                                                                                       FIL` D
                                                                                  PUP O APPEALS
                                                                                     DIV9u101i II

                                                                               2013 FEB 261 10: 19
                                                                                            AS, 111ri'T0ii


                                                                                U

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II

ADVANCED         HEALTH      CARE, INC.,      a                         I. II
                                                                         Z
Washington corporation,

                              Respondent,

         V.




ARTHUR T. GUSCOTT,                                          PUBLISHED OPINION




         HUNT, P. .Arthur Guscott appeals the superior court's in limine exclusion of his three
                J —

expert witnesses' causation testimonies and its resultant summary judgment dismissal of his tort

counterclaims against Advanced Heath Care, Inc. AHC),
                                                (   which had sued him for failure to pay

for services. He argues that the superior court ( )
                                                1 erroneously ruled that his experts' testimonies

did not meet the Frye test' and misapplied the Frye test by requiring scientific proof that every

aspect of his experts' causation opinions was not novel; 2)should have instead applied the
                                                         (

Daubert test to evidence supporting his civil tort counterclaims; 3)erred in granting summary
                                                                  (

judgment to AHC because Guscott lacked evidence of causation; and (4)erred in denying his

motion for reconsideration. We hold that Guscott's experts' testimonies did not involve novel


    Frye v. United States, 54 U. .App. D. .46, 93 F. 1013 (1923).
                               S        C    2
2
 Daubert v. Merrell Dow Pharms.,Inc.,
                                    509 U. . 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
                                         S
1993).
No. 41969 6 II
          - -



scientific theories    or   methods   and, therefore, they did   not   implicate Frye. We reverse the

superior court's exclusion of Guscott's experts' testimonies for failure to meet the Frye test and

its summary judgment dismissal of Guscott's counterclaims against AHC; and we remand for

trial.


                                                 FACTS


                              1. RUPTURED ABDOMINAL AORTIC ANEURISM


         On Christmas Day 2006, 86-
                                  yearold Arthur Guscott was attending a church service with
                                      -

his AHC caregiver. Guscott had previously been diagnosed with Parkinson's disease and a 9.
                                                                                         4

centimeter abdominal aortic aneurism, which was very large and rapidly growing but still intact.
Guscott left the church service with his         caregiver pushing     him in   a   wheelchair.   Guscott's


wheelchair hit a crack in the sidewalk; Guscott fell out of the wheelchair, hitting his elbow and

his buttocks hard      on   the cement.    Guscott's caregiver took him to the emergency room at

Providence St. Peter Hospital, where Guscott was treated by Dr.Erik Penner.

         Dr. Penner examined Guscott, consulted his medical records, and learned that he had a

large abdominal aortic aneurism, for which he had previously signed a Do Not Resuscitate

DNR) directive        and had refused surgery.     Dr. Penner noted that Guscott had a low blood


pressure of " 1/ 3 ", which
            9 6                  could be a sign of a ruptured abdominal aortic aneurism. Clerk's

Papers (CP)at 110. After speaking with Guscott and performing a physical examination on him,

however, Dr. Penner concluded that Guscott did not have any "tenderness" or "pain in his

abdomen,"
        suggesting that the abdominal aortic aneurism had not ruptured. CP at 111.

3
  According to Dr. Nam T. Tran's deposition testimony, an abdominal aortic aneurism is an
enlargement of the abdominal aorta that is "two times the normal size of the normal aorta
diameter or greater than three centimeters."Clerk's Papers (CP)at 95.

                                                     0?
No. 41969 6 II
          - -



         Because Guscott had primarily complained about pain in his buttocks, Dr. Penner ordered

a pelvic x ray to rule out the possibility of a fracture, a full electrocardiogram (EKG), complete
            -                                                                           a

blood count (CBC), basic metabolic panel (BMP), a urinalysis. Dr. Penner did not find
                 a                            and

anything particularly concerning about Guscott's medical condition from these tests. When the
nurses   checked Guscott's blood pressure   again, it   had risen to "
                                                                     112/ 8 ". CP at 114. Dr. Penner
                                                                        6


found this increase in blood pressure "reassuring,"and he became "less concern[ d]"
                                                                              e   about

Guscott's having a ruptured abdominal aortic aneurism because his blood pressure was rising

and stabilizing rather than staying persistently low. CP at 115. Dr.Penner discharged Guscott as

having merely " ontusions"or bruises)on his buttocks and some cuts on his right elbow. CP at
              c           (

116.


         At home that. evening, the caretaker applied an ice pack to Guscott's right elbow in

accordance with the   hospital's discharge   instructions.    Guscott was "groaning" and "moaning

loudly," his transfers from his recliner to his wheelchair and toilet appeared very painful. CP
       and

at 261. The two caretakers who worked with Guscott the next morning noted that (1) blood
                                                                                  his

pressure had remained stable at 113/ 9; ( ) his elbow was still "pink," "
                                   7 2                                swollen,"and

bleeding "; 3) complained of pain " ll over," this pain was primarily concentrated in his
            ( he                  a         but

coccyx; and (4) had difficulty urinating. CP at 257 58,262. The caretakers continued icing
               he                                   -

his elbow, gave him two Tylenol in addition to his usual morning prescriptions, scheduled an




4
    Although. Guscott's BMP showed that he had "baseline anemia," Penner was relatively
                                                                Dr.
unconcerned about anemia because he did not believe Guscott had any "active bleeding" and
because some people are persistently anemic. CP at 113 14. Guscott's BMP also showed other
                                                       -
mild abnormalities"that did not concern Dr.Penner. CP at 113.




