means by which one could form a reliable opinion regarding a breach of the applicable standard of care. To the contrary, as mentioned above, Dr. Rosenthal consistently testified that she based her opinion on that issue on her focused reviews, and that the blinded reviews merely corroborated that opinion. Dr. Rosenthal did describe certain specific requirements in “asserting a violation of the standard of care” that were inapplicable to focused reviews. But that testimony pertained only to blinded reviews. It occurred during a discussion about the requirements and the professional association guidelines for a blinded review.1 The trial court did not treat that testimony as an admission related to the focused reviews. In her oral ruling, the trial court described the testimony as an “admission ... that [Dr. Rosenthal’s] blinded review cannot meet the requirements of Daubert for determining the guidelines.” The trial court also abused her discretion by not conducting a Daubert analysis of the methodology that Dr. Rosenthal did employ in reaching her opinion—the focused reviews. The trial court neither — 147 — mentions the focused reviews in the written or oral rulings, nor indicates that she considered whether, apart from the blinded reviews, the focused reviews could form the basis for a reliable opinion that met the requirements offormer OCGA § 24-9-67.1 (b). While the trial court was not required to make specific findings of fact relating to these statutory requirements, see CSX Transp. v. McDowell, 294 Ga. App. 871, 872-873 (1) (a) (670 SE2d 543) (2008), the trial court’s rulings did not “adequately demonstrate [ ] that the trial court performed its role as gatekeeper,” id. at 873 (1) (a), with regard to the reliability of an opinion based upon focused reviews rather than blinded reviews. For this reason, we vacate the ruling excluding Dr. Rosenthal’s opinion and remand the case for the trial court to analyze the relevancy and reliability of her proffered opinion based upon focused reviews. See generally An v. Active Pest Control South, 313 Ga. App. 110, 114-115 (720 SE2d 222) (2011) (explaining that appellate courts generally should not decide in the first instance questions of the admissibility of expert testimony, the resolution of which often requires factfinding). 3. Motion for partial summary judgment. In light of our decision to vacate the ruling excluding Dr. Rosenthal’s opinion on a breach of the applicable standard of care and to remand the case for further consideration on that issue, we also vacate the order granting partial summary judgment to LabCorp as that ruling was based in part on the exclusion of Dr. Rosenthal’s opinion testimony. Judgment affirmed in part and vacated in part, and case remanded. Phipps, C. J., Barnes, P. J., Ellington, P. J., and Doyle, P. J., concur. Boggs and Branch, JJ., concur in part and dissent in part. Footnotes [1] Dr. Rosenthal testified that “the slides have to be assessed by qualified reviewers without knowledge of the clinical background in an environment that simulates normal screening, subjected to an unbiased screening process [ ], also with a substantial number of normal and abnormal gynecologic, cytologist sampling.”