Profession's Litigation Guidelines Not Controlling in Daubert Inquiry

By Robert Ambrogi Esq
To what extent should a professional association's litigation guidelines, setting standards for how its members evaluate evidence and prepare expert testimony, govern the admissibility of their testimony?
 
Faced with that question in what appears to be a case of first impression in any federal appeals court, the 11th U.S. Circuit Court of Appeals ruled that the guidelines are inapplicable to admissibility and that a trial judge's reliance on them was an abuse of discretion.

The question arose in a case involving the alleged negligence of cytotechnologists employed by the Laboratory Corporation of America (LabCorp). The plaintiffs, Christina Adams and her husband Christopher, alleged that LabCorp failed to identify abnormalities in Adams' Pap smears over a nearly three-year span. By the time doctors diagnosed her cervical cancer, it had metastasized in her lymph nodes.
 
Expert Failed to Follow Guidelines
 
The plaintiffs retained Dr. Dorothy Rosenthal to testify about whether LabCorp's employees breached the standard of care for cytotechnologists when reviewing Adams' slides. Rosenthal is a professor of pathology at the Johns Hopkins School of Medicine and the former director of cytopathology for the Johns Hopkins Medical Institutions.
 
After traveling to LabCorp and examining Ms. Adams' Pap smear slides, Dr. Rosenthal concluded that LabCorp's cytotechnologists' review of the slides fell short of the applicable standard of care by failing to identify abnormal cells they should have found.
 
LabCorp asked the district court to exclude Dr. Rosenthal's testimony. The court granted the request, in part because the expert failed to use a blinded review to evaluate the slides. The blinded review was called for in litigation guidelines approved by both the College of American Pathologists (CAP) and the American Society of Cytopathology (ASC). Citing these guidelines, the court concluded that the expert had failed to follow the "generally accepted standards in the area of pathology or cytotechnology."
 
Court Calls Guidelines 'Self-Serving'
On appeal, the 11th Circuit held that exclusion of the expert's testimony on this basis was an error of law and an abuse of discretion. In reaching this holding, the court characterized the CAP and ASC litigation guidelines as self-serving standards designed to make it more difficult for plaintiffs to sue.
 
The guidelines "are not objective, scientific findings; they are not guidelines followed by laboratories to screen for pre-cancerous or cancerous cells; they are policy proposals to limit how the courts can find the members of the organizations liable for professional negligence when they are sued," the court explained.
 
The court added that, as far as it could determine, this was the first time that an industry group had promulgated a set of guidelines that attempted to define and limit the evidence courts should accept when the group's members are sued.
 
"The members of CAP and ASC have a substantial interest in making it more difficult for plaintiffs to sue based on alleged negligence in their Pap smear screening, and their guidelines do just that," the court said.
 
Not an Indicator of Acceptance
 
Neither Daubert nor Kumho permits a scientific or medical community to define a "litigation standard" that applies when its members are sued, the court reasoned. It distinguished the holding in Daubert that courts may consider the degree of acceptance of a scientific technique or theory in the relevant scientific community.
 
"The 'acceptance' to which Daubert refers is the acceptance that the technique or theory has in the community’s own field of practice when the science is being applied outside of the litigation context, not the scientific community’s opinion about the standard or type of proof that should be required in litigation."
 
The CAP and ASC guidelines are not the product of "disinterested scientific inquiry" but constitute litigation policy designed to serve their members' own interests.
 
If these organizations were allowed to define what constitutes admissible expert testimony in their members' cases, then why couldn't other groups do the same, the court queried. Why couldn’t pharmaceutical companies, based on their expertise in pharmacology, adopt guidelines setting high standards of proof for establishing that a plaintiff’s injury was caused by a given drug? Why couldn’t an association of prison guards and wardens presume to define the meaning of “deliberate indifference”?
"They can’t," the court said, "because courts do not allow interested groups to set evidentiary or other litigation standards."

For this and other reasons, the court reversed the district court's exclusion of Dr. Rosenthal's opinion.

The case is Adams v. Laboratory Corporation of America, No. 13-10425 (11th Circuit July 29, 2014).

Tell us your experience in this matter. Have you ever been involved in a case where the defending party tried to impose their organization’s evidentiary and litigation standards on the court?
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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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