2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-18-2003

Schneider v. Fried

Precedential or Non-Precedential: Precedential

Docket 01-3786

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Recommended Citation

"Schneider v. Fried" (2003). 2003 Decisions. Paper 776.

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PRECEDENTIAL 

 Filed February 18, 2003 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-3786 

ERIC SCHNEIDER, as Personal 

Representative of the Estate of 

Anne B. Schneider and the 

ESTATE OF ANNE B. SCHNEIDER, 

 Appellants 

v. 

GORDON W. FRIED, D.O., POCONO 

CARDIOLOGY ASSOCIATES, P.C. and 

ST. LUKE’S HOSPITAL 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civ. No. 98-cv-5878) 

Magistrate Judge: Honorable Arnold C. Rapoport 

Argued: December 18, 2002 

Before: BECKER, Chief Judge, ROTH and 

ROSENN, Circuit Judges. 

(Filed: February 18, 2003) 

 RICHARD OARE, ESQUIRE 

 (ARGUED) 

 1434 South George Street 

 York, PA 17403 

 Counsel for Appellants 

 

 JOHN J. HARE, ESQUIRE 

 (ARGUED) 

 Marshall, Dennehey, Warner, 

 Coleman & Goggin 

 1845 Walnut Street 

 16th Floor 

 Philadelphia, PA 19103 

 Counsel for Appellees 

OPINION OF THE COURT 

BECKER, Chief Judge: 

This is a medical malpractice case predicated on our 

diversity jurisdiction and brought under Pennsylvania law. 
Eric Schneider ("Schneider") sued on behalf of the estate of 

his mother, Anne B. Schneider, alleging that Mrs. 

Schneider’s death resulted from malpractice by defendant 

Gordon W. Fried, D.O. ("Dr. Fried") that occurred while she 

was being treated for a heart condition. Mrs. Schneider’s 

estate is also a plaintiff in this case. Plaintiffs appeal from 

the Magistrate Judge’s grant of a dispositive motion at the 

conclusion of plaintiffs’ case after he had excluded the 

testimony, following a Daubert hearing, of plaintiffs’ two 

medical experts who testified that Dr. Fried violated the 

applicable standard of care by administering the drug 

Procardia sublingually to Mrs. Schneider as a pretreatment 

for an angioplasty. 

Both proffered experts, Marc Semigran, M.D. ("Dr. 

Semigran") and Gregg Reis, M.D. ("Dr. Reis") possessed 

eminent academic credentials. Dr. Semigran’s testimony 

was excluded because the literature he cited at trial as 

informing his opinion did not address the use of Procardia 

to prevent coronary spasm during an angioplasty, the 

specific use in this case. It also appears that another basis 

for the exclusion of Dr. Semigran’s testimony (a point relied 

upon heavily by defendants) was that he no longer 

practiced in the sub-specialty area at issue in the case: 

interventional cardiology; an interventional cardiologist 

performs surgical procedures, while Dr. Semigran had 

 2 

 

become an invasive cardiologist, who diagnoses and treats 

heart conditions. The Magistrate Judge excluded the 

testimony of Dr. Reis because he stated, at one point in his 

testimony, that he was opining about his own personal 

standard of care and not the standard of care in the 

medical field. 

As plaintiffs argue, however, the basis of the Magistrate 

Judge’s ruling was undermined by strong countervailing 

evidence supporting admission of the testimony of both 

experts. Dr. Semigran, a former interventional cardiologist, 

testified that his opinion was not based solely on the 

literature he cited, but also on his broad knowledge of heart 

conditions and his own experience, albeit as an invasive 

cardiologist, making recommendations to interventional 

cardiologists about which drugs to prescribe to patients 

undergoing angioplasties; indeed, Dr. Semigran was present 

during surgical procedures performed by interventional 

cardiologists and would advise the interventional 

cardiologists throughout those procedures. Likewise, Dr. 

Reis testified extensively about the standard of care in the 

medical field and explained in a sworn affidavit that his 

previous statement to the effect that he could only discuss 

his own personal standard of care was in response to a 

question that he misunderstood. 

We conclude that the Magistrate Judge abused his 

discretion in excluding the testimony of both experts. There 

is no dispute that Dr. Semigran’s testimony was based in 

part on his considerable professional experience, including 
advising interventional cardiologists during surgical 

procedures. This makes his testimony about the standard 

of care reliable, even if the literature he cited was irrelevant. 