                                                   3
No. 41969 6 II
          - -




appointment with his personal physician for December 28, and notified his daughter in Chicago

so she could attend. Guscott's evening caretaker gave him two more Tylenol for his pain.

         On December 27, Guscott's daughter arrived and spent the afternoon reviewing her

father's books and finances with him. Around 2:0 or 3:0 AM the next day, Guscott's painful
                                              0      0

moans woke his daughter; believing he was having a heart attack, she called 911. At Providence

St. Peter Hospital, a computed tomography (CT scan) showed that Guscott's abdominal aortic

aneurism had ruptured. Guscott reversed his earlier DNR and was flown to Harborview Medical

Center for surgery on his ruptured abdominal aortic aneurism. Vascular surgeon Dr. Nam T.

Tran conducted a " airly routine"successful surgery. CP at 97.
                 f

                                             II. PROCEDURE


         AHC sued Guscott for breach of contract, asserting that he had failed to pay for his

caretaker services. CP at 9 10.
                            -         Guscott counterclaimed that (1)AHC had been negligent in
causing him to fall from his wheelchair, which fall was the proximate cause of his ruptured

abdominal aortic aneurism; and (2) s neglect was also a. violation of the vulnerable adult
                                  AHC'

statute,   chapter   74. 4 RCW.
                       3            The   superior   court bifurcated th e   parties'   claims.   The parties

settled AHC's breach of contract claim before trial; thus, the superior court set only Guscott's

tort   counterclaims for trial.   In anticipation of trial, both parties retained and deposed medical

experts to testify about whether Guscott's fall from his wheelchair had caused his abdominal




5
    Guscott's amended answer also included counterclaims for conversion and theft of personal
property and breach of contract. These counterclaims are not at issue on appeal.



                                                       4-
No. 41969 6 II
          - -



aortic aneurism to rupture.     Ultimately, however, the trial court excluded Guscott's expert

witnesses' opinions.
                              A. Pretrial Expert Witness Depositions

                                    1. Guscott's experts' opinions

         To prove causation, Guscott relied on the opinions of three experts: Drs. Holmes, Heller,

and Gore. But the trial court ruled that none of the three experts' opinions met the Frye test and,

thus, excluded their testimonies.

                                             Dr.Holmes


         Dr. John R. Holmes, a cardiologist at Virginia Mason Medical Center, reviewed

Guscott's hospital records and testified in a deposition that he believed Guscott's fall from his

wheelchair had caused his abdominal aortic aneurism to rupture as a result of deceleration"and
                                                                              "

shearing forces."CP at 213. According to Dr. Holmes, 1) was well known in the medical
                                                     ( it

community that a " ignificant trauma"or a "violent fall"e. ., crash or skiing accident)could
                 s                                      ( g car

cause a normal aorta to rupture as a result of deceleration, even where the person injured had not

suffered direct trauma to the aorta; and (2)it was not a far "stretch" that a fragile, dilated, or

calcified aorta like Guscott's could rupture with        even   less trauma. CP at 213. Dr. Holmes,


however, did not know of any medical studies analyzing the effect of deceleration on the

abdominal aorta ( s opposed to the thoracic aorta)or abdominal aortic aneurisms specifically.
                a

         Nevertheless, in   Dr. Holmes'   opinion,   Guscott had       eggshell" aorta.
                                                                    an "                  CP at 215.


When Guscott fell hard from his wheelchair, his aorta cracked and started to " eak."' at 215.
                                                                             l     CP

6
    Guscott did not similarly move to exclude AHC's experts' opinions; thus, these expert opinions
remained available for AHC's use at trial.




                                                     Z
No. 41969 6 II
          - -




The days following, when Guscott was in "ntense pain"and "symptomatic in the pelvic area, "
                                        i

his aorta was leaking intermittently (by bleeding and clotting several times);
                                                                             Guscott eventually

became anemic and in enough pain that he developed angina, causing him to go to the

emergency     room   again   three   days   later.   CP at 214, 215..
                                                                    According to Dr. Holmes, Guscott

survived during this period because his aneurism had leaked very slowly and he had a " ontained
                                                                                     c

rupture."CP at 215.

          Dr. Holmes   acknowledged         that there   was      significant
                                                                a "                risk " that Guscott's aneurism


would have spontaneously ruptured within the year based on its "
                                                               size"and its "rate of growth. "

But Dr. Holmes believed the "temporal relationship" between Guscott's fall and his abdominal

aortic aneurism's leaking or rupturing made it more likely that his fall had caused the rupture.

