Lavelle v. Laboratory Corp. of America

755 S.E.2d 595, 327 Ga. App. 142, 2014 Fulton County D. Rep. 1108, 2014 WL 1259185, 2014 Ga. App. LEXIS 260
CourtCourt of Appeals of Georgia
DecidedMarch 28, 2014
DocketA13A1722
StatusPublished
Cited by5 cases

This text of 755 S.E.2d 595 (Lavelle v. Laboratory Corp. of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lavelle v. Laboratory Corp. of America, 755 S.E.2d 595, 327 Ga. App. 142, 2014 Fulton County D. Rep. 1108, 2014 WL 1259185, 2014 Ga. App. LEXIS 260 (Ga. Ct. App. 2014).

Opinions

MCFADDEN, Judge.

Plaintiff Timothy Lavelle, individually and as the surviving spouse and executor of the estate of Cathleen Lavelle, brought this action against a physician, a medical practice, appellee Laboratory Corporation of America (“LabCorp”), and John Does 1-10, seeking damages for alleged ordinary and professional negligence in failing to diagnose and treat Cathleen Lavelle’s cervical cancer in a timely fashion. This appeal concerns only the single allegation against LabCorp that its employee was negligent in failing to detect abnormal cells on a Papanicolaou (“Pap”) smear test slide submitted to it in April 2006. Lavelle appeals three rulings of the trial court: (1) the denial of a motion to compel further deposition of a witness; (2) the grant of a motion excluding the testimony of an expert witness; and (3) the grant of partial summary judgment in favor of LabCorp on the issue of breach of the standard of care. For the reasons stated below, we affirm the denial of the motion to compel but vacate the grant of the motion to exclude the expert testimony and the grant of partial summary judgment, and we remand the case to the trial court for further proceedings not inconsistent with this opinion.

The parties have engaged in extensive discovery and have presented over 4,000 pages of record to this court, including numerous depositions of fact and expert witnesses. During the discovery period, Lavelle filed a motion to compel and for sanctions regarding the testimony of a LabCorp employee, which was denied. On September 7, 2011, the trial court entered a consent “Scheduling Order” setting dates for, among other things, the disclosure and deposition of expert witnesses and the filing of Daubert motions, see Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993), and motions for summary judgment. LabCorp filed timely motions to exclude the testimony of three expert witnesses and for summary judgment. The trial court granted those motions in part, and this appeal followed.

1. Motion to compel.

Lavelle first enumerates as error the denial of his motion to compel. In 2011, Lavelle deposed the cytotechnologist (“cytotech”) at LabCorp who, in 2006, performed the initial review of the Pap smear [143]*143test slide at issue here. At that time, the cytotech reviewed approximately 140 slides per day, using a computer-guided microscope that selected 22 sample fields of view for her examination. She had no recollection of having reviewed the particular slide at issue here. During her deposition, she was shown photomicrographs of the slide and asked if, in her opinion, the cells presented any abnormalities. Counsel for LabCorp objected and instructed the witness not to answer the question. The witness testified that she did not screen slides by examining photomicrographs, and that the photomicrographs presented a different appearance from the slides she normally reviewed. In addition, as Lavelle acknowledged, there is no way to tell if the photomicrographs show the same cells that the computer-generated views displayed in 2006. Moreover, the witness explained, she would look at the slide today “with different eyes... [b] ecause you look at things with bias hindsight. You look at things — you look at things differently that way.”

The trial court denied Lavelle’s motion to compel, finding that this line of questioning was not discoverable or likely to lead to the discovery of admissible evidence because no proper foundation was established to show that the photomicrographs were representative of what the witness saw at the time, because she was a fact witness being asked for an expert opinion, and because hindsight bias affected what “she would see now, looking at something she didn’t look at back in 2006.”

“The trial court’s discretion in dealing with discovery matters is very broad, and this Court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” Powers v. Southern Family Markets, 320 Ga. App. 478, 482 (3) (740 SE2d 214) (2013) (citations, punctuation and footnote omitted). Given the applicable standard and the significant differences between the witness’s original review of the slide and the review which Lavelle sought to elicit on her deposition, as well as the witness’s expressed hindsight bias given her knowledge of the outcome, we cannot say that the trial court abused its broad discretion in limiting the examination of the witness. We therefore affirm the ruling denying the motion to compel.

2. Exclusion of expert testimony.

Lavelle next appeals the trial court’s exclusion, in part, of the testimony of expert witness Dorothy Rosenthal, M.D., a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides. She opined that the cytotech’s initial review of the slide in this case breached the applicable standard of care. In both her deposition and a hearing on LabCorp’s Daubert motion, Dr. Rosenthal testified that [144]*144she formed her opinion about a breach of the applicable standard of care from her personal, focused reviews of the slide. She described her experience and the methodology she used in conducting focused reviews, and she opined that the abnormalities she observed in the focused reviews of the slide should have been recognized and identified as such by any certified cytotech. In her deposition, Dr. Rosenthal described this case as a “blatant miss” and testified that another procedure referred to as a blinded review was not necessary to form an opinion in such a case. Nevertheless, at both her deposition and the hearing she testified that the results of two blinded reviews in this case corroborated her already-formed opinion that the applicable standard of care had been breached.

After the hearing, the trial court held that Dr. Rosenthal could give expert testimony on several topics, including the applicable standard of care for a cytotech, the abnormalities that Dr. Rosenthal observed on the Pap smear slide, and the requirement that a cytotech refer a slide with such abnormalities to a pathologist. But the trial court held that Dr. Rosenthal could not give an opinion about whether LabCorp’s employee breached the applicable standard of care in this case. In her written order on the Daubert motion, the trial court excluded evidence of the two blinded reviews on the ground that they didnotsatisfythereliabilityrequirementsofformerOCGA § 24-9-67.1 and Daubert. The trial court also ruled in the written order that Dr. Rosenthal could not give an expert opinion on a breach of the applicable standard of care because the blinded reviews were the “only bases for that opinion.” (Emphasis supplied.) Nowhere in the written order did the trial court refer to the focused reviews upon which Dr. Rosenthal testified that she had based her opinion.

The trial court’s written order incorporated by reference the hearing transcript, and at the hearing the trial court made some additional oral rulings that were not included in the written order. Again, none of those rulings expressly referred to the focused reviews or addressed the reliability of that methodology.

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Bluebook (online)
755 S.E.2d 595, 327 Ga. App. 142, 2014 Fulton County D. Rep. 1108, 2014 WL 1259185, 2014 Ga. App. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavelle-v-laboratory-corp-of-america-gactapp-2014.