And in view of his extensive experience working closely with 

interventional cardiologists, Dr. Semigran is also qualified 

to give expert testimony, even though he is an invasive 

cardiologist. We also conclude that Dr. Reis’ expert 

testimony should have been admitted. Dr. Reis gave ample 

testimony about the standard of care in the medical field 

before he stated that he could only testify about his own 

personal standard of care. Since the defendants offer no 

evidence or explanation to suggest that Dr. Reis did not 

misunderstand the question, we conclude that Dr. Reis was 

 3 

 

qualified to give expert testimony. Accordingly the judgment 

will be reversed and the case remanded for a new trial. 

Before addressing the evidentiary issues, we must first 

take up a challenge to our appellate jurisdiction. Although 

the notice of appeal to this Court was untimely (a motion 

for a new trial submitted beyond the ten day period 

required by Rule 59 of the Federal Rules of Civil Procedure 

does not toll the period for filing an appeal), we apply the 

"unique circumstances" doctrine. Under the doctrine, we 

have jurisdiction to hear the untimely appeal because the 

late filing was induced by the Magistrate Judge’s order, 

which conferred upon plaintiffs "the right" (albeit 

impermissibly) to file a second notice of appeal within thirty 

days of receiving the trial transcript and the plaintiffs relied 

upon that order. 

I. 

Anne Schneider was admitted to the Pocono Medical 

Center on November 10, 1996, where she was diagnosed 

with unstable angina. Mrs. Schneider’s blood pressure was 

falling, even after intravenous nitroglycerin was initiated, 

and she was transferred to St. Luke’s Hospital, in 

Bethlehem, Pennsylvania. At that time, a cardiac 

catheterization was performed by Dr. Fried, revealing that 

a coronary angioplasty was necessary. Mrs. Schneider was 

thus scheduled to have an angioplasty performed by Dr. 

Fried at St. Luke’s Hospital. As a pre-treatment, given 

before undergoing the angioplasty, Dr. Fried administered 

ten milligrams of the drug Procardia (also known as 

nifedipine) sublingually (under the tongue). The purpose of 

the Procardia was to prevent coronary spasm during the 

angioplasty; a drug administered sublingually is more 

quickly absorbed into the body and takes effect rapidly. 

Soon after the Procardia was administered, Mrs. 

Schneider’s blood pressure decreased rapidly (she became 

hypotensive). Dr. Fried administered drugs in an attempt to 

increase her blood pressure. Dr. Fried began the 

angioplasty some 20 to 30 minutes after Mrs. Schneider 

initially became hypotensive. The angioplasty was 

performed, but Mrs. Schneider became unresponsive. An 
 4 

 

analgesic was administered, but Mrs. Schneider remained 

seriously hypotensive. The next day, an echocardiogram 

showed persistent right ventricular dysfunction. In short 

sequence, Mrs. Schneider developed end-organ dysfunction, 

including renal failure and progressive cardiogenic shock. 

Her blood pressure fell and she died on November 13, 

1996. The post-mortem exam showed acute myocardial 

infarction of the right ventricle and left ventricular posterior 

wall. 

Eric Schneider and the estate of Anne Schneider brought 

suit in the District Court for the Eastern District of 

Pennsylvania against Dr. Fried, Pocono Cardiology 

Associates, P.C. and St. Luke’s Hospital for medical 

malpractice. With the consent of the parties and pursuant 

to 28 U.S.C. S 636(c)(1), this case was heard before a 

Magistrate Judge. See 28 U.S.C. S 636(c)(1) (providing that 

upon consent of the parties, a magistrate judge"may 

conduct any or all proceedings in a jury or nonjury civil 

matter and order the entry of judgment in the case"). 

Plaintiffs based the medical malpractice claim on two 

theories: (1) Dr. Fried violated the applicable standard of 

care by administering sublingual Procardia to Mrs. 

Schneider as a pre-treatment for the angioplasty; and (2) he 

waited too long to perform the angioplasty once Mrs. 

Schneider became hypotensive. In support of the case, the 

plaintiffs presented the expert testimony of Doctors 

Semigran and Reis. As noted above, the Magistrate Judge 

excluded that testimony. 

On April 27, 2001, at the conclusion of the plaintiffs’ 

evidence, the Magistrate Judge granted the defendants’ 

motion to dismiss, alleging that the plaintiffs had not set 

forth a prima facie case for medical malpractice because 

they had not presented the testimony of at least one expert 

who could state with a reasonable degree of medical 

certainty that the acts of the defendant-physician deviated 

from the standard of reasonable medical care, and that 

such deviation was the proximate cause of the harm 

suffered. Maurer v. Trustees of the University of 

Pennsylvania, 418 Pa.Super. 510, 516, 614 A.2d 754, 757 

(1992) (citing Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 

 5 

 

888, 892 (1990)). The motion was apparently brought 

pursuant to Rule 50 of the Federal Rules of Civil Procedure.1 

The plaintiffs did not file a notice of appeal at that 

juncture, instead filing a motion for a new trial on May 8, 

2001. However, plaintiffs’ counsel failed to order a copy of 

the trial transcript along with the motion for a new trial. 

