Schneider v. Fried

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
2-18-2003
Schneider v. Fried
Precedential or Non-Precedential: Precedential
Docket 01-3786
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PRECEDENTIAL
Filed February 18, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3786
ERIC SCHNEIDER, as Personal
Representative of the Estate of
Anne B. Schneider and the
ESTATE OF ANNE B. SCHNEIDER,
Appellants
v.
GORDON W. FRIED, D.O., POCONO
CARDIOLOGY ASSOCIATES, P.C. and
ST. LUKE’S HOSPITAL
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 98-cv-5878)
Magistrate Judge: Honorable Arnold C. Rapoport
Argued: December 18, 2002
Before: BECKER, Chief Judge, ROTH and
ROSENN, Circuit Judges.
(Filed: February 18, 2003)
RICHARD OARE, ESQUIRE
(ARGUED)
1434 South George Street
York, PA 17403
Counsel for Appellants
JOHN J. HARE, ESQUIRE
(ARGUED)
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street
16th Floor
Philadelphia, PA 19103
Counsel for Appellees
OPINION OF THE COURT
BECKER, Chief Judge:
This is a medical malpractice case predicated on our
diversity jurisdiction and brought under Pennsylvania law.
Eric Schneider ("Schneider") sued on behalf of the estate of
his mother, Anne B. Schneider, alleging that Mrs.
Schneider’s death resulted from malpractice by defendant
Gordon W. Fried, D.O. ("Dr. Fried") that occurred while she
was being treated for a heart condition. Mrs. Schneider’s
estate is also a plaintiff in this case. Plaintiffs appeal from
the Magistrate Judge’s grant of a dispositive motion at the
conclusion of plaintiffs’ case after he had excluded the
testimony, following a Daubert hearing, of plaintiffs’ two
medical experts who testified that Dr. Fried violated the
applicable standard of care by administering the drug
Procardia sublingually to Mrs. Schneider as a pretreatment
for an angioplasty.
Both proffered experts, Marc Semigran, M.D. ("Dr.
Semigran") and Gregg Reis, M.D. ("Dr. Reis") possessed
eminent academic credentials. Dr. Semigran’s testimony
was excluded because the literature he cited at trial as
informing his opinion did not address the use of Procardia
to prevent coronary spasm during an angioplasty, the
specific use in this case. It also appears that another basis
for the exclusion of Dr. Semigran’s testimony (a point relied
upon heavily by defendants) was that he no longer
practiced in the sub-specialty area at issue in the case:
interventional cardiology; an interventional cardiologist
performs surgical procedures, while Dr. Semigran had
2
become an invasive cardiologist, who diagnoses and treats
heart conditions. The Magistrate Judge excluded the
testimony of Dr. Reis because he stated, at one point in his
testimony, that he was opining about his own personal
standard of care and not the standard of care in the
medical field.
As plaintiffs argue, however, the basis of the Magistrate
Judge’s ruling was undermined by strong countervailing
evidence supporting admission of the testimony of both
experts. Dr. Semigran, a former interventional cardiologist,
testified that his opinion was not based solely on the
literature he cited, but also on his broad knowledge of heart
conditions and his own experience, albeit as an invasive
cardiologist, making recommendations to interventional
cardiologists about which drugs to prescribe to patients
undergoing angioplasties; indeed, Dr. Semigran was present
during surgical procedures performed by interventional
cardiologists and would advise the interventional
cardiologists throughout those procedures. Likewise, Dr.
Reis testified extensively about the standard of care in the
medical field and explained in a sworn affidavit that his
previous statement to the effect that he could only discuss
his own personal standard of care was in response to a
question that he misunderstood.
We conclude that the Magistrate Judge abused his
discretion in excluding the testimony of both experts. There
is no dispute that Dr. Semigran’s testimony was based in
part on his considerable professional experience, including
advising interventional cardiologists during surgical
procedures. This makes his testimony about the standard
of care reliable, even if the literature he cited was irrelevant.
And in view of his extensive experience working closely with
interventional cardiologists, Dr. Semigran is also qualified
to give expert testimony, even though he is an invasive
cardiologist. We also conclude that Dr. Reis’ expert
testimony should have been admitted. Dr. Reis gave ample
testimony about the standard of care in the medical field
before he stated that he could only testify about his own
personal standard of care. Since the defendants offer no
evidence or explanation to suggest that Dr. Reis did not
misunderstand the question, we conclude that Dr. Reis was
3
qualified to give expert testimony. Accordingly the judgment
will be reversed and the case remanded for a new trial.