CP at 211, 217. Although ANC's medical experts ultimately reached different conclusions, they
                                                                                       l
did not   dispute ( that
                  1)         deceleration   injuries   can cause      aortic   ruptured or (2) it was possible,
                                                                                             that


7 It is not clear from the record whether an abdominal aortic aneurism "leak"is the same as a
rupture."Guscott's and AHC's medical experts appear to disagree on whether these terms are
synonymous or whether a leak is a lesser form of a rupture.
8
     According to Dr. Holmes, pain in the "pelvis" or "sacral" area could be symptomatic of an
abdominal aortic aneurism's leaking or rupturing. CP at 217.
9
 According to the medical community's landmark" study on abdominal aortic aneurisms,
                                           "
Guscott had a 50 percent chance of his abdominal aortic aneurism's spontaneously rupturing
within the year. CP at 213. .
io
     Guscott's abdominal aortic aneurism was 8. centimeters in June 2006 and 9. centimeters
                                              2                               4
when it ruptured in December 2006. According to Dr. Holmes, this constituted a "significant
rate of growth"over that time period. CP at 211.

  AHC medical expert Doctor Kaj Henry Johansen generally agreed that.penetrating trauma"
                                                                          "
e. .,
  g gunshot and stab wounds) and "severe deceleration" e. ., hitting a bridge at 70 mph)
                                                          ( g car
could rupture a person's abdominal aorta. CP at 144. But he claimed there was no evidence that
Guscott had suffered such trauma or a deceleration injury by falling from his wheelchair.

                                                          Cel
No. 41969 6 II
          - -




though perhaps unlikely, for an abdominal aortic aneurism to leak and to clot over a period of

time.

                                              1-)
                                               r     NPl IPY




          St. Louis University Medical School Associate Professor Dr. Ross Heller has treated

numerous     abdominal aortic aneurism   patients    as   an   emergency   room   doctor. He testified in


deposition that abdominal aortic aneurisms often "leak" bleed) and " clot,"
                                                        (                 making them

relatively stable.   CP of 248.    Overtime, however, as the patient's blood pressure rises and

tension builds on the patient's aortic wall, the clot eventually retracts and the abdominal aortic

aneurism re leaks to the point where the body can no longer seal off the wound by clotting.
             -

          In Dr. Heller's opinion, Guscott's low blood pressure and his initial "symptoms" on

December 25 (back and buttocks pain) indicated that his abdominal aortic aneurism had likely

started leaking when he fell out of the wheelchair. But the aneurism clotted and stabilized before

he left the emergency room. CP at 251. The clot then broke when Guscott's blood pressure rose

and his abdominal aortic aneurism started           leaking again.    Had Guscott's abdominal aortic


aneurism leaked nonstop from the December 25 fall until December 28, he would have been

in]extremis 13 and died. CP at 250 51.
            "                      -


12
     Dr. Johansen agreed with Guscott's experts that it is possible for an abdominal aortic aneurism
like Guscott's that leaked into the   retroperitoneum      to "tapenade," to "
                                                                        or    wall[       ]itself off,"
                                                                                                      and
then to stop leaking. CP at 144. As the patient's blood pressure rose, however, the abdominal
aortic aneurism would     re-   He also claimed there had been reported cases of abdominal
                            bleed.
aortic aneurisms bleeding and stopping for a couple days, but such cases were "vanishingly
rare."CP at 144.

13
     Webster's Dictionary defines "in extremis" as "in extreme circumstances"or "at the point of
death."WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1157 (2002).



                                                     7
No. 41969 6 II
          - -




       Like Dr. Holmes, Dr. Heller based his medical opinion on deceleration and shearing

forces. According to Dr.Heller, the effects of deceleration are a matter of simple physiology and

are "basic knowledge"within the medical community. CP at 252. For example, it is common

scientific knowledge that "falls, car accidents, [and] rollover car accidents" can cause aortic

ruptures, although a "classic high speed deceleration injury"usually involves the thoracic aorta,

not the abdominal aorta. CP at 247. Nevertheless, even low ground level falls like Guscott's fall
                                                                   -

from his wheelchair could create sufficient force to cause a deceleration injury and an abdominal

aortic aneurism to rupture, especially in older people. Dr. Heller was not aware of any medical

studies documenting the effects of deceleration forces in ground level falls or with abdominal
                                                                  -

aortic aneurisms specifically; nor had he conducted such studies himself. But having worked

with thousands of patients at "level one trauma centers" most of his 30 year career, he had
                                                                        -

personal experience treating patients whose abdominal aortic aneurisms had leaked or ruptured

as a result of ground level falls. CP at 247.
                       -

                                                Dr.Gore


       Radiologist D_.Richard Michael Gore reviewed Guscott's medical records, including his
                    r

December 28 CT scan,' concluded that Guscott's abdominal aortic aneurism had most likely
                    and

started leaking after his fall from the wheelchair because some of the pelvic blood visible on this

CT scan was around three days old.. According to Dr. Gore, blood has a different density and




                                                   E
WRIEFLOWSM



                                                            14
attenuation    on a   CT   scan   depending     on   its age,    and he is frequently asked to determine the

relative age of blood       as    part of his   practice.       CP at   239, 724 25. Based on his 33 years
                                                                                 -


experience as a radiologist,he has developed a "fairly good eye"and can determine the relative

age of blood by " yeball[ ng]" scan. CP at 239, 240.
                e       i    a CT