See E.D. Pa. Loc. R. Civ. P. 7.1(e) ("Within fourteen (14) 

days after filing any post-trial motion, the movant shall 

either (a) order a transcript of the trial by a writing 
delivered to the Court Reporter Supervisor, or (b) file a 

verified motion showing good cause to be excused from this 

requirement. Unless a transcript is thus ordered, or the 

movant excused from ordering a transcript, the post-trial 

motion may be dismissed for lack of prosecution."). 

Because counsel had failed to order the trial transcript, 

the Magistrate Judge entered an order on June 29, 2001 

denying the plaintiffs’ motion for a new trial. At the same 

time, however, the Magistrate Judge gave the plaintiffs the 

opportunity to file a second motion for a new trial within 

thirty days of receiving the trial transcript: 

 [I]t is hereby ORDERED that Plaintiff ’s motion is 

 DENIED with the right of the Plaintiff to bring a Motion 

 for a New Trial together with a Brief in Support of the 

 Motion for a New Trial within thirty (30) days from 

 receipt of the trial transcript. 

On July 19, 2001, the defendants filed a praecipe asking 

the Magistrate Judge to mark the matter closed based on 

the failure to timely order a copy of the trial transcript. On 

August 16, 2001, the plaintiffs filed a brief in reply to the 

praecipe, requesting that they be granted until August 30, 

2001 to file the motion for a new trial. On August 30, 2001, 

the plaintiffs filed a second motion for a new trial, having 

_________________________________________________________________ 

1. The Magistrate Judge did not specify that he was granting judgment 

as a matter of law pursuant to Rule 50 of the Federal Rules of Civil 

Procedure. Instead, he simply stated in his order of April 27, 2001 that 

he was granting defendants’ motion for dismissal. Because it appears 

that the Magistrate Judge was entering judgment for the defendants 

because "there is no legally sufficient evidentiary basis for a reasonable 

jury to find for the party on that issue," we conclude that the case was 

dismissed pursuant to Fed. R. Civ. P. 50. 

 6 

 

complied with the Magistrate Judge’s order granting them 

thirty days from receipt of the trial transcript to file a 

second motion for a new trial (the plaintiffs received the 

trial transcript on July 30, 2001.) On September 13, 2001, 

the Magistrate Judge denied the plaintiffs’ second motion 

for a new trial, and concluded that the praecipe was moot. 

The plaintiffs filed a notice of appeal to this Court on 

October 5, 2001. 

II. 

Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure 

requires that an appellant file a notice of appeal within 

thirty days after the judgment of order appealed from is 

entered. Although the Magistrate Judge dismissed the 

plaintiffs’ case on April 27, 2001, they would have more 

than thirty days from the dismissal to file a notice of appeal 

with this Court if the motion for a new trial was timely filed. 

See Fed. R. App. P. 4(a)(4)(A) ("If a party timely files [for a 

new trial under Rule 59] in the district court . . . the time 
to file an appeal runs for all parties from the entry of the 

order disposing of the last . . . remaining motion."). At first 

glance, the plaintiffs would appear to have complied with 

the requirement that they file a notice of appeal within 

thirty days from the final order; the final order in this case, 

the order denying the plaintiffs’ second motion for a new 

trial, was entered on September 13, 2001 and they filed a 

notice of appeal on October 5, 2001. 

However, under Fed. R. Civ. P. 59(b), "[a]ny motion for a 

new trial shall be filed not later than 10 days after the entry 

of the judgment." Moreover, Fed. R. Civ. P. 6(b) states that 

a district court "may not extend the time for taking any 

action under . . . 59(b) . . . except to the extent and under 

the conditions stated in [59(b)]." Although sanctioned by 

the Magistrate Judge, the defendants argue that the second 

motion for a new trial was untimely, and as such it"did not 

toll the 30-day time period for filing notices of appeal." 

Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1362 (3d 

Cir. 1990). Thus, the defendants submit, the plaintiffs were 

required to file a notice of appeal within thirty days of June 

 7 

 

29, 2001, when the Magistrate Judge denied the timely 

motion for a new trial, which they did not do.2 

The Magistrate Judge did not have the jurisdiction to 

allow the plaintiffs to file a second motion for a new trial 

more than ten days after dismissing the case. In so 

concluding, we note that "[t]he 10-day filing period 

[contained in Rule 59] is mandatory and jurisdictional, and 

may not be extended by the court . . . stated differently, a 

district court lacks jurisdiction to grant an untimely 

motion." 12 Moore’s Federal Practice S 59.11[1][a] (3d ed. 

