FIL` D
PUP O APPEALS
DIV9u101i II
2013 FEB 261 10: 19
AS, 111ri'T0ii
U
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ADVANCED HEALTH CARE, INC., a I. II
Z
Washington corporation,
Respondent,
V.
ARTHUR T. GUSCOTT, PUBLISHED OPINION
HUNT, P. .Arthur Guscott appeals the superior court's in limine exclusion of his three
J —
expert witnesses' causation testimonies and its resultant summary judgment dismissal of his tort
counterclaims against Advanced Heath Care, Inc. AHC),
( which had sued him for failure to pay
for services. He argues that the superior court ( )
1 erroneously ruled that his experts' testimonies
did not meet the Frye test' and misapplied the Frye test by requiring scientific proof that every
aspect of his experts' causation opinions was not novel; 2)should have instead applied the
(
Daubert test to evidence supporting his civil tort counterclaims; 3)erred in granting summary
(
judgment to AHC because Guscott lacked evidence of causation; and (4)erred in denying his
motion for reconsideration. We hold that Guscott's experts' testimonies did not involve novel
Frye v. United States, 54 U. .App. D. .46, 93 F. 1013 (1923).
S C 2
2
Daubert v. Merrell Dow Pharms.,Inc.,
509 U. . 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
S
1993).
No. 41969 6 II
- -
scientific theories or methods and, therefore, they did not implicate Frye. We reverse the
superior court's exclusion of Guscott's experts' testimonies for failure to meet the Frye test and
its summary judgment dismissal of Guscott's counterclaims against AHC; and we remand for
trial.
FACTS
1. RUPTURED ABDOMINAL AORTIC ANEURISM
On Christmas Day 2006, 86-
yearold Arthur Guscott was attending a church service with
-
his AHC caregiver. Guscott had previously been diagnosed with Parkinson's disease and a 9.
4
centimeter abdominal aortic aneurism, which was very large and rapidly growing but still intact.
Guscott left the church service with his caregiver pushing him in a wheelchair. Guscott's
wheelchair hit a crack in the sidewalk; Guscott fell out of the wheelchair, hitting his elbow and
his buttocks hard on the cement. Guscott's caregiver took him to the emergency room at
Providence St. Peter Hospital, where Guscott was treated by Dr.Erik Penner.
Dr. Penner examined Guscott, consulted his medical records, and learned that he had a
large abdominal aortic aneurism, for which he had previously signed a Do Not Resuscitate
DNR) directive and had refused surgery. Dr. Penner noted that Guscott had a low blood
pressure of " 1/ 3 ", which
9 6 could be a sign of a ruptured abdominal aortic aneurism. Clerk's
Papers (CP)at 110. After speaking with Guscott and performing a physical examination on him,
however, Dr. Penner concluded that Guscott did not have any "tenderness" or "pain in his
abdomen,"
suggesting that the abdominal aortic aneurism had not ruptured. CP at 111.
3
According to Dr. Nam T. Tran's deposition testimony, an abdominal aortic aneurism is an
enlargement of the abdominal aorta that is "two times the normal size of the normal aorta
diameter or greater than three centimeters."Clerk's Papers (CP)at 95.
0?
No. 41969 6 II
- -
Because Guscott had primarily complained about pain in his buttocks, Dr. Penner ordered
a pelvic x ray to rule out the possibility of a fracture, a full electrocardiogram (EKG), complete
- a
blood count (CBC), basic metabolic panel (BMP), a urinalysis. Dr. Penner did not find
a and
anything particularly concerning about Guscott's medical condition from these tests. When the
nurses checked Guscott's blood pressure again, it had risen to "
112/ 8 ". CP at 114. Dr. Penner
6
found this increase in blood pressure "reassuring,"and he became "less concern[ d]"
e about
Guscott's having a ruptured abdominal aortic aneurism because his blood pressure was rising
and stabilizing rather than staying persistently low. CP at 115. Dr.Penner discharged Guscott as
having merely " ontusions"or bruises)on his buttocks and some cuts on his right elbow. CP at
c (
116.
At home that. evening, the caretaker applied an ice pack to Guscott's right elbow in
accordance with the hospital's discharge instructions. Guscott was "groaning" and "moaning
loudly," his transfers from his recliner to his wheelchair and toilet appeared very painful. CP
and
at 261. The two caretakers who worked with Guscott the next morning noted that (1) blood
his
pressure had remained stable at 113/ 9; ( ) his elbow was still "pink," "
7 2 swollen,"and
bleeding "; 3) complained of pain " ll over," this pain was primarily concentrated in his
( he a but
coccyx; and (4) had difficulty urinating. CP at 257 58,262. The caretakers continued icing
he -
his elbow, gave him two Tylenol in addition to his usual morning prescriptions, scheduled an
4
Although. Guscott's BMP showed that he had "baseline anemia," Penner was relatively
Dr.
unconcerned about anemia because he did not believe Guscott had any "active bleeding" and
because some people are persistently anemic. CP at 113 14. Guscott's BMP also showed other
-
mild abnormalities"that did not concern Dr.Penner. CP at 113.
