In the realm of personal injury litigation, over the years, individuals involved in traumatic events have been diagnosed with numerous injuries and disorders that often cause one to wonder just how such an injury could be caused by an accident. TMJ syndrome was the rage of the 1980’s, followed by injuries such as thoracic outlet syndrome and brachial plexus syndrome. While causation may be at issue, the diagnoses of such conditions are based on specific findings on clinical examination and diagnostic testing, thus rendering the opinions of those medical experts who diagnose their patients with these injuries or conditions as admissible at trial.
In recent years, defense counsel have come up against a growing number of personal injury claimants who allege to have constant, debilitating pain throughout various parts of their bodies, yet there is no objective evidence to support their complaints. These cases involve Plaintiff’s who are diagnosed with the syndrome of fibromyalgia.
In such cases, generally, a Plaintiff will complain of widespread pain throughout the body but often, there will be complaints of a number of other symptoms that may include stiffness, a decreased pain threshold, headaches, fatigue, and non-restorative sleep. Fibromyalgia appears to be a “rule out” form of medical diagnosis, usually made by physiatrists, which is based entirely on the subjective complaints of the patient. If diagnostic testing fails to indicate objective evidence that would assist a physician in arriving at a diagnosis, a diagnosis of fibromyalgia will be offered by the physician if a patient demonstrates tenderness on palpation of at least 12 of 18 recognized sites. The challenge to defense counsel in cases involving a Plaintiff with a diagnosis of fibromyalgia is not just trying to disprove that Plaintiff actually suffers from fibromyalgia, but also in attempting to convince a trial judge not to admit the treating physician’s opinion relating the diagnosis to a traumatic event into evidence.
When reviewing articles discussing fibromyalgia, one finds comments such as, “The causes of fibromyalgia are unknown, but there are probably a number of factors involved”, “While the underlying cause or causes of fibromyalgia still remain a mystery, ….” and “Fibromyalgia remains an elusive syndrome. Even experts on the illness do not know why fibromyalgia occurs or what causes it.” In short, there is presently no general consensus in the medical community as to what causes fibromyalgia. Thus, if there is no consensus as to what causes the syndrome known as fibromyalgia, there is an issue as to whether a treating physician’s opinion, that a Plaintiff suffers from traumatically induced fibromyalgia, should be admissible at trial.
Just over one year ago, in the Lackawanna County case of Crossman v. Delisi, Plaintiff’s expert physiatrist opined that Plaintiff’s fibromyalgia was caused by the traumatic event in which Plaintiff was involved. The Trial Judge noted that Plaintiff’s expert testified that “a majority of the medical literature” recognizes that fibromyalgia may be traumatically induced. Furthermore, the Trial Judge referred to the Court’s “own research” into the issue and, in denying the defense Motion in Limine, stated that the expert’s opinion that trauma may cause fibromyalgia “has gained the requisite level of acceptance in the medical community.”
The same issue arose more recently in July 2009, in the Adams County case of George vs. Frederick. In that case, the plaintiff sustained injuries as a passenger in a vehicle involved in a serious accident. Eventually, she was diagnosed as having sustained “traumatically induced fibromyalgia” by a physician who was to testify on her behalf at trial. Defense counsel filed a Motion in Limine in an attempt to preclude the testimony of Plaintiff’s expert, relying on the test enunciated in Frye v. United States and followed by the Courts of this Commonwealth. Defense counsel did not contest the expert’s diagnosis of fibromyalgia, instead arguing that there is no general acceptance in the medical community that fibromyalgia is caused by trauma. The Court in George relied on the numerous prior decisions that cited Frye and stated that the proponent of expert evidence must prove that an expert’s principles and methodology in arriving at a diagnosis are generally accepted by scientists in the relevant field. The Court found that the methodology utilized by the Plaintiff’s expert was generally accepted in the medical community as pertained to arriving at a diagnosis of fibromyalgia. Importantly, however, the Court also stated that the precise principle relied upon, i.e. that trauma may cause fibromyalgia, has no support in the scientific community. Despite noting that both plaintiff’s and defense counsel had presented him with a number of articles on the issue, the trial judge would not render a decision and ordered counsel to supplement the record with additional information and documentation as to whether fibromyalgia may be caused by trauma.
As a Trial Judge will be guided by the standard set forth in Frye when ruling upon whether an expert’s testimony is admissible, if there is growing acceptance in the medical community that fibromyalgia may be “caused” by trauma, it is likely that an expert’s opinion stating same will be admissible at trial. Thus, in cases involving fibromyalgia, the challenge will remain for defense counsel first to attempt to preclude the expert’s opinion from being admissible at trial, but then, to be armed with the evidence needed to persuade a trier of fact not to accept it.