2002) (citing Sonnenblick-Goldman Corp. v. Nowalk, 420 

F.2d 858, 860 (3d Cir. 1970) ("Rule 6(b) [of the Federal 

Rules of Civil Procedure] has been determined to render a 

court without power to extend the time for service of 

motions.")). Rule 6(b) of the Federal Rules of Civil Procedure 

clearly forbids a district court from extending the ten day 

time period in Rule 59(b). See Fed. R. Civ. P. 6(b) ("[T]he 

court . . . may not extend the time for taking action under 

. . . 59(b) . . . except to the extent and under the conditions 

stated in [59(b)]."). Thus, the plaintiffs were required to file 

a notice of appeal from the disposition of the last timely 

filed motion; the Magistrate Judge denied the plaintiffs’ 

timely motion for a new trial on June 29, 2001. Since they 

did not file a notice of appeal until October 5, 2001 -- 

_________________________________________________________________ 

2. The defendants also appear to argue that we do not have jurisdiction 

to hear this appeal because Schneider violated Local Rule of Civil 

Procedure 7.1(e) by not ordering the trial transcript within fourteen days 

of filing a post trial motion, or showing good cause for being excused 

from this requirement. However, Rule 7.1(e) gives the district court 

discretion to excuse this requirement: 

 Within fourteen (14) days after filing any post-trial motion, the 
 movant shall either (a) order a transcript of the trial by a writing 

 delivered to the Court Reporter Supervisor, or (b) file a verified 

 motion showing good cause to be excused from this requirement. 

 Unless a transcript is thus ordered, or the movant excused from 

 ordering a transcript, the post-trial motion may be dismissed for lack 

 of prosecution. E.D. Pa. Loc. R. Civ. P. 7.1(e) (emphasis added). 

Under the local rule, the Magistrate Judge was not required to dismiss 

the plaintiffs’ motion for a new trial simply because counsel did not 

order a copy of the trial transcript. 

 8 

 

beyond the thirty day requirement -- the plaintiffs’ appeal 

is untimely. 

However, the Supreme Court has created a narrow 

exception to the requirement that the notice of appeal be 

filed within thirty days of the disposition of the last timely 

motion. See Thompson v. INS, 375 U.S. 384, 387 (1964) 

(remanding to the Court of Appeals, which had dismissed 

the appeal as untimely, "in view of these ‘unique 

circumstances’ "). The doctrine of "unique circumstances" 

permits an untimely Rule 59 motion to extend the time for 

filing an appeal when the party filed a late appeal in 

reliance on the actions of the district court. The unique 

circumstances doctrine is explained in Moore’s Federal 

Practice: 

 Occasionally a district court will erroneously enlarge 

 the filing period for Rule 59 . . . motions against the 

 prohibition against enlargement in Rule 6(b). Under the 

 doctrine of unique circumstances, if a party performs 

 an act that, when properly performed, would extend 

 the deadline for filing an appeal and the party 

 reasonably relies on the district court’s conclusion that 

 the act was properly performed, an otherwise late 

 appeal is timely if filed within the mistakenly enlarged 

 deadline. 12 Moore’s Federal Practice S 59.12[2][b] (3d 

 ed. 2002). 

This Court has acknowledged the continued viability of 

the unique circumstances doctrine in Kraus, concluding 

that "[t]he unique circumstances exception evolved out of 

concern with the fairness of a dismissal when the district 

court contributed to the party’s failure to take the steps 

necessary to perfect the appeal." 899 F.2d at 1365. In 

Kraus, we did not allow the appellant to take advantage of 

the doctrine of unique circumstances because the filing 

delay was partly due to the attorney’s own incompetence. 

See id. ("The unique circumstances doctrine has never been 

extended to an attorney’s miscalculation of the applicable 

time limits."). In contrast, in the case at bar, the appeal 

was untimely solely because of the plaintiffs’ reliance on the 

order of the Magistrate Judge. 

It is arguable that counsel should have realized that the 

Magistrate Judge exceeded his authority by allowing the 
 9 

 

plaintiffs to file a second motion for a new trial more than 

ten days after the case was dismissed and that counsel 

should have filed a notice of appeal immediately after the 

Magistrate Judge denied the first motion for a new trial to 

preserve the appeal. However, where the Magistrate Judge 

misunderstood his own authority to grant an extension to 

the ten day filing period contained in Rule 59(b), and 

conferred upon plaintiff "the right" to an extension, it would 

be a harsh result to require the plaintiffs to question the 

Magistrate Judge’s power to do so. The unique 

circumstances doctrine was designed for situations such as 

this, to prevent the appellant’s reliance on the district 

court’s mistake from prejudicing the appellant. 

The plaintiffs clearly relied on the Magistrate Judge’s 

order granting them until thirty days after receiving the 

trial transcript to file a second motion for a new trial. The 

plaintiffs also complied with the Magistrate Judge’s 

(erroneously) enlarged deadline; they received the trial 

transcript on July 30, 2001 and filed the second motion for 

a new trial on August 30, 2001. Thus, because we conclude 

that the plaintiffs reasonably relied upon the Magistrate 

Judge’s order conferring upon them "the right" to file a 

second motion for a new trial more than ten days after the 

case was dismissed, the doctrine of unique circumstances 

gives us jurisdiction to hear the appeal even though the 

notice of appeal was untimely. We thus proceed to the 

merits of the appeal. 

III. 

We review the decision to admit or reject expert testimony 

under an abuse of discretion standard. In re Paoli Railroad 

Yard PCB Litigation, 35 F.3d 717, 749 (3d Cir. 1994). An 

abuse of discretion arises only when the decision"rests 

upon a clearly erroneous finding of fact, an errant 

conclusion of law or an improper application of law to fact." 

Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000) 

(citing Hanover Potato Products, Inc. v. Shalala , 989 F.2d 

123, 127 (3d Cir. 1993)). 

The plaintiffs contend that the Magistrate Judge erred 

when he excluded the testimony of Dr. Semigran and Dr. 

 10 

 

Reis. Rule 702 of the Federal Rules of Evidence allows a 

witness qualified as an expert to give testimony that would 

be otherwise impermissible: 

 If scientific, technical, or other specialized knowledge 

 will assist the trier of fact to understand the evidence 

 or to determine a fact in issue, a witness qualified as 

 an expert by knowledge, skill, experience, training, or 

 education, may testify thereto in the form of an opinion 

 or otherwise, if (1) the testimony is based upon 
 sufficient facts or data, (2) the testimony is the product 

 of reliable principles and methods, and (3) the witness 

 has applied the principles and methods reliably to the 

 facts of the case. 

Fed. R. Evid. 702. 

We have explained that Rule 702 embodies a trilogy of 

restrictions on expert testimony: qualification, reliability 

and fit.3 Paoli II, 35 F.3d at 741-743 (citing Daubert v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). 

Qualification refers to the requirement that the witness 

possess specialized expertise. We have interpreted this 

requirement liberally, holding that "a broad range of 

knowledge, skills, and training qualify an expert." Id. 

Secondly, the testimony must be reliable; it "must be based 

on the ‘methods and procedures of science’ rather than on 

‘subjective belief or unsupported speculation’; the expert 

must have ‘good grounds’ for his on her belief. In sum, 

Daubert holds that an inquiry into the reliability of 

scientific evidence under Rule 702 requires a determination 

as to its scientific validity." Paoli II, 35 F.3d at 742 (quoting 

Daubert, 509 U.S. at 590). Finally, Rule 702 requires that 

the expert testimony must fit the issues in the case. In 

other words, the expert’s testimony must be relevant for the 

purposes of the case and must assist the trier of fact. The 

Supreme Court explained in Daubert that"Rule 702’s 

‘helpfulness’ standard requires a valid scientific connection 

_________________________________________________________________ 

3. Indeed, Rule 702 of the Federal Rules of Evidence was amended to 

include the trilogy of restrictions (qualifications, reliability, fit) in its text 

after the Supreme Court decided Daubert. Fed. R. Evid. 702 advisory 

committee’s notes. 

 11 

 

to the pertinent inquiry as a precondition to admissibility." 

509 U.S. at 591-92. 

By means of a so-called "Daubert hearing," the district 

court acts as a gatekeeper, preventing opinion testimony 

that does not meet the requirements of qualification, 

reliability and fit from reaching the jury. See Daubert, 509 

U.S. at 592 ("Faced with a proffer of expert scientific 

testimony, then, the trial judge must determine at the 

outset, pursuant to Rule 104(a) [of the Federal Rules of 

Evidence] whether the expert is proposing to testify to (1) 

scientific knowledge that (2) will assist the trier of fact to 

understand or determine a fact in issue."). The plaintiffs 

maintain that the Magistrate Judge abused this discretion 

as a gatekeeper by excluding the testimony of experts who 

qualified under Rule 702. 

A. 

The plaintiffs contend that the Magistrate Judge erred 

when he precluded the testimony of Dr. Semigran on the 

grounds that the literature cited by him as a basis for his 
opinion did not address the specific issue in the case: 

whether it was the standard of care in November of 1996 to 

administer Procardia sublingually as a pre-treatment for an 

angioplasty. Instead that literature only addressed the use 

of Procardia as a treatment for hypertensive emergencies 

(abnormally high blood pressure) or other blood-pressure 

problems, which the parties conceded was not the use in 

this case. Dr. Semigran testified: 

 In the way they were administered in this case, I don’t 

 believe that sublingual administration of nifedipine was 

 used, at least, according to the standard of care that I 

 understand it to be in November of 1996. 