3
No. 41969 6 II
- -
appointment with his personal physician for December 28, and notified his daughter in Chicago
so she could attend. Guscott's evening caretaker gave him two more Tylenol for his pain.
On December 27, Guscott's daughter arrived and spent the afternoon reviewing her
father's books and finances with him. Around 2:0 or 3:0 AM the next day, Guscott's painful
0 0
moans woke his daughter; believing he was having a heart attack, she called 911. At Providence
St. Peter Hospital, a computed tomography (CT scan) showed that Guscott's abdominal aortic
aneurism had ruptured. Guscott reversed his earlier DNR and was flown to Harborview Medical
Center for surgery on his ruptured abdominal aortic aneurism. Vascular surgeon Dr. Nam T.
Tran conducted a " airly routine"successful surgery. CP at 97.
f
II. PROCEDURE
AHC sued Guscott for breach of contract, asserting that he had failed to pay for his
caretaker services. CP at 9 10.
- Guscott counterclaimed that (1)AHC had been negligent in
causing him to fall from his wheelchair, which fall was the proximate cause of his ruptured
abdominal aortic aneurism; and (2) s neglect was also a. violation of the vulnerable adult
AHC'
statute, chapter 74. 4 RCW.
3 The superior court bifurcated th e parties' claims. The parties
settled AHC's breach of contract claim before trial; thus, the superior court set only Guscott's
tort counterclaims for trial. In anticipation of trial, both parties retained and deposed medical
experts to testify about whether Guscott's fall from his wheelchair had caused his abdominal
5
Guscott's amended answer also included counterclaims for conversion and theft of personal
property and breach of contract. These counterclaims are not at issue on appeal.
4-
No. 41969 6 II
- -
aortic aneurism to rupture. Ultimately, however, the trial court excluded Guscott's expert
witnesses' opinions.
A. Pretrial Expert Witness Depositions
1. Guscott's experts' opinions
To prove causation, Guscott relied on the opinions of three experts: Drs. Holmes, Heller,
and Gore. But the trial court ruled that none of the three experts' opinions met the Frye test and,
thus, excluded their testimonies.
Dr.Holmes
Dr. John R. Holmes, a cardiologist at Virginia Mason Medical Center, reviewed
Guscott's hospital records and testified in a deposition that he believed Guscott's fall from his
wheelchair had caused his abdominal aortic aneurism to rupture as a result of deceleration"and
"
shearing forces."CP at 213. According to Dr. Holmes, 1) was well known in the medical
( it
community that a " ignificant trauma"or a "violent fall"e. ., crash or skiing accident)could
s ( g car
cause a normal aorta to rupture as a result of deceleration, even where the person injured had not
suffered direct trauma to the aorta; and (2)it was not a far "stretch" that a fragile, dilated, or
calcified aorta like Guscott's could rupture with even less trauma. CP at 213. Dr. Holmes,
however, did not know of any medical studies analyzing the effect of deceleration on the
abdominal aorta ( s opposed to the thoracic aorta)or abdominal aortic aneurisms specifically.
a
Nevertheless, in Dr. Holmes' opinion, Guscott had eggshell" aorta.
an " CP at 215.
When Guscott fell hard from his wheelchair, his aorta cracked and started to " eak."' at 215.
l CP
6
Guscott did not similarly move to exclude AHC's experts' opinions; thus, these expert opinions
remained available for AHC's use at trial.
Z
No. 41969 6 II
- -
The days following, when Guscott was in "ntense pain"and "symptomatic in the pelvic area, "
i
his aorta was leaking intermittently (by bleeding and clotting several times);
Guscott eventually
became anemic and in enough pain that he developed angina, causing him to go to the
emergency room again three days later. CP at 214, 215..
According to Dr. Holmes, Guscott
survived during this period because his aneurism had leaked very slowly and he had a " ontained
c
rupture."CP at 215.
Dr. Holmes acknowledged that there was significant
a " risk " that Guscott's aneurism
would have spontaneously ruptured within the year based on its "
size"and its "rate of growth. "
But Dr. Holmes believed the "temporal relationship" between Guscott's fall and his abdominal
aortic aneurism's leaking or rupturing made it more likely that his fall had caused the rupture.
CP at 211, 217. Although ANC's medical experts ultimately reached different conclusions, they
l
did not dispute ( that
1) deceleration injuries can cause aortic ruptured or (2) it was possible,
that
7 It is not clear from the record whether an abdominal aortic aneurism "leak"is the same as a
rupture."Guscott's and AHC's medical experts appear to disagree on whether these terms are
synonymous or whether a leak is a lesser form of a rupture.
