Fifth Division
January 28, 2005

JUSTICE NEVILLE delivered the opinion of the court:

Plaintiff, Rita Agnew, filed a lawsuit against the three defendants - Charles Shaw, M.D., aninternist; Henry Wiggins, M.D., a radiologist; and Universal Radiology, Ltd., Dr. Wiggins' corporation- alleging a failure to timely diagnose her occult breast cancer. After a trial, the jury returned a verdictin favor of the defendants. Plaintiff now appeals from the jury verdict in favor of the defendants andpresents two issues for our review: (1) whether the trial court erred by striking the extrapolationtestimony of the plaintiff's expert witness pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923); and (2) whether the plaintiff was denied a fair trial when the defendants' Frye objection wasraised in a motion in limine. In this case there are no issues raised on the pleadings.

BACKGROUND

In 1997, plaintiff was 79 years old and diagnosed with a rare form of breast cancer known as occult primary breast cancer. Only 1% of breast cancer patients have this form of cancer. Followingher diagnosis, the plaintiff underwent extensive chemotherapy and radiation treatment and eventuallyreceived a radical mastectomy. On November 18, 1998, plaintiff filed a two-count complaint against thedefendants alleging that the defendants were negligent because they misinterpreted the mammogramsthat were taken in February of 1996 and April of 1997 and failed to timely diagnose her breast cancer.

THE DEFENDANTS' MOTION IN LIMINE

Prior to the commencement of the trial, the parties filed motions in limine and a hearing on themotions was commenced by the trial court. Defendant Dr. Wiggins presented a motion in limine entitled"Defendant Henry Wiggins, M.D. and Universal Radiology, Ltd.'s Motion in Limine No. 4 to bartestimony of David Schapira, M.D. concerning linear and progressive growth of lymph nodes." Dr.Shaw joined in Dr. Wiggins' motion in limine. The transcript from Dr. Schapira's deposition wasappended to the defendants' motion. Defendants' motion in limine sought to bar certain opinionsdisclosed by Dr. Schapira during his deposition. It was the defendants' position that Dr. Shapira'sbackward extrapolation opinions were not generally accepted in the oncologic community. Dr. Wiggins'motion in limine was brought pursuant to the Frye case, which holds that expert testimony will only beadmitted when "the thing from which the deduction is made (is) sufficiently established to have gainedgeneral acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. The following day,without an objection from the plaintiff's counsel, the court decided to conduct the Frye hearingpiecemeal.

THE PLAINTIFF'S CASE

The next day the trial commenced, and the plaintiff called Dr. Shaw (her internist), Dr. Schapira(her proximate cause expert), Dr. Alfred Torrence and Dr. Peter Jokich (her standard of care experts),Dr. Wiggins (called as an adverse witness), Dr. Rossof (her oncologist), and her daughter, KathleenStudenroth, as witnesses in her case. The plaintiff also testified on her own behalf.

Dr. Shaw, the first witness, testified that he was a board-certified internist, and he began histreatment of the plaintiff on December 27, 1990. Between 1990 and 1995, Dr. Shaw rendered care andtreatment to the plaintiff on 22 separate occasions for various ailments, including her thyroid, high bloodpressure, diabetes, cholesterol problems, and other chronic problems. Dr. Shaw performed his firstmammogram on the plaintiff in January of 1991, which revealed nothing abnormal. He testified that hedid not interpret the radiographic films, but relied on a radiologist to do so. He testified that from 1991through 1995, none of the plaintiff's mammograms or physical examinations revealed abnormalities. Furthermore, plaintiff had no physical complaints which would have led him to believe that she hadbreast cancer.