Before addressing the evidentiary issues, we must first
take up a challenge to our appellate jurisdiction. Although
the notice of appeal to this Court was untimely (a motion
for a new trial submitted beyond the ten day period
required by Rule 59 of the Federal Rules of Civil Procedure
does not toll the period for filing an appeal), we apply the
"unique circumstances" doctrine. Under the doctrine, we
have jurisdiction to hear the untimely appeal because the
late filing was induced by the Magistrate Judge’s order,
which conferred upon plaintiffs "the right" (albeit
impermissibly) to file a second notice of appeal within thirty
days of receiving the trial transcript and the plaintiffs relied
upon that order.
I.
Anne Schneider was admitted to the Pocono Medical
Center on November 10, 1996, where she was diagnosed
with unstable angina. Mrs. Schneider’s blood pressure was
falling, even after intravenous nitroglycerin was initiated,
and she was transferred to St. Luke’s Hospital, in
Bethlehem, Pennsylvania. At that time, a cardiac
catheterization was performed by Dr. Fried, revealing that
a coronary angioplasty was necessary. Mrs. Schneider was
thus scheduled to have an angioplasty performed by Dr.
Fried at St. Luke’s Hospital. As a pre-treatment, given
before undergoing the angioplasty, Dr. Fried administered
ten milligrams of the drug Procardia (also known as
nifedipine) sublingually (under the tongue). The purpose of
the Procardia was to prevent coronary spasm during the
angioplasty; a drug administered sublingually is more
quickly absorbed into the body and takes effect rapidly.
Soon after the Procardia was administered, Mrs.
Schneider’s blood pressure decreased rapidly (she became
hypotensive). Dr. Fried administered drugs in an attempt to
increase her blood pressure. Dr. Fried began the
angioplasty some 20 to 30 minutes after Mrs. Schneider
initially became hypotensive. The angioplasty was
performed, but Mrs. Schneider became unresponsive. An
4
analgesic was administered, but Mrs. Schneider remained
seriously hypotensive. The next day, an echocardiogram
showed persistent right ventricular dysfunction. In short
sequence, Mrs. Schneider developed end-organ dysfunction,
including renal failure and progressive cardiogenic shock.
Her blood pressure fell and she died on November 13,
1996. The post-mortem exam showed acute myocardial
infarction of the right ventricle and left ventricular posterior
wall.
Eric Schneider and the estate of Anne Schneider brought
suit in the District Court for the Eastern District of
Pennsylvania against Dr. Fried, Pocono Cardiology
Associates, P.C. and St. Luke’s Hospital for medical
malpractice. With the consent of the parties and pursuant
to 28 U.S.C. S 636(c)(1), this case was heard before a
Magistrate Judge. See 28 U.S.C. S 636(c)(1) (providing that
upon consent of the parties, a magistrate judge"may
conduct any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case").
Plaintiffs based the medical malpractice claim on two
theories: (1) Dr. Fried violated the applicable standard of
care by administering sublingual Procardia to Mrs.
Schneider as a pre-treatment for the angioplasty; and (2) he
waited too long to perform the angioplasty once Mrs.
Schneider became hypotensive. In support of the case, the
plaintiffs presented the expert testimony of Doctors
Semigran and Reis. As noted above, the Magistrate Judge
excluded that testimony.
On April 27, 2001, at the conclusion of the plaintiffs’
evidence, the Magistrate Judge granted the defendants’
motion to dismiss, alleging that the plaintiffs had not set
forth a prima facie case for medical malpractice because
they had not presented the testimony of at least one expert
who could state with a reasonable degree of medical
certainty that the acts of the defendant-physician deviated
from the standard of reasonable medical care, and that
such deviation was the proximate cause of the harm
suffered. Maurer v. Trustees of the University of
Pennsylvania, 418 Pa.Super. 510, 516, 614 A.2d 754, 757
(1992) (citing Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d
5
888, 892 (1990)). The motion was apparently brought
pursuant to Rule 50 of the Federal Rules of Civil Procedure.1
The plaintiffs did not file a notice of appeal at that
juncture, instead filing a motion for a new trial on May 8,
2001. However, plaintiffs’ counsel failed to order a copy of
the trial transcript along with the motion for a new trial.