8
According to Dr. Holmes, pain in the "pelvis" or "sacral" area could be symptomatic of an
abdominal aortic aneurism's leaking or rupturing. CP at 217.
9
According to the medical community's landmark" study on abdominal aortic aneurisms,
"
Guscott had a 50 percent chance of his abdominal aortic aneurism's spontaneously rupturing
within the year. CP at 213. .
io
Guscott's abdominal aortic aneurism was 8. centimeters in June 2006 and 9. centimeters
2 4
when it ruptured in December 2006. According to Dr. Holmes, this constituted a "significant
rate of growth"over that time period. CP at 211.
AHC medical expert Doctor Kaj Henry Johansen generally agreed that.penetrating trauma"
"
e. .,
g gunshot and stab wounds) and "severe deceleration" e. ., hitting a bridge at 70 mph)
( g car
could rupture a person's abdominal aorta. CP at 144. But he claimed there was no evidence that
Guscott had suffered such trauma or a deceleration injury by falling from his wheelchair.
Cel
No. 41969 6 II
- -
though perhaps unlikely, for an abdominal aortic aneurism to leak and to clot over a period of
time.
1-)
r NPl IPY
St. Louis University Medical School Associate Professor Dr. Ross Heller has treated
numerous abdominal aortic aneurism patients as an emergency room doctor. He testified in
deposition that abdominal aortic aneurisms often "leak" bleed) and " clot,"
( making them
relatively stable. CP of 248. Overtime, however, as the patient's blood pressure rises and
tension builds on the patient's aortic wall, the clot eventually retracts and the abdominal aortic
aneurism re leaks to the point where the body can no longer seal off the wound by clotting.
-
In Dr. Heller's opinion, Guscott's low blood pressure and his initial "symptoms" on
December 25 (back and buttocks pain) indicated that his abdominal aortic aneurism had likely
started leaking when he fell out of the wheelchair. But the aneurism clotted and stabilized before
he left the emergency room. CP at 251. The clot then broke when Guscott's blood pressure rose
and his abdominal aortic aneurism started leaking again. Had Guscott's abdominal aortic
aneurism leaked nonstop from the December 25 fall until December 28, he would have been
in]extremis 13 and died. CP at 250 51.
" -
12
Dr. Johansen agreed with Guscott's experts that it is possible for an abdominal aortic aneurism
like Guscott's that leaked into the retroperitoneum to "tapenade," to "
or wall[ ]itself off,"
and
then to stop leaking. CP at 144. As the patient's blood pressure rose, however, the abdominal
aortic aneurism would re- He also claimed there had been reported cases of abdominal
bleed.
aortic aneurisms bleeding and stopping for a couple days, but such cases were "vanishingly
rare."CP at 144.
13
Webster's Dictionary defines "in extremis" as "in extreme circumstances"or "at the point of
death."WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1157 (2002).
7
No. 41969 6 II
- -
Like Dr. Holmes, Dr. Heller based his medical opinion on deceleration and shearing
forces. According to Dr.Heller, the effects of deceleration are a matter of simple physiology and
are "basic knowledge"within the medical community. CP at 252. For example, it is common
scientific knowledge that "falls, car accidents, [and] rollover car accidents" can cause aortic
ruptures, although a "classic high speed deceleration injury"usually involves the thoracic aorta,
not the abdominal aorta. CP at 247. Nevertheless, even low ground level falls like Guscott's fall
-
from his wheelchair could create sufficient force to cause a deceleration injury and an abdominal
aortic aneurism to rupture, especially in older people. Dr. Heller was not aware of any medical
studies documenting the effects of deceleration forces in ground level falls or with abdominal
-
aortic aneurisms specifically; nor had he conducted such studies himself. But having worked
with thousands of patients at "level one trauma centers" most of his 30 year career, he had
-
personal experience treating patients whose abdominal aortic aneurisms had leaked or ruptured
as a result of ground level falls. CP at 247.
-
Dr.Gore
Radiologist D_.Richard Michael Gore reviewed Guscott's medical records, including his
r
December 28 CT scan,' concluded that Guscott's abdominal aortic aneurism had most likely
and
started leaking after his fall from the wheelchair because some of the pelvic blood visible on this
CT scan was around three days old.. According to Dr. Gore, blood has a different density and
E
WRIEFLOWSM
14
attenuation on a CT scan depending on its age, and he is frequently asked to determine the
relative age of blood as part of his practice. CP at 239, 724 25. Based on his 33 years
-
experience as a radiologist,he has developed a "fairly good eye"and can determine the relative
age of blood by " yeball[ ng]" scan. CP at 239, 240.
