In the Lehigh County Court of Common Pleas recently joined the growing number of Pennsylvania trial courts allowing a Plaintiff to present expert testimony relating an alleged fibromyalgia condition to a traumatic event.
In the case of Getz v. Bennett, 54 Leh. L. J. 495 (Jan. 31, 2011), the court denied a Defendant’s Motion to Bar a Plaintiff’s Expert’s Opinion that a motor vehicle accident caused the Plaintiff’s fibromyalgia condition.
The court in Getz found that the methodology of the expert was generally accepted in the scientific community. The opinion was also found to be based upon physical and neurological examination of the Plaintiff, her medical history, and the sequence of events leading to the onset of the symptoms. The court also referenced literature linking trauma and fibromyalgia. It appears from the opinion that the court was also influence by the lack of any fibromyalgia symptoms before the subject accident.
Anyone desiring a copy of the Getz decision may contact me at dancummins@comcast.net.
Here are links to other Tort Talk posts on this issue that show that the emerging trend of the Pennsylvania trial courts is to allow this form of expert testimony on the grounds that the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community:
http://www.torttalk.com/2009/07/trial-courts-continue-to-struggle-with.html
http://www.torttalk.com/2009/09/expert-testimony-on-fibromyalgia.html
http://www.torttalk.com/2010/10/judge-sibum-of-monroe-county-allows-for.html
Here's a link to a prior Pennsylvania Law Weekly article of mine on the topic, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases":
http://www.jdsupra.com/post/documentViewer.aspx?fid=7b1fc59d-4789-4f9e-be96-f157818c6d80
Based upon the above, it appears the the overwhelming current trend is that the trial courts have been willing to allow expert opinion linking a plaintiff's alleged fibromyalgia condition to a traumatic event to proceed ahead for a jury's consideration.
Showing posts with label Fibromyalgia. Show all posts
Showing posts with label Fibromyalgia. Show all posts
Monday, June 27, 2011
Tuesday, October 5, 2010
Judge Sibum of Monroe County Allows For Expert Causation Testimony on Fibromyalgia
In an August 20, 2010 Order, without Opinion, in the case of Green v. Walls, No. 3512 - Civil - 2008 (Monroe Co. Aug. 20, 2010 Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas denied a Defendant's Motion in Limine seeking to preclude a Plaintiff's medical expert from testifying as to the causation of the Plaintiff's fibromyalgia condition as an alleged result of trauma.
I thank the prevailing Plaintiff's attorney, Jeremy D. Puglia, Esquire, of the Doylestown, Pennsylvania law office of Drake, Hileman & Davis, for bringing this decision to my attention.
Anyone desiring a copy of Judge Sibum's Order, without Opinion, may contact me at dancummins@comcast.net.
Here are links to other Tort Talk posts on this issue that show that the emerging trend of the Pennsylvania trial courts is to allow this form of expert testimony on the grounds that the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community:
http://www.torttalk.com/2009/07/trial-courts-continue-to-struggle-with.html
http://www.torttalk.com/2009/09/expert-testimony-on-fibromyalgia.html
Here's a link to a prior Pennsylvania Law Weekly article of mine on the topic, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases":
http://www.jdsupra.com/post/documentViewer.aspx?fid=7b1fc59d-4789-4f9e-be96-f157818c6d80
I thank the prevailing Plaintiff's attorney, Jeremy D. Puglia, Esquire, of the Doylestown, Pennsylvania law office of Drake, Hileman & Davis, for bringing this decision to my attention.
Anyone desiring a copy of Judge Sibum's Order, without Opinion, may contact me at dancummins@comcast.net.
Here are links to other Tort Talk posts on this issue that show that the emerging trend of the Pennsylvania trial courts is to allow this form of expert testimony on the grounds that the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community:
http://www.torttalk.com/2009/07/trial-courts-continue-to-struggle-with.html
http://www.torttalk.com/2009/09/expert-testimony-on-fibromyalgia.html
Here's a link to a prior Pennsylvania Law Weekly article of mine on the topic, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases":
http://www.jdsupra.com/post/documentViewer.aspx?fid=7b1fc59d-4789-4f9e-be96-f157818c6d80
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.
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.
Sunday, July 19, 2009
Trial Courts Continue to Struggle With Admissibility of Expert Testimony Linking Fibromyalgia to Traumatic Events
As seen in a recent opinion issued by Judge Michael A. George of the Adams County Court of Common Pleas, George v. Frederick, (Adams Co., July 7, 2009), 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.
The George court addressed the defendant's motion in limine to preclude such expert testimony and held that the issue of whether such testimony is admissible is subject to the Frye test, which requires a showing that the medical community has generally accepted the theory or principle the expert is putting forth in his opinion. The court took the matter under advisement in order that the parties may submit additional information for the court to review, including complete copies of referenced articles on the topic.
Judge Michael did note that while the Plaintiff's expert's methodology of coming to his opinion, i.e. reviewing the medical records and noting his own medical experience on the issue may be a generally acceptable methodology for reaching an opinion in the medical community, the underlying principle that fibromyalgia can result from truama was not yet established by the Plaintiff to be a generally accepted principle in the medical community. The parties were granted an additional 30 days to offer additional materials in support of their respective positions.
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.
The George court addressed the defendant's motion in limine to preclude such expert testimony and held that the issue of whether such testimony is admissible is subject to the Frye test, which requires a showing that the medical community has generally accepted the theory or principle the expert is putting forth in his opinion. The court took the matter under advisement in order that the parties may submit additional information for the court to review, including complete copies of referenced articles on the topic.
Judge Michael did note that while the Plaintiff's expert's methodology of coming to his opinion, i.e. reviewing the medical records and noting his own medical experience on the issue may be a generally acceptable methodology for reaching an opinion in the medical community, the underlying principle that fibromyalgia can result from truama was not yet established by the Plaintiff to be a generally accepted principle in the medical community. The parties were granted an additional 30 days to offer additional materials in support of their respective positions.
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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