Georgia Court of Appeals Rejects Exclusion of Expert’s Testimony

In a significant case interpreting the 2005 tort reform laws, the Georgia Court of Appeals rejected the trial court’s limitation on the plaintiff’s expert testimony.  In Lavelle v. Laboratory Corp. of America, No. A13A1722, 2014 Ga. App. LEXIS 260 (3/28/14), a husband sued a physician, his medical practice, and a lab, seeking damages for negligence in failing to diagnose and treat his deceased wife’s cervical cancer in a timely fashion. The trial court granted the lab’s motion to exclude the husband’s expert’s testimony and granted partial summary judgment for the lab as to breach of the standard of care, and the husband appealed.  The Court of Appeals vacated the grant of the motion to exclude the expert testimony and the grant of partial summary judgment and remanded the case to the trial court for further proceedings.
The husband’s expert, a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides, had testified that the lab breached the applicable standard of care based on her focused reviews of the wife’s Papanicolaou (Pap) smear test slides, which showed abnormal cells. She also testified that two blinded reviews of the slides confirmed her opinion. The trial court excluded evidence of the two blinded reviews on the ground that they did not satisfy the reliability requirements of former O.C.G.A. § 24-9-67.1 and Daubert. The court held that the trial court erred in failing to consider the expert’s focused reviews of the slides apparently finding that the only acceptable methodology for reaching an opinion about whether a cytotechnologist breached the applicable standard of care was the blinded review methodology.  The Court of Appeals concluded that only methodology the trial court found acceptable was “promoted and promulgated” the cytotechs own professional association, and that was an abuse of discretion:

“In excluding Dr. Rosenthal’s opinion, the trial court abused her discretion . . . the trial court erred to the extent she held that the only acceptable methodology for reaching an opinion about whether a cytotech breached the applicable standard of care was the blinded review methodology promoted and promulgated by a professional association representing cytotechs. We are aware of no legal authority — legislative or judicial — that directs the specific methodology an expert must use to establish a breach of the standard of care in a professional malpractice case.”

The Court held that the trial court should have conducted a proper Daubert analysis of the methodology that the expert employed, the focused reviews.  This case could have broad application beyond medical malpractice cases.

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