 . . . 

 I think the basis for that statement is my knowledge of 

 the pharmacology -- of the way the agent works, the -- 

 my experience with it and the published literature on 

 it. 

 . . . 

 12 

 

 There was certainly published data as early as 1987 of 

 the adverse consequences of administering sublingual 

 nifedipine to patients who were having acute coronary 

 syndromes. There was further information that was 

 published in one of the leading medical journals in 

 1996 as to the adverse affects of administering 

 sublingual nifedipine to patients. . . . And in addition, 

 the -- the product information that comes along with 

 -- with Procardia nifedipine specifically points out the 

 dangers -- potential dangers -- of using it in patients, 

 who have severe coronary stenosis. 

Dr. Semigran admitted on cross-examination that the 

literature just cited did "not specifically address the issue of 

vessel spasm." In the case at bar, Procardia was 

administered as a pre-treatment for an angioplasty-- to 

prevent coronary vessel spasm during the surgical 

procedure. The Magistrate Judge precluded Dr. Semigran’s 

testimony, noting that "the literature of the profession upon 

which the doctor makes his decision" does not address the 

specific issue. 

The ruling by the Magistrate Judge appears to address 

the second requirement of the Rule 702 trilogy: reliability. 

This Court has laid out some factors that a district court 

should consider when determining whether proposed expert 

testimony is reliable: 

 (1) whether a method consists of a testable hypothesis; 

 (2) whether the method has been subject to peer 

 review; (3) the known or potential rate of error; (4) the 

 existence and maintenance of standards controlling the 

 technique’s operation; (5) whether the method is 

 generally accepted; (6) the relationship of the technique 
 to methods which have been established to be reliable; 

 (7) the qualifications of the expert witness testifying 

 based on the methodology; and (8) the non-judicial 

 uses. Paoli II, 35 F.3d at 742 n. 8 (citing Daubert, 

 supra, and United States v. Downing, 753 F.2d. 1224 

 (3d Cir. 1985), for these factors). 

The defendants maintain that the Magistrate Judge was 

correct to exclude Dr. Semigran’s testimony because the 

articles do not show that the practice of not administering 

 13 

 

Procardia for this purpose (as a pre-treatment) had been 

subjected to peer review or that the discontinuation of 

Procardia to prevent coronary vessel spasm had gained 

general acceptance (two of the Daubert factors). 

Without delving into the question whether articles 

discussing the use of Procardia for one purpose are relevant 

to whether it was a violation of the standard of care to 

administer it for another purpose, we note that expert 

testimony does not have to obtain general acceptance or be 

subject to peer review to be admitted under Rule 702. 

Indeed, in Daubert, the Supreme Court specifically held 

that Rule 702 overruled the requirement that an opinion 

must gain general acceptance in order to qualify as 

admissible expert testimony; instead general acceptance 

and peer review are only two of the factors that a district 

court should consider when acting as gatekeeper. See 

Daubert, 509 U.S. at 589 ("Given the [Federal Rules of 

Evidence’s] permissive backdrop and their inclusion of a 

specific rule on expert testimony that does not mention 

" ‘general acceptance,’ " the assertion that the Rules 

somehow assimilated [United States v. Frye , 293 F. 1013 

(D.C. Cir. 1923)] is unconvincing. Frye made "general 

acceptance" the exclusive test for admitting expert scientific 

testimony."). Where there are other factors that 

demonstrate the reliability of the expert’s methodology, an 

expert opinion should not be excluded simply because there 

is no literature on point. 

