So tell me where it hurts: Pennsylvania and Fibromyalgia Claims

/ 07.Jul, 2011
A little bit of Latin makes people think you are smarter than you really are.  Maybe that is why judges, lawyers, professors and US Currency occasionally invoke a “dead language” to support an image of wisdom, stability and trustworthiness. Courts, defense attorneys and anyone who has ever cross-examined a doctor, will recognize either the words or principle behind the saying “post hoc ergo propter hoc” (after this, therefore, because of this).  Plaintiffs always have and always will depend on the fact/coincidence that their pain followed the accident trauma and did not pre-exist the event.  That is why so much of damage discovery is devoted to drilling down into plaintiff’s pre-accident medical history.  Subpoenas for family doctor records, prior litigation searches and interrogatories are only some of the tools useful in leveling the playing field and distinguishing what plaintiff says now, from what plaintiff has said and objectively demonstrated in the past.  The preexisting disc herniation, earlier MRI studies, history of prior pain treatment and pain medication go a long way to reigning in excessive claims.  Sometimes, however, the battleground is occupied by experts and that brings us to the subject of Fibromyalgia. (Latin, “fibro”- fibrous tissue, Greek, “myo”- muscle and “algos”- pain, meaning muscle and connective tissue pain.)  It is an example of a diagnosis of exclusion, a catch-all category occupied by females to males on a ratio of approximately 9:1.  The diagnosis is controversial with doctors who align themselves in strong disagreement as to possible causes.  Genes, stress, depression, abnormal sleep patterns, aberrant immune responses and trauma are all implicated as possible triggers.  Frequently, there are no abnormalities on physical examination, and objective diagnostic tests are absent.  When thrown into the litigation arena, fibromyalgia is a medical expert free-for-all very loosely arbitrated by the trial judge.  The bar for expert testimony admissibility in Pennsylvania State Courts is low.  The bottom line is that an expert can conclude/opine just about any way they want, just so long as they follow a methodology that has general acceptance in the relevant scientific community.  In the recent Lehigh County Court of Common Pleas case of Getz plaintiff’s neurologist opined in his report that, to a reasonable degree of medical certainty, the motor vehicle accident caused the plaintiff’s fibromyalgia.  The defense physiatrist disputed this conclusion and both sides referenced competing medical literature supporting their opposing views.  Prior to trial, the defense filed a Motion in Limine to preclude expert medical testimony linking plaintiff’s alleged fibromyalgia syndrome to the motor vehicle accident.  Senior Judge Alan M. Black held an evidentiary hearing including consideration of live testimony from the defense doctor and the trial deposition of plaintiff’s doctor before ruling that the motion was denied and plaintiff’s doctor could testify to the causal link. The standard for admissibility of scientific evidence in Pennsylvania is controlled by the case Frye v. United States, 293 F. 1013, 1014 (D.C. Cir., 1923) and adopted in Pennsylvania by the Supreme Court in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277, 1281 (1977).  In Getz, Judge Black correctly observed that the medical community has not yet reached a consensus on the specific cause of fibromyalgia.  The Frye case requires the trial court to focus on the methodology utilized by the expert no matter what the conclusion.  The judge went on to explain that plaintiff’s doctor conducted physical and neurological examinations of the plaintiff and considered the history provided to him by the plaintiff as well as information from the prior medical records.  He took into account the history of the accident prior to the onset of the fibromyalgia symptoms.  Plaintiff’s medical expert did not find any other plausible explanation for the fibromyalgia.  Viola!  The doctor concluded plaintiff’s current pain was caused by the accident. This methodology, sometimes referred to as a differential diagnosis, is quite standard in the medical profession.  Because the methodology applied in reaching the conclusions was legitimate, then the doctor’s conclusions become admissible. This smacks of little more than the old parenting ploy of saying “It is true because I say it is true.” Yes, reasons do matter, but even a flimsy, self-serving medical analysis is enough to place an opinion regarding causation before a jury.  By the way, sloppy scientific methodology is not the sole province of plaintiff’s experts.  The best advice is to hire skilled, qualified experts and make sure they stick to accepted scientific procedures and process.  At the present time, there is no appellate Court decision in the Commonwealth directly addressing the admissibility of expert testimony causally relating fibromyalgia to trauma.  For the defense, we should continue to fight the good fight.  Remember, if doctors can disagree, so can judges.  Onward! – Fred Fletcher