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Agnew v. Shaw1/28/2005
UNPUBLISHED
Plaintiff, Rita Agnew, filed a lawsuit against the three defendants - Charles Shaw, M.D., an internist; Henry Wiggins, M.D., a radiologist; and Universal Radiology, Ltd., Dr. Wiggins' corporation - alleging a failure to timely diagnose her occult breast cancer. After a trial, the jury returned a verdict in favor of the defendants. Plaintiff now appeals from the jury verdict in favor of the defendants and presents two issues for our review: (1) whether the trial court erred by striking the extrapolation testimony of the plaintiff's expert witness pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir.1923); and (2) whether the plaintiff was denied a fair trial when the defendants' Frye objection was raised in a motion in limine. In this case there are no issues raised on the pleadings.
BACKGROUND
In 1997, plaintiff was 79 years old and diagnosed with a rare form of breast cancer known as occult primary breast cancer. Only 1% of breast cancer patients have this form of cancer. Following her diagnosis, the plaintiff underwent extensive chemotherapy and radiation treatment and eventually received a radical mastectomy. On November 18, 1998, plaintiff filed a two-count complaint against the defendants alleging that the defendants were negligent because they misinterpreted the mammograms that were taken in February of 1996 and April of 1997 and failed to timely diagnose her breast cancer.
THE DEFENDANTS' MOTION IN LIMINE
Prior to the commencement of the trial, the parties filed motions in limine and a hearing on the motions was commenced by the trial court. Defendant Dr. Wiggins presented a motion in limine entitled "Defendant Henry Wiggins, M.D. and Universal Radiology, Ltd.'s Motion in Limine No. 4 to bar testimony of David Schapira, M.D. concerning linear and progressive growth of lymph nodes." Dr. Shaw joined in Dr. Wiggins' motion in limine. The transcript from Dr. Schapira's deposition was appended to the defendants' motion. Defendants' motion in limine sought to bar certain opinions disclosed by Dr. Schapira during his deposition. It was the defendants' position that Dr. Shapira's backward extrapolation opinions were not generally accepted in the oncologic community. Dr. Wiggins' motion in limine was brought pursuant to the Frye case, which holds that expert testimony will only be admitted when "the thing from which the deduction is made (is) sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. The following day, without an objection from the plaintiff's counsel, the court decided to conduct the Frye hearing piecemeal.
THE PLAINTIFF'S CASE
The next day the trial commenced, and the plaintiff called Dr. Shaw (her internist), Dr. Schapira (her proximate cause expert), Dr. Alfred Torrence and Dr. Peter Jokich (her standard of care experts), Dr. Wiggins (called as an adverse witness), Dr. Rossof (her oncologist), and her daughter, Kathleen Studenroth, as witnesses in her case. The plaintiff also testified on her own behalf.
Dr. Shaw, the first witness, testified that he was a board-certified internist, and he began his treatment of the plaintiff on December 27, 1990. Between 1990 and 1995, Dr. Shaw rendered care and treatment to the plaintiff on 22 separate occasions for various ailments, including her thyroid, high blood pressure, diabetes, cholesterol problems, and other chronic problems. Dr. Shaw performed his first mammogram on the plaintiff in January of 1991, which revealed nothing abnormal. He testified that he did not interpret the radiographic films, but relied on a radiologist to do so. He testified that from 1991 thr
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