e i a CT
Dr. Gore also theorized that Guscott's abdominal aortic aneurism had leaked slowly over
the three day period because his December 28 CT scan did not show a "' lit like inferior vena
- s -
cava. " CP at 726. Dr. Gore explained that ( ) inferior vena cava is typically wide; 2)
1 the ( when
the body is injured and bleeds rapidly,the body takes blood from the inferior vena cava to supply
more vital organs, making the inferior vena cava look slitlike;and (3) absence of a slit like
- the -
inferior vena cava on Guscott's CT scan suggested that his abdominal aortic aneurism had bled
slowly over a three day period as opposed to more quickly over a shorter time period. Dr. Gore
-
believed there "might be"scientific studies documenting the effects of rapid blood loss on the
inferior vena cava, but he had not read these studies in a long time. CP at 727. He
acknowledged that the effects he described were not a "100 percent" accurate because some
patients could have a normal inferior vena cava even though they had suffered the "shock"of
rapid blood loss. CP at 727.
14
According to Dr. Gore, older blood tends to be less dense than fresh blood, and it has a grayish
color. If blood is more than three to five days old, it develops a "hematocrit"effect because the
solid components of the blood (red and white blood cells) will be in the bottom portion of the
blood, and the serum will be on the top. CP at 239. The blood on Guscott's CT scan had not yet
developed the hematocrit effect, suggesting that the blood in his abdominal cavity was not yet
more than three days old.
Dr. Gore conceded that a radiologist could more precisely determine a blood's density
and relative age by measuring its " Hounsfield units."CP at 239. To get the blood's Hounsfield
units, however, the radiologist performing the CT scan would need to draw the cursor over the
region of the CT scan and ask the machine to compute to the region's Hounsfield units. This had
not been done in Guscott's case.
6
No. 41969 6 II
- -
2. AHC's Experts' Opinions
AHC's medical experts relied on much of the same evidence as Guscott's medical
g Guscott's medical records, CT
experts (e. ., scan, But they disagreed that
symptoms, etc.).
Guscott's fall on December 25 had caused his abdominal aortic aneurism to rupture.
Dr.Johansen
Based on 30 years of experience treating patients with aortic aneurysm ruptures and his
independent review of Guscott's medical records, University of Washington.School of Medicine
professor and vascular surgeon Dr. Kaj Henry Johansen opined that Guscott had "no real
symptoms"of an abdominal aortic aneurism leak on December 25 and that his abdominal aortic
aneurism had ruptured on December 28 merely "as a consequence of its size" and aortic "wall
tension." CP at 143. Dr. Johansen generally agreed that trauma and severe deceleration could
cause an aorta to rupture, but he disagreed that Guscott had suffered from such trauma or from
such deceleration after falling from his wheelchair.
Dr.Peters
Like Guscott's radiologist expert Dr. Gore, AHC's radiologist expert, Dr. Mfichael J.
Peters, visually reviewed Guscott's CT scan. Despite the lack of computer -determined
Hounsfield units, " he offered his expert opinion on the date of the blood in Guscott's
abdominal cavity and the likely date of Guscott's abdominal aortic aneurism rupture, based on
the blood density and attenuation differences visible on Guscott's CT scan. He did not dispute
Dr. Gore's opinion that a trained radiologist could tell the difference between blood densities by
is
See n.4 and n.6.
1 1
10
No. 41969 6 II
- -
16
reviewing a patient's CT scans. Contrary to Dr. Gore's conclusion, however, Dr. Peters
concluded that the different states of blood visible in the CT scan were only 10 12 hours old and,
-
thus, Guscott's rupture had likely occurred within 10 to 12 hours of his admittance to the
emergency room three days after the fall, on December 28. CP at 633. Dr.Peters acknowledged
17
that he had seen abdominal aortic aneurisms leak over an extended period of time but that it
would have been "very rare" for the type of rupture that Guscott had to have leaked for three
days and that such leaking would never have occurred without pain. CP at 635.
Dr.Tran
Dr. Nam T. Tran, the vascular surgeon who had repaired Guscott's abdominal aortic
aneurism rupture, also believed that Guscott's abdominal aortic aneurism rupture had been less
than 12 hours old on December 28. CP at 97. Without challenging the underlying science used
by Guscott's medical experts, Dr. Tran testified in his deposition that 1) was "unlikely"that
( it.
Guscott's fall had caused his abdominal aortic aneurism to rupture because he had not sustained
any direct trauma to the abdominal area when he fell; and (2) was not common for abdominal
it
aortic aneurisms to rupture and to clot on their own. CP at 97, 98. Dr. Tran also asserted that it
was "really hard to tell"how long an abdominal aortic aneurism had been ruptured by merely
viewing CT scans. CP at 97. In his opinion, you could " ever [know] how long the aneurysm
n
16
Dr. Peters generally agreed with Dr. Gore that a trained radiologist could tell the difference
between "subacute" blood (1 4 days old) and blood that was more "chronic" in duration (e. .,
- g
differentiating 2 day old blood from 20 day blood) by reviewing a patient's CT scans. CP at
- -
816. But Dr. Peters believed such conclusions were inexact and, thus, it was not possible for a
radiologist to determine the exact age of blood within the subacute category, as was at issue in
Guscott's case, either by "`
eye- ing] "'
ball[ the blood or by considering its Hounsfield units. CP
at 816.
