Thursday, September 17, 2009

Expert Testimony on Fibromyalgia Allowed In Lackawanna County

In my preparations for my upcoming 2009 Civil Litigation Update presentation for the Lackawanna County Bench Bar Conference (Oct. 9th at the Scranton Hilton), I was advised of the following recent trial court opinion by Judge Terrence R. Nealon out of the Lackawanna County Court of Common Pleas.

I recently profiled the July 7, 2009 opinion issued by Judge Michael A. George of the Adams County Court of Common Pleas, George v. Frederick, (Adams Co., July 7, 2009), in which he showed that the trial courts of Pennsylvania are continuing to struggle with the issue of whether or not expert testimony should be allowed to support a plaintiff's effort to link his or her alleged fibromyalgia condition to the traumatic event at issue in the case.

In the George case, the Judge could not even issue an opinion on the issue based on what he had before him, but rather, ordered the parties to provide him with more information and articles from the general medical community on the methodology associated with a fibromyalgia diagnosis to assist the court in determining whether such information should be accepted.

In Lackawanna County, back on January 9, 2009, Judge Terrence R. Nealon issued an opinion in the case of Crossman v. Delisi, 2009 WL 221941 (Lacka Co. 2009) in which he denied a Defendant's Motion in Limine seeking to preclude the Plaintiff's medical expert, Dr. Scott K. Epstein, a physiatrist, from testifying that the Plaintiff's fibromyalgia symptoms were related to the motor vehicle accident at issue.

According to the opinion, Dr. Epstein remained firm in this opinion during the cross-examination of his videotaped deposition. Judge Nealon also considered the contrary testimony of the defense medical expert, orthopedic surgeon, Dr. Thomas Allardyce, who questioned any conclusion that fibromyalgia has been definitively linked to trauma.

Judge Nealon applied the test of admissibility set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) as required by the Pennsylvania Supreme Court decision in Blum v. Merrell Dow Pharmaceuticals, Inc., 764 A.2d 1, 4 (Pa. 2000). Under Frye, novel scientific evidence is admissible if the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community.

Relying upon Dr. Epstein's allegation that a majority of the medical literature recognizes that fibromyalgia may be caused by trauma, as well as relying upon the court's own independent research into articles stating the same as cited in other cases, Judge Nealon held that "[a]ssuming arguendo that Dr. Epstein used a particular methodology in formulating his opinion regarding the cause of the plaintiff's fibromyalgia, the expert testimony submitted for our review and the relevant medical literature discovered during our own research,...reflect that it has gained the requisite level of acceptance in the medical community."

As such, the Defendant's Motion in Limine was denied and the Plaintiff was permitted to present Dr. Epstein's testimony that the Plaintiff's fibromyalgia was related, or caused, by the motor vehicle accident in question.

Several years ago, back in April of 2005, I issued an article exploring this very topic and suggesting, at least back at that time, there was no general agreement in the medical community that fibromyalgia can result from trauma so as to support the admissibility of such testimony. That article, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases," may be viewed by clicking on the title to this post.

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