On August 21, 1995, Dr. Shaw ordered another mammogram, which revealed "nodes in bothaxillae" (nodes in both armpits). There was also a label affixed to the X ray which indicated that themammogram was abnormal. After seeing the report, Dr. Shaw testified, he had plaintiff come in for anevaluation on August 31, 1995, to ensure that this was not a cancerous process. During her physicalexamination, Dr. Shaw was unable to palpate or feel any enlarged lymph nodes, which "somewhat" ruledout cancer because cancer is usually firm and hard. He testified that other factors can cause enlargedlymph nodes as well, and he thought that the cause of plaintiff's enlarged lymph nodes could have beenan infection or an inflammation from her past chronic sinus infections. He also ordered a complete bloodcount, which came back normal. Therefore, he told plaintiff to return in six months for anothermammogram.

In December of 1995, Dr. Shaw performed another physical examination on the plaintiff, atwhich time he was, once again, unable to palpate the lymph nodes after conducting a physicalexamination of the plaintiff's breasts and axillae. Plaintiff returned in February of 1996 for her six-monthmammogram, which revealed that nothing had changed since the August 1995 X ray. Dr. Wiggins'report indicated that although the lymph nodes were still enlarged, they had not gotten any larger. Thereport also indicated "no radiographic evidence of malignancy," and Dr. Wiggins recommended yearlymammograms.

Dr. Shaw saw the plaintiff again on June 13, 1996, and he performed another examination onplaintiff's breasts and axillae, but was unable to palpate anything. However, the findings from thisexamination were not recorded on Dr. Shaw's chart. In December of 1996, the plaintiff returned to Dr.Shaw reporting that she could feel something in the tail of her breast. During that office visit, Dr. Shawwas able to palpate something and referred the plaintiff to a surgeon, Dr. Leonard. Finally, Dr. Shawtestified that he did not, in his opinion, deviate from the standard of care in rendering care and treatmentto the plaintiff.

When Dr. Shaw concluded his testimony, on February 28, 2002, the court continued the Fryehearing in chambers. Dr. Schapira was brought into the judge's chambers and examined by both counselconcerning his testimony on the linear progressive growth of lymph nodes. Dr. Schapira testified thatbecause the plaintiff had nine lymph nodes involved with cancer after the surgery in 1997, he could"extrapolate backwards" and determine that the plaintiff had one lymph node involved with cancer inAugust of 1995 and two to three lymph nodes involved with cancer in February of 1996. He opined thatthe cancerous lymph nodes discovered in April 1997 appeared to have started in her breasts. However,the cancer in her breast was never found, which is common with occult cancer. In Dr. Schapira'sopinion, plaintiff had cancer in her lymph nodes a year to a year and a half before April of 1997. Hetestified that in the six-month follow-up, looking at the mammogram, there were one or two cancerouslymph nodes, and 20 months later there were nine cancerous lymph nodes. Dr. Schapira testified thatthe basis of his opinions was his observation of patients and literature on the growth of breast cancer. However, he could not identify a specific piece of literature. He also testified that since plaintiff's 1997mammogram revealed that she had nine cancerous lymph nodes, 20 months before that (August 1995)she probably had one cancerous node, and 14 months prior (February 1996), she probably had two tothree cancerous lymph nodes. He stated that the basis for this testimony was that the cancer "would notstand still for that period of time." Dr. Schapira testified that there is a reasonable correlation when youlook at the size of the tumors and the changes in the size of the tumors over time and the amount of lymph node involvement. Dr. Schapira further testified, "[N]o one knows exactly how many lymph nodeswere involved at any particular period of time." He stated, "[Y]ou can look at what happens over timewith patients that have primary tumors and how quickly they grow and how many nodes will beinvolved" and that there is a significant amount of literature regarding patients with primary tumors. However, when concluding his testimony in chambers, he admitted that there is no scientific literatureto support his theory concerning the systematic sequence of spread of occult primary breast cancer.