See E.D. Pa. Loc. R. Civ. P. 7.1(e) ("Within fourteen (14)
days after filing any post-trial motion, the movant shall
either (a) order a transcript of the trial by a writing
delivered to the Court Reporter Supervisor, or (b) file a
verified motion showing good cause to be excused from this
requirement. Unless a transcript is thus ordered, or the
movant excused from ordering a transcript, the post-trial
motion may be dismissed for lack of prosecution.").
Because counsel had failed to order the trial transcript,
the Magistrate Judge entered an order on June 29, 2001
denying the plaintiffs’ motion for a new trial. At the same
time, however, the Magistrate Judge gave the plaintiffs the
opportunity to file a second motion for a new trial within
thirty days of receiving the trial transcript:
[I]t is hereby ORDERED that Plaintiff ’s motion is
DENIED with the right of the Plaintiff to bring a Motion
for a New Trial together with a Brief in Support of the
Motion for a New Trial within thirty (30) days from
receipt of the trial transcript.
On July 19, 2001, the defendants filed a praecipe asking
the Magistrate Judge to mark the matter closed based on
the failure to timely order a copy of the trial transcript. On
August 16, 2001, the plaintiffs filed a brief in reply to the
praecipe, requesting that they be granted until August 30,
2001 to file the motion for a new trial. On August 30, 2001,
the plaintiffs filed a second motion for a new trial, having
_________________________________________________________________
1. The Magistrate Judge did not specify that he was granting judgment
as a matter of law pursuant to Rule 50 of the Federal Rules of Civil
Procedure. Instead, he simply stated in his order of April 27, 2001 that
he was granting defendants’ motion for dismissal. Because it appears
that the Magistrate Judge was entering judgment for the defendants
because "there is no legally sufficient evidentiary basis for a reasonable
jury to find for the party on that issue," we conclude that the case was
dismissed pursuant to Fed. R. Civ. P. 50.
6
complied with the Magistrate Judge’s order granting them
thirty days from receipt of the trial transcript to file a
second motion for a new trial (the plaintiffs received the
trial transcript on July 30, 2001.) On September 13, 2001,
the Magistrate Judge denied the plaintiffs’ second motion
for a new trial, and concluded that the praecipe was moot.
The plaintiffs filed a notice of appeal to this Court on
October 5, 2001.
II.
Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure
requires that an appellant file a notice of appeal within
thirty days after the judgment of order appealed from is
entered. Although the Magistrate Judge dismissed the
plaintiffs’ case on April 27, 2001, they would have more
than thirty days from the dismissal to file a notice of appeal
with this Court if the motion for a new trial was timely filed.
See Fed. R. App. P. 4(a)(4)(A) ("If a party timely files [for a
new trial under Rule 59] in the district court . . . the time
to file an appeal runs for all parties from the entry of the
order disposing of the last . . . remaining motion."). At first
glance, the plaintiffs would appear to have complied with
the requirement that they file a notice of appeal within
thirty days from the final order; the final order in this case,
the order denying the plaintiffs’ second motion for a new
trial, was entered on September 13, 2001 and they filed a
notice of appeal on October 5, 2001.
However, under Fed. R. Civ. P. 59(b), "[a]ny motion for a
new trial shall be filed not later than 10 days after the entry
of the judgment." Moreover, Fed. R. Civ. P. 6(b) states that
a district court "may not extend the time for taking any
action under . . . 59(b) . . . except to the extent and under
the conditions stated in [59(b)]." Although sanctioned by
the Magistrate Judge, the defendants argue that the second
motion for a new trial was untimely, and as such it"did not
toll the 30-day time period for filing notices of appeal."
Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1362 (3d
Cir. 1990). Thus, the defendants submit, the plaintiffs were
required to file a notice of appeal within thirty days of June
7
29, 2001, when the Magistrate Judge denied the timely
motion for a new trial, which they did not do.2
The Magistrate Judge did not have the jurisdiction to
allow the plaintiffs to file a second motion for a new trial
more than ten days after dismissing the case. In so
concluding, we note that "[t]he 10-day filing period
[contained in Rule 59] is mandatory and jurisdictional, and
may not be extended by the court . . . stated differently, a
district court lacks jurisdiction to grant an untimely
motion." 12 Moore’s Federal Practice S 59.11[1][a] (3d ed.