           Dr. Gore also theorized that Guscott's abdominal aortic aneurism had leaked slowly over

the three day period because his December 28 CT scan did not show a "' lit like inferior vena
          -                                                          s -

cava. "    CP at 726. Dr. Gore explained that ( ) inferior vena cava is typically wide; 2)
                                              1 the                                     ( when

the body is injured and bleeds rapidly,the body takes blood from the inferior vena cava to supply

more vital organs, making the inferior vena cava look slitlike;and (3) absence of a slit like
                                                           -         the                  -

inferior vena cava on Guscott's CT scan suggested that his abdominal aortic aneurism had bled

slowly over a three day period as opposed to more quickly over a shorter time period. Dr. Gore
                    -

believed there "might be"scientific studies documenting the effects of rapid blood loss on the

inferior    vena   cava, but he had not read these studies                in   a   long time.   CP at 727.   He


acknowledged that the effects he described were not a "100 percent" accurate because some

patients could have a normal inferior vena cava even though they had suffered the "shock"of

rapid blood loss. CP at 727.

14
  According to Dr. Gore, older blood tends to be less dense than fresh blood, and it has a grayish
color. If blood is more than three to five days old, it develops a "hematocrit"effect because the
solid components of the blood (red and white blood cells) will be in the bottom portion of the
blood, and the serum will be on the top. CP at 239. The blood on Guscott's CT scan had not yet
developed the hematocrit effect, suggesting that the blood in his abdominal cavity was not yet
more than three days old.
           Dr. Gore conceded that a radiologist could more precisely determine a blood's density
and relative age by measuring its " Hounsfield units."CP at 239. To get the blood's Hounsfield
units, however, the radiologist performing the CT scan would need to draw the cursor over the
region of the CT scan and ask the machine to compute to the region's Hounsfield units. This had
not been done in Guscott's case.



                                                            6
No. 41969 6 II
          - -




                                  2. AHC's Experts' Opinions

         AHC's medical experts relied on much of the same evidence as Guscott's medical

          g Guscott's medical records, CT
experts (e. .,                                  scan,                  But they disagreed that
                                                        symptoms, etc.).

Guscott's fall on December 25 had caused his abdominal aortic aneurism to rupture.

                                          Dr.Johansen


         Based on 30 years of experience treating patients with aortic aneurysm ruptures and his

independent review of Guscott's medical records, University of Washington.School of Medicine

professor and vascular surgeon Dr. Kaj Henry Johansen opined that Guscott had "no real

symptoms"of an abdominal aortic aneurism leak on December 25 and that his abdominal aortic

aneurism had ruptured on December 28 merely "as a consequence of its size" and aortic "wall

tension." CP at 143. Dr. Johansen generally agreed that trauma and severe deceleration could

cause an aorta to rupture, but he disagreed that Guscott had suffered from such trauma or from

such deceleration after falling from his wheelchair.

                                            Dr.Peters


         Like Guscott's radiologist expert Dr. Gore, AHC's radiologist expert, Dr. Mfichael J.

Peters, visually reviewed Guscott's CT       scan.     Despite the lack of computer -determined

Hounsfield units, "     he offered his expert opinion on the date of the blood in Guscott's

abdominal cavity and the likely date of Guscott's abdominal aortic aneurism rupture, based on

the blood density and attenuation differences visible on Guscott's CT scan. He did not dispute

Dr. Gore's opinion that a trained radiologist could tell the difference between blood densities by



is
     See n.4 and n.6.
          1       1



                                                10
No. 41969 6 II
          - -


                                       16
reviewing   a   patient's   CT   scans.     Contrary to Dr. Gore's conclusion, however, Dr. Peters

concluded that the different states of blood visible in the CT scan were only 10 12 hours old and,
                                                                                 -

thus, Guscott's rupture had likely occurred within 10 to 12 hours of his admittance to the

emergency room three days after the fall, on December 28. CP at 633. Dr.Peters acknowledged
                                                                                                  17
that he had     seen   abdominal aortic aneurisms leak    over an   extended   period   of time        but that it


would have been "very rare" for the type of rupture that Guscott had to have leaked for three

days and that such leaking would never have occurred without pain. CP at 635.

                                                 Dr.Tran


       Dr. Nam T. Tran, the vascular surgeon who had repaired Guscott's abdominal aortic

aneurism rupture, also believed that Guscott's abdominal aortic aneurism rupture had been less

than 12 hours old on December 28. CP at 97. Without challenging the underlying science used

by Guscott's medical experts, Dr. Tran testified in his deposition that 1) was "unlikely"that
                                                                        ( it.

Guscott's fall had caused his abdominal aortic aneurism to rupture because he had not sustained

any direct trauma to the abdominal area when he fell; and (2) was not common for abdominal
                                                             it

aortic aneurisms to rupture and to clot on their own. CP at 97, 98. Dr. Tran also asserted that it

was "really hard to tell"how long an abdominal aortic aneurism had been ruptured by merely

viewing CT scans. CP at 97. In his opinion, you could " ever [know] how long the aneurysm
                                                      n

16
   Dr. Peters generally agreed with Dr. Gore that a trained radiologist could tell the difference
between "subacute" blood (1 4 days old) and blood that was more "chronic" in duration (e. .,
                              -                                                                g
differentiating 2 day old blood from 20 day blood) by reviewing a patient's CT scans. CP at
                  -                     -
816. But Dr. Peters believed such conclusions were inexact and, thus, it was not possible for a
radiologist to determine the exact age of blood within the subacute category, as was at issue in
Guscott's case, either by "`
                          eye- ing] "'
                                ball[      the blood or by considering its Hounsfield units. CP
at 816.