After Dr. Schapira completed his testimony in chambers, Dr. Schapira took the stand, withoutobjection from defendants' counsel, and testified before the jury. During his trial testimony, plaintiff'scounsel elicited extrapolation opinions from the doctor over the objections of the defendants. Theparties then returned to chambers and Dr. Wiggins' counsel presented an affidavit from Dr. Micetich (thedefendants' oncologist and proximate cause expert) and Dr. Rossof's (the plaintiff's oncologist)deposition in support of the defendants' motion in limine. At this time, the plaintiff's counsel made aformal objection and argued that he "mistakenly" believed that the Frye hearing was not going to beconducted piecemeal and that they were going to complete the Frye hearing and receive a ruling beforeDr. Schapira took the stand at trial. The court overruled the objection and explained that there were noobjections when the matter was first discussed and that all counsel were instructed on how the courtwould conduct the Frye hearing.

Dr. Alfred Torrence was the next witness called by the plaintiff. He opined that Dr. Shaw didnot comply with the standard of care after receiving the abnormal mammogram of August 1995. Dr.Torrence testified that Dr. Shaw breached the standard of care because he failed to reach a diagnosisregarding the reason for the plaintiff's enlarged lymph nodes. Dr. Shaw also breached the standard ofcare by waiting until December of 1996 to refer the plaintiff to a surgeon for a second opinion. Hestated that in his opinion, the plaintiff had occult breast cancer in August of 1995, and although occultbreast cancer does not make a usual presentation, there were steps that Dr. Shaw could have taken inorder to reach a proper diagnosis earlier.

Next, Dr. Wiggins was called by the plaintiff as an adverse witness. During his adversetestimony, Dr. Wiggins agreed that some of plaintiff's lymph nodes had grown twice as large in sizebetween the August 1995 mammogram and the February 1996 mammogram. He did state that inhindsight, the change was significant and did show an abnormal finding. Dr. Wiggins concluded,however, that he did not deviate from the standard of care because it was reasonable for him to rely onthe radiology studies and those studies did not indicate that cancer was present at the time he renderedcare and treatment to the plaintiff.

Plaintiff then took the stand on her own behalf and testified regarding damages. She also statedthat Dr. Shaw never informed her about her enlarged lymph nodes, but that she discovered them herselfin December of 1996. She stated that she is fearful that the cancer will reoccur in the future. Plaintiff'sdaughter, Ms. Studenroth, testified regarding damages as well. She stated that although her mother wasonce very active, she currently does very little.

Dr. Rossof was the next witness called by the plaintiff, and he testified that there was no acceptedmethod of determining the specific number of lymph nodes that would have been positive at a given timein the past. Dr. Rossof also testified that no study or test exists that can be used to determine the growthrate of lymph nodes or, once the lymph node growth rate is established, to extrapolate backwards todetermine how many lymph nodes would be positive at a given time. He testified that this type of studywould be "nonsense."

Dr. Jokich, the next witness, testified that Dr. Wiggins deviated from the standard of care byfailing to accurately report the changes in plaintiff's mammogram. Dr. Jokich also testified that there wasa breach of the standard of care to report that there was no change in the plaintiff's August 1995mammogram when, in fact, the lymph nodes had increased in size. The plaintiff rested her case.

THE DEFENDANTS' CASE

The defendants called Dr. Scott Kale (Dr. Shaw's expert), Dr. Mary Beth Leonard (plaintiff'ssurgeon), Dr. Keith Micetich (Dr. Wiggins' proximate cause expert) and Dr. Wiggins as witnesses intheir case. Dr. Kale, defendants' first witness, testified that Dr. Shaw complied with the standard of careand that it was reasonable for him to rely on the radiology reports, which did not mention malignancy.

After Dr. Kale concluded his testimony, the Frye proceedings continued in chambers. Duringthe in-chambers hearing, Dr. Micetich testified in support of the defendants' motion in limine to bar Dr.Schapira's testimony. Dr. Micetich testified that he read Dr. Schapira's deposition and that the doctor'smethod of backward extrapolation was not generally accepted in the medical oncologic or scientificcommunity. Dr. Micetich also testified that there was no literature and that there were no clinical studiesor research that looked backwards in a patient with occult breast cancer and calculated the number ofcancerous lymph nodes at a given point in time in the past.