17 For example,microscopic abdominal aortic aneurism bleeds can bleed for six to eight months.
11
No. 41969 6 II
- -
ha[ ]been ruptured" without talking to the patient and hearing him complain about a "sudden
d
onset of abdominal pain." at 97.
CP
B. Frye Motion in Limine To Exclude Guscott's Experts' Testimonies
AHC moved in limine to exclude Guscott's three experts' testimonies, arguing that the
experts were not qualified under ER 702 and.their opinions were inadmissible under Frye.
Guscott responded that his experts met the minimum qualifications for expert testimony under
ER 702 and that the Frye test did not apply because it was " niversally accepted" in the medical
u
community that "trauma, including falls" could cause existing abdominal aortic aneurisms to
rupture. CP at 979. Guscott submitted his three experts' depositions and AHC's caregiver notes
from after the fall to support his argument.
Guscott also filed a supplemental memorandum opposing AHC's Frye motion. He
argued that Frye was inapplicable because his experts had not relied on novel scientific methods
or theories but had, instead, relied on " heir own practical experience"and had made " easonable
t r
deductions"from well -established scientific principles. CP at 322, 323. AHC responded that ( )
1
it had challenged " Guscott's experts' opinions as being `novel, "'largely because its own experts
had offered contrary causation opinions;.2)its mere assertion (without direct evidence) that
(
Guscott's experts had relied on novel science "automatically require[d] Frye analysis" and
a
shifted the burden of proof to Guscott to show that his experts' methods and theories were
generally accepted in the scientific community; and (3)because Guscott had failed to produce
such evidence of general acceptance, particularly in the form of scientific studies, the superior
court was required to exclude Guscott's experts' testimonies under Frye. CP at 329.
12
No. 41969 6 II
- -
Neither party offered any scientific studies. After hearing oral argument, the superior
court concluded that Guscott's experts were qualified under ER 702. Nevertheless, the superior
court ruled that these testimonies were inadmissible under Frye because (1)
AHC had "
satisfied
its prima faci[ ]
e burden to show that Mr. Guscott's experts present[ed]novel scientific theories";
and (2)there was " o scientific basis in the record"that Guscott's experts scientific methods and
n
theories were generally accepted in the medical community. CP at 342. The superior court did
not, however, explain how it reached its threshold determination that AHC had satisfied its prima
facie burden. The superior court granted AHC's motion and excluded all three of Guscott's
experts' testimonies from trial.
C. Summary Judgment
After the superior court excluded Guscott's expert evidence, Guscott conceded that he
could not prove the causation element of his two tort counterclaims, negligence and violation of
the vulnerable adult statute. In light of this concession, the superior court entered summary
judgment against Guscott on his counterclaims against AHC and awarded AHC $
64
5, in
066.
statutory attorney fees and costs. CP at 362 63.
-
Guscott moved for reconsideration, arguing that (1)the superior court had improperly
18
decided a factual issue and determined that Guscott had fallen on buttocks" rather than on
his "
his elbow and side; 2) experts had not relied on novel scientific methods or theories, making
( his
Frye inapplicable; 19 and (3)
therefore, he did not need to present scientific studies under the Frye
18 CP at 373.
19
Guscott also argued that the superior court had erroneously determined he was not a competent
witness and had excluded his deposition testimony. This ruling, however, is not at issue on
appeal.
13
No. 41969 6 II
- -
test. Nevertheless, he submitted some 250 pages of scientific studies and other medical
literature, which he argued the superior court should consider on reconsideration because it had
not conducted a formal Frye hearing. The superior court rejected Guscott's scientific studies and
medical literature because the documents were not "newly,discovered evidence" under CR
4),
59( )(it denied his motion for reconsideration. CP at 954.
a and
Guscott appeals.
ANALYSIS
Guscott argues that the superior court erred in ruling that his experts' testimonies were
inadmissible under Frye because (1)his experts' opinions were not based on novel scientific
methods or theories, making Frye inapplicable; ( even if Frye applied, the superior court
2)
misapplied the test by requiring scientific proof that every aspect of his experts' causation
opinions was not novel;. (3) the alternative, if the superior court correctly concluded that
and in
his experts' testimonies were novel, it should have applied the Daubert test to his civil tort
counterclaims. Agreeing with Guscott -hat his experts' opinions were not based on novel
t
scientific methods or theories under Frye,we do not reach his other arguments.
