The opinion of the court was delivered by: Lamberth, District Judge.
On July 23, 1997, Lakeshia Dyson, the plaintiff, filed a complaint
against Dr. Joseph Winfield, alleging two counts of malpractice. The
defendant now moves for exclusion of the plaintiff's expert testimony and
for summary judgment. He supports his motion for summary judgement with
several alternative arguments: (1) plaintiff has no evidence that Provera
caused her son's injuries, (2) plaintiff has no evidence that defendant
departed from the standard of care in prescribing Provera or failing to
warn her of its risks, and (3) plaintiff has no evidence that defendant's
substandard care, if any, caused her to have her son. The Court is not
persuaded by any of the defendant's arguments, and therefore DENIES his
motion for exclusion as well as his motion for summary judgment.
This case arises from Lakeshia Dyson's use of Provera in September and
October of 1992. Concerned that she was pregnant, Ms. Dyson went to see
Dr. Joseph Winfield, her OB/GYN, on September 26, 1992. She explained to
Dr. Winfield that she had had unprotected sex a week prior and that her
period was now late. Dr. Winfield gave her a urine pregnancy test which he
interpreted as negative. Dr. Winfield then prescribed Provera to Ms.
Dyson with the goal of inducing her menstruation.
Ms. Dyson took the Provera and, not having her period, returned to Dr.
Winfield's office on October 17, 1992. During the consultation, Dr.
Winfleld took a blood sample to make certain whether or not she was
pregnant. Although Dr. Winfield denies it, Ms. Dyson and her mother, who
accompanied her on this visit, assert that they were told by the doctor
that Ms. Dyson was pregnant. In any event, as the blood test later
revealed, Ms. Dyson was indeed pregnant. At no point during this
consultation did Dr. Winfield warn the patient
of the risks associated with taking Provera in the early stages of
After her consultation, Ms. Dyson never talked with Dr. Winfleld
again, choosing instead to continue her prenatal care with a different
doctor. In February of 1993, when she was over five months pregnant, Ms.
Dyson received a sonogram that revealed the possibility of a birth
defect. After considering abortion as an option, she decided to carry her
pregnancy to full term because she felt that the child was "a baby" and
not "a fetus." Dyson Aff. at ¶ 9.
On May 15, 1993, Rico Monroe Jr. was born. Sadly, the child had
numerous birth defects including, but not limited to, impairments of
sight, hearing, ingestion, and intellect.*fn1 The child required intense
medical care, both in and out of the hospital, throughout his entire
life. On November 24, 1996, at an age of about 3 and a half years old,
the child died.
Basing her claims on the District of Columbia Wrongful Death statute,
16 D.C.Code § 2701, and Wrongful Survival statute, 12 D.C.Code §
101, Ms. Dyson instituted a suit against Dr. Winfield on July 23, 1997.
She alleged two counts of malpractice, one on her own behalf and one on
behalf of her deceased child. On January 21, 2000, after a long period of
discovery, defendant filed the motions now before this Court.
As a preliminary matter, the Court notes jurisdiction under
28 U.S.C. § 1332. All defendants are citizens of states other than
the District of Columbia, where the plaintiff is a citizen. The amount in
controversy exceeds $75,000 exclusive of interest and costs. In all
matters requiring the application of substantive law, the law of the
District of Columbia will govern. See Erie R.R. v. Tompkins, 304 U.S. 64,
78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
I. Standard for Summary Judgement
Federal Rule of Civil Procedure 56(c) provides that a district court
shall grant summary judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is (1) no genuine issue as to any material fact and
that (2) the moving party is entitled to judgment as a matter of law."
See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Diamond v. Atwood,
43 F.3d 1538, 1540 (D.C.Cir. 1995). To survive a motion for summary
judgment, the nonmovant must make a "sufficient showing to establish the
existence of an element essential to that party's case." Celotex, 477
U.S. at 322, 106 S.Ct. 2548. A "sufficient showing" exists when the
evidence is such that a reasonable jury could return a verdict for the
nonmovant. Anderson, 477 U.S. at 248, 166 S.Ct. 2505.