17 For example,microscopic abdominal aortic aneurism bleeds can bleed for six to eight months.

                                                     11
No. 41969 6 II
          - -



ha[ ]been ruptured" without talking to the patient and hearing him complain about a "sudden
  d

onset of abdominal pain." at 97.
                        CP

               B. Frye Motion in Limine To Exclude Guscott's Experts' Testimonies

         AHC moved in limine to exclude Guscott's three experts' testimonies, arguing that the

experts were not qualified under ER 702 and.their opinions were inadmissible under Frye.

Guscott responded that his experts met the minimum qualifications for expert testimony under

ER 702 and that the Frye test did not apply because it was " niversally accepted" in the medical
                                                           u

community that "trauma, including falls" could cause existing abdominal aortic aneurisms to

rupture. CP at 979. Guscott submitted his three experts' depositions and AHC's caregiver notes

from after the fall to support his argument.

          Guscott also filed   a   supplemental   memorandum      opposing   AHC's   Frye motion.    He


argued that Frye was inapplicable because his experts had not relied on novel scientific methods

or theories but had, instead, relied on " heir own practical experience"and had made " easonable
                                        t                                            r

deductions"from well -established scientific principles. CP at 322, 323. AHC responded that ( )
                                                                                            1

it had   challenged " Guscott's experts' opinions   as   being `novel, "'largely because its own experts

had offered contrary causation opinions;.2)its mere assertion (without direct evidence) that
                                         (

Guscott's experts had relied on novel science "automatically require[d] Frye analysis" and
                                                                       a

shifted the burden of proof to Guscott to show that his experts' methods and theories were

generally accepted in the scientific community; and (3)because Guscott had failed to produce

such evidence of general acceptance, particularly in the form of scientific studies, the superior

court was required to exclude Guscott's experts' testimonies under Frye. CP at 329.




                                                    12
No. 41969 6 II
          - -



         Neither party offered any scientific studies. After hearing oral argument, the superior


court concluded that Guscott's experts were qualified under ER 702. Nevertheless, the superior

court ruled that these testimonies were inadmissible under Frye because (1)
                                                                          AHC had "
                                                                                  satisfied

its prima faci[ ]
              e burden to show that Mr. Guscott's experts present[ed]novel scientific theories";

and (2)there was " o scientific basis in the record"that Guscott's experts scientific methods and
                 n

theories were generally accepted in the medical community. CP at 342. The superior court did

not, however, explain how it reached its threshold determination that AHC had satisfied its prima

facie burden.      The superior court granted AHC's motion and excluded all three of Guscott's

experts' testimonies from trial.

                                        C. Summary Judgment

         After the superior court excluded Guscott's expert evidence, Guscott conceded that he

could not prove the causation element of his two tort counterclaims, negligence and violation of

the vulnerable adult statute.     In light of this concession, the superior court entered summary

judgment against Guscott on his counterclaims against AHC and awarded AHC $
                                                                          64
                                                                          5, in
                                                                            066.

statutory attorney fees and costs. CP at 362 63.
                                             -

         Guscott moved for reconsideration, arguing that (1)the superior court had improperly
                                                                                       18
decided   a   factual issue and determined that Guscott had fallen   on       buttocks" rather than on
                                                                          his "


his elbow and side; 2) experts had not relied on novel scientific methods or theories, making
                    ( his

Frye inapplicable; 19   and (3)
                              therefore, he did not need to present scientific studies under the Frye

18 CP at 373.

19
     Guscott also argued that the superior court had erroneously determined he was not a competent
witness and had excluded his       deposition testimony. This ruling, however, is not at issue on
appeal.

                                                   13
No. 41969 6 II
          - -



test.    Nevertheless, he submitted some 250 pages of scientific studies and other medical

literature, which he argued the superior court should consider on reconsideration because it had

not conducted a formal Frye hearing. The superior court rejected Guscott's scientific studies and

medical literature because the documents were not "newly,discovered evidence" under CR

4),
59( )(it denied his motion for reconsideration. CP at 954.
  a and

          Guscott appeals.

                                            ANALYSIS


          Guscott argues that the superior court erred in ruling that his experts' testimonies were

inadmissible under Frye because (1)his experts' opinions were not based on novel scientific

methods or theories, making Frye inapplicable; ( even if Frye applied, the superior court
                                               2)

misapplied the test by requiring scientific proof that every aspect of his experts' causation

opinions was not novel;. (3) the alternative, if the superior court correctly concluded that
                       and  in

his experts' testimonies were novel, it should have applied the Daubert test to his civil tort

counterclaims.     Agreeing with Guscott -hat his experts' opinions were not based on novel
                                         t

scientific methods or theories under Frye,we do not reach his other arguments.

