Exclusion of Defense Expert Upheld in Case Involving Negligent Chemical Peel

Written on Wednesday, June 6th, 2018 by T.C. Kelly
Filed under: ExpertWitness

A Florida plaintiff was awarded almost $815,000 after a chemical peel aggravated her rosacea. The spa employee who performed the peel admitted that she was negligent in failing to read the plaintiff’s disclosure of her medical condition.

The defendants contended that the chemical peel did not aggravate the rosacea. They sought to introduce expert testimony on the issue of causation, but the trial court excluded the testimony. The defendants appealed.

Facts of the Case

Johana Cinque went to Body & Soul Retreat in Coral Springs, Florida for a facial. Cinque suffered from rosacea, a chronic inflammatory skin condition. Cinque disclosed that condition on a form that the spa provided.

An aesthetician employed by Body & Soul, Gloria Sanchez, performed a chemical peel on Cinque’s face. Sanchez admitted that she administered the facial without reading the form that Cinque completed. If Sanchez had known Cinque had rosacea, she would have used a different product or tested it on her skin before performing the chemical peel.

While Cinque’s rosacea was mild before the chemical peel, manifesting as a rosy flushing of the cheeks, her face “became blistered, bruised, scabbed, and crusted, and it oozed” after the facial. Cinque testified that her face felt like it was burning during the procedure.

Prