Expert must base opinion on generally accepted scientific theory

By Marc Rosenberg

A medical-malpractice plaintiff must establish causation through expert testimony derived from a theory that is generally accepted in the scientific community, the Washington Court of Appeals recently held.

In Eakins v. Huber, No. 27357-1-III (Feb. 23, 2010), Sheri Eakins required three stents to alleviate blockage in her coronary artery. Dr. Phil Huber implanted the stents, which contained 10 to 14 percent nickel. Eakins is allergic to nickel. After the stents were implanted, Eakins suffered from many symptoms, including a rash at the operation site, episodes of joint pain and swelling, fevers, chills, sweating, elevated blood pressure, itching, and general aching. She saw several doctors, but none could determine what condition she had or what was causing it. None of the doctors attributed her symptoms to the stent implants.

Eakins sued Dr. Huber and his clinic. She alleged that he knew that she was allergic to nickel and that his implantation of stents that contained nickel violated the standard of care and caused her complications. Eakins's medical expert, a cardiothoracic surgeon, testified that Dr. Huber violated the standard of care, which “resulted in injury to Ms. Eakins.”

Dr. Huber moved for summary judgment, seeking dismissal of the action because Ms. Eakins did not possess competent medical evidence establishing that the stents actually caused her symptoms. He argued that there was not sufficient scientific data or peer-reviewed literature indicating general acceptance of Eakins’s causation theory. Dr. Huber based this argument on the longstanding Frye test, established in Frye v. U.S., 293 F. 1013 (1923). Under Frye, evidence derived from a scientific theory or principle is not admissible unless it has achieved general acceptance in the relevant scientific community. Washington courts follow the Frye rule.