In the case at bar, Dr. Semigran stated that he based his 

opinion not only upon the literature, but also upon his own 

experience as a cardiologist.4 Although Dr. Semigran had 

_________________________________________________________________ 

4. Dr. Semigran attended Harvard College and Harvard Medical School. 

He did an internal medicine residency from 1983 to 1986 at 

Massachusetts General Hospital, which is affiliated with Harvard Medical 

School. Dr. Semigran also had a cardiology fellowship at Massachusetts 

General Hospital following his residency there. From 1989 until the time 

of trial, Dr. Semigran taught at Harvard Medical School, where he 

received numerous distinguished teaching awards. As part of his 

teaching job, Dr. Semigran lectured medical students, residents and 

fellows in cardiology and supervised residents and fellows in cardiology 

and the care of patients. Dr. Semigran has served on the Harvard 

 14 
 

not actually performed angioplasties since mid-1990, at the 

time he testified, he was treating patients with angina in 

his capacity as an invasive cardiologist. The record 

establishes that as an invasive cardiologist, who normally 

diagnoses heart conditions, Dr. Semigran was routinely 

present during surgical procedures and regularly advised 

interventional cardiologists during the course of those 

procedures. Dr. Semigran also testified that he would 

consult with interventional cardiologists about which drugs 

should or should not be given to patients undergoing 

angioplasties. Thus, we conclude that Dr. Semigran’s 

experience renders his testimony reliable, demonstrates 

that his testimony is based on "good grounds," and that the 

Magistrate Judge abused his discretion by excluding it. See 

Daubert, 509 U.S. at 590 ("Proposed testimony must be 

supported by appropriate validation -- i.e., ‘good 

grounds.’ "). 

Although not specifically mentioned by the Magistrate 

Judge, the defendants contend that Dr. Semigran’s 

testimony was properly excluded because he was not an 

expert in the sub-specialty about which he opined. 5 The 

_________________________________________________________________ 

Medical School admissions committee, a regional review board of cardiac 

transplantation, a committee that oversees intensive care units at 

Massachusetts General Hospital, as well as various other committees. At 

the time he testified, he was a member of the American College of 

Cardiology, a fellow of the American College of Cardiology, a member of 

the American Heart Association, and a member of the Heart Failure 

Society. Dr. Semigran researches "heart failure and . . . the function of 

the heart when it is failing." 

5. The defendants’ argument that Dr. Semigran was unqualified to testify 

because he is not a practitioner of the sub-specialty (interventional 

cardiology) at issue in the case is also based upon Pennsylvania state 

law. The defendants state in their brief: 

 [T]he Pennsylvania Legislature recently enacted more stringent 

 requirements for all expert witnesses testifying on the standard of 

 care issue in medical malpractice cases. See Medical Care 

 Availability and Reduction of Error Act, 2002 Pa. ALS 13 (2002). 

 Under the M-Care Act, it is necessary for an expert testifying on the 

 standard of care issue to be substantially familiar with the 

 applicable standard of care at the time the alleged breach occurred. 

 15 

 

tenor of the Magistrate Judge’s ruling is consistent with 

this argument. In particular, the defendants assert that 

because, in 1996, Dr. Semigran was an invasive 

cardiologist (diagnosing and treating heart conditions) and 

not an interventional cardiologist (performing angioplasties) 

he was not qualified to testify about the standard of care for 

interventional cardiologists. This argument appears to 

challenge the qualification of Dr. Semigran; although we 

note that "the degree to which the expert testifying is 
qualified" also implicates the reliability of the testimony. 

Paoli II, 35 F.3d at 742. 

The defendants refer us to our decision in Aloe Coal Co. 

v. Clark Equip. Co., 816 F.2d 110,114 (3d Cir. 1987), in 

which we held that a tractor salesman was not qualified to 

testify about the causes of a tractor fire because"[h]e had 

no knowledge or experience in determining the cause of 

equipment fires." However, Dr. Semigran had ample 

experience advising interventional cardiologists about which 

drugs to prescribe patients undergoing angioplasties. 

Moreover, Dr. Semigran’s academic background and his 

teaching position, as noted in the margin, also demonstrate 

that he is highly knowledgeable about cardiology. For the 

same reasons that we found Dr. Semigran’s testimony 

reliable -- most importantly because he had regular contact 

with and advised interventional cardiologists in November 

of 1996 -- we also conclude that Dr. Semigran had the 

proper qualifications to give expert opinion, especially 

considering that the requirement that a witness have 

specialized knowledge has been interpreted liberally. Paoli 

II, 35 F.3d at 741. In sum, the Magistrate Judge abused his 

discretion in excluding Dr. Semigran’s testimony. 

B. 

The plaintiffs also maintain that the Magistrate Judge 

abused his discretion when he excluded the expert 

_________________________________________________________________ 

 The expert must also practice in the same subspecialty as the 

 defendant or in a subspecialty which has substantially the same 

 standard of care for the specific care at issue. 

However, because the M-Care Act was not enacted until 2002, the 

Magistrate Judge could not have relied upon it to exclude Dr. Semigran’s 

testimony when the case was dismissed on April 27, 2001. 

