Conn. Supreme Court Affirms Expert Testimony Test

June 1, 2004

The Connecticut Supreme Court has affirmed its view of the so-called Daubert doctrine that expert testimony must be scrutinized closely using a two-pronged test.

In the medical malpractice case of Linda Maher v. Quest Diagnostics, et al. (SC 17001), the state’s high court on May 25 reversed a plaintiff’s victory in a trial court and ordered a new trial.

The plaintiff brought a medical malpractice action in 1997, alleging that the defendants’ negligence caused a delay in the diagnosis and treatment of her cervical cancer such that her condition deteriorated, her treatment options were altered negatively, and her likelihood of recovery was impacted adversely.

The court found that the trial court improperly admitted causation testimony of an expert witness.

This Maher ruling draws upon the state court’s own threshold requirements for the admissibility of expert testimony as set forth in State v. Porter in 1997 which in turn followed the U.S. Supreme Court’s findings in Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993. These cases hold that scientific evidence should be subjected to a case-by-case determination of the reliability of the scientific evidence in two ways: evaluated under a threshold admissibility standard assessing the reliability of the methodology underlying the evidence and scrutinized as to whether the evidence at issue “is in fact derived from and based upon that methodology,” also known as the “fit” requirement.

Courts, the ruling emphasized, should exclude scientific evidence from the Porter and Daubert tests only where those scientific principles “are considered so reliable within the relevant medical community that there is little or no real debate as to their validity and it may be presumed as a matter of judicial notice.”

The court added that “a very few scientific principles are so firmly established as to have attained the status of scientific law…”

The Maher case involved testimony on use of the phrase “doubling time” to measure the advancement of the cancer from its inception to surgical state. The expert testified that doubling time meant that the plaintiff’s cancer would double in volume once every 30 or 60 days. Based on this concept, he could calculate the stage of cancer at the time when it was allegedly misdiagnosed by working back from the stage of the cancer at the time of surgery.

But the court found that there was evidence that doubling time, particularly as it relates to cervical cancer, is not an established scientific principle and should not have been admitted by the trial court without further scrutiny.

“We conclude that the concept of doubling time, within the context of cervical cancer, has not been so well accepted within the relevant scientific communities that reliability may be presumed. Our conclusion does not mean that cervical cancer doubling time evidence is unreliable per se; it simply means that the reliability of cervical cancer doubling time evidence must be assessed on a case-by-case basis in accordance with our Porter standard.”

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