320 F.3d 396 | 3rd Cir. | 2003
Before: BECKER, Chief Judge, ROTH and(cid:13) ROSENN, Circuit Judges.(cid:13) (Filed: February 18, 2003)(cid:13) RICHARD OARE, ESQUIRE(cid:13) (ARGUED)(cid:13) 1434 South George Street(cid:13) York, PA 17403(cid:13) Counsel for Appellants(cid:13) JOHN J. HARE, ESQUIRE(cid:13) (ARGUED)(cid:13) Marshall, Dennehey, Warner,(cid:13) Coleman & Goggin(cid:13) 1845 Walnut Street(cid:13) 16th Floor(cid:13) Philadelphia, PA 19103(cid:13) Counsel for Appellees(cid:13) OPINION OF THE COURT(cid:13) BECKER, Chief Judge:(cid:13) This is a medical malpractice case predicated on our(cid:13) diversity jurisdiction and brought under Pennsylvania law.(cid:13) Eric Schneider ("Schneider") sued on behalf of the estate of(cid:13) his mother, Anne B. Schneider, alleging that Mrs.(cid:13) Schneider’s death resulted from malpractice by defendant(cid:13) Gordon W. Fried, D.O. ("Dr. Fried") that occurred while she(cid:13) was being treated for a heart condition. Mrs. Schneider’s(cid:13) estate is also a plaintiff in this case. Plaintiffs appeal from(cid:13) the Magistrate Judge’s grant of a dispositive motion at the(cid:13) conclusion of plaintiffs’ case after he had excluded the(cid:13) testimony, following a Daubert hearing, of plaintiffs’ two(cid:13) medical experts who testified that Dr. Fried violated the(cid:13) applicable standard of care by administering the drug(cid:13) Procardia sublingually to Mrs. Schneider as a pretreatment(cid:13) for an angioplasty.(cid:13) Both proffered experts, Marc Semigran, M.D. ("Dr.(cid:13) Semigran") and Gregg Reis, M.D. ("Dr. Reis") possessed(cid:13) eminent academic credentials. Dr. Semigran’s testimony(cid:13) was excluded because the literature he cited at trial as(cid:13) informing his opinion did not address the use of Procardia(cid:13) to prevent coronary spasm during an angioplasty, the(cid:13) specific use in this case. It also appears that another basis(cid:13) for the exclusion of Dr. Semigran’s testimony (a point relied(cid:13) upon heavily by defendants) was that he no longer(cid:13) practiced in the sub-specialty area at issue in the case:(cid:13) interventional cardiology; an interventional cardiologist(cid:13) performs surgical procedures, while Dr. Semigran had(cid:13) 2(cid:13) become an invasive cardiologist, who diagnoses and treats(cid:13) heart conditions. The Magistrate Judge excluded the(cid:13) testimony of Dr. Reis because he stated, at one point in his(cid:13) testimony, that he was opining about his own personal(cid:13) standard of care and not the standard of care in the(cid:13) medical field.(cid:13) As plaintiffs argue, however, the basis of the Magistrate(cid:13) Judge’s ruling was undermined by strong countervailing(cid:13) evidence supporting admission of the testimony of both(cid:13) experts. Dr. Semigran, a former interventional cardiologist,(cid:13) testified that his opinion was not based solely on the(cid:13) literature he cited, but also on his broad knowledge of heart(cid:13) conditions and his own experience, albeit as an invasive(cid:13) cardiologist, making recommendations to interventional(cid:13) cardiologists about which drugs to prescribe to patients(cid:13) undergoing angioplasties; indeed, Dr. Semigran was present(cid:13) during surgical procedures performed by interventional(cid:13) cardiologists and would advise the interventional(cid:13) cardiologists throughout those procedures. Likewise, Dr.(cid:13) Reis testified extensively about the standard of care in the(cid:13) medical field and explained in a sworn affidavit that his(cid:13) previous statement to the effect that he could only discuss(cid:13) his own personal standard of care was in response to a(cid:13) question that he misunderstood.(cid:13) We conclude that the Magistrate Judge abused his(cid:13) discretion in excluding the testimony of both experts. There(cid:13) is no dispute that Dr. Semigran’s testimony was based in(cid:13) part on his considerable professional experience, including(cid:13) advising interventional cardiologists during surgical(cid:13) procedures. This makes his testimony about the standard(cid:13) of care reliable, even if the literature he cited was irrelevant.(cid:13) And in view of his extensive experience working closely with(cid:13) interventional cardiologists, Dr. Semigran is also qualified(cid:13) to give expert testimony, even though he is an invasive(cid:13) cardiologist. We also conclude that Dr. Reis’ expert(cid:13) testimony should have been admitted. Dr. Reis gave ample(cid:13) testimony about the standard of care in the medical field(cid:13) before he stated that he could only testify about his own(cid:13) personal standard of care. Since the defendants offer no(cid:13) evidence or explanation to suggest that Dr. Reis did not(cid:13) misunderstand the question, we conclude that Dr. Reis was(cid:13) 3(cid:13) qualified to give expert testimony. Accordingly the judgment(cid:13) will be reversed and the case remanded for a new trial.(cid:13) Before addressing the evidentiary issues, we must first(cid:13) take up a challenge to our appellate jurisdiction. Although(cid:13) the notice of appeal to this Court was untimely (a motion(cid:13) for a new trial submitted beyond the ten day period(cid:13) required by Rule 59 of the Federal Rules of Civil Procedure(cid:13) does not toll the period for filing an appeal), we apply the(cid:13) "unique circumstances" doctrine. Under the doctrine, we(cid:13) have jurisdiction to hear the untimely appeal because the(cid:13) late filing was induced by the Magistrate Judge’s order,(cid:13) which conferred upon plaintiffs "the right" (albeit(cid:13) impermissibly) to file a second notice of appeal within thirty(cid:13) days of receiving the trial transcript and the plaintiffs relied(cid:13) upon that order.