          We review a superior court's Frye ruling de novo. Moore v. Harley-
                                                                           Davidson Motor
Co.     Grp.,Inc.,158   Wn.   App. 407, 417, 240 P. d 808 ( 2010). We also review summary
                                                  3


judgment orders de novo, performing the same inquiry as the superior court. Hisle v. Todd Pac.

20
  Expert testimony involving scientific evidence must be admissible under both the Frye test and
ER 702. Moore, 158 Wn: App. at 417. Evidence is admissible under ER 702 if 1) witness.
                                                                                    ( the
qualifies as an expert, and (2) expert's testimony is helpful for the trier of fact. State v. Baity,
                              the
140 Wn. d 1, 10, 991 P. d 1151 (2000). We review a superior court's ER 702 ruling for an
         2                 2
abuse of discretion. Moore, 158 Wn. App. at 417.         Because neither party has challenged the
superior court's ruling that Guscott's experts met the requirements of ER 702, we confine our
analysis to the superior court's Frye ruling.

                                                  14
No. 41969 6 II
          - -




Shipyards Corp.,151      Wn. d 853, 860, 93 P. d 108 ( 2004).
                           2                 3                      When reviewing a summary

judgment, we construe all facts and reasonable inferences in the light most favorable to the

nonmoving party, here Guscott. Jones v. Allstate Ins. Co.,146 Wn. d 291, 300, 45 P. d 1068
                                                                2                 3

2002).

        When scientific evidence is challenged as novel, Washington courts apply the "general

acceptance" test   set forth in   Frye. State v. Copeland, 130 Wn. d 244, 259, 922 P. d 1304
                                                                 2                  2

     Moore,
1996);             158 Wn.   App.   at 418.   For evidence to be admissible under Frye, both the

scientific theory underlying the evidence and the technique or methodology used to implement it

must be   generally accepted   in the scientific   community. State v. Gregory, 158 Wn.2d 759,
829,   147 P. d 1201 ( 2006).
            3                      General acceptance may be found from a number of sources,

including from "
               testimony that asserts it,from articles and publications, from widespread use in

the community, or from the holdings of other courts."State v. Kunze, 97 Wn. App: 832, 853,

988 P. d 977 (1999)footnotes and citations omitted),
     2              (                              review denied, 140 Wn. d 1022 (2000).
                                                                        2

        If,however, the evidence sought to be admitted " oes not involve new methods of proof
                                                       d

or new scientific principles," is not subject to the Frye test. State v. Baity, 140 Wn. d 1, 10,
                             it                                                       2

991 P. d 1151 ( 2000).
     2                       Nor must a plaintiff show general acceptance of all aspects of his

experts' causation opinions. See Anderson v. Akzo Nobel Coatings, Inc.,
                                                                      172 Wn. d 593, 609-
                                                                            2

11, 260 P. d 857 (2011).As our Washington Supreme Court has recently explained:
         3

        I] the science and methods are widely accepted in the relevant scientific
         f
        community, the evidence is admissible under Frye, without separately requiring
        widespread acceptance of the plaintiff's theory of causation.

21
   The Frye test requires only "general acceptance, not full acceptance,"of a novel scientific
theory or method. State v. Russell, 125 Wn. d 2. , 41, 882 P. d 747 (1994),
                                           2    4             2             cert. denied, 514
U. . 1129 (1995).
 S

                                                    15
No. 41969 6 II
          - -



Anderson,   172 Wn. d at 609 (emphasis
                  2                        added). This is because many medical opinions are

based on " ifferential diagnoses."Anderson, 172 Wn. d at 610. A " hysician or other qualified
         d                                        2             p

expert may base a conclusion about causation through a process of ruling out potential causes

with due consideration to temporal factors, such as events and the onset of symptoms."

Anderson, 172 Wn. d at 610
                2

       In other words, the superior court should "permit testimony about generally accepted

methodology even when the conclusions the testifying expert reaches are not themselves ...

generally accepted." Moore, 158 Wn. App. at 418 (emphasis added). The Frye test does not

require that "specific conclusions" drawn from scientific data be generally accepted or that

every deduction [that an expert makes] from generally accepted theories"be generally accepted

in the scientific   community. Anderson, 172 Wn. d
                                               2       at 611.   Instead, i] the methodology is
                                                                          "[ f

sufficiently accepted in the scientific community at large, concerns about the possibility of error

or mistakes made in the case at hand can be argued to the fagflnder." State v. Russell, 125

Wn. d 24, 41, 882 P. d 747 ( 994)emphasis added),
  2                2       1      (             cent. denied, 514 U. .1129 ( 995)
                                                                   S .     1

       The record does not support the superior court's conclusory threshold finding that

Guscott's experts' causation opinions involved " ovel"scientific methods or theories, subjecting
                                               n

them to the Frye test. Although AHC's experts may have disagreed with the conclusions drawn

by Guscott's experts (e. ., Guscott's fall had caused his abdominal aortic aneurism to leak
                       g that

and that it had clotted and re bled on its own, or that the blood visible on Guscott's CT scan was
                               -

three days old), s experts did not challenge as novel any of the underlying scientific
               AHC'

methods or principles on which Guscott's experts relied. Because there is no evidence in the

record that Guscott's experts' opinions were based on novel scientific methods or theories, we


                                                16
No. 41969 6 II
          - -



hold that the superior court erred in applying the Frye test and excluding Guscott's experts'

testimonies on this basis.