When Dr. Micetich concluded his testimony in chambers, the Frye hearing was concluded andthe court granted the defendants' motion in limine. The court reasoned that the plaintiff had not met herburden of proving that her expert's methodology was generally accepted in the scientific community. The court reasoned that it was not the court's role to determine whether a certain methodology is logicalor not, but whether that methodology is generally accepted in the relevant scientific community, whichin this case is the oncologic community. After the court made its ruling, the plaintiff moved for a mistrialand argued that the Frye hearing should not have been conducted in a piecemeal fashion. The courtdenied plaintiff's motion and reminded plaintiff's counsel that the court advised the parties that it wouldconduct the Frye hearing in a piecemeal manner and that there was no objection from plaintiff's counselat that time.

When the jury returned to the courtroom, the judge gave the following instruction:

"Ladies and gentlemen, one of the first witnesses we had was Dr.Schapira. Dr. Schapira testified and gave certain testimony as to the number ofpositive lymph nodes that the plaintiff would have had at earlier times. *** [H]etestified that - - generally to the effect that since the plaintiff had nine positivelymph nodes in April of '97, that in his opinion she had two or three positivelymph nodes in 1996, that she would have had one positive lymph node inAugust of '95, I believe; that he basically had opinions as to the certain specificnumber of lymph nodes at earlier times, that he could look back in time to sayhow many lymph nodes he had. You are to disregard that testimony. Thattestimony is stricken. You're to completely disregard the testimony as to anyspecific number of positive lymph nodes at earlier times, okay?"

After the judge instructed the jury regarding Dr. Schapira's testimony, Dr. Micetich took thestand and testified that plaintiff's prognosis would have been the same if she was diagnosed in August1995 or February 1996, and that she would have had the same number of lymph nodes. He also testifiedthat in his opinion plaintiff's cancer would not reoccur.

Dr. Leonard, the next witness, testified that in March of 1997 she performed a fine-needleaspiration, which revealed malignancy, and a biopsy, which indicated that the lymph node lookedpathologic. Dr. Leonard then referred the plaintiff to Dr. Rossof, a medical oncologist, for further careand treatment.

The final witness was Dr. Wiggins, and he testified that in his opinion, he exercised the standardof care that any well-qualified radiologist would have exercised when reading the plaintiff's 1996 study.The defendants rested their case, and the court instructed the jury. After the jurors completed theirdeliberations, they returned a verdict in favor of the defendants. The plaintiff filed a posttrial motion fora judgement notwithstanding the verdict or for a new trial. Both of these motions were denied.

ANALYSIS

The threshold issue we must address in this appeal is whether the plaintiff was denied a fair trialwhen the defendants' Frye objection was raised in a motion in limine. The admissibility of evidence isa matter committed to the sound discretion of the trial court, and its decision will not be reversed onreview absent a clear abuse of that discretion. Petre v. Kucich, 331 Ill. App. 3d 935, 941 (2002), citingLeonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92 (1995). Illinois law is clear that theadmissibility of expert testimony is governed by the general acceptance test set forth in Frye. Donaldsonv. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002), citing Frye, 293 F. 1013. The"general acceptance test" provides that scientific evidence is only admissible at trial if the methodologyupon which the opinion is based is "sufficiently established to have gained general acceptance in theparticular field in which it belongs." Frye, 293 F.2d at 1014. "'[G]eneral acceptance' does not concernthe ultimate conclusion. Rather, the proper focus of the general acceptance test is on the underlyingmethodology used to generate the conclusion." (Emphasis added.) Donaldson, 199 Ill. 2d at 77.