2002) (citing Sonnenblick-Goldman Corp. v. Nowalk, 420
F.2d 858, 860 (3d Cir. 1970) ("Rule 6(b) [of the Federal
Rules of Civil Procedure] has been determined to render a
court without power to extend the time for service of
motions.")). Rule 6(b) of the Federal Rules of Civil Procedure
clearly forbids a district court from extending the ten day
time period in Rule 59(b). See Fed. R. Civ. P. 6(b) ("[T]he
court . . . may not extend the time for taking action under
. . . 59(b) . . . except to the extent and under the conditions
stated in [59(b)]."). Thus, the plaintiffs were required to file
a notice of appeal from the disposition of the last timely
filed motion; the Magistrate Judge denied the plaintiffs’
timely motion for a new trial on June 29, 2001. Since they
did not file a notice of appeal until October 5, 2001 --
_________________________________________________________________
2. The defendants also appear to argue that we do not have jurisdiction
to hear this appeal because Schneider violated Local Rule of Civil
Procedure 7.1(e) by not ordering the trial transcript within fourteen days
of filing a post trial motion, or showing good cause for being excused
from this requirement. However, Rule 7.1(e) gives the district court
discretion to excuse this requirement:
Within fourteen (14) days after filing any post-trial motion, the
movant shall either (a) order a transcript of the trial by a writing
delivered to the Court Reporter Supervisor, or (b) file a verified
motion showing good cause to be excused from this requirement.
Unless a transcript is thus ordered, or the movant excused from
ordering a transcript, the post-trial motion may be dismissed for lack
of prosecution. E.D. Pa. Loc. R. Civ. P. 7.1(e) (emphasis added).
Under the local rule, the Magistrate Judge was not required to dismiss
the plaintiffs’ motion for a new trial simply because counsel did not
order a copy of the trial transcript.
8
beyond the thirty day requirement -- the plaintiffs’ appeal
is untimely.
However, the Supreme Court has created a narrow
exception to the requirement that the notice of appeal be
filed within thirty days of the disposition of the last timely
motion. See Thompson v. INS, 375 U.S. 384, 387 (1964)
(remanding to the Court of Appeals, which had dismissed
the appeal as untimely, "in view of these ‘unique
circumstances’ "). The doctrine of "unique circumstances"
permits an untimely Rule 59 motion to extend the time for
filing an appeal when the party filed a late appeal in
reliance on the actions of the district court. The unique
circumstances doctrine is explained in Moore’s Federal
Practice:
Occasionally a district court will erroneously enlarge
the filing period for Rule 59 . . . motions against the
prohibition against enlargement in Rule 6(b). Under the
doctrine of unique circumstances, if a party performs
an act that, when properly performed, would extend
the deadline for filing an appeal and the party
reasonably relies on the district court’s conclusion that
the act was properly performed, an otherwise late
appeal is timely if filed within the mistakenly enlarged
deadline. 12 Moore’s Federal Practice S 59.12[2][b] (3d
ed. 2002).
This Court has acknowledged the continued viability of
the unique circumstances doctrine in Kraus, concluding
that "[t]he unique circumstances exception evolved out of
concern with the fairness of a dismissal when the district
court contributed to the party’s failure to take the steps
necessary to perfect the appeal." 899 F.2d at 1365. In
Kraus, we did not allow the appellant to take advantage of
the doctrine of unique circumstances because the filing
delay was partly due to the attorney’s own incompetence.
See id. ("The unique circumstances doctrine has never been
extended to an attorney’s miscalculation of the applicable
time limits."). In contrast, in the case at bar, the appeal
was untimely solely because of the plaintiffs’ reliance on the
order of the Magistrate Judge.
It is arguable that counsel should have realized that the
Magistrate Judge exceeded his authority by allowing the
9
plaintiffs to file a second motion for a new trial more than
ten days after the case was dismissed and that counsel
should have filed a notice of appeal immediately after the
Magistrate Judge denied the first motion for a new trial to
preserve the appeal. However, where the Magistrate Judge
misunderstood his own authority to grant an extension to
the ten day filing period contained in Rule 59(b), and
conferred upon plaintiff "the right" to an extension, it would
be a harsh result to require the plaintiffs to question the
Magistrate Judge’s power to do so. The unique
circumstances doctrine was designed for situations such as
this, to prevent the appellant’s reliance on the district
court’s mistake from prejudicing the appellant.