(cid:13) I.(cid:13) Anne Schneider was admitted to the Pocono Medical(cid:13) Center on November 10, 1996, where she was diagnosed(cid:13) with unstable angina. Mrs. Schneider’s blood pressure was(cid:13) falling, even after intravenous nitroglycerin was initiated,(cid:13) and she was transferred to St. Luke’s Hospital, in(cid:13) Bethlehem, Pennsylvania. At that time, a cardiac(cid:13) catheterization was performed by Dr. Fried, revealing that(cid:13) a coronary angioplasty was necessary. Mrs. Schneider was(cid:13) thus scheduled to have an angioplasty performed by Dr.(cid:13) Fried at St. Luke’s Hospital. As a pre-treatment, given(cid:13) before undergoing the angioplasty, Dr. Fried administered(cid:13) ten milligrams of the drug Procardia (also known as(cid:13) nifedipine) sublingually (under the tongue). The purpose of(cid:13) the Procardia was to prevent coronary spasm during the(cid:13) angioplasty; a drug administered sublingually is more(cid:13) quickly absorbed into the body and takes effect rapidly.(cid:13) Soon after the Procardia was administered, Mrs.(cid:13) Schneider’s blood pressure decreased rapidly (she became(cid:13) hypotensive). Dr. Fried administered drugs in an attempt to(cid:13) increase her blood pressure. Dr. Fried began the(cid:13) angioplasty some 20 to 30 minutes after Mrs. Schneider(cid:13) initially became hypotensive. The angioplasty was(cid:13) performed, but Mrs. Schneider became unresponsive. An(cid:13) 4(cid:13) analgesic was administered, but Mrs. Schneider remained(cid:13) seriously hypotensive. The next day, an echocardiogram(cid:13) showed persistent right ventricular dysfunction. In short(cid:13) sequence, Mrs. Schneider developed end-organ dysfunction,(cid:13) including renal failure and progressive cardiogenic shock.(cid:13) Her blood pressure fell and she died on November 13,(cid:13) 1996. The post-mortem exam showed acute myocardial(cid:13) infarction of the right ventricle and left ventricular posterior(cid:13) wall.(cid:13) Eric Schneider and the estate of Anne Schneider brought(cid:13) suit in the District Court for the Eastern District of(cid:13) Pennsylvania against Dr. Fried, Pocono Cardiology(cid:13) Associates, P.C. and St. Luke’s Hospital for medical(cid:13) malpractice. With the consent of the parties and pursuant(cid:13) to 28 U.S.C. S 636(c)(1), this case was heard before a(cid:13) Magistrate Judge. See 28 U.S.C. S 636(c)(1) (providing that(cid:13) upon consent of the parties, a magistrate judge"may(cid:13) conduct any or all proceedings in a jury or nonjury civil(cid:13) matter and order the entry of judgment in the case").(cid:13) Plaintiffs based the medical malpractice claim on two(cid:13) theories: (1) Dr. Fried violated the applicable standard of(cid:13) care by administering sublingual Procardia to Mrs.(cid:13) Schneider as a pre-treatment for the angioplasty; and (2) he(cid:13) waited too long to perform the angioplasty once Mrs.(cid:13) Schneider became hypotensive. In support of the case, the(cid:13) plaintiffs presented the expert testimony of Doctors(cid:13) Semigran and Reis. As noted above, the Magistrate Judge(cid:13) excluded that testimony.(cid:13) On April 27, 2001, at the conclusion of the plaintiffs’(cid:13) evidence, the Magistrate Judge granted the defendants’(cid:13) motion to dismiss, alleging that the plaintiffs had not set(cid:13) forth a prima facie case for medical malpractice because(cid:13) they had not presented the testimony of at least one expert(cid:13) who could state with a reasonable degree of medical(cid:13) certainty that the acts of the defendant-physician deviated(cid:13) from the standard of reasonable medical care, and that(cid:13) such deviation was the proximate cause of the harm(cid:13) suffered. Maurer v. Trustees of the University of(cid:13) Pennsylvania, 418 Pa.Super. 510, 516, 614 A.2d 754, 757(cid:13) (1992) (citing Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d(cid:13) 5(cid:13) 888, 892 (1990)). The motion was apparently brought(cid:13) pursuant to Rule 50 of the Federal Rules of Civil Procedure.1(cid:13) The plaintiffs did not file a notice of appeal at that(cid:13) juncture, instead filing a motion for a new trial on May 8,(cid:13) 2001. However, plaintiffs’ counsel failed to order a copy of(cid:13) the trial transcript along with the motion for a new trial.(cid:13) See E.D. Pa. Loc. R. Civ. P. 7.1(e) ("Within fourteen (14)(cid:13) days after filing any post-trial motion, the movant shall(cid:13) either (a) order a transcript of the trial by a writing(cid:13) delivered to the Court Reporter Supervisor, or (b) file a(cid:13) verified motion showing good cause to be excused from this(cid:13) requirement. Unless a transcript is thus ordered, or the(cid:13) movant excused from ordering a transcript, the post-trial(cid:13) motion may be dismissed for lack of prosecution.").(cid:13) Because counsel had failed to order the trial transcript,(cid:13) the Magistrate Judge entered an order on June 29, 2001(cid:13) denying the plaintiffs’ motion for a new trial. At the same(cid:13) time, however, the Magistrate Judge gave the plaintiffs the(cid:13) opportunity to file a second motion for a new trial within(cid:13) thirty days of receiving the trial transcript:(cid:13) [I]t is hereby ORDERED that Plaintiff ’s motion is(cid:13) DENIED with the right of the Plaintiff to bring a Motion(cid:13) for a New Trial together with a Brief in Support of the(cid:13) Motion for a New Trial within thirty (30) days from(cid:13) receipt of the trial transcript.