Submitted: April 2, 2002
Filed: July 2, 2002
| James R. Fox, Esq.
Jory & Smith
Elkins, West Virginia
Attorney for Petitioners
| John Greg Goodykoontz, Esq.
Amy M. Smith, Esq.
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for Respondents Charles E. Stanley and Atha Trucking, Inc.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
In the instant case, the
petitioner seeks a writ of prohibition to halt the enforcement of an order
of the Circuit Court of Randolph County granting a motion in limine
that prevented the petitioner's main expert witness on causation and damages
from testifying. The circuit court concluded that the proffered scientific
opinion of the petitioner's main witness was unreliable.
As set forth below, we grant the requested writ of prohibition.
Mr. Wiseman sought treatment
at the Cleveland Clinic where he came under the care of Dr. Mohamad Hussein.
Dr. Hussein was director of the Cleveland Clinic Foundation Myeloma Program,
and was a member of several national cancer research societies. The Myeloma
Program is apparently the third largest in the country, and has treated approximately
477 patients with myeloma and other similar conditions.
A second biopsy was performed on December 5, 1996, and revealed the existence of plasmacytoma at the exact site of the initial trauma to Mr. Wiseman's rib cage. Plasmacytoma refers to abnormal plasma cells, and is a diagnostic indicator for myeloma, a cancer of the bone marrow.
Mr. Wiseman was subsequently diagnosed with multiple myeloma, and was informed that his life expectancy was significantly diminished. The life expectancy of a person diagnosed with multiple myeloma is three to five years.
Of the many individuals treated by the Cleveland Clinic for myeloma, at least five of those individuals suffered trauma-induced myeloma. Other hospitals, such as the Mayo Clinic, had similarly found myelomas and plasmacytomas at the site of traumas. Apparently, there is medical evidence to the effect that trauma to individual cells of the body can cause localized plasmacytomas, and those plasmacytomas can develop into multiple myeloma in a short period of time.
After treating Mr. Wiseman's condition, Dr. Hussein concluded that Mr. Wiseman's myeloma was a result of the rib cage injury suffered in the collision with respondent Mr. Stanley. Dr. Hussein's affidavit states:
It is my opinion to a reasonable degree of medical probability that Dorsey Wiseman suffers multiple myeloma as a result of the September 13, 1996 accident. This conclusion is based upon research [with many groups] . . ., my treatment of a substantial number of patients, the history and treatment of Dorsey Wiseman, various laboratory results for Mr. Wiseman, articles published by other specialists and my collaboration with physicians concentrating solely upon the research and treatment of multiple myeloma.
The petitioners, Mr. Wiseman and his wife Harriet, subsequently filed a lawsuit against respondents Mr. Stanley and Atha Trucking, alleging that the respondents' negligence was a proximate cause of Mr. Wiseman's myeloma. Prior to trial, scheduled for May 30, 2000, the respondents filed a motion in limine seeking to exclude Dr. Hussein's testimony that Mr. Wiseman's myeloma occurred as a result of the injuries sustained in the collision.
On May 25, 2000, the circuit court entered an order granting the respondents' motion in limine to exclude Dr. Hussein's testimony. The circuit court concluded that there is no evidence to support that the proposed testimony by Dr. Hussein is anything more than a possible or potential causal link. The circuit court believed that Dr. Hussein's opinion could show no basis in established scientific knowledge because it has not been subjected to testing, peer review or publication, an established error rate, controlling standards, or a general acceptance in the scientific community[.]
After several procedural delays, (See footnote 1) the petitioners filed the instant petition for a writ of prohibition with this Court, contending that by excluding Dr. Hussein's testimony, the circuit court had exceeded its legitimate authority and eliminated the petitioners' ability to prove damages and causation.
We held in Gentry v. Mangum,
195 W.Va. 512, 524, 466 S.E.2d 171, 183 (1995), that Rule 702 has three requirements
regarding the admission of expert testimony:
The petitioners contend that the circuit court improperly excluded the testimony of Dr. Hussein. Our standard for evaluating the testimony of an expert is stated in Rule 702 of the West Virginia Rules of Evidence, which permits opinion testimony by an expert when the witness is qualified as an expert by knowledge, skill, experience, training, or education, and [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]
We elaborated on and clarified
the admissibility standard for scientific expert testimony in Gentry,
where we made clear in Syllabus Point 4 that a circuit court can admit scientific
expert testimony so long as it is both reliable and relevant:
When scientific evidence is proffered, a circuit court in its gatekeeper role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994), must engage in a two-part analysis in regard to the expert testimony. First, the circuit court must determine whether the expert testimony reflects scientific knowledge, whether the findings are derived by scientific method, and whether the work product amounts to good science. Second, the circuit court must ensure that the scientific testimony is relevant to the task at hand.
Applying our holding in Syllabus Point 4 of Gentry, the parties in the instant case do not appear to dispute the relevance of Dr. Hussein's testimony. Instead, the parties dispute the reliability of his opinion. We therefore focus our attention on this factor alone.
We recognize that Dr. Hussein's
opinion is novel and unorthodox, and may not have yet received, as the circuit
court found, general acceptance in the scientific community. However,
the Rules of Evidence do not require that a scientific opinion be generally
accepted, because such a requirement is at odds with the liberal
thrust of the . . . Rules and their general approach of relaxing the
traditional barriers to opinion testimony. State v. Leep, ___ W.Va.
___, ___, ___ S.E.2d ___, ___ (Slip Op. at 12) (No. 30018, June 19, 2002) (citations
and internal quotations omitted). The record suggests a substantial degree of
reliability underlying the formation of Dr. Hussein's opinion. Accordingly,
we find that the circuit court erred in excluding his testimony on the basis
that it showed only a possible or potential causal link between
the respondents' alleged negligence and Mr. Dorsey's injury. The proffered opinion
is valid enough to be reliable; whether the proffered evidence
is right is a question for the finder of fact. Gentry, 195 W.Va.
at 523, 466 S.E.2d at 182.
When a trial court examines the reliability of an expert's scientific testimony, the court should examine the soundness of the principles or theories, and the reliability of the process or method used to derive those principles or theories. The problem is not to decide whether the proffered evidence is right, but whether the science is valid enough to be reliable. Gentry, 195 W.Va. at 523, 466 S.E.2d at 182.
Examining the record in the instant case, we believe that the circuit court exceeded its authority in its decision to exclude the testimony of Dr. Hussein. (See footnote 2) The record reflects that Dr. Hussein was a member of several specialized cancer research societies, and had substantial interaction with other cancer specialists. He was a specialist in cancers such as that suffered by Mr. Wiseman, and was director of the Myeloma Program at the Cleveland Clinic. Dr. Hussein's proffered opinion that multiple myeloma can result from a trauma was based upon: his extensive treatment of Mr. Wiseman; his treatment of five other patients at the Cleveland Clinic who had trauma-induced myelomas; his study of the physiological process of tissue injury causing chronic inflammation and overstimulation of cells, which triggers the growth of cancerous cells; his interaction with other specialists who also believe that trauma can trigger the occurrence of myeloma; and the handful of published studies by other cancer centers that have identified local tissue injury, including a bone fracture, as a risk factor for causing multiple myeloma.