                             I. DECELERATION AND SHEARING FORCES


       Guscott's experts, Dr. Holmes and Dr. Heller, both testified in their depositions that they

believed Guscott's fall had caused his abdominal aortic aneurism to rupture. They based their

opinions, at least in part, on the generally-
                                            accepted scientific principle that "deceleration" and

shearing forces"can cause .an aorta to rupture. CP at 213, 252. They specifically testified that

such forces were "basic knowledge" within the medical community and that such forces were

known to rupture normal aorta and could rupture fragile abdominal aortic aneurisms like

         even if he did
Guscott's,                   not suffer direct trauma to the aorta.   CP at 252.   In reaching their

conclusion that Guscott's fall had caused his abdominal aortic aneurism to rupture, they also

relied on the "temporal relationship" between Guscott's fall and his abdominal aortic aneurism

rupture and that his "symptoms" pelvic pain, low blood pressure) after December 25 were
                                (

consistent with an abdominal aortic aneurism leak or rupture. CP at 214, 217,251.

       ANC's medical experts, Dr. Johansen and Dr. Tran, did not challenge the basic scientific

principle that deceleration and shearing forces can rupture a person's aorta or abdominal aortic

aneurism. Instead, they took issue with Guscott's experts' conclusion that Guscott.had suffered a

deceleration injury as a result of his ground level fall from his wheelchair. Any disagreement
                                               -

that AHC's experts had about whether ,Guscott actually suffered a deceleration injury from such

a low level fall is a factual question for the jury that should go to the weight of the evidence. See
       -

Kaech v. Lewis County Pub. Util. Dist., Wn. App. 260, 274 75, 23 P. d 529 (2001),
                                      106                 -       3             review

denied,   145 Wn. d 1020 ( 2002).
                2                       Because AHC's experts did not dispute the underlying



                                                 17
No. 41969 641
          -




scientific principle that deceleration and shearing forces can cause aortic ruptures or the methods

that Guscott's experts had used in formulating their causation opinions ( g.,
                                                                        e. reviewing temporal

relationships and correlating events with the onset of symptoms), hold that the Frye test did
                                                                we

not apply to this testimony. Anderson, 172 Wn. d at 601 - 2,610 11;Baity, 140 Wn. d at 10.
                                             2          0       -               2

                            II. LEAKING AORTA THAT CLOTS AND RE-
                                                               BLEEDS


         Dr. Holmes and Dr. Heller also based their causation opinions on the theory that

Guscott's abdominal aortic aneurism had cracked and started leaking when he fell, that it had

clotted on its own, and that it then had re bled when his blood pressure rose, causing him to be
                                            -

readmitted to the hospital on December 28. AHC's experts did not challenge this theory as being

novel"per se. Instead, Drs. Johansen, Peters, and Tran all acknowledged that such clotting and

re-  bleeding   was   possible   and had been      reported —particularly with abdominal aortic aneurisms
                                                               22 —
that bled into the     retroperitoneum        like Guscott's    but that such spontaneous clotting and re-

bleeding was not "
                 common"or was "
                               rare." at 144. The frequency with which a recognized
                                     CP

medical condition manifests is a question of weight, not admissibility. Again, because AHC's

experts did not challenge the principles or methods associated with this

theory, we hold that the Frye test did not apply to this testimony.

                           Ill. BLOOD DENSITY AND ATTENUATION ON CT SCAN

         Dr. Gore also concluded that Guscott's fall on December 25 had caused his abdominal

aortic aneurism to leak          or   to   rupture. He based this conclusion on his visual inspection of


22
   For example, Dr. Johansen agreed with Guscott's experts that it is possible fora abdominal
aortic aneurism like Guscott's that leaks into the retroperitoneum to "tapenade," to "wall[ ]
                                                                                 or
itself off." CP at 144. The abdominal aortic aneurism then stops leaking until the patient's
blood pressure rises, at which point the abdominal aortic aneurism re-
                                                                     bleeds.



                                                          18
No. 41969 6 II
          - -



Guscott's CT scan from December 28 and his observation that certain blood on the CT scan


appeared to be 3 days old. Dr. Gore, who had more than 30 years experience as a radiologist,

explained ( )
          1 blood has a different density and attenuation on a CT scan depending on its age, 2)
                                                                                             (

from these density and attenuation differences a radiologist could deduce the relative age of a

s
pat'ent' bleed, and (3)he is frequently asked to determine the age of blood as part of his
   i

practice.

         AHC's radiologist expert, Dr. Peters, also visually inspected Guscott's CT scan and

offered an opinion about the likely date of Guscott's abdominal aortic aneurism rupture based on

his   interpretation   of the blood's      density   and attenuation differences.    Although Dr. Peters

ultimately reached a different conclusion and determined that the blood visible on the CT scan

was only 10 12 hours old, he did not challenge the underlying theory or methodology that Dr.
            -

Gore used when formulating his expert opinion. Instead, Dr.Peters acknowledged that a trained

radiologist could tell the relative age of blood by reviewing the attenuation and density

differences   on a     CT   scan   but that such conclusions   were never   exact.   Dr. Tran echoed this


sentiment when he stated that it was "
                                     really hard to tell"how long an abdominal aortic aneurism

had been ruptured by reviewing a CT scan alone and that a doctor should also speak with a

patient and observe the onset of symptoms. CP at 97.