We review a superior court's Frye ruling de novo. Moore v. Harley-
Davidson Motor
Co. Grp.,Inc.,158 Wn. App. 407, 417, 240 P. d 808 ( 2010). We also review summary
3
judgment orders de novo, performing the same inquiry as the superior court. Hisle v. Todd Pac.
20
Expert testimony involving scientific evidence must be admissible under both the Frye test and
ER 702. Moore, 158 Wn: App. at 417. Evidence is admissible under ER 702 if 1) witness.
( the
qualifies as an expert, and (2) expert's testimony is helpful for the trier of fact. State v. Baity,
the
140 Wn. d 1, 10, 991 P. d 1151 (2000). We review a superior court's ER 702 ruling for an
2 2
abuse of discretion. Moore, 158 Wn. App. at 417. Because neither party has challenged the
superior court's ruling that Guscott's experts met the requirements of ER 702, we confine our
analysis to the superior court's Frye ruling.
14
No. 41969 6 II
- -
Shipyards Corp.,151 Wn. d 853, 860, 93 P. d 108 ( 2004).
2 3 When reviewing a summary
judgment, we construe all facts and reasonable inferences in the light most favorable to the
nonmoving party, here Guscott. Jones v. Allstate Ins. Co.,146 Wn. d 291, 300, 45 P. d 1068
2 3
2002).
When scientific evidence is challenged as novel, Washington courts apply the "general
acceptance" test set forth in Frye. State v. Copeland, 130 Wn. d 244, 259, 922 P. d 1304
2 2
Moore,
1996); 158 Wn. App. at 418. For evidence to be admissible under Frye, both the
scientific theory underlying the evidence and the technique or methodology used to implement it
must be generally accepted in the scientific community. State v. Gregory, 158 Wn.2d 759,
829, 147 P. d 1201 ( 2006).
3 General acceptance may be found from a number of sources,
including from "
testimony that asserts it,from articles and publications, from widespread use in
the community, or from the holdings of other courts."State v. Kunze, 97 Wn. App: 832, 853,
988 P. d 977 (1999)footnotes and citations omitted),
2 ( review denied, 140 Wn. d 1022 (2000).
2
If,however, the evidence sought to be admitted " oes not involve new methods of proof
d
or new scientific principles," is not subject to the Frye test. State v. Baity, 140 Wn. d 1, 10,
it 2
991 P. d 1151 ( 2000).
2 Nor must a plaintiff show general acceptance of all aspects of his
experts' causation opinions. See Anderson v. Akzo Nobel Coatings, Inc.,
172 Wn. d 593, 609-
2
11, 260 P. d 857 (2011).As our Washington Supreme Court has recently explained:
3
I] the science and methods are widely accepted in the relevant scientific
f
community, the evidence is admissible under Frye, without separately requiring
widespread acceptance of the plaintiff's theory of causation.
21
The Frye test requires only "general acceptance, not full acceptance,"of a novel scientific
theory or method. State v. Russell, 125 Wn. d 2. , 41, 882 P. d 747 (1994),
2 4 2 cert. denied, 514
U. . 1129 (1995).
S
15
No. 41969 6 II
- -
Anderson, 172 Wn. d at 609 (emphasis
2 added). This is because many medical opinions are
based on " ifferential diagnoses."Anderson, 172 Wn. d at 610. A " hysician or other qualified
d 2 p
expert may base a conclusion about causation through a process of ruling out potential causes
with due consideration to temporal factors, such as events and the onset of symptoms."
Anderson, 172 Wn. d at 610
2
In other words, the superior court should "permit testimony about generally accepted
methodology even when the conclusions the testifying expert reaches are not themselves ...
generally accepted." Moore, 158 Wn. App. at 418 (emphasis added). The Frye test does not
require that "specific conclusions" drawn from scientific data be generally accepted or that
every deduction [that an expert makes] from generally accepted theories"be generally accepted
in the scientific community. Anderson, 172 Wn. d
2 at 611. Instead, i] the methodology is
"[ f
sufficiently accepted in the scientific community at large, concerns about the possibility of error
or mistakes made in the case at hand can be argued to the fagflnder." State v. Russell, 125
Wn. d 24, 41, 882 P. d 747 ( 994)emphasis added),
2 2 1 ( cent. denied, 514 U. .1129 ( 995)
S . 1
The record does not support the superior court's conclusory threshold finding that
Guscott's experts' causation opinions involved " ovel"scientific methods or theories, subjecting
n
them to the Frye test. Although AHC's experts may have disagreed with the conclusions drawn
by Guscott's experts (e. ., Guscott's fall had caused his abdominal aortic aneurism to leak
g that
and that it had clotted and re bled on its own, or that the blood visible on Guscott's CT scan was
-
three days old), s experts did not challenge as novel any of the underlying scientific
AHC'
methods or principles on which Guscott's experts relied. Because there is no evidence in the
record that Guscott's experts' opinions were based on novel scientific methods or theories, we
16
No. 41969 6 II
- -
hold that the superior court erred in applying the Frye test and excluding Guscott's experts'
testimonies on this basis.