(cid:13) On July 19, 2001, the defendants filed a praecipe asking(cid:13) the Magistrate Judge to mark the matter closed based on(cid:13) the failure to timely order a copy of the trial transcript. On(cid:13) August 16, 2001, the plaintiffs filed a brief in reply to the(cid:13) praecipe, requesting that they be granted until August 30,(cid:13) 2001 to file the motion for a new trial. On August 30, 2001,(cid:13) the plaintiffs filed a second motion for a new trial, having(cid:13) _________________________________________________________________(cid:13) 1. The Magistrate Judge did not specify that he was granting judgment(cid:13) as a matter of law pursuant to Rule 50 of the Federal Rules of Civil(cid:13) Procedure. Instead, he simply stated in his order of April 27, 2001 that(cid:13) he was granting defendants’ motion for dismissal. Because it appears(cid:13) that the Magistrate Judge was entering judgment for the defendants(cid:13) because "there is no legally sufficient evidentiary basis for a reasonable(cid:13) jury to find for the party on that issue," we conclude that the case was(cid:13) dismissed pursuant to Fed. R. Civ. P. 50.(cid:13) 6(cid:13) complied with the Magistrate Judge’s order granting them(cid:13) thirty days from receipt of the trial transcript to file a(cid:13) second motion for a new trial (the plaintiffs received the(cid:13) trial transcript on July 30, 2001.) On September 13, 2001,(cid:13) the Magistrate Judge denied the plaintiffs’ second motion(cid:13) for a new trial, and concluded that the praecipe was moot.(cid:13) The plaintiffs filed a notice of appeal to this Court on(cid:13) October 5, 2001.(cid:13) II.(cid:13) Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure(cid:13) requires that an appellant file a notice of appeal within(cid:13) thirty days after the judgment of order appealed from is(cid:13) entered. Although the Magistrate Judge dismissed the(cid:13) plaintiffs’ case on April 27, 2001, they would have more(cid:13) than thirty days from the dismissal to file a notice of appeal(cid:13) with this Court if the motion for a new trial was timely filed.(cid:13) See Fed. R. App. P. 4(a)(4)(A) ("If a party timely files [for a(cid:13) new trial under Rule 59] in the district court . . . the time(cid:13) to file an appeal runs for all parties from the entry of the(cid:13) order disposing of the last . . . remaining motion."). At first(cid:13) glance, the plaintiffs would appear to have complied with(cid:13) the requirement that they file a notice of appeal within(cid:13) thirty days from the final order; the final order in this case,(cid:13) the order denying the plaintiffs’ second motion for a new(cid:13) trial, was entered on September 13, 2001 and they filed a(cid:13) notice of appeal on October 5, 2001.(cid:13) However, under Fed. R. Civ. P. 59(b), "[a]ny motion for a(cid:13) new trial shall be filed not later than 10 days after the entry(cid:13) of the judgment." Moreover, Fed. R. Civ. P. 6(b) states that(cid:13) a district court "may not extend the time for taking any(cid:13) action under . . . 59(b) . . . except to the extent and under(cid:13) the conditions stated in [59(b)]." Although sanctioned by(cid:13) the Magistrate Judge, the defendants argue that the second(cid:13) motion for a new trial was untimely, and as such it"did not(cid:13) toll the 30-day time period for filing notices of appeal."(cid:13) Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1362 (3d(cid:13) Cir. 1990). Thus, the defendants submit, the plaintiffs were(cid:13) required to file a notice of appeal within thirty days of June(cid:13) 7(cid:13) 29, 2001, when the Magistrate Judge denied the timely(cid:13) motion for a new trial, which they did not do.2(cid:13) The Magistrate Judge did not have the jurisdiction to(cid:13) allow the plaintiffs to file a second motion for a new trial(cid:13) more than ten days after dismissing the case. In so(cid:13) concluding, we note that "[t]he 10-day filing period(cid:13) [contained in Rule 59] is mandatory and jurisdictional, and(cid:13) may not be extended by the court . . . stated differently, a(cid:13) district court lacks jurisdiction to grant an untimely(cid:13) motion." 12 Moore’s Federal Practice S 59.11[1][a] (3d ed.(cid:13) 2002) (citing Sonnenblick-Goldman Corp. v. Nowalk, 420(cid:13) F.2d 858, 860 (3d Cir. 1970) ("Rule 6(b) [of the Federal(cid:13) Rules of Civil Procedure] has been determined to render a(cid:13) court without power to extend the time for service of(cid:13) motions.")). Rule 6(b) of the Federal Rules of Civil Procedure(cid:13) clearly forbids a district court from extending the ten day(cid:13) time period in Rule 59(b). See Fed. R. Civ. P. 6(b) ("[T]he(cid:13) court . . . may not extend the time for taking action under(cid:13) . . . 