         The imprecision of such blood dating using a CT scan did not place Dr. Gore's medical

opinion   within the ambit of        Frye. Any concern that Dr. Gore may have made a mistake in

rendering    his   opinion   based   on   his   merely "eyeball[ ng] "Guscott's CT scan and not also
                                                               i

having computer -determined Hounsfield units for the blood could be argued to the fact -finder.

23CPat816.


                                                        19
No. 41969 6 II
          - -



Russell,   125 Wn. d at 41.
                 2               Any disagreement between Dr. Gore's and Dr. Peters' ultimate

conclusions about the blood's age also went to the weight of their testimonies, not,the evidence's

admissibility. Kaech, 106 Wn. App.         at 274.    Because AHC failed to show that Dr. Gore's


opinion was based on novel scientific theories or methods, we hold that the Frye test did not

apply to this testimony.

                                   IV. Slit like Inferior Vena Cava
                                             -


        Dr. Gore also espoused a theory that Guscott's abdominal aortic aneurism had bled

slowly over the course of three days because he did not have a slitlike inferior vena cava, which,
                                                                    -   .

according   to Dr.    Gore, meant that Guscott did    not suffer the trauma of   a   rapid   bleed. In the


proceedings below and again on appeal, AHC challenges Dr. Gore's testimony on slit like
                                                                                    -

inferior venae cavae as being inadmissible under Frye solely because Dr. Gore did not offer any

peer-
    reviewed articles, texts, etc." support his opinion. CP at 970; Br. of Resp't at 14. This
                                  to

challenge   is   misplaced: Although medical studies may "strengthen an expert's testimony on

causation, the competence of expert testimony does not depend on the existence of such studies."

Bruns v. PACCAR, Inc., Wn. App. 201, 216, 890 P. d 469, review denied, 126 Wn. d 1025
                     77                        2                             2

1995).

        The Washington Supreme Court reached a similar conclusion in Reese v. Stroh, 128

Wn. d
  2        300, 907    P. d 282 ( 1995).
                        2                  In Reese, the plaintiff's expert gave "uncontroverted

testimony" that the Food and Drug Administration had approved .Prolastin drug therapy in

treating his medical disorder and that the defendant was negligent in failing to prescribe such

therapy, and the defendant objected to the expert's causation opinion because he had not

produced any "statistically significant studies." Reese, 128 Wn. d at 307. The Supreme Court
                                                               2


                                                     20
No. 41969 6 II
          - -



concluded that, under these circumstances, Frye was inapplicable and the admissibility of the

expert's causation opinion should instead be weighed under the general reliability standards of
ER 702      and ER 703.         Reese, 128 Wn. d
                                             2         at       307 08.
                                                                    -     Here, Dr. Gore similarly gave

uncontroverted testimony in his deposition that ( )
                                                1 when the body is injured and bleeds rapidly,

the body uses blood from the inferior vena cava to support more vital organs, making the inferior

vena cava look slit like;and (2)
                     -          Guscott's absence of a slit like inferior vena cava indicated that
                                                             -

he likely had bled slowly rather than rapidly. Because AHC challenges Dr. Gore's testimony

solely on the ground that he did not cite studies supporting this theory, we hold that AHC failed

to show this evidence was novel and that it should be analyzed under Frye rather than ER 702

and 703.


         In summary, Guscott's experts did not rely on novel scientific theories or methods in
                                                                 24
formulating    their expert     opinions and conclusions.             Instead, they relied on (1)generally

accepted scientific theories principles ( g.,
                             /          e. deceleration forces can rupture a person's aorta, and

a    radiologist   can   date   blood   by reviewing        a    CT    scan); and ( 2) generally accepted

methods techniques
         /               ( e. .,reviewing patient records, examining temporal relationships,
                            g

correlating events with symptoms). Such expert causation opinions do not fall within the ambit

of   Frye. Anderson,      172 Wn. d at 611.
                                2              We hold, therefore, that the superior court erred in

excluding Guscott's experts' testimonies.




24 At most, Guscott's experts might have made deductions and drawn novel conclusions from
generally accepted scientific principles and methods. The Frye test, however, does not require
that such deductions or conclusions be generally accepted before the expert's testimony is
admissible. Anderson, 172 Wn. d at 611.
                            2



                                                   21
No. 41969 6 II
          - -



      We reverse the superior court's exclusion of Guscott's expert witnesses, we reverse its

summary judgment dismissal of Guscott's counterclaims against AHC,and we remand for trial.

                                                  its// //-
                                                        P o,
                                               Hunt,P. . / /
                                                     J
We concur:




1" " tiv-
 i JDL-
Van Deren, J.


Bridgewater, J. .
             T.
              P




25 Reversal of summary judgment automatically includes reversal of the superior court's award
of attorney fees and costs to AHC.

                                             22
