United States District Court, S.D. Ohio, Eastern Division
JOHN C. PETERS, JR., individually and as Administrator of the Estate of Amanda J. Peters, Deceased, Plaintiff,
DCL MEDICAL LABORATORIES LLC, et al., Defendants.
Elizabeth P. Deavers, Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITES STATES DISTRICT JUDGE.
matter is before the Court on three motions. Defendants DCL
Medical Laboratories LLC, Laboratory Corporation of America
Holdings (as successor of interest to DCL Medical
Laboratories LLC) (collectively, "LabCorp"), and
Cathy King (collectively "Defendants") have filed a
Motion to Exclude Plaintiffs Expert (ECF No. 61) and a Motion
for Summary Judgment (ECF No. 63). Plaintiff John C. Peters,
Jr. has filed a Motion for Partial Summary Judgment (ECF No.
64). For the following reasons, Defendants' motions are
DENIED, and Plaintiffs motion is
GRANTED IN PART and DENIED IN
case stems from the purported misinterpretation of a Pap
test, which is a screening tool for abnormalities to identify
premalignant and malignant changes for cervical cancer.
(Defs.' Omnibus Statement of Facts ("Statement of
Facts") at 14, ECF No. 75-1.) A Pap test has two steps.
(Id.) First, the ordering physician collects a
sample of cells from the outer layer of the cervix.
(Id.) And second, the sample is sent to a laboratory
where a slide is prepared from the sample and examined under
a microscope for cellular characteristics and abnormalities.
slides are initially screened by a cytotechnologist.
(Statement of Facts ¶ 14.) Many laboratories, including
LabCorp's, utilize image-guided technology to assist
cytotechnologists in their screening, (Mem. in Supp. of Mot.
to Exclude at 4 n.l, ECF No. 61-1.) This automated technology
pre-screens a slide using complex algorithms to identify
certain fields of view for a cytotechnologist to review.
(Id.) The cytotechnologist then reviews the slide
using a microscope with an automated stage that walks her
through the fields of view identified by the imager.
cytotechnologist determines that the slide is negative for
signs of cellular abnormalities (normal), a report is sent
back to the ordering physician and no further action is taken
by the laboratory. (See Statement of Facts ¶
14.) If, by contrast, the cytotechnologist sees any suspected
cellular abnormalities on the slide, the cytotechnologist
sends the slide to a cytopathologist (a physician) for
further review. (Id.) The cytopathologist makes the
final interpretation of the slide. (See Id. at 15.)
utilize the Bethesda System to classify abnormalities.
(Statement of Facts ¶ 16.) The Bethesda System can be
depicted as a pyramid, where each step up the pyramid
represents an increase in the abnormal character of the
observed cervical cells. (Id. at 17.) The Bethesda
System classifications range from cells that are within
normal limits (NIL) to cancer. (Id.) Between these
two extremes are benign cellular changes; atypical cellular
changes, including atypical squamous cells of undetermined
significance (ASCUS) and atypical glandular cells (AGC);
low-grade squamous intraepithelial lesions (LSIL); high-grade
squamous intraepithelial lesions (HSIL); and carcinoma in
situ (CIS). (Id.; Bethesda System Pyramid at PageID
763, ECF No. 16-14.) A finding of NIL or benign cellular
changes is considered a normal result. (Statement of Facts
¶ 17.) Anything else is considered abnormal.
9, 2008, Amanda Peters went to her gynecologist for a Pap
test. (Statement of Facts ¶ 1, ECF No. 75-1.) The
gynecologist collected a sample from Mrs. Peters and then
sent the sample to LabCorp for interpretation and diagnosis.
(Id.) Defendant Cathy King, a LabCorp
cytotechnologist, reviewed the sample (identified as slide
L8-P-49705) for one minute and nineteen seconds and signed it
out as "negative for intraepithelial lesion and
malignancy" (NIL or normal). (Id. at 1-2.)