II. Defendant's Motion to Exclude Plaintiff's Expert Testimony
In alleging liability, plaintiff relies on several experts. Defendant
takes issue with two of these experts: Dr. Brian L. Strom and Dr. Robert
F. Smith. In making his objection, defendant relies chiefly on Daubert
v. Merrell Dow Pharmaceuticals and Ambrosini v. Labarraque. Also relying
on these opinions, the Court disagrees with the defendant and finds the
plaintiff's expert testimony admissible.
A. The Admissibility of Expert Testimony under Rule 702, Daubert and
The best place to start is almost always with the rule. Rule 702 states
a "witness qualified as an expert by knowledge skill, experience,
training, or education may testify" if the expert's "scientific,
technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue." Fed.R.Evid.
702. Although the provision is now a mainstay in determining the
admissibility of expert evidence, it was not always that way. Prior to
the rule's adoption, and indeed for many years afterward, the
admissibility of expert testimony was determined under the Frye test. See
Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). Frye permitted expert
testimony so long as the expert's methodology "was sufficiently
established to have gained general acceptance" in the relevant scientific
community. Id. at 1014. Frye's own "general acceptance," however, was
displaced in an instant by Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
2. Daubert v. Merrell Dow Pharmaceuticals
In Daubert, the Supreme Court held that the "Frye test was superseded
by the adoption of the Federal Rules of Evidence." Daubert, 509 U.S. at
587, 113 S.Ct. 2786. "A rigid `general acceptance' standard," the Court
opined "would be at odds with the `liberal thrust' of the Federal Rules
and their general approach of relaxing the traditional barriers to
opinion testimony." Id. at 587, 113 S.Ct. 2786 (quoting Beech Aircraft
Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445
In interpreting the requirements of Rule 702, the Court promulgated a
two-pronged approach for evaluating the admissibility of expert
testimony. The first prong, the "reliability" prong, focuses on
evidentiary reliability and requires the district court to perform "a
preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid." Daubert, 509 U.S. at 592-93, 113
S.Ct. 2786. In illustrating this prong, the Court went onto to suggest
four factors that may be used in determining scientific validity: (1)
whether the theory or technique "can be (and has been) tested," (2)
whether the theory or technique has been "subjected to peer review and
publication," (3) the method's "known or potential rate of error," and (4)
whether the theory or technique finds "general acceptance" in the
"relevant scientific community." Id. at 593-94, 113 S.Ct. 2786. The Court
offered these factors cautiously, emphasizing that they did not comprise
a "definitive checklist" because a Rule 702 inquiry is understood to be a
"flexible one."*fn2 Id. at 594, 113 S.Ct. 2786.
The second prong of the Daubert approach is rather straightforward.
Besides being reliable, evidence must be relevant. Basing its logic on
the text of Rule 702 (evidence must "assist the trier of fact"), the
Court explained that "[e]xpert testimony which . . . is not relevant [is]
ergo nonhelpful." Id. at 591, 113 S.Ct. 2786 (quoting 3 Weinstein &
Berger, paragraph 702, at 702-18).
3. Ambrosini v. Labarraque
In Ambrosini, Dr. Brian L. Strom intended to testify that Depo-Provera
was "capable of causing the types of defects suffered by the plaintiff."
Id. at 135. The defendant moved for the exclusion of this testimony on
relevance grounds, asserting that the testimony failed to show that the
drug did in fact cause the plaintiff's injuries, and therefore did not
"fit" the needs of the jury in deciding the issue. The circuit court
disagreed. It held Dr. Strom's testimony admissible because it "relate[d]
to a contested issue and could aid the jury in the resolution" of the
claim. The court explicitly rejected the notion that evidence should be
excluded "simply because it fails to establish the causal link to a
specified degree of certainty." Id. at 135. Rather, the court found the
"dispositive question" to be "whether the testimony will assist the trier
of fact . . . ." Id. at 135.
The court also addressed the scientific validity of Dr. Strom's
methodology. of note here is that the court found his lack of
publications to be understandable, as there would be "no reason in the
world" to publish a study because ...