 16 

 

testimony of Dr. Reis. Based on Dr. Reis’ statement that "I 

can’t comment on what individual cardiologists were doing 

throughout the country . . . I can only comment about . . . 

my practice," the Magistrate Judge concluded that Dr. Reis 

could not testify about the legal standard of care since an 

opinion about the legal standard of care must be based on 

what is considered reasonable and acceptable in the entire 

community, not just the expert’s own practice. See McPhee 

v. Reichel, 461 F.2d 947, 951 (3d Cir. 1972) (concluding 

that a jury charge explaining the standard of care should 

state that a specialist "is expected to exercise that degree of 

skill, learning and care normally possessed and exercised 

by the average physician in the medical community who 

devotes special study and attention" to the diagnosis and 

treatment of diseases within that specialty). See also 

Maurer, 614 A.2d at 763 (granting judgment n.o.v. to the 

defendant since the proposed expert "did not testify to 

anything more than his own, personal standard of care"). 
However, in the case at bar, Dr. Reis testified extensively 

about the general standard of care. For example, he 

explained: 

 My opinion is that at the time this procedure was 

 performed, that a physician doing these procedures 

 should have known that administration of sublingual 

 Procardia could be dangerous. That the information 

 was available, widely published in terms of adverse 

 reactions, both in the prescribing information and in 

 the medical literature. And that a physician doing the 

 procedure should at that point have stopped using 

 sublingual Procardia. 

 I think the second breach of care was in the failure to 

 recognize that a severe adverse reaction was occurring 

 and failing to act quickly enough to reverse the effects 

 of that adverse reaction by appropriately administering 

 medications to rapidly bring up the blood pressure. 

 Those medications were administered but they were 

 administered too slowly and too late. 

 And I believe that the third breach of care was that it 

 took too long to perform angioplasty when the 

 emergency situation was developing. 

 17 

 

On re-direct examination, Dr. Reis made the comment 

that he could only testify about his own personal standard 

of care in response to the following question posed by 

plaintiffs’ counsel: 

 [W]ith respect to what interventional cardiologists were 

 doing in 1996, is it fair to say that the use of 

 sublingual Procardia, in the fashion in which Dr. Fried 

 used it here, was well below the minimum standard of 

 care by interventional cardiologists throughout the 

 country? 

Dr. Reis responded: 

 I can’t comment on what individual cardiologists were 

 doing throughout the country because . . . frankly, I 

 don’t know what each individual cardiologist was doing 

 at the time. You know what I can only comment about 

 was my practice -- my interpretation of the literature 

 and my feelings and how the literature should have 

 been applied to clinical practice. 

Counsel for plaintiffs explained to the Magistrate Judge 

that Dr. Reis thought that counsel had asked him to 

comment on what individual cardiologists were doing in 

1996, and not what interventional cardiologists were doing 

in 1996. As such, Dr. Reis responded that he did not know 

what each "individual" cardiologist was actually doing at 

the time. 

Counsel for plaintiffs also requested that the Magistrate 
Judge ask Dr. Reis about the misunderstanding while he 

was still under oath: 

 Your Honor, when I addressed you and said that the 

 doctor misunderstood the term "interventional" for 

 "individual," he affirmatively nodded. You might ask 

 the doctor that. He misunderstood the term to mean 

 "individual." 

The record shows that the Magistrate Judge refused to let 

Dr. Reis explain the misunderstanding and proceeded to 

exclude his testimony because "I don’t believe at this 

juncture that he misunderstood." Dr. Reis later swore in an 

affidavit that he "misheard [counsel’s question], thinking he 

used the term individual rather than interventional," and 

 18 

 

"responded to [his] question by using the term individual 

cardiologist." 

We conclude that Dr. Reis’ testimony (before making the 

comment that he could only testify about his practice) 

demonstrated that he had formed an opinion about the 

legal standard of care and that the opinion had a reliable 

basis. For example, Dr. Reis gave ample testimony about 

what "a physician" should have known and how"a 

physician" should have acted, see discussion supra. 

Moreover, Dr. Reis’ qualifications suggest that he would be 

able to testify about the standard of care in the medical 

field. Dr. Reis is an interventional cardiologist at 

Pennsylvania Hospital in Philadelphia, where he routinely 

performs procedures such as catheterizations and 

angioplasties. He is also a clinical assistant professor at the 

University of Pennsylvania and the author of a chapter in a 

text book titled, Cardiac Catheterizations Angiography and 

Intervention (4th ed.). The defendants have offered no 

evidence or explanation suggesting that Dr. Reis did not 

misunderstand the question, and in light of Dr. Reis prior 

testimony about the standard of care in the medical field, 

it appears that Dr. Reis was qualified to give expert 

testimony and that his opinion was based on "good 

grounds." Daubert, 509 U.S. at 590. Thus, we conclude that 

the Magistrate Judge abused his discretion by excluding 

Dr. Reis’ testimony. 

IV. 

For the foregoing reasons, we will reverse the Magistrate 

Judge’s order dismissing the case and will remand for a 

new trial. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 19