Peters had her next Pap test on October 26, 2009. (Statement
of Facts ¶ 2.) The slide was again examined by LabCorp
personnel, and, this time, the sample was interpreted as
containing "atypical squamous cells of undetermined
significance" (ASCUS). (Id. at 2-3.) On the
same day as her Pap test, a nurse practitioner saw a mass on
Mrs. Peters' cervix. (Id.)
December 7, 2009, Mrs. Peters saw an
obstretrician/gynecologist, Dr. Danielle Martter. (Statement
of Facts ¶ 3.) Dr. Martter visualized a 2 cm x 2 cm
cervical mass on Mrs. Peters' cervix. (Id.)
Several days later, Mrs. Peters underwent a colposcopic exam,
and Dr. Martter biopsied the cervical mass. (Id.)
Mrs. Peters was diagnosed as having cervical squamous cell
carcinoma (cervical cancer) on December 21, 2009.
(Id. at 3-4.)
her diagnosis, Mrs. Peters was referred to a gynecologic
oncologist who recommended a hysterectomy. (Id. at
4.) Mrs. Peters underwent a radical hysterectomy and pelvic
and periaortic lymph node dissection on January 7, 2010.
undergoing surgical, radiation, and chemotherapy treatments,
Mrs. Peters developed metastatic cervical cancer. (Statement
of Facts ¶ 4.) She died from metastatic cancer on August
21, 2014. (Id.)
28, 2015, Plaintiff John C. Peters, Jr., husband of Mrs.
Peters and administrator of her estate, filed this case,
alleging that Defendants' misreading of the July 2008 Pap
slide delayed Mrs. Peters being diagnosed with cervical
cancer and that this delay caused her death. (Compl. at 2,
ECF No. 1.) Plaintiff asserted claims of negligence, medical
negligence, and wrongful death against Defendants LabCorp and
Cathy King. (See Id. at 1-2; Notices of Voluntary
Dismissal at 1, ECF Nos. 12, 13.) However, in response to
Defendants' current Motion for Summary Judgment,
Plaintiff withdrew his negligence and medical negligence
claims. (Resp. to Defs.' Mot. for Summ. J. at 2, ECF No.
72.) Consequently, Plaintiffs only remaining claim is for
wrongful death. (See id.)
their Motion to Exclude, Defendants challenge the expert
testimony of Dr. Martha Bishop Pitman, a cytopathologist and
one of Plaintiff s standard-of-care experts. (See
Mem. in Supp. of Mot. to Exclude at 1, ECF No. 61-1;
Statement of Facts ¶ 8, ECF No. 75-1.) Arguing that Dr.
Pitman fails to present a reliable methodology for her expert
opinions, Defendants have moved to exclude her opinions and
to bar Plaintiff from offering her testimony. (Mem. in Supp.
of Mot. to Exclude at 1, 19.) And because Plaintiff
purportedly cannot succeed on his claims without Dr.
Pitman's opinion and testimony, Defendants request
summary judgment. (See Mem. in Supp. of Defs.'
Mot. for Summ. J. at 1, ECF No. 63-1.)
moves for summary judgment only on liability. (See
Reply in Supp. of Pl.'s Mot. for Summ. J. at 1-2, ECF No.
73.) Plaintiff contends that Defendants' duty and
subsequent breach of that duty is undisputed and that the
only issue left to be determined at trial is the amount of
damages Defendants owe. (See Pl.'s Mot. for
Summ. J. at 1, 12-13, ECF No. 64.) The Court will first
address Defendants' Motion to Exclude. It then considers
the parties' cross-motions for summary judgment.
MOTION TO EXCLUDE
Rule of Evidence 702 governs the testimony of expert
witnesses. The Rule allows for a witness, "qualified as
an expert by knowledge, skill, experience, training, or
education, " to testify in the form of an opinion or
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. This rule reflects the Supreme Court's
decisions in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
In re Scrap Metal Antitrust Litig., 527 F.3d 517,
528 (6th Cir. 2008).