The position of the parties on appeal is clear. Plaintiff believes that the opinions proffered by herexpert, Dr. Schapira, are admissible under the Frye test. Conversely, the defendants maintain thatplaintiff's expert's backward extrapolation methodology is not generally accepted in the scientificcommunity. Both parties rely on the Illinois Supreme Court's ruling in Donaldson in support of theirpositions. Applying Donaldson and Frye to the facts in this case, we find that the backward extrapolationmethodology proffered by the plaintiff's expert in this medical malpractice occult breast cancer case isnot generally accepted in the scientific community. Donaldson, 199 Ill. 2d at 77. Frye, 293 F.2d at 1014.

In Donaldson, the court approved the extrapolation method used in that case to link the causeof plaintiffs' rare cancer, neuroblastoma, to the deleterious effects of coal tar, because the plaintiffsrelied on scientific literature discussing similar, yet not identical, scientific studies and theories.Donaldson, 199 Ill. 2d at 85, 88. In Donaldson, the court provides a clear explanation of what "generalacceptance" may or may not include. The court states that " 'general acceptance' does not concern theultimate conclusion," but the "underlying methodology," and that "[i]f the underlying method used togenerate an expert's opinion is reasonably relied upon by the experts in the field, the fact finder mayconsider the opinion." Donaldson, 199 Ill. 2d at 77. The court also explained that although generalacceptance "does not mean 'universal' acceptance," and "does not require *** unanimity, consensus, oreven a majority of experts," the expert must still utilize "generally accepted methodology to develop theconclusion," and "[a] technique *** is not 'generally accepted' if it is experimental or of dubiousvalidity." Donaldson, 199 Ill. 2d at 77-78. After deciding that the method of extrapolation relied uponby the plaintiffs passed the Frye test, the Donaldson court reiterated that the methodology must be reliedupon by experts in that particular field. Donaldson, 199 Ill. 2d at 87-88.

Relying on Donaldson, plaintiff first assigns error to the trial court's order excluding the doctor'sbackward extrapolation opinion by arguing that the trial court focused on Dr. Schapira's conclusionsrather than his methodology. We disagree. The trial record is clear that the trial court specificallyaddressed this issue in its ruling after the Frye hearing, when it stated that its ruling was not based uponwhether it agreed with Dr. Schapira's conclusions but that its ruling was based upon whether it agreedwith Dr. Schapira's methodology. The trial court also stated that based upon Dr. Schapira's testimonyand the testimony of Dr. Rossof and Dr. Micetich, the methodology of backward extrapolation in occultbreast cancer patients was not generally accepted. In fact, in Donaldson, the court specifically noted that "all of plaintiffs' experts testified that they utilized the method of extrapolation, and that the techniqueis generally accepted in their fields." 199 Ill. 2d at 87-88. Conversely, here the plaintiff's doctors did nottestify that they utilized a backward extrapolation methodology or that Dr. Schapira's method ofbackward extrapolation was generally accepted in the oncologic community. In fact, the testimony ofDr. Schapira, the plaintiff's only causation expert, failed to establish that the methodology of backwardextrapolation in occult breast cancer patients is generally accepted. We find, after reviewing this record,that backward extrapolation in occult breast cancer cases is a methodology which is only used by theplaintiff's expert.

Plaintiff's insistence that this case falls within the purview of the rules delineated by theDonaldson court is misplaced. While the extrapolation methodology was approved when used todetermine what caused the cancer in the Donaldson plaintiffs, that does not mandate that this court mustfind that the extrapolation methodology is acceptable in every case. See Kane v. Motorola, Inc., 335Ill. App. 3d 214 (2002) (courts may reject an expert's conclusions when his extrapolation methodologiesare unsound or when the scientific data upon which they rely is not related to the conclusion reached).Dr. Schapira admits that his methods are not only new, but that there is no support in the literature orfrom any other oncologists regarding this methodology. Therefore, applying Donaldson and Frye to thefacts in this case, we cannot conclude that the trial court abused its discretion when it determined thatDr. Schapira's backward extrapolation methodology was not generally accepted in the scientificcommunity. Donaldson, 199 Ill. 2d at 77; Frye, 293 F.2d at 1014.