I. DECELERATION AND SHEARING FORCES
Guscott's experts, Dr. Holmes and Dr. Heller, both testified in their depositions that they
believed Guscott's fall had caused his abdominal aortic aneurism to rupture. They based their
opinions, at least in part, on the generally-
accepted scientific principle that "deceleration" and
shearing forces"can cause .an aorta to rupture. CP at 213, 252. They specifically testified that
such forces were "basic knowledge" within the medical community and that such forces were
known to rupture normal aorta and could rupture fragile abdominal aortic aneurisms like
even if he did
Guscott's, not suffer direct trauma to the aorta. CP at 252. In reaching their
conclusion that Guscott's fall had caused his abdominal aortic aneurism to rupture, they also
relied on the "temporal relationship" between Guscott's fall and his abdominal aortic aneurism
rupture and that his "symptoms" pelvic pain, low blood pressure) after December 25 were
(
consistent with an abdominal aortic aneurism leak or rupture. CP at 214, 217,251.
ANC's medical experts, Dr. Johansen and Dr. Tran, did not challenge the basic scientific
principle that deceleration and shearing forces can rupture a person's aorta or abdominal aortic
aneurism. Instead, they took issue with Guscott's experts' conclusion that Guscott.had suffered a
deceleration injury as a result of his ground level fall from his wheelchair. Any disagreement
-
that AHC's experts had about whether ,Guscott actually suffered a deceleration injury from such
a low level fall is a factual question for the jury that should go to the weight of the evidence. See
-
Kaech v. Lewis County Pub. Util. Dist., Wn. App. 260, 274 75, 23 P. d 529 (2001),
106 - 3 review
denied, 145 Wn. d 1020 ( 2002).
2 Because AHC's experts did not dispute the underlying
17
No. 41969 641
-
scientific principle that deceleration and shearing forces can cause aortic ruptures or the methods
that Guscott's experts had used in formulating their causation opinions ( g.,
e. reviewing temporal
relationships and correlating events with the onset of symptoms), hold that the Frye test did
we
not apply to this testimony. Anderson, 172 Wn. d at 601 - 2,610 11;Baity, 140 Wn. d at 10.
2 0 - 2
II. LEAKING AORTA THAT CLOTS AND RE-
BLEEDS
Dr. Holmes and Dr. Heller also based their causation opinions on the theory that
Guscott's abdominal aortic aneurism had cracked and started leaking when he fell, that it had
clotted on its own, and that it then had re bled when his blood pressure rose, causing him to be
-
readmitted to the hospital on December 28. AHC's experts did not challenge this theory as being
novel"per se. Instead, Drs. Johansen, Peters, and Tran all acknowledged that such clotting and
re- bleeding was possible and had been reported —particularly with abdominal aortic aneurisms
22 —
that bled into the retroperitoneum like Guscott's but that such spontaneous clotting and re-
bleeding was not "
common"or was "
rare." at 144. The frequency with which a recognized
CP
medical condition manifests is a question of weight, not admissibility. Again, because AHC's
experts did not challenge the principles or methods associated with this
theory, we hold that the Frye test did not apply to this testimony.
Ill. BLOOD DENSITY AND ATTENUATION ON CT SCAN
Dr. Gore also concluded that Guscott's fall on December 25 had caused his abdominal
aortic aneurism to leak or to rupture. He based this conclusion on his visual inspection of
22
For example, Dr. Johansen agreed with Guscott's experts that it is possible fora abdominal
aortic aneurism like Guscott's that leaks into the retroperitoneum to "tapenade," to "wall[ ]
or
itself off." CP at 144. The abdominal aortic aneurism then stops leaking until the patient's
blood pressure rises, at which point the abdominal aortic aneurism re-
bleeds.
18
No. 41969 6 II
- -
Guscott's CT scan from December 28 and his observation that certain blood on the CT scan
appeared to be 3 days old. Dr. Gore, who had more than 30 years experience as a radiologist,
explained ( )
1 blood has a different density and attenuation on a CT scan depending on its age, 2)
(
from these density and attenuation differences a radiologist could deduce the relative age of a
s
pat'ent' bleed, and (3)he is frequently asked to determine the age of blood as part of his
i
practice.
AHC's radiologist expert, Dr. Peters, also visually inspected Guscott's CT scan and
offered an opinion about the likely date of Guscott's abdominal aortic aneurism rupture based on
his interpretation of the blood's density and attenuation differences. Although Dr. Peters
ultimately reached a different conclusion and determined that the blood visible on the CT scan
was only 10 12 hours old, he did not challenge the underlying theory or methodology that Dr.