Daubert, Kumho, and Rule 702, the district court
acts as the gatekeeper of expert testimony. In re Scrap
Metal, 527 F.3d at 528-29. This role, however, is not
intended to supplant the adversary system or the role of the
jury. See Id. at 531-32. Arguments regarding the
weight to be given any testimony or opinions of an expert
witness are properly left to the jury. See id.
"Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but
admissible evidence." Id. at 532 (quoting
Daubert, 509 U.S. at 596).
found admissible, expert testimony must satisfy three
requirements. First, the witness providing the testimony must
be qualified by knowledge, skill, experience, training, or
education. In re Scrap Metal, 527 F.3d at 529.
Second, the testimony must be relevant, meaning that the
testimony must help the trier of fact to understand the
evidence or to determine a fact in issue. Id. The
testimony, in other words, must have some "fit"
with the issues to be resolved at trial. Greenwell v.
Boatwright, 184 F.3d 492, 496 (6th Cir. 1999). And
third, the testimony must be reliable. In re Scrap
Metal, 527 F.3d at 529. In determining the reliability
of expert testimony, the district court's role, and the
offering party's responsibility, "is to make certain
that an expert. .. employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field." Kumho, 526 U.S.
at 152. Generally, the expert's opinions must reflect
'"scientific knowledge'... derived by the
scientific method." Daubert, 509 U.S. at 590.
The test of reliability is, however, a flexible one.
Kumho, 526 U.S. at 141. Any doubts regarding the
admissibility of an expert's testimony should be resolved
in favor of admissibility. Fed.R.Evid. 702 advisory
committee's notes, 2000 amend. ("A review of the
caselaw after Daubert shows that the rejection of
expert testimony is the exception rather than the
rule."); John v. Equine Servs., PSC, 233 F.3d
382, 388 (6th Cir. 2000) (stating that in Daubert
"[t]he Court explained mat Rule 702 displays a
'liberal thrust' with the 'general approach of
relaxing the traditional barriers to "opinion"
testimony"' (quoting Daubert, 509 U.S. at
party proffering the expert testimony carries the burden of
establishing, by a preponderance of the evidence, the
testimony's admissibility. See Nelson v. Tenn. Gas
Pipeline Co., 243 F, 3d 244, 251 (6th Cir. 2001).
Pitman is the Director of Cytopathology at Massachusetts
General Hospital (Mass General). (Statement of Facts ¶
23, ECF No. 75-1.) She assumed the position in 2011. (Pitman
Dep. at 15, ECF No. 61-8.) Since 1991, when Dr. Pitman became
an Assistant Pathologist at Mass. General, she has reviewed
tens of thousands of Pap slides. (See Id. at 48;
Pitman CV at 2, ECF No. 61-6.)
Pittman is also a Professor of Pathology at Harvard Medical
School. (Pitman Dep. at 18-19; Pitman CV at 2.) She teaches
doctors (residents) who come to Mass. General for their
training in pathology or cytopathology. (Pitman Dep. at 19.)
And through seminars, she instructs doctors around the world
on pathology. (See id.)
reach her opinions in this case, Dr. Pitman reviewed an
affidavit outlining the data records for Mrs. Peters'
July 2008 Pap slide, and she evaluated the slide through
three different reviews. (Pitman Report at 1-4, ECF No.
61-6.) Dr. Pitman evaluated the slide through a blinded
review. (Id. at 1-2.) She analyzed the results of a
blinded review of the slide conducted by seven
cytotechnologists at Mass. General. (Id. at 2-3.)
And she traveled to the LabCorp facility in West Virginia to
perform a focused review of the slide using the image-guided
technology that Ms. King used to screen the slide.
(Id. at 3.)
Arpin, a cytotechnologist at Mass. General, set up the
blinded review for Dr. Pitman and the cytotechnologists.