59(b) . . . except to the extent and under the conditions(cid:13) stated in [59(b)]."). Thus, the plaintiffs were required to file(cid:13) a notice of appeal from the disposition of the last timely(cid:13) filed motion; the Magistrate Judge denied the plaintiffs’(cid:13) timely motion for a new trial on June 29, 2001. Since they(cid:13) did not file a notice of appeal until October 5, 2001 --(cid:13) _________________________________________________________________(cid:13) 2. The defendants also appear to argue that we do not have jurisdiction(cid:13) to hear this appeal because Schneider violated Local Rule of Civil(cid:13) Procedure 7.1(e) by not ordering the trial transcript within fourteen days(cid:13) of filing a post trial motion, or showing good cause for being excused(cid:13) from this requirement. However, Rule 7.1(e) gives the district court(cid:13) discretion to excuse this requirement:(cid:13) Within fourteen (14) days after filing any post-trial motion, the(cid:13) movant shall either (a) order a transcript of the trial by a writing(cid:13) delivered to the Court Reporter Supervisor, or (b) file a verified(cid:13) motion showing good cause to be excused from this requirement.(cid:13) Unless a transcript is thus ordered, or the movant excused from(cid:13) ordering a transcript, the post-trial motion may be dismissed for lack(cid:13) of prosecution. E.D. Pa. Loc. R. Civ. P. 7.1(e) (emphasis added).(cid:13) Under the local rule, the Magistrate Judge was not required to dismiss(cid:13) the plaintiffs’ motion for a new trial simply because counsel did not(cid:13) order a copy of the trial transcript.(cid:13) 8(cid:13) beyond the thirty day requirement -- the plaintiffs’ appeal(cid:13) is untimely.(cid:13) However, the Supreme Court has created a narrow(cid:13) exception to the requirement that the notice of appeal be(cid:13) filed within thirty days of the disposition of the last timely(cid:13) motion. See Thompson v. INS, 375 U.S. 384, 387 (1964)(cid:13) (remanding to the Court of Appeals, which had dismissed(cid:13) the appeal as untimely, "in view of these ‘unique(cid:13) circumstances’ "). The doctrine of "unique circumstances"(cid:13) permits an untimely Rule 59 motion to extend the time for(cid:13) filing an appeal when the party filed a late appeal in(cid:13) reliance on the actions of the district court. The unique(cid:13) circumstances doctrine is explained in Moore’s Federal(cid:13) Practice:(cid:13) Occasionally a district court will erroneously enlarge(cid:13) the filing period for Rule 59 . . . motions against the(cid:13) prohibition against enlargement in Rule 6(b). Under the(cid:13) doctrine of unique circumstances, if a party performs(cid:13) an act that, when properly performed, would extend(cid:13) the deadline for filing an appeal and the party(cid:13) reasonably relies on the district court’s conclusion that(cid:13) the act was properly performed, an otherwise late(cid:13) appeal is timely if filed within the mistakenly enlarged(cid:13) deadline. 12 Moore’s Federal Practice S 59.12[2][b] (3d(cid:13) ed. 2002).(cid:13) This Court has acknowledged the continued viability of(cid:13) the unique circumstances doctrine in Kraus, concluding(cid:13) that "[t]he unique circumstances exception evolved out of(cid:13) concern with the fairness of a dismissal when the district(cid:13) court contributed to the party’s failure to take the steps(cid:13) necessary to perfect the appeal." 899 F.2d at 1365. In(cid:13) Kraus, we did not allow the appellant to take advantage of(cid:13) the doctrine of unique circumstances because the filing(cid:13) delay was partly due to the attorney’s own incompetence.(cid:13) See id. ("The unique circumstances doctrine has never been(cid:13) extended to an attorney’s miscalculation of the applicable(cid:13) time limits."). In contrast, in the case at bar, the appeal(cid:13) was untimely solely because of the plaintiffs’ reliance on the(cid:13) order of the Magistrate Judge.(cid:13) It is arguable that counsel should have realized that the(cid:13) Magistrate Judge exceeded his authority by allowing the(cid:13) 9(cid:13) plaintiffs to file a second motion for a new trial more than(cid:13) ten days after the case was dismissed and that counsel(cid:13) should have filed a notice of appeal immediately after the(cid:13) Magistrate Judge denied the first motion for a new trial to(cid:13) preserve the appeal. However, where the Magistrate Judge(cid:13) misunderstood his own authority to grant an extension to(cid:13) the ten day filing period contained in Rule 59(b), and(cid:13) conferred upon plaintiff "the right" to an extension, it would(cid:13) be a harsh result to require the plaintiffs to question the(cid:13) Magistrate Judge’s power to do so. The unique(cid:13) circumstances doctrine was designed for situations such as(cid:13) this, to prevent the appellant’s reliance on the district(cid:13) court’s mistake from prejudicing the appellant.(cid:13) The plaintiffs clearly relied on the Magistrate Judge’s(cid:13) order granting them until thirty days after receiving the(cid:13) trial transcript to file a second motion for a new trial. The(cid:13) plaintiffs also complied with the Magistrate Judge’s(cid:13) (erroneously) enlarged deadline; they received the trial(cid:13) transcript on July 30, 2001 and filed the second motion for(cid:13) a new trial on August 30, 2001. Thus, because we conclude(cid:13) that the plaintiffs reasonably relied upon the Magistrate(cid:13) Judge’s order conferring upon them "the right" to file a(cid:13) second motion for a new trial more than ten days after the(cid:13) case was dismissed, the doctrine of unique circumstances(cid:13) gives us jurisdiction to hear the appeal even though the(cid:13) notice of appeal was untimely. We thus proceed to the(cid:13) merits of the appeal.(cid:13) III.