The plaintiffs clearly relied on the Magistrate Judge’s
order granting them until thirty days after receiving the
trial transcript to file a second motion for a new trial. The
plaintiffs also complied with the Magistrate Judge’s
(erroneously) enlarged deadline; they received the trial
transcript on July 30, 2001 and filed the second motion for
a new trial on August 30, 2001. Thus, because we conclude
that the plaintiffs reasonably relied upon the Magistrate
Judge’s order conferring upon them "the right" to file a
second motion for a new trial more than ten days after the
case was dismissed, the doctrine of unique circumstances
gives us jurisdiction to hear the appeal even though the
notice of appeal was untimely. We thus proceed to the
merits of the appeal.
III.
We review the decision to admit or reject expert testimony
under an abuse of discretion standard. In re Paoli Railroad
Yard PCB Litigation, 35 F.3d 717, 749 (3d Cir. 1994). An
abuse of discretion arises only when the decision"rests
upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact."
Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)
(citing Hanover Potato Products, Inc. v. Shalala , 989 F.2d
123, 127 (3d Cir. 1993)).
The plaintiffs contend that the Magistrate Judge erred
when he excluded the testimony of Dr. Semigran and Dr.
10
Reis. Rule 702 of the Federal Rules of Evidence allows a
witness qualified as an expert to give testimony that would
be otherwise impermissible:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the
facts of the case.
Fed. R. Evid. 702.
We have explained that Rule 702 embodies a trilogy of
restrictions on expert testimony: qualification, reliability
and fit.3 Paoli II, 35 F.3d at 741-743 (citing Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
Qualification refers to the requirement that the witness
possess specialized expertise. We have interpreted this
requirement liberally, holding that "a broad range of
knowledge, skills, and training qualify an expert." Id.
Secondly, the testimony must be reliable; it "must be based
on the ‘methods and procedures of science’ rather than on
‘subjective belief or unsupported speculation’; the expert
must have ‘good grounds’ for his on her belief. In sum,
Daubert holds that an inquiry into the reliability of
scientific evidence under Rule 702 requires a determination
as to its scientific validity." Paoli II, 35 F.3d at 742 (quoting
Daubert, 509 U.S. at 590). Finally, Rule 702 requires that
the expert testimony must fit the issues in the case. In
other words, the expert’s testimony must be relevant for the
purposes of the case and must assist the trier of fact. The
Supreme Court explained in Daubert that"Rule 702’s
‘helpfulness’ standard requires a valid scientific connection
_________________________________________________________________
3. Indeed, Rule 702 of the Federal Rules of Evidence was amended to
include the trilogy of restrictions (qualifications, reliability, fit) in its text
after the Supreme Court decided Daubert. Fed. R. Evid. 702 advisory
committee’s notes.
11
to the pertinent inquiry as a precondition to admissibility."
509 U.S. at 591-92.
By means of a so-called "Daubert hearing," the district
court acts as a gatekeeper, preventing opinion testimony
that does not meet the requirements of qualification,
reliability and fit from reaching the jury. See Daubert, 509
U.S. at 592 ("Faced with a proffer of expert scientific
testimony, then, the trial judge must determine at the
outset, pursuant to Rule 104(a) [of the Federal Rules of
Evidence] whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact to
understand or determine a fact in issue."). The plaintiffs
maintain that the Magistrate Judge abused this discretion
as a gatekeeper by excluding the testimony of experts who
qualified under Rule 702.
A.
The plaintiffs contend that the Magistrate Judge erred
when he precluded the testimony of Dr. Semigran on the
grounds that the literature cited by him as a basis for his
opinion did not address the specific issue in the case:
whether it was the standard of care in November of 1996 to
administer Procardia sublingually as a pre-treatment for an
angioplasty. Instead that literature only addressed the use
of Procardia as a treatment for hypertensive emergencies
(abnormally high blood pressure) or other blood-pressure
problems, which the parties conceded was not the use in
this case. Dr. Semigran testified:
In the way they were administered in this case, I don’t
believe that sublingual administration of nifedipine was
used, at least, according to the standard of care that I
understand it to be in November of 1996.