Plaintiff's second argument on appeal is that she was denied a fair trial because the defendants'Frye objection was raised in a motion in limine and the trial court did not have adequate time to conducta hearing prior to the commencement of Dr. Schapira's testimony. Essentially the plaintiff is arguing thatthe defendants' Frye objection should not have been brought in a motion in limine and that it wasuntimely. Motions in limine are addressed to the trial court's inherent power to admit or excludeevidence; generally, a reviewing court will not disturb the trial court's ruling on motions in limine absentan abuse of discretion, so long as the trial court exercises its discretion within the bounds of the law.Beehn v. Eppard, 321 Ill. App. 3d 677, 680-81 (2001), citing People v. Williams, 188 Ill. 2d 365, 369(1999). An abuse of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable, or whenno reasonable person would take the same view (People v. Illgen, 145 Ill. 2d 353, 364 (1991); Diamondv. United Food & Commercial Workers Union Local 881, 329 Ill. App. 3d 519, 526 (2002)), or if thereis an application of impermissible legal criteria. Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993). However, a reviewing court can sustain the decision of the trial court to admitor exclude evidence for any appropriate reason, regardless of whether the trial court relied on that reasonor whether the trial court's reasoning was correct. See Leonardi, 168 Ill. 2d at 97; GovernmentEmployees Insurance Co. v. Buford, 338 Ill. App. 3d 448, 456 (2003).

First, the plaintiff asserts that the motion in limine was really a dispositive motion and relies onSilverstein v. Brander, 317 Ill. App. 3d 1000 (2000), and Peterson v. Randhava, 313 Ill. App. 3d 1(2000), in support of her position. The facts in Silverstein and Peterson are distinguishable from the factsin the case at bar. In Silverstein, the defendant filed a motion in limine and sought to bar the plaintiff'sexpert's opinion testimony and, once the motion in limine was granted, the defendant made an oralmotion for summary judgment which was granted after it was put in writing. Silverstein, 317 Ill. App.3d at 1005. In Peterson, the trial court sua sponte converted the defendant's motion for sanctions intoa motion for summary judgment. Peterson, 313 Ill. App. 3d at 9. The facts in Silverstein and Petersonare different from the facts in this case. In this case, both parties presented pretrial motions, includingmotions in limine, before the trial and each side had an opportunity to raise objections during a pretrialhearing. In addition, the trial court did not convert the defendants' motion in limine into a motion forsummary judgment, did not bar all the plaintiff's expert's opinion testimony or enter a judgment for thedefendants, as was done in Silverstein and Peterson. Here, the trial court only barred that portion of theplaintiff's expert's testimony regarding backward extrapolation. We are surprised that the plaintiff is nowarguing that the trial court abused its discretion, thereby entitling her to a new trial, when Dr. Schapirawas still allowed to testify regarding causation and, most importantly, that if the plaintiff's occult breastcancer had been diagnosed earlier, preventive measures could have been implemented sooner.

Second, with regards to the Frye objections being presented in a motion in limine, we find thatthis practice has not been held improper by this court. See Petre, 331 Ill. App. 3d at 945 (Fryeevidentiary hearing conducted where motion in limine brought); People v. Taylor, 335 Ill. App. 3d 965,967 (2002) (Frye motion presented as motion in limine). We agree with the courts in Petre and Taylorthat Frye objections are properly raised in motions in limine. See Petre, 331 Ill. App. 3d at 945; Taylor,335 Ill. App. 3d at 967. We find that the trial court's ruling was not arbitrary or unreasonable and didnot involve the application of impermissible legal criteria. Therefore, we find that the trial court did notabuse its discretion or deny the plaintiff a fair trial when it permitted the defendants to raise a Fryeobjection in a motion in limine, or when it struck the plaintiff's expert's backward extrapolationtestimony.

Based upon the foregoing, the jury verdict in favor of the defendants is affirmed.

Affirmed.

O'BRIEN, J., and GALLAGHER, J., concur.