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Agnew v. Shaw1/28/2005
eve; that he basically had opinions as to the certain specific number of lymph nodes at earlier times, that he could look back in time to say how many lymph nodes he had. You are to disregard that testimony. That testimony is stricken. You're to completely disregard the testimony as to any specific number of positive lymph nodes at earlier times, okay?"
After the judge instructed the jury regarding Dr. Schapira's testimony, Dr. Micetich took the stand and testified that plaintiff's prognosis would have been the same if she was diagnosed in August 1995 or February 1996, and that she would have had the same number of lymph nodes. He also testified that in his opinion plaintiff's cancer would not reoccur.
Dr. Leonard, the next witness, testified that in March of 1997 she performed a fine-needle aspiration, which revealed malignancy, and a biopsy, which indicated that the lymph node looked pathologic. Dr. Leonard then referred the plaintiff to Dr. Rossof, a medical oncologist, for further care and treatment.
The final witness was Dr. Wiggins, and he testified that in his opinion, he exercised the standard of care that any well-qualified radiologist would have exercised when reading the plaintiff's 1996 study. The defendants rested their case, and the court instructed the jury. After the jurors completed their deliberations, they returned a verdict in favor of the defendants. The plaintiff filed a posttrial motion for a judgment notwithstanding the verdict or for a new trial. Both of these motions were denied.
ANALYSIS
The threshold issue we must address in this appeal is whether the plaintiff was denied a fair trial when the defendants' Frye objection was raised in a motion in limine. The admissibility of evidence is a matter committed to the sound discretion of the trial court, and its decision will not be reversed on review absent a clear abuse of that discretion. Petre v. Kucich, 331 Ill. App. 3d 935, 941 (2002), citing Leonardi v. Loyola University of Chicago , 168 Ill. 2d 83, 92 (1995). Illinois law is clear that the admissibility of expert testimony is governed by the general acceptance test set forth in Frye. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002), citing Frye, 293 F. 1013. The "general acceptance test" provides that scientific evidence is only admissible at trial if the methodology upon which the opinion is based is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F.2d at 1014. "' eneral acceptance' does not concern the ultimate conclusion. Rather, the proper focus of the general acceptance test is on the underlying methodology used to generate the conclusion." (Emphasis added.) Donaldson, 199 Ill. 2d at 77.
The position of the parties on appeal is clear. Plaintiff believes that the opinions proffered by her expert, Dr. Schapira, are admissible under the Frye test. Conversely, the defendants maintain that plaintiff's expert's backward extrapolation methodology is not generally accepted in the scientific community. Both parties rely on the Illinois Supreme Court's ruling in Donaldson in support of their positions. Applying Donaldson and Frye to the facts in this case, we find that the backward extrapolation methodology proffered by the plaintiff's expert in this medical malpractice occult breast cancer case is not generally accepted in the scientific community. Donaldson, 199 Ill. 2d at 77. Frye, 293 F.2d at 1014.
In Donaldson, the court approved the extrapolation method used in that case to link the cause of plaintiffs' rare cancer, neuroblastoma, to the deleterious effects of coal tar, because the plaintiffs relied on
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