. . .
I think the basis for that statement is my knowledge of
the pharmacology -- of the way the agent works, the --
my experience with it and the published literature on
it.
. . .
12
There was certainly published data as early as 1987 of
the adverse consequences of administering sublingual
nifedipine to patients who were having acute coronary
syndromes. There was further information that was
published in one of the leading medical journals in
1996 as to the adverse affects of administering
sublingual nifedipine to patients. . . . And in addition,
the -- the product information that comes along with
-- with Procardia nifedipine specifically points out the
dangers -- potential dangers -- of using it in patients,
who have severe coronary stenosis.
Dr. Semigran admitted on cross-examination that the
literature just cited did "not specifically address the issue of
vessel spasm." In the case at bar, Procardia was
administered as a pre-treatment for an angioplasty-- to
prevent coronary vessel spasm during the surgical
procedure. The Magistrate Judge precluded Dr. Semigran’s
testimony, noting that "the literature of the profession upon
which the doctor makes his decision" does not address the
specific issue.
The ruling by the Magistrate Judge appears to address
the second requirement of the Rule 702 trilogy: reliability.
This Court has laid out some factors that a district court
should consider when determining whether proposed expert
testimony is reliable:
(1) whether a method consists of a testable hypothesis;
(2) whether the method has been subject to peer
review; (3) the known or potential rate of error; (4) the
existence and maintenance of standards controlling the
technique’s operation; (5) whether the method is
generally accepted; (6) the relationship of the technique
to methods which have been established to be reliable;
(7) the qualifications of the expert witness testifying
based on the methodology; and (8) the non-judicial
uses. Paoli II, 35 F.3d at 742 n. 8 (citing Daubert,
supra, and United States v. Downing, 753 F.2d 1224
(3d Cir. 1985), for these factors).
The defendants maintain that the Magistrate Judge was
correct to exclude Dr. Semigran’s testimony because the
articles do not show that the practice of not administering
13
Procardia for this purpose (as a pre-treatment) had been
subjected to peer review or that the discontinuation of
Procardia to prevent coronary vessel spasm had gained
general acceptance (two of the Daubert factors).
Without delving into the question whether articles
discussing the use of Procardia for one purpose are relevant
to whether it was a violation of the standard of care to
administer it for another purpose, we note that expert
testimony does not have to obtain general acceptance or be
subject to peer review to be admitted under Rule 702.
Indeed, in Daubert, the Supreme Court specifically held
that Rule 702 overruled the requirement that an opinion
must gain general acceptance in order to qualify as
admissible expert testimony; instead general acceptance
and peer review are only two of the factors that a district
court should consider when acting as gatekeeper. See
Daubert, 509 U.S. at 589 ("Given the [Federal Rules of
Evidence’s] permissive backdrop and their inclusion of a
specific rule on expert testimony that does not mention
" ‘general acceptance,’ " the assertion that the Rules
somehow assimilated [United States v. Frye , 293 F. 1013
(D.C. Cir. 1923)] is unconvincing. Frye made "general
acceptance" the exclusive test for admitting expert scientific
testimony."). Where there are other factors that
demonstrate the reliability of the expert’s methodology, an
expert opinion should not be excluded simply because there
is no literature on point.
In the case at bar, Dr. Semigran stated that he based his
opinion not only upon the literature, but also upon his own
experience as a cardiologist.4 Although Dr. Semigran had
_________________________________________________________________
4. Dr. Semigran attended Harvard College and Harvard Medical School.
He did an internal medicine residency from 1983 to 1986 at
Massachusetts General Hospital, which is affiliated with Harvard Medical
School. Dr. Semigran also had a cardiology fellowship at Massachusetts
General Hospital following his residency there. From 1989 until the time
of trial, Dr. Semigran taught at Harvard Medical School, where he
received numerous distinguished teaching awards. As part of his
teaching job, Dr. Semigran lectured medical students, residents and
fellows in cardiology and supervised residents and fellows in cardiology
and the care of patients. Dr. Semigran has served on the Harvard
14
not actually performed angioplasties since mid-1990, at the
time he testified, he was treating patients with angina in
his capacity as an invasive cardiologist. The record
establishes that as an invasive cardiologist, who normally
diagnoses heart conditions, Dr. Semigran was routinely
present during surgical procedures and regularly advised
interventional cardiologists during the course of those
procedures. Dr. Semigran also testified that he would
consult with interventional cardiologists about which drugs
should or should not be given to patients undergoing
angioplasties. Thus, we conclude that Dr. Semigran’s
experience renders his testimony reliable, demonstrates
that his testimony is based on "good grounds," and that the
Magistrate Judge abused his discretion by excluding it. See
Daubert, 509 U.S. at 590 ("Proposed testimony must be
supported by appropriate validation -- i.e., ‘good
grounds.’ ").
