A recent article by John Conley entitled Medical organizations can’t shape the rules for admitting expert testimony highlights a US Court of Appeals decision, Adams v Laboratory Corporation of America.

Mr Conley’s article focuses on an interesting aspect of that litigation arising from Pap testing, which overturned a lower court’s exclusion of expert evidence supporting a patient’s claim. In part the exclusion was because the expert (Dr Rosenthal) failed to follow litigation guidelines published by the College of American Pathologists and the American Society of Cytopathology. Under those guidelines, Mr Conley explains, pathologists offering evidence in court should use only blind review in which “the plaintiff’s slides are mixed in with other normal and abnormal slides,” with the process repeated by multiple reviewers. Dr. Rosenthal didn’t do that, looking only at the plaintiff’s slides in isolation.

The court observed in chapter III section B of the judgment (citations omitted):

As an initial matter, it is important to put these guidelines in context. Both sets of them focus not on how cytotechnologists should go about their duties in examining slides, but instead on how courts should go about their duty to adjudicate claims against cytotechnologists and similar professionals. In the words of the guidelines, they are to be used in assessing Pap smear slides “in conjunction with litigation or potential litigation.” They are not objective, scientific findings; they are not guidelines followed by laboratories to screen for pre-cancerous or cancerous cells; they are policy proposals to limit how the courts can find the members of the organizations liable for professional negligence when they are sued.

As far as we are aware, this is the first time that an industry group has promulgated a set of guidelines that attempts to define and limit the evidence courts should accept when the group’s members are sued. The members of the CAP and ASC have a substantial interest in making it more difficult for plaintiffs to sue based on alleged negligence in their Pap smear screening, and their guidelines do just that.

The court commented adversely on the guidelines, saying:

With their guidelines for litigation, the CAP and ASC moved away from disinterested scientific inquiry and into litigation policy to serve their members’ own interests……… 

And further:

If the CAP and ASC can define what constitutes admissible expert testimony in their members’ professional negligence cases, then there is no apparent reason why other groups whose members face lawsuits cannot do the same. For example, why couldn’t pharmaceutical companies adopt guidelines setting high standards of proof for establishing that a plaintiff’s injury was caused by a given drug and justify doing so based on their experience with the complex nature of pharmacology and their expertise in the field? Why couldn’t an association of prison guards and wardens presume to define the meaning of “deliberate indifference” or the requirements for admission of evidence in custodial litigation? They can’t because courts do not allow interested groups to set evidentiary or other litigation standards.

 

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