(cid:13) We review the decision to admit or reject expert testimony(cid:13) under an abuse of discretion standard. In re Paoli Railroad(cid:13) Yard PCB Litigation, 35 F.3d 717, 749 (3d Cir. 1994). An(cid:13) abuse of discretion arises only when the decision"rests(cid:13) upon a clearly erroneous finding of fact, an errant(cid:13) conclusion of law or an improper application of law to fact."(cid:13) Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)(cid:13) (citing Hanover Potato Products, Inc. v. Shalala , 989 F.2d(cid:13) 123, 127 (3d Cir. 1993)).(cid:13) The plaintiffs contend that the Magistrate Judge erred(cid:13) when he excluded the testimony of Dr. Semigran and Dr.(cid:13) 10(cid:13) Reis. Rule 702 of the Federal Rules of Evidence allows a(cid:13) witness qualified as an expert to give testimony that would(cid:13) be otherwise impermissible:(cid:13) If scientific, technical, or other specialized knowledge(cid:13) will assist the trier of fact to understand the evidence(cid:13) or to determine a fact in issue, a witness qualified as(cid:13) an expert by knowledge, skill, experience, training, or(cid:13) education, may testify thereto in the form of an opinion(cid:13) or otherwise, if (1) the testimony is based upon(cid:13) sufficient facts or data, (2) the testimony is the product(cid:13) of reliable principles and methods, and (3) the witness(cid:13) has applied the principles and methods reliably to the(cid:13) facts of the case.(cid:13) Fed. R. Evid. 702.(cid:13) We have explained that Rule 702 embodies a trilogy of(cid:13) restrictions on expert testimony: qualification, reliability(cid:13) and fit.3 Paoli II, 35 F.3d at 741-743 (citing Daubert v.(cid:13) Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).(cid:13) Qualification refers to the requirement that the witness(cid:13) possess specialized expertise. We have interpreted this(cid:13) requirement liberally, holding that "a broad range of(cid:13) knowledge, skills, and training qualify an expert." Id.(cid:13) Secondly, the testimony must be reliable; it "must be based(cid:13) on the ‘methods and procedures of science’ rather than on(cid:13) ‘subjective belief or unsupported speculation’; the expert(cid:13) must have ‘good grounds’ for his on her belief. In sum,(cid:13) Daubert holds that an inquiry into the reliability of(cid:13) scientific evidence under Rule 702 requires a determination(cid:13) as to its scientific validity." Paoli II, 35 F.3d at 742 (quoting(cid:13) Daubert, 509 U.S. at 590). Finally, Rule 702 requires that(cid:13) the expert testimony must fit the issues in the case. In(cid:13) other words, the expert’s testimony must be relevant for the(cid:13) purposes of the case and must assist the trier of fact. The(cid:13) Supreme Court explained in Daubert that"Rule 702’s(cid:13) ‘helpfulness’ standard requires a valid scientific connection(cid:13) _________________________________________________________________(cid:13) 3. Indeed, Rule 702 of the Federal Rules of Evidence was amended to(cid:13) include the trilogy of restrictions (qualifications, reliability, fit) in its text(cid:13) after the Supreme Court decided Daubert. Fed. R. Evid. 702 advisory(cid:13) committee’s notes.(cid:13) 11(cid:13) to the pertinent inquiry as a precondition to admissibility."(cid:13) 509 U.S. at 591-92.(cid:13) By means of a so-called "Daubert hearing," the district(cid:13) court acts as a gatekeeper, preventing opinion testimony(cid:13) that does not meet the requirements of qualification,(cid:13) reliability and fit from reaching the jury. See Daubert, 509(cid:13) U.S. at 592 ("Faced with a proffer of expert scientific(cid:13) testimony, then, the trial judge must determine at the(cid:13) outset, pursuant to Rule 104(a) [of the Federal Rules of(cid:13) Evidence] whether the expert is proposing to testify to (1)(cid:13) scientific knowledge that (2) will assist the trier of fact to(cid:13) understand or determine a fact in issue."). The plaintiffs(cid:13) maintain that the Magistrate Judge abused this discretion(cid:13) as a gatekeeper by excluding the testimony of experts who(cid:13) qualified under Rule 702.(cid:13) A.(cid:13) The plaintiffs contend that the Magistrate Judge erred(cid:13) when he precluded the testimony of Dr. Semigran on the(cid:13) grounds that the literature cited by him as a basis for his(cid:13) opinion did not address the specific issue in the case:(cid:13) whether it was the standard of care in November of 1996 to(cid:13) administer Procardia sublingually as a pre-treatment for an(cid:13) angioplasty. Instead that literature only addressed the use(cid:13) of Procardia as a treatment for hypertensive emergencies(cid:13) (abnormally high blood pressure) or other blood-pressure(cid:13) problems, which the parties conceded was not the use in(cid:13) this case. Dr. Semigran testified:(cid:13) In the way they were administered in this case, I don’t(cid:13) believe that sublingual administration of nifedipine was(cid:13) used, at least, according to the standard of care that I(cid:13) understand it to be in November of 1996.(cid:13) . . .(cid:13) I think the basis for that statement is my knowledge of(cid:13) the pharmacology -- of the way the agent works, the --(cid:13) my experience with it and the published literature on(cid:13) it.(cid:13) . . .(cid:13) 12(cid:13) There was certainly published data as early as 1987 of(cid:13) the adverse consequences of administering sublingual(cid:13) nifedipine to patients who were having acute coronary(cid:13) syndromes. There was further information that was(cid:13) published in one of the leading medical journals in(cid:13) 1996 as to the adverse affects of administering(cid:13) sublingual nifedipine to patients. . . . And in addition,(cid:13) the -- the product information that comes along with(cid:13) -- with Procardia nifedipine specifically points out the(cid:13) dangers -- potential dangers -- of using it in patients,(cid:13) who have severe coronary stenosis.