Breggin quits as expert witness - Judge: Testimony by Expert Doesn't Measure Up to 'Frye'

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Pa. Judge: Testimony by Expert Doesn't Measure Up to 'Frye'


Melissa Nann Burke

The Legal Intelligencer

11-12-2004





A Philadelphia judge found an expert's testimony inadmissible in a
medical malpractice case because the methodologies he used "appear to be nothing more than a few anecdotal references and a cursory review of
several studies tangentially related to" the alleged medical basis of
the lawsuit.


After a Frye evidentiary hearing, Common Pleas Judge Jacqueline F. Allen
threw out the report of Peter R. Breggin, a renowned psychiatrist who
extrapolated about possible permanent effects of taking benzodiazepines,
a class of drugs including Valium, Xanax and Ativan that are used as
antianxiety agents, muscle relaxants, sedatives and hypnotics.


"Under Frye [v. United States], novel scientific evidence is admissible
only upon a showing that the methodology has gained general acceptance
in the relevant medical community," Allen wrote in Vinitski v. Adler.
"Breggin's testimony fell well short of the mark."


The judge also found Breggin's expert report to be "legally
insufficient," focusing on the treatment provided by the defendant
doctors "not because it ran counter to the acceptable standards of care
but because it ran counter to Breggin's personal ideas and ideologies of
what the standards should be."

Breggin, from Ithaca, N.Y., is the author of such books as, "Your Drug May Be Your Problem: How and Why to Stop Taking Psychiatric
Medications". He's also written "Toxic Psychiatry: Why Therapy, Empathy
and Love Must Replace the Drug"; "Electroshock and Biochemical Theories
of the 'New Psychiatry;'" and "Talking Back to Prozac: What Doctors
Won't Tell You About Today's Most Controversial Drug."


Breggin's report "draws legal conclusions rather than providing facts
which would allow a fact-finder to come to his own conclusion," Allen
wrote. "A review of the Breggin report does not indicate where and how
the doctors deviated from the standard of care or how harm was created
as a result of the care received."

Allen granted the defendants' motion for summary judgment, dismissing
the case. The plaintiff has appealed the ruling to the Superior Court.

Kevin H. Wright, a defense counsel, said, "This is the type of case that
the Frye and Daubert standards were created to prevent."

Gerald B. Baldino Jr., one of the plaintiff's attorneys, disagreed.

Simon Vinitski had sued the doctors in 2001, alleging that the
combination of medication -- Xanax, Prozac, Valium, Tofranil and
Depakote -- they prescribed and he used intermittently over 10 years to
treat anxiety and depression had caused brain atrophy and other
injuries, according to court documents.


Baldino said his client, a former medical physicist at the Jefferson
Medical College, began to exhibit symptoms like those associated with
Alzheimer's disease, but doctors ruled out that illness and others.

In court, the defendants challenged Breggin's expert opinion. According
to one defendant's motion: "Not only are Dr. Breggin's assertions
condemned by the absence of literature, but also his arguments are
belied by the opinions of other experts in the field of psychiatric
medicine."

Allen held a Frye hearing June 4 to determine whether the report,
examining "whether prolonged exposure to high doses of benzodiazepines
caused permanent brain injury," was inadmissible.

Allen noted that the articles Breggin relied on didn't include relevant
clinical or controlled studies, but instead analyzed other studies that
didn't examine permanent brain damage caused by the drugs. Breggin
admitted his methodologies didn't include treating patients with brain
damage caused by benzodiazepine use or conducting a clinical study of
such patients, according to Allen.

Baldino, who represents Vinitski with attorney Francis J. Curran Jr. of
Curran & Rassias, said this is because testing the combination of drugs
his client used would have required human testing. No clinical studies
of the effects of long-term benzodiazepine use had been conducted, he said.

"But you can look at the effects of short-term use," said Baldino, of
Sacchetta & Baldino. Considering those short-term studies, "Dr. Breggin
extrapolated that the combining of the medications increases the toxic
effect of the drug, and that the result was that Mr. Vinitski suffered
brain damage. He called it a 'toxic cocktail.'"

Allen found that Breggin's opinions were extrapolations. Under the Frye
standard, experts may only extrapolate when the medical inquiry is "new
or the opportunities to examine a specific cause-and-effect relationship
are limited."

That was not the case here, Allen said. Studying the effects of
benzodiazepines isn't new, and there are plenty of people who have been
treated with the drugs to participate in studies about the effects of
its long-term use, she concluded.

"Breggin failed to establish that his variation of an accepted
methodology is generally accepted by scientists in the relevant field as
a method for arriving at his conclusion," she wrote in her opinion
published Sept. 17.

Richard R. Galli, of Goldfein & Joseph, also served as defense counsel.