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Richard W. Stuhr, Esq. Dino S. Colombo, Esq. Timothy R. Linkous, Esq. Colombo & Stuhr Charleston, West Virginia Attorneys for Petitioners |
Jason A. Cuomo, Esq. Frank Cuomo, Esq. Cuomo & Cuomo Wellsburg, West Virginia Attorneys for Respondents |
JUSTICE McGRAW dissents and reserves the right to file a dissenting opinion.
1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
2. “ In
analyzing the admissibility of expert testimony under Rule 702 of the West Virginia
Rules of Evidence, the trial court's initial inquiry must consider whether the
testimony is based on an assertion or inference derived from the scientific methodology.
Moreover, the testimony must be relevant to a fact at issue. Further assessment
should then be made in regard to the expert testimony's reliability by considering
its underlying scientific
methodology and reasoning. This includes an assessment of (a) whether the scientific theory
and its conclusion can be and have been tested; (b) whether the scientific theory has been
subjected to peer review and publication; (c) whether the scientific theory's actual or
potential rate of error is known; and (d) whether the scientific theory is generally accepted
within the scientific community.” Syllabus Point 2, Wilt v. Buracker, 191 W.Va. 39, 443
S.E.2d 196 (1993) .
Per Curiam:
Petitioners Weirton Medical Center and Dr. Lawrence Callahan, defendants
below, seek to have this Court prohibit the Brooke County Circuit Court from enforcing an
order limiting the testimony of one of their experts, Dr. Gerald Nuovo.
(See footnote 1)
We grant the
requested writ.
At Weirton Medical Center, the attending emergency room physician Dr.
Callahan diagnosed Mr. Vilga as suffering from malignant hyperthermia.
(See footnote 2)
A short time later, Dr. Callahan had Mr. Vilga transported
by helicopter to Allegheny General Hospital in Pittsburgh, Pennsylvania. (See
footnote 3)
After Mr. Vilga's arrival at
Allegheny General, the treating physician who examined Mr. Vilga concluded that
Mr. Vilga did not have malignant hyperthermia. Instead, the treating physician
concluded that Mr. Vilga suffered from sepsis, a bacterial or viral infection
of the blood. Although Mr. Vilga underwent treatment for sepsis, he died several
hours later-- approximately ten hours after the onset of his first symptoms.
Approximately one year later, Mr. Vilga's executrix and widow, Rebecca Vilga, filed a medical malpractice action and a wrongful death action against Weirton Medical Center and Dr. Callahan in Brooke County Circuit Court.
The petitioners hired Dr. Gerard Nuovo to review Mr. Vilga's medical records to determine the cause of his death. Dr. Nuovo currently teaches at the Ohio State University Medical Center in the Department of Pathology. Dr. Nuovo also directs the University's Department of Cytopathology (the study of disease in cells) and the University's Molecular Histopathology (the study of molecular changes in diseased tissues) laboratory. Dr. Nuovo is also board-certified in anatomic pathology.
Dr. Nuovo sits on the editorial review boards of several respected scientific journals including: the Journal of Histochemistry and Cytochemistry, the Journal of Histotechnology, the American Journal of Surgical Pathology, and the journal Frontiers in Biotechnology. Dr. Nuovo has published more than 149 articles in peer-reviewed journals, has been invited to contribute to thirty-two chapters in peer-reviewed journals and texts, and has written or co-authored five books. Dr. Nuovo has also received several awards for his research. He received the LR Jones Award for Basic Research, the ASCAP award for resident research in 1993 and 1994, and the National Cancer Institute's Third Annual Howard M. Temin Award in Clinical Science for HIV/AIDS. (See footnote 4)
To analyze Mr. Vilga's cells, Dr. Nuovo used a procedure called “Reverse Transcriptase in situ Polymerase Chain Reaction” (hereinafter “RT in situ PCR”). (See footnote 5) The relatively new procedure differs from traditional testing procedures in that RT in situ PCR allows the examiner to test a cell for viruses while leaving the cell intact. Using traditional methods, the search for a virus' markers destroys the tested cells.
Using the RT in situ PCR method, Dr. Nuovo tested Mr. Vilga's spleen for different types of viral and bacterial infections . Ultimately Dr. Nuovo concluded that Mr. Vilga died as the result of rotaviral sepsis for which, in Dr. Nuovo 's opinion, there is no cure. (See footnote 6)
Pre-trial, Mrs. Vilga moved to exclude the testimony of Dr. Nuovo on the basis that the testing procedure utilized by Dr. Nuovo was not a sufficiently reliable method for detecting rotaviruses. The trial court ordered that Dr. Nuovo's testimony be excluded, finding that the methodology used by Dr. Nuovo as a basis for his conclusion lacked sufficient indicia of reliability (See footnote 7) to be admitted into evidence.
In response to the circuit court's ruling, the petitioners filed the instant petition
for a writ of prohibition with this Court. P etitioners seek to prohibit the circuit court from
enforcing its order excluding Dr. Nuovo's testimony regarding a rotavirus as the cause of Mr.
Vilga's death.
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction but
only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
In State ex rel. Wiseman v. Henning, 212 W.Va. 128, 569 S.E.2d 204 (2002) (per curiam), the testimony of expert witness Dr. Hussein was contested. Dr. Hussein, an expert in cancer research and treatment, proposed to testify to the novel theory that the impact from a physical trauma could cause multiple myeloma cancer at the site of impact. In Wiseman, this Court prohibited the circuit court from categorically excluding testimony from a well-credentialed medical expert on a novel theory.