(Statement of Facts ¶ 25, 31.) The blinded review
included ten slides: Mrs. Peters' July 2008 slide; two of
Mrs. Peters' slides from a 2007 Pap test; and seven
distractor slides. (Id. at 25.) Before conducting
their blinded reviews, neither Dr. Pitman nor the
cytotechnologists looked at Mrs. Peters' slides or knew
how many of her slides they would be reviewing. (See
Pitman Dep. 85-86; Pitman Report at 1.) When Dr. Pitman
received a FedEx package from Plaintiffs counsel, she handed
it unopened to Mr. Arpin and instructed him to choose
distractor slides for a blinded review. (See Pitman
Dep. at 85-88.)
designing the blinded review, Mr. Arpin reviewed the
instructions Dr. Pitman provided him and followed the lead of
how Nora Popp, a former co-worker, set up prior blinded
reviews. (See Arpin Dep. at 111-12, 154, ECF No.
61-12.) Ms. Popp left examples of slides that she would
include in blinded reviews. (Id. at 111-12.) Mr.
Arpin, moreover, researched the American Society of
Cytopathology (ASC) Guidelines for Review of Gyn Cytology
Samples in the Context of Litigation or Potential Litigation
(Guidelines), (id. at 155), which advise
practitioners to analyze violations of the standard of care
for analyzing Pap slides through a blinded review "that
includes the contested case as one of a number of normal and
abnormal GYN cytology samples representing a variety of
disease states, " (Statement of Facts ¶ 22).
Arpin obtained the distractor slides from Mass. General's
archive. (Statement of Facts ¶ 29.) When choosing
distractor slides for blinded reviews, Mr. Arpin chooses
slides that a cytotechnologist would encounter on a normal
screening day-that is, slides featuring a mix of diagnoses,
which range from normal to invasive cancer. (See
Arpin Dep. at 116-17.) Mr. Arpin also ensures that all of the
distractor slides are the same preparation (ThinPrep or
SurePath) as the litigation slides. (See Id. at
127.) And for the blinded review of Mrs. Peters' slides,
Mr. Arpin chose distractor slides with normal and abnormal
diagnoses, including two slides with an HSIL diagnosis, the
same diagnosis that Dr. Pitman eventually assigned to Mrs.
Peters' July 2008 slide. (Statement of Facts ¶ 31;
Answer Key at PageID 633, ECF No. 61-8.)
selecting the distractor slides, Mr. Arpin created an answer
key for the blinded review. (See Arpin Dep. at
132-33.) The answer key listed each slide's
identification number, source (Mass General or LabCorp), and
Bethesda System classification (assigned by the original
reviewer). (See Statement of Facts ¶ 29.) To
determine the distractor slides' original Bethesda
classifications, Mr. Arpin looked up in Mass. General's
computer system the cytology report associated with each
slide. (See id.; Arpin Dep. at 112, 132-33.) Mr.
Arpin provided this answer key to Dr. Pitman after she had
conducted the blinded review. (Arpin Dep. at 141; Pitman Dep.
Pitman conducted her blinded review of the ten slides on May
13, 2013, over the course of 45 minutes. (Statement of Facts
¶ 32.) She determined that Mrs. Peters' My 2008
slide had abnormal cells, which she classified as high-grad
squamous intraepithelial lesion (HSIL). (Id.)
July 18, 2013, and August 5, 2013, the cytotechnologists
reviewed the same set often slides prepared by Mr. Arpin.
(See Statement of Facts ¶ 25, 33, 35.) They
were asked to determine whether each slide was normal or
abnormal. (Id.) So that the cytotechnologists would
not know that they were conducting a blinded review for a
legal matter, they were told that they were conducting a
quality assessment. (See id.; Arpin Dep. at 158;
Pitman Dep. at 165.) Six out of the seven cytotechnologists
determined that Mrs. Peters' July 2008 slide contained
abnormal cells. (Pitman Report at 2-3.)
the blinded reviews, the slides were unblinded, and Dr.
Pitman analyzed the results. (Pitman Report at 3.) In Dr.
Pitman's opinion, any competent cytotechnologist would
have identified the slide as containing abnormal cells and
passed the ...