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Agnew v. Shaw1/28/2005
er, Ms. Studenroth, testified regarding damages as well. She stated that although her mother was once very active, she currently does very little.
Dr. Rossof was the next witness called by the plaintiff, and he testified that there was no accepted method of determining the specific number of lymph nodes that would have been positive at a given time in the past. Dr. Rossof also testified that no study or test exists that can be used to determine the growth rate of lymph nodes or, once the lymph node growth rate is established, to extrapolate backwards to determine how many lymph nodes would be positive at a given time. He testified that this type of study would be "nonsense."
Dr. Jokich, the next witness, testified that Dr. Wiggins deviated from the standard of care by failing to accurately report the changes in plaintiff's mammogram. Dr. Jokich also testified that there was a breach of the standard of care to report that there was no change in the plaintiff's August 1995 mammogram when, in fact, the lymph nodes had increased in size. The plaintiff rested her case.
THE DEFENDANTS' CASE
The defendants called Dr. Scott Kale (Dr. Shaw's expert), Dr. Mary Beth Leonard (plaintiff's surgeon), Dr. Keith Micetich (Dr. Wiggins' proximate cause expert) and Dr. Wiggins as witnesses in their case. Dr. Kale, defendants' first witness, testified that Dr. Shaw complied with the standard of care and that it was reasonable for him to rely on the radiology reports, which did not mention malignancy.
After Dr. Kale concluded his testimony, the Frye proceedings continued in chambers. During the in-chambers hearing, Dr. Micetich testified in support of the defendants' motion in limine to bar Dr. Schapira's testimony. Dr. Micetich testified that he read Dr. Schapira's deposition and that the doctor's method of backward extrapolation was not generally accepted in the medical oncologic or scientific community. Dr. Micetich also testified that there was no literature and that there were no clinical studies or research that looked backwards in a patient with occult breast cancer and calculated the number of cancerous lymph nodes at a given point in time in the past.
When Dr. Micetich concluded his testimony in chambers, the Frye hearing was concluded and the court granted the defendants' motion in limine. The court reasoned that the plaintiff had not met her burden of proving that her expert's methodology was generally accepted in the scientific community. The court reasoned that it was not the court's role to determine whether a certain methodology is logical or not, but whether that methodology is generally accepted in the relevant scientific community, which in this case is the oncologic community. After the court made its ruling, the plaintiff moved for a mistrial and argued that the Frye hearing should not have been conducted in a piecemeal fashion. The court denied plaintiff's motion and reminded plaintiff's counsel that the court advised the parties that it would conduct the Frye hearing in a piecemeal manner and that there was no objection from plaintiff's counsel at that time.
When the jury returned to the courtroom, the judge gave the following instruction:
"Ladies and gentlemen, one of the first witnesses we had was Dr. Schapira. Dr. Schapira testified and gave certain testimony as to the number of positive lymph nodes that the plaintiff would have had at earlier times. * e testified that - - generally to the effect that since the plaintiff had nine positive lymph nodes in April of '97, that in his opinion she had two or three positive lymph nodes in 1996, that she would have had one positive lymph node in August of '95, I beli
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