(cid:13) Dr. Semigran admitted on cross-examination that the(cid:13) literature just cited did "not specifically address the issue of(cid:13) vessel spasm." In the case at bar, Procardia was(cid:13) administered as a pre-treatment for an angioplasty-- to(cid:13) prevent coronary vessel spasm during the surgical(cid:13) procedure. The Magistrate Judge precluded Dr. Semigran’s(cid:13) testimony, noting that "the literature of the profession upon(cid:13) which the doctor makes his decision" does not address the(cid:13) specific issue.(cid:13) The ruling by the Magistrate Judge appears to address(cid:13) the second requirement of the Rule 702 trilogy: reliability.(cid:13) This Court has laid out some factors that a district court(cid:13) should consider when determining whether proposed expert(cid:13) testimony is reliable:(cid:13) (1) whether a method consists of a testable hypothesis;(cid:13) (2) whether the method has been subject to peer(cid:13) review; (3) the known or potential rate of error; (4) the(cid:13) existence and maintenance of standards controlling the(cid:13) technique’s operation; (5) whether the method is(cid:13) generally accepted; (6) the relationship of the technique(cid:13) to methods which have been established to be reliable;(cid:13) (7) the qualifications of the expert witness testifying(cid:13) based on the methodology; and (8) the non-judicial(cid:13) uses. Paoli II, 35 F.3d at 742 n. 8 (citing Daubert,(cid:13) supra, and United States v. Downing, 753 F.2d. 1224(cid:13) (3d Cir. 1985), for these factors).(cid:13) The defendants maintain that the Magistrate Judge was(cid:13) correct to exclude Dr. Semigran’s testimony because the(cid:13) articles do not show that the practice of not administering(cid:13) 13(cid:13) Procardia for this purpose (as a pre-treatment) had been(cid:13) subjected to peer review or that the discontinuation of(cid:13) Procardia to prevent coronary vessel spasm had gained(cid:13) general acceptance (two of the Daubert factors).(cid:13) Without delving into the question whether articles(cid:13) discussing the use of Procardia for one purpose are relevant(cid:13) to whether it was a violation of the standard of care to(cid:13) administer it for another purpose, we note that expert(cid:13) testimony does not have to obtain general acceptance or be(cid:13) subject to peer review to be admitted under Rule 702.(cid:13) Indeed, in Daubert, the Supreme Court specifically held(cid:13) that Rule 702 overruled the requirement that an opinion(cid:13) must gain general acceptance in order to qualify as(cid:13) admissible expert testimony; instead general acceptance(cid:13) and peer review are only two of the factors that a district(cid:13) court should consider when acting as gatekeeper. See(cid:13) Daubert, 509 U.S. at 589 ("Given the [Federal Rules of(cid:13) Evidence’s] permissive backdrop and their inclusion of a(cid:13) specific rule on expert testimony that does not mention(cid:13) " ‘general acceptance,’ " the assertion that the Rules(cid:13) somehow assimilated [United States v. Frye , 293 F. 1013(cid:13) (D.C. Cir. 1923)] is unconvincing. Frye made "general(cid:13) acceptance" the exclusive test for admitting expert scientific(cid:13) testimony."). Where there are other factors that(cid:13) demonstrate the reliability of the expert’s methodology, an(cid:13) expert opinion should not be excluded simply because there(cid:13) is no literature on point.(cid:13) In the case at bar, Dr. Semigran stated that he based his(cid:13) opinion not only upon the literature, but also upon his own(cid:13) experience as a cardiologist.4 Although Dr. Semigran had(cid:13) _________________________________________________________________(cid:13) 4. Dr. Semigran attended Harvard College and Harvard Medical School.(cid:13) He did an internal medicine residency from 1983 to 1986 at(cid:13) Massachusetts General Hospital, which is affiliated with Harvard Medical(cid:13) School. Dr. Semigran also had a cardiology fellowship at Massachusetts(cid:13) General Hospital following his residency there. From 1989 until the time(cid:13) of trial, Dr. Semigran taught at Harvard Medical School, where he(cid:13) received numerous distinguished teaching awards. As part of his(cid:13) teaching job, Dr. Semigran lectured medical students, residents and(cid:13) fellows in cardiology and supervised residents and fellows in cardiology(cid:13) and the care of patients. Dr. Semigran has served on the Harvard(cid:13) 14(cid:13) not actually performed angioplasties since mid-1990, at the(cid:13) time he testified, he was treating patients with angina in(cid:13) his capacity as an invasive cardiologist. The record(cid:13) establishes that as an invasive cardiologist, who normally(cid:13) diagnoses heart conditions, Dr. Semigran was routinely(cid:13) present during surgical procedures and regularly advised(cid:13) interventional cardiologists during the course of those(cid:13) procedures. Dr. Semigran also testified that he would(cid:13) consult with interventional cardiologists about which drugs(cid:13) should or should not be given to patients undergoing(cid:13) angioplasties. Thus, we conclude that Dr. Semigran’s(cid:13) experience renders his testimony reliable, demonstrates(cid:13) that his testimony is based on "good grounds," and that the(cid:13) Magistrate Judge abused his discretion by excluding it. See(cid:13) Daubert, 509 U.S. at 590 ("Proposed testimony must be(cid:13) supported by appropriate validation -- i.e., ‘good(cid:13) grounds.’ ").(cid:13) Although not specifically mentioned by the Magistrate(cid:13) Judge, the defendants contend that Dr. Semigran’s(cid:13) testimony was properly excluded because he was not an(cid:13) expert in the sub-specialty about which he opined. 5 The(cid:13) _________________________________________________________________(cid:13) Medical School admissions committee, a regional review board of cardiac(cid:13) transplantation, a committee that oversees intensive care units at(cid:13) Massachusetts General Hospital, as well as various other committees. At(cid:13) the time he testified, he was a member of the American College of(cid:13) Cardiology, a fellow of the American College of Cardiology, a member of(cid:13) the American Heart Association, and a member of the Heart Failure(cid:13) Society. Dr. Semigran researches "heart failure and . . . the function of(cid:13) the heart when it is failing."(cid:13) 5. The defendants’ argument that Dr. Semigran was unqualified to testify(cid:13) because he is not a practitioner of the sub-specialty (interventional(cid:13) cardiology) at issue in the case is also based upon Pennsylvania state(cid:13) law. The defendants state in their brief:(cid:13) [T]he Pennsylvania Legislature recently enacted more stringent(cid:13) requirements for all expert witnesses testifying on the standard of(cid:13) care issue in medical malpractice cases. See Medical Care(cid:13) Availability and Reduction of Error Act, 2002 Pa. ALS 13 (2002).(cid:13) Under the M-Care Act, it is necessary for an expert testifying on the(cid:13) standard of care issue to be substantially familiar with the(cid:13) applicable standard of care at the time the alleged breach occurred.(cid:13) 15(cid:13) tenor of the Magistrate Judge’s ruling is consistent with(cid:13) this argument. In particular, the defendants assert that(cid:13) because, in 1996, Dr. Semigran was an invasive(cid:13) cardiologist (diagnosing and treating heart conditions) and(cid:13) not an interventional cardiologist (performing angioplasties)(cid:13) he was not qualified to testify about the standard of care for(cid:13) interventional cardiologists. This argument appears to(cid:13) challenge the qualification of Dr. Semigran; although we(cid:13) note that "the degree to which the expert testifying is(cid:13) qualified" also implicates the reliability of the testimony.(cid:13) Paoli II, 35 F.3d at 742.(cid:13) The defendants refer us to our decision in Aloe Coal Co.(cid:13) v. Clark Equip. Co., 816 F.2d 110,114 (3d Cir. 1987), in(cid:13) which we held that a tractor salesman was not qualified to(cid:13) testify about the causes of a tractor fire because"[h]e had(cid:13) no knowledge or experience in determining the cause of(cid:13) equipment fires." However, Dr. Semigran had ample(cid:13) experience advising interventional cardiologists about which(cid:13) drugs to prescribe patients undergoing angioplasties.(cid:13) Moreover, Dr. Semigran’s academic background and his(cid:13) teaching position, as noted in the margin, also demonstrate(cid:13) that he is highly knowledgeable about cardiology. For the(cid:13) same reasons that we found Dr. Semigran’s testimony(cid:13) reliable -- most importantly because he had regular contact(cid:13) with and advised interventional cardiologists in November(cid:13) of 1996 -- we also conclude that Dr. Semigran had the(cid:13) proper qualifications to give expert opinion, especially(cid:13) considering that the requirement that a witness have(cid:13) specialized knowledge has been interpreted liberally. Paoli(cid:13) II, 35 F.3d at 741. In sum, the Magistrate Judge abused his(cid:13) discretion in excluding Dr. Semigran’s testimony.(cid:13) B.(cid:13) The plaintiffs also maintain that the Magistrate Judge(cid:13) abused his discretion when he excluded the expert(cid:13) _________________________________________________________________(cid:13) The expert must also practice in the same subspecialty as the(cid:13) defendant or in a subspecialty which has substantially the same(cid:13) standard of care for the specific care at issue.(cid:13) However, because the M-Care Act was not enacted until 2002, the(cid:13) Magistrate Judge could not have relied upon it to exclude Dr. Semigran’s(cid:13) testimony when the case was dismissed on April 27, 2001.(cid:13) 16(cid:13) testimony of Dr. Reis. Based on Dr. Reis’ statement that "I(cid:13) can’t comment on what individual cardiologists were doing(cid:13) throughout the country . . . I can only comment about . . .(cid:13) my practice," the Magistrate Judge concluded that Dr. Reis(cid:13) could not testify about the legal standard of care since an(cid:13) opinion about the legal standard of care must be based on(cid:13) what is considered reasonable and acceptable in the entire(cid:13) community, not just the expert’s own practice. See McPhee(cid:13) v. Reichel, 461 F.2d 947, 951 (3d Cir. 1972) (concluding(cid:13) that a jury charge explaining the standard of care should(cid:13) state that a specialist "is expected to exercise that degree of(cid:13) skill, learning and care normally possessed and exercised(cid:13) by the average physician in the medical community who(cid:13) devotes special study and attention" to the diagnosis and(cid:13) treatment of diseases within that specialty). See also(cid:13) Maurer, 614 A.2d at 763 (granting judgment n.o.v. to the(cid:13) defendant since the proposed expert "did not testify to(cid:13) anything more than his own, personal standard of care").