Although not specifically mentioned by the Magistrate
Judge, the defendants contend that Dr. Semigran’s
testimony was properly excluded because he was not an
expert in the sub-specialty about which he opined. 5 The
_________________________________________________________________
Medical School admissions committee, a regional review board of cardiac
transplantation, a committee that oversees intensive care units at
Massachusetts General Hospital, as well as various other committees. At
the time he testified, he was a member of the American College of
Cardiology, a fellow of the American College of Cardiology, a member of
the American Heart Association, and a member of the Heart Failure
Society. Dr. Semigran researches "heart failure and . . . the function of
the heart when it is failing."
5. The defendants’ argument that Dr. Semigran was unqualified to testify
because he is not a practitioner of the sub-specialty (interventional
cardiology) at issue in the case is also based upon Pennsylvania state
law. The defendants state in their brief:
[T]he Pennsylvania Legislature recently enacted more stringent
requirements for all expert witnesses testifying on the standard of
care issue in medical malpractice cases. See Medical Care
Availability and Reduction of Error Act, 2002 Pa. ALS 13 (2002).
Under the M-Care Act, it is necessary for an expert testifying on the
standard of care issue to be substantially familiar with the
applicable standard of care at the time the alleged breach occurred.
15
tenor of the Magistrate Judge’s ruling is consistent with
this argument. In particular, the defendants assert that
because, in 1996, Dr. Semigran was an invasive
cardiologist (diagnosing and treating heart conditions) and
not an interventional cardiologist (performing angioplasties)
he was not qualified to testify about the standard of care for
interventional cardiologists. This argument appears to
challenge the qualification of Dr. Semigran; although we
note that "the degree to which the expert testifying is
qualified" also implicates the reliability of the testimony.
Paoli II, 35 F.3d at 742.
The defendants refer us to our decision in Aloe Coal Co.
v. Clark Equip. Co., 816 F.2d 110,114 (3d Cir. 1987), in
which we held that a tractor salesman was not qualified to
testify about the causes of a tractor fire because"[h]e had
no knowledge or experience in determining the cause of
equipment fires." However, Dr. Semigran had ample
experience advising interventional cardiologists about which
drugs to prescribe patients undergoing angioplasties.
Moreover, Dr. Semigran’s academic background and his
teaching position, as noted in the margin, also demonstrate
that he is highly knowledgeable about cardiology. For the
same reasons that we found Dr. Semigran’s testimony
reliable -- most importantly because he had regular contact
with and advised interventional cardiologists in November
of 1996 -- we also conclude that Dr. Semigran had the
proper qualifications to give expert opinion, especially
considering that the requirement that a witness have
specialized knowledge has been interpreted liberally. Paoli
II, 35 F.3d at 741. In sum, the Magistrate Judge abused his
discretion in excluding Dr. Semigran’s testimony.
B.
The plaintiffs also maintain that the Magistrate Judge
abused his discretion when he excluded the expert
_________________________________________________________________
The expert must also practice in the same subspecialty as the
defendant or in a subspecialty which has substantially the same
standard of care for the specific care at issue.
However, because the M-Care Act was not enacted until 2002, the
Magistrate Judge could not have relied upon it to exclude Dr. Semigran’s
testimony when the case was dismissed on April 27, 2001.
