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Agnew v. Shaw1/28/2005
scientific literature discussing similar, yet not identical, scientific studies and theories. Donaldson, 199 Ill. 2d at 85, 88. In Donaldson, the court provides a clear explanation of what "general acceptance" may or may not include. The court states that " 'general acceptance' does not concern the ultimate conclusion," but the "underlying methodology," and that " f the underlying method used to generate an expert's opinion is reasonably relied upon by the experts in the field, the fact finder may consider the opinion." Donaldson, 199 Ill. 2d at 77. The court also explained that although general acceptance "does not mean 'universal' acceptance," and "does not require * unanimity, consensus, or even a majority of experts," the expert must still utilize "generally accepted methodology to develop the conclusion," and " technique * is not 'generally accepted' if it is experimental or of dubious validity." Donaldson, 199 Ill. 2d at 77-78. After deciding that the method of extrapolation relied upon by the plaintiffs passed the Frye test, the Donaldson court reiterated that the methodology must be relied upon by experts in that particular field. Donaldson, 199 Ill. 2d at 87-88.
Relying on Donaldson, plaintiff first assigns error to the trial court's order excluding the doctor's backward extrapolation opinion by arguing that the trial court focused on Dr. Schapira's conclusions rather than his methodology. We disagree. The trial record is clear that the trial court specifically addressed this issue in its ruling after the Frye hearing, when it stated that its ruling was not based upon whether it agreed with Dr. Schapira's conclusions but that its ruling was based upon whether it agreed with Dr. Schapira's methodology. The trial court also stated that based upon Dr. Schapira's testimony and the testimony of Dr. Rossof and Dr. Micetich, the methodology of backward extrapolation in occult breast cancer patients was not generally accepted. In fact, in Donaldson, the court specifically noted that "all of plaintiffs' experts testified that they utilized the method of extrapolation, and that the technique is generally accepted in their fields." 199 Ill. 2d at 87-88. Conversely, here the plaintiff's doctors did not testify that they utilized a backward extrapolation methodology or that Dr. Schapira's method of backward extrapolation was generally accepted in the oncologic community. In fact, the testimony of Dr. Schapira, the plaintiff's only causation expert, failed to establish that the methodology of backward extrapolation in occult breast cancer patients is generally accepted. We find, after reviewing this record, that backward extrapolation in occult breast cancer cases is a methodology which is only used by the plaintiff's expert.
Plaintiff's insistence that this case falls within the purview of the rules delineated by the Donaldson court is misplaced. While the extrapolation methodology was approved when used to determine what caused the cancer in the Donaldson plaintiffs, that does not mandate that this court must find that the extrapolation methodology is acceptable in every case. See Kane v. Motorola, Inc., 335 Ill. App. 3d 214 (2002) (courts may reject an expert's conclusions when his extrapolation methodologies are unsound or when the scientific data upon which they rely is not related to the conclusion reached). Dr. Schapira admits that his methods are not only new, but that there is no support in the literature or from any other oncologists regarding this methodology. Therefore, applying Donaldson and Frye to the facts in this case, we cannot conclude that the trial court abused its discretion when it determined that Dr. Schapira's backward extrapolation methodology was not generally accepted in the
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