(cid:13) However, in the case at bar, Dr. Reis testified extensively(cid:13) about the general standard of care. For example, he(cid:13) explained:(cid:13) My opinion is that at the time this procedure was(cid:13) performed, that a physician doing these procedures(cid:13) should have known that administration of sublingual(cid:13) Procardia could be dangerous. That the information(cid:13) was available, widely published in terms of adverse(cid:13) reactions, both in the prescribing information and in(cid:13) the medical literature. And that a physician doing the(cid:13) procedure should at that point have stopped using(cid:13) sublingual Procardia.(cid:13) I think the second breach of care was in the failure to(cid:13) recognize that a severe adverse reaction was occurring(cid:13) and failing to act quickly enough to reverse the effects(cid:13) of that adverse reaction by appropriately administering(cid:13) medications to rapidly bring up the blood pressure.(cid:13) Those medications were administered but they were(cid:13) administered too slowly and too late.(cid:13) And I believe that the third breach of care was that it(cid:13) took too long to perform angioplasty when the(cid:13) emergency situation was developing.(cid:13) 17(cid:13) On re-direct examination, Dr. Reis made the comment(cid:13) that he could only testify about his own personal standard(cid:13) of care in response to the following question posed by(cid:13) plaintiffs’ counsel:(cid:13) [W]ith respect to what interventional cardiologists were(cid:13) doing in 1996, is it fair to say that the use of(cid:13) sublingual Procardia, in the fashion in which Dr. Fried(cid:13) used it here, was well below the minimum standard of(cid:13) care by interventional cardiologists throughout the(cid:13) country?(cid:13) Dr. Reis responded:(cid:13) I can’t comment on what individual cardiologists were(cid:13) doing throughout the country because . . . frankly, I(cid:13) don’t know what each individual cardiologist was doing(cid:13) at the time. You know what I can only comment about(cid:13) was my practice -- my interpretation of the literature(cid:13) and my feelings and how the literature should have(cid:13) been applied to clinical practice.(cid:13) Counsel for plaintiffs explained to the Magistrate Judge(cid:13) that Dr. Reis thought that counsel had asked him to(cid:13) comment on what individual cardiologists were doing in(cid:13) 1996, and not what interventional cardiologists were doing(cid:13) in 1996. As such, Dr. Reis responded that he did not know(cid:13) what each "individual" cardiologist was actually doing at(cid:13) the time.(cid:13) Counsel for plaintiffs also requested that the Magistrate(cid:13) Judge ask Dr. Reis about the misunderstanding while he(cid:13) was still under oath:(cid:13) Your Honor, when I addressed you and said that the(cid:13) doctor misunderstood the term "interventional" for(cid:13) "individual," he affirmatively nodded. You might ask(cid:13) the doctor that. He misunderstood the term to mean(cid:13) "individual."(cid:13) The record shows that the Magistrate Judge refused to let(cid:13) Dr. Reis explain the misunderstanding and proceeded to(cid:13) exclude his testimony because "I don’t believe at this(cid:13) juncture that he misunderstood." Dr. Reis later swore in an(cid:13) affidavit that he "misheard [counsel’s question], thinking he(cid:13) used the term individual rather than interventional," and(cid:13) 18(cid:13) "responded to [his] question by using the term individual(cid:13) cardiologist."(cid:13) We conclude that Dr. Reis’ testimony (before making the(cid:13) comment that he could only testify about his practice)(cid:13) demonstrated that he had formed an opinion about the(cid:13) legal standard of care and that the opinion had a reliable(cid:13) basis. For example, Dr. Reis gave ample testimony about(cid:13) what "a physician" should have known and how"a(cid:13) physician" should have acted, see discussion supra.(cid:13) Moreover, Dr. Reis’ qualifications suggest that he would be(cid:13) able to testify about the standard of care in the medical(cid:13) field. Dr. Reis is an interventional cardiologist at(cid:13) Pennsylvania Hospital in Philadelphia, where he routinely(cid:13) performs procedures such as catheterizations and(cid:13) angioplasties. He is also a clinical assistant professor at the(cid:13) University of Pennsylvania and the author of a chapter in a(cid:13) text book titled, Cardiac Catheterizations Angiography and(cid:13) Intervention (4th ed.). The defendants have offered no(cid:13) evidence or explanation suggesting that Dr. Reis did not(cid:13) misunderstand the question, and in light of Dr. Reis prior(cid:13) testimony about the standard of care in the medical field,(cid:13) it appears that Dr. Reis was qualified to give expert(cid:13) testimony and that his opinion was based on "good(cid:13) grounds." Daubert, 509 U.S. at 590. Thus, we conclude that(cid:13) the Magistrate Judge abused his discretion by excluding(cid:13) Dr. Reis’ testimony.(cid:13) IV.(cid:13) For the foregoing reasons, we will reverse the Magistrate(cid:13) Judge’s order dismissing the case and will remand for a(cid:13) new trial.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 19
