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Friday, August 1, 2014

Ipse Dixit, Take 2: 11th Circuit Finds District Court Erred in Deeming Pap Smear Testimony Inadmissible

I've written before about the concept of ipse dixit in the context of expert testimony. Ipse dixit is Latin for "he himself said it," meaning the only proof we have of the fact is that this person said it. In many cases, courts will deem expert opinion testimony inadmissible because it is based solely on the ipse dixit of the expert, without any external controls of corroboration. Sometimes, however, a court can go too far in labeling something ipse dixit, which appears to be the case with the recent opinion of the Eleventh Circuit in Adams v. Laboratory Corp. of America, 2014 WL 3724190 (11th Cir. 2014).

In Adams

Christina and Christopher Adams...filed a lawsuit against Laboratory Corporation of America ("LabCorp"), alleging that its cytotechnologists were negligent in failing to identify abnormalities in Ms. Adams's Pap smears and that this negligence caused a delay in her cancer diagnosis. LabCorp moved to exclude the testimony of Dr. Dorothy Rosenthal concerning the alleged breach of the cytotechnologists' standard of care and moved for summary judgment based on the resulting absence of evidence regarding the standard of care. The district court granted both motions....

Specifically,

The district court granted LabCorp's motion to exclude Dr. Rosenthal's testimony based on its conclusion that her methodology did not meet the reliability requirement of Federal Rule of Evidence 702. The court characterized her methodology as an ipse dixit assessment that could not be meaningfully reviewed by other experts. It insisted that she should have used a blinded review to evaluate Ms. Adams's [Pap smear] slides, citing the litigation guidelines approved by the College of American Pathologists ("CAP") and American Society of Cytopathology ("ASC") as evidence that a blinded review was the standard set by the profession. The district court was troubled by the risk of bias in Dr. Rosenthal's assessment, based on the general risk of review bias in non-blinded reviews, as well as Dr. Rosenthal's deposition statements about her "philosophical bent" toward patients later diagnosed with cancer. Finally, the district court observed that Dr. Rosenthal's methodology did not adequately simulate a cytotechnologist's working conditions and circumstances, and that her role as a pathologist is "materially different in function and scope" from that of a cytotechnologist.

In reversing, the Eleventh Circuit addressed each of these findings, but let's focus solely on what the court had to say about ipse dixit. According to the Eleventh Circuit,

The district court determined that "Dr. Rosenthal's methodology...is an ipse dixit assessment that is devoid of any methodology that would allow another expert to challenge it in any objective sense."...

The district court's determination was a "manifestly erroneous" conclusion....Dr. Rosenthal did not make an ipse dixit assessment. Her opinion "was based on a widely accepted methodology and grounded in the available physical evidence."...She personally reviewed the available physical evidence, which consisted of Ms. Adams's Pap smear slides that had been sent to LabCorp for the Pap tests. Dr. Rosenthal did so using the same standard microscope as LabCorp's cytotechnologists, scanning each slide in the same general manner as its cytotechnologists do. She later photographed Ms. Adams's slides and used those photographs in her deposition testimony, marking the areas in each picture where she had identified an abnormality.

Dr. Rosenthal used a well-established classification system to assess the cells: the same Bethesda System that LabCorp's cytotechnologists use. In her deposition testimony she went picture-by-picture, pointing to specific places in each one where Ms. Adams's cells showed abnormalities and classifying those abnormalities using the same Bethesda classification system that is used by LabCorp's cytotechnologists and nearly every other professional in the field of cytopathology. And the Bethesda Atlas, which is maintained by the ASC, provides numerous examples of each abnormality that Dr. Rosenthal identified, including "classic examples" of abnormal cells as well as "borderline" cells. As Dr. Rosenthal explained in her deposition, the images in the Atlas could be used to assess whether her opinion was in step with the established standards in the field. The fact that Dr. Rosenthal applied an established diagnostic system in which she was well versed contributed to the reliability of her methodology....

In addition to the Bethesda System, Dr. Rosenthal used her extensive experience in the fields of cytopathology and cytotechnology to assess whether LabCorp's employees' failure to identify those cells fell below the standard of care. She served on the task force that developed the Bethesda System terminology, the same diagnostic system that LabCorp's cytotechnologists use and that she used to review their work. Dr. Rosenthal reviews an average of 150 Pap smear slides every six weeks as part of her duties at Johns Hopkins, and she has trained cytotechnologists for more than forty years. That experience, as well as her knowledge of the risk of review bias, made her well aware of the conditions and limitations of the LabCorp cytotechnologists' review and of her own review of their work. As she explained, the criterion she applied during her review was "what would I expect a brand new cytotech student the next day after she graduates or he graduates to do with this case if they saw it." Dr. Rosenthal's application of her extensive, relevant experience contributed to the reliability of her methodology....It is difficult to imagine how Dr. Rosenthal's experience could have been more extensive and relevant or contributed more to the reliability of the methodology she used.

Dr. Rosenthal formed her opinion by using reliable tools, applying an established body of medical knowledge, and drawing on her extensive experience in the field. That is not an ipse dixit assessment. The best evidence that it is not comes—indirectly—from LabCorp's own expert witness, Dr. Seena Aisner. She used the same general non-blinded approach as Dr. Rosenthal. Dr. Aisner received Ms. Adams's slides from LabCorp and then, without doing a blinded review, evaluated those slides without mixing in slides from any other patients. She then gave her own opinion about each slide, and in her deposition explained why she disagreed with Dr. Rosenthal's opinion. That squarely contradicts the district court's assertion that Dr. Rosenthal's methodology did not "allow another expert to challenge it in any objective sense" and was not "a peer-reviewable evaluation."...The methodology not only allowed Dr. Aisner to challenge Dr. Rosenthal's opinion, she did challenge it.

(Hat tip to Charles Cork for the link).

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/08/ivewritten-beforeabout-the-concept-ofipse-dixit-in-the-context-of-expert-testimonyipse-dixit-is-latin-for-he-himself-said-it.html

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