Pa. Judge rips Breggin's testimony in court

November 16, 2004

http://www.law.com/jsp/article.jsp?id=1100136998966

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

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 F. threw

out the report of 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, " 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, " 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. "

granted the defendants' motion for summary judgment, dismissing the case.

The plaintiff has appealed the ruling to the Superior Court.

H. , 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. "

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.

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 .

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.' "

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, 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.

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

November 16, 2004