-
Gore used when formulating his expert opinion. Instead, Dr.Peters acknowledged that a trained
radiologist could tell the relative age of blood by reviewing the attenuation and density
differences on a CT scan but that such conclusions were never exact. Dr. Tran echoed this
sentiment when he stated that it was "
really hard to tell"how long an abdominal aortic aneurism
had been ruptured by reviewing a CT scan alone and that a doctor should also speak with a
patient and observe the onset of symptoms. CP at 97.
The imprecision of such blood dating using a CT scan did not place Dr. Gore's medical
opinion within the ambit of Frye. Any concern that Dr. Gore may have made a mistake in
rendering his opinion based on his merely "eyeball[ ng] "Guscott's CT scan and not also
i
having computer -determined Hounsfield units for the blood could be argued to the fact -finder.
23CPat816.
19
No. 41969 6 II
- -
Russell, 125 Wn. d at 41.
2 Any disagreement between Dr. Gore's and Dr. Peters' ultimate
conclusions about the blood's age also went to the weight of their testimonies, not,the evidence's
admissibility. Kaech, 106 Wn. App. at 274. Because AHC failed to show that Dr. Gore's
opinion was based on novel scientific theories or methods, we hold that the Frye test did not
apply to this testimony.
IV. Slit like Inferior Vena Cava
-
Dr. Gore also espoused a theory that Guscott's abdominal aortic aneurism had bled
slowly over the course of three days because he did not have a slitlike inferior vena cava, which,
- .
according to Dr. Gore, meant that Guscott did not suffer the trauma of a rapid bleed. In the
proceedings below and again on appeal, AHC challenges Dr. Gore's testimony on slit like
-
inferior venae cavae as being inadmissible under Frye solely because Dr. Gore did not offer any
peer-
reviewed articles, texts, etc." support his opinion. CP at 970; Br. of Resp't at 14. This
to
challenge is misplaced: Although medical studies may "strengthen an expert's testimony on
causation, the competence of expert testimony does not depend on the existence of such studies."
Bruns v. PACCAR, Inc., Wn. App. 201, 216, 890 P. d 469, review denied, 126 Wn. d 1025
77 2 2
1995).
The Washington Supreme Court reached a similar conclusion in Reese v. Stroh, 128
Wn. d
2 300, 907 P. d 282 ( 1995).
2 In Reese, the plaintiff's expert gave "uncontroverted
testimony" that the Food and Drug Administration had approved .Prolastin drug therapy in
treating his medical disorder and that the defendant was negligent in failing to prescribe such
therapy, and the defendant objected to the expert's causation opinion because he had not
produced any "statistically significant studies." Reese, 128 Wn. d at 307. The Supreme Court
2
20
No. 41969 6 II
- -
concluded that, under these circumstances, Frye was inapplicable and the admissibility of the
expert's causation opinion should instead be weighed under the general reliability standards of
ER 702 and ER 703. Reese, 128 Wn. d
2 at 307 08.
- Here, Dr. Gore similarly gave
uncontroverted testimony in his deposition that ( )
1 when the body is injured and bleeds rapidly,
the body uses blood from the inferior vena cava to support more vital organs, making the inferior
vena cava look slit like;and (2)
- Guscott's absence of a slit like inferior vena cava indicated that
-
he likely had bled slowly rather than rapidly. Because AHC challenges Dr. Gore's testimony
solely on the ground that he did not cite studies supporting this theory, we hold that AHC failed
to show this evidence was novel and that it should be analyzed under Frye rather than ER 702
and 703.
In summary, Guscott's experts did not rely on novel scientific theories or methods in
24
formulating their expert opinions and conclusions. Instead, they relied on (1)generally
accepted scientific theories principles ( g.,
/ e. deceleration forces can rupture a person's aorta, and
a radiologist can date blood by reviewing a CT scan); and ( 2) generally accepted
methods techniques
/ ( e. .,reviewing patient records, examining temporal relationships,
g
correlating events with symptoms). Such expert causation opinions do not fall within the ambit
of Frye. Anderson, 172 Wn. d at 611.
2 We hold, therefore, that the superior court erred in
excluding Guscott's experts' testimonies.
24 At most, Guscott's experts might have made deductions and drawn novel conclusions from
generally accepted scientific principles and methods. The Frye test, however, does not require
that such deductions or conclusions be generally accepted before the expert's testimony is
admissible. Anderson, 172 Wn. d at 611.
2
21
No. 41969 6 II
- -
We reverse the superior court's exclusion of Guscott's expert witnesses, we reverse its
summary judgment dismissal of Guscott's counterclaims against AHC,and we remand for trial.
its// //-
P o,
Hunt,P. . / /
J
We concur:
1" " tiv-
i JDL-
Van Deren, J.
Bridgewater, J. .
T.
P
25 Reversal of summary judgment automatically includes reversal of the superior court's award
of attorney fees and costs to AHC.
22