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September 21, 2000


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 pregnancy.

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 Ambrosini

1. Rule 702

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 (1988)).

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[02], at 702-18).

3. Ambrosini v. Labarraque

Although the edicts of Daubert of course control this case, a discussion of Ambrosini v. Labarraque, 101 F.3d 129 (D.C.Cir. 1996) is especially warranted in this case. Besides being the leading case on expert testimony in this circuit, Ambrosini involved testimony by one of the same experts seeking to testify in the instant case. Further, the underlying issue in Ambrosini, whether Depo-Provera caused birth defects in the plaintiff's child, is quite similar to the underlying issue in the case at hand. Thus, a short discussion of Ambrosini is in order.

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 ...

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