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Reese v. Stroh6/13/1994
ysicians rely on in their everyday lives to make decisions about health care. There is nothing mystical about it, and jurors are perfectly capable of determining what weight to give this kind of expert testimony. It is the jury's province to decide whether a reasonable physician would have treated Mr. Reese's AAT-deficiency with Prolastin given the quality and quantity of data that was known to the medical profession at the time. Whether the Reeses have presented enough evidence to show that Dr. Stroh was negligent should be decided by the jury. If the trial court determines at the close of the plaintiff's case that the quantum of evidence presented is insufficient to allow a reasonable juror to conclude that Prolastin more likely than not would have slowed the deterioration of Reese's lung function, it remains free to direct a verdict. Daubert, 113 S. Ct. at 2798.
The parties and amici refer in their briefs to Dr. Fallat's testimony that proper Prolastin therapy would have reduced Mr. Reese's "rate of decline by 50 percent". Dr. Stroh asserts that there was inadequate foundation for that opinion, and Mr. Reese asserts that it was sufficient. However, neither party argues this as an issue distinct from the admissibility of Dr. Fallat's testimony generally. Nor was the issue developed in the trial court where the focus of the offer of proof was on the admissibility of the testimony about Prolastin as a treatment for AAT deficiency. Under these circumstances, we believe it would be inappropriate for us to rule on appeal on the admissibility of the testimony before the parties and the trial court have had an opportunity to focus on it. On remand, the Reeses may again offer this opinion, together with whatever foundation they wish to adduce. It will then be up to the trial court to determine whether the foundation for this opinion is sufficient based on applicable evidence rules and the guidelines set out in this opinion.
Finally, because we are reversing and remanding for trial, we do not reach the jury trial issue appellants raised in their brief.
The judgment is reversed.
Agid, J.,
WE CONCUR:
Kennedy, J.
Becker, J.
Disposition
The judgment is reversed.
Page 1 2 3 4 5 6 7 8 Washington Personal Injury Attorneys
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