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testimony of Dr. Reis. Based on Dr. Reis’ statement that "I
can’t comment on what individual cardiologists were doing
throughout the country . . . I can only comment about . . .
my practice," the Magistrate Judge concluded that Dr. Reis
could not testify about the legal standard of care since an
opinion about the legal standard of care must be based on
what is considered reasonable and acceptable in the entire
community, not just the expert’s own practice. See McPhee
v. Reichel, 461 F.2d 947, 951 (3d Cir. 1972) (concluding
that a jury charge explaining the standard of care should
state that a specialist "is expected to exercise that degree of
skill, learning and care normally possessed and exercised
by the average physician in the medical community who
devotes special study and attention" to the diagnosis and
treatment of diseases within that specialty). See also
Maurer, 614 A.2d at 763 (granting judgment n.o.v. to the
defendant since the proposed expert "did not testify to
anything more than his own, personal standard of care").
However, in the case at bar, Dr. Reis testified extensively
about the general standard of care. For example, he
explained:
My opinion is that at the time this procedure was
performed, that a physician doing these procedures
should have known that administration of sublingual
Procardia could be dangerous. That the information
was available, widely published in terms of adverse
reactions, both in the prescribing information and in
the medical literature. And that a physician doing the
procedure should at that point have stopped using
sublingual Procardia.
I think the second breach of care was in the failure to
recognize that a severe adverse reaction was occurring
and failing to act quickly enough to reverse the effects
of that adverse reaction by appropriately administering
medications to rapidly bring up the blood pressure.
Those medications were administered but they were
administered too slowly and too late.
And I believe that the third breach of care was that it
took too long to perform angioplasty when the
emergency situation was developing.
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On re-direct examination, Dr. Reis made the comment
that he could only testify about his own personal standard
of care in response to the following question posed by
plaintiffs’ counsel:
[W]ith respect to what interventional cardiologists were
doing in 1996, is it fair to say that the use of
sublingual Procardia, in the fashion in which Dr. Fried
used it here, was well below the minimum standard of
care by interventional cardiologists throughout the
country?
Dr. Reis responded:
I can’t comment on what individual cardiologists were
doing throughout the country because . . . frankly, I
don’t know what each individual cardiologist was doing
at the time. You know what I can only comment about
was my practice -- my interpretation of the literature
and my feelings and how the literature should have
been applied to clinical practice.
Counsel for plaintiffs explained to the Magistrate Judge
that Dr. Reis thought that counsel had asked him to
comment on what individual cardiologists were doing in
1996, and not what interventional cardiologists were doing
in 1996. As such, Dr. Reis responded that he did not know
what each "individual" cardiologist was actually doing at
the time.
Counsel for plaintiffs also requested that the Magistrate
Judge ask Dr. Reis about the misunderstanding while he
was still under oath:
Your Honor, when I addressed you and said that the
doctor misunderstood the term "interventional" for
"individual," he affirmatively nodded. You might ask
the doctor that. He misunderstood the term to mean
"individual."
The record shows that the Magistrate Judge refused to let
Dr. Reis explain the misunderstanding and proceeded to
exclude his testimony because "I don’t believe at this
juncture that he misunderstood." Dr. Reis later swore in an
affidavit that he "misheard [counsel’s question], thinking he
used the term individual rather than interventional," and
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"responded to [his] question by using the term individual
cardiologist."
We conclude that Dr. Reis’ testimony (before making the
comment that he could only testify about his practice)
demonstrated that he had formed an opinion about the
legal standard of care and that the opinion had a reliable
basis. For example, Dr. Reis gave ample testimony about
what "a physician" should have known and how"a
physician" should have acted, see discussion supra.
Moreover, Dr. Reis’ qualifications suggest that he would be
able to testify about the standard of care in the medical
field. Dr. Reis is an interventional cardiologist at
Pennsylvania Hospital in Philadelphia, where he routinely
performs procedures such as catheterizations and
angioplasties. He is also a clinical assistant professor at the
University of Pennsylvania and the author of a chapter in a
text book titled, Cardiac Catheterizations Angiography and
Intervention (4th ed.). The defendants have offered no
evidence or explanation suggesting that Dr. Reis did not
misunderstand the question, and in light of Dr. Reis prior
testimony about the standard of care in the medical field,
it appears that Dr. Reis was qualified to give expert
testimony and that his opinion was based on "good
grounds." Daubert, 509 U.S. at 590. Thus, we conclude that
the Magistrate Judge abused his discretion by excluding
Dr. Reis’ testimony.
IV.
For the foregoing reasons, we will reverse the Magistrate
Judge’s order dismissing the case and will remand for a
new trial.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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