The instant case is similar to Wiseman. In both instances, well-credentialed medical experts were presented to testify regarding theories that are relatively untested, and do not as yet enjoy widespread acceptance in the scientific community.
In the instant case, if we were to allow the trial court's ruling to stand, both parties would be compelled to go through an expensive, complex trial, and appeal from the final judgment _ an appeal that would likely address this issue. Based on our review of the record before us, we determine there is a likelihood of reversal on appeal based on the circuit court's exclusionary ruling; we further find that the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law. Wiseman, 212 W.Va. at 132, 569 S.E. 2d at 208. Therefore, prohibition is appropriate.
Having decided that prohibition is appropriate, we move to the substance of the petitioner's claim _ that the circuit court erred in excluding Dr. Nuovo 's testimony that a rotavirus, and not the petitioners' negligence, had caused Mr. Vilga's death.
In reviewing an expert witness' testimony, circuit courts are guided by Rule
702 of the West Virginia Rules of Evidence.
(See footnote 8)
Interpreting Rule 702, this Court has stated:
In analyzing the admissibility of expert testimony under Rule
702 of the West Virginia Rules of Evidence, the trial court's
initial inquiry must consider whether the testimony is based on
an assertion or inference derived from the scientific
methodology. Moreover, the testimony must be relevant to a
fact at issue. Further assessment should then be made in regard
to the expert testimony's reliability by considering its underlying scientific methodology and reasoning.
This includes an assessment of (a) whether the scientific theory and its
conclusion can be and have been tested; (b) whether the scientific theory
has been subjected to peer review and publication; (c) whether the scientific
theory's actual or potential rate of error is known; and (d) whether the
scientific theory is generally accepted within the scientific community.
Syllabus
Point 2,Wilt
v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993) .
We
further held in Syllabus Point 3 of Gentry v. Mangum, 195 W.Va. 512, 466
S.E.2d 171 (1995), that an expert's testimony must be relevant and reliable. “The
first and universal requirement for the admissibility of scientific evidence
is that it be both 'reliable' and 'relevant.'” In Gentry, this Court
required that “a preliminary assessment [be made] at the outset pursuant
to Rule 104(a) of whether the reasoning or methodology underlying the testimony
is scientifically valid.” Gentry, 195 W.Va. at 521, 466 S.E.2d at
180. Circuit
court judges have the discretion and authority under the Rules of Evidence to
determine whether scientific expert testimony is “trustworthy, even if the
technique involved has not yet won general scientific acclaim.” Gentry, 195
W.Va. at 521, 466 S.E.2d at 180. Although
the circuit court serves as the initial gatekeeper, questions of fact are ultimately
for the jury to resolve. Wiseman, 212 W.Va. at 134, 569 S.E.2d at 210.
Central to Mrs. Vilga's medical
malpractice action and wrongful death action is proving that the petitioners
could have diagnosed and treated Mr. Vilga in a way that could have prevented
his death. The parties in the instant case do not dispute the relevance of Dr. Nuovo's testimony. Instead, Mrs. Vilga
disputes the reliability of Dr.
Nuovo's testimony
under a Wilt analysis.
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, 212 W.Va. 57, 66,
569 S.E.2d, 133, 141 (2002) (citations and internal quotations omitted); accord
Wiseman, 212 W.Va. at 134, 569 S.E.2d at 210. When analyzing expert
testimony, trial courts are to focus on the soundness of the principles and
methodologies used,
not the conclusions ultimately reached. “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; see
Wiseman, 212 W.Va. at 134, 569 S.E.2d at 210. This Court further stated
in Gentry that “[o]nce an expert witness passes the minimal threshold,
further credentials affect the weight of the testimony not its admissibility.” Gentry, 95
W.Va. at 523 fn. 14, 466 S.E.2d at 182, fn. 14 (1995) .
This
Court takes notice of the small sample of patients in whom Dr. Nuovo has detected
rotaviruses using the RT in
situ PCR technique, and of the circuit court's finding
that four patients was too small a number to be a representative sample for scientific purposes. (See
footnote 9) However, a small sample and
the other concerns (See
footnote 10) cited by the circuit court
in its order are not a hindrance to admissibility, but instead go to
the weight given to the evidence.
This Court further recognizes
that Dr.
Nuovo 's
opinion may be novel and unorthodox, and may not have yet received, as the circuit
court found, “general acceptance in the scientific community.” However, the
record suggests a substantial degree of reliability underlying the formation
of Dr. Nuovo's opinion. Even one of the respondent's experts, Dr. Keith B. Armitage,
recognized in his deposition that Dr. Nuovo is a “mainstream scientist,” meaning
that “[h]e's a professor at a major academic center and he has publications
that have been published in peer reviewed journals.” Dr. Armitage further
acknowledges that PCR is the “gold standard for most viral infections.” When
asked in his deposition: “Well, is there a difference between PCR and RT in
situ PCR? ” Dr.
Armitage replied: “No, not really.”
While Dr. Nuovo's theory may
be novel, his theory is that of a “mainstream scientist” at “a
major academic center” who has “publications that have been published
in peer reviewed journals.” Dr.
Nuovo's credentials and
the RT in
situ PCR procedures
combine to make Dr. Nuovo's proffered opinion “valid enough to be reliable.” Whether “the
proffered evidence is right” is a question for the finder of fact.
Accordingly, we find that the circuit court exceeded its authority in its decision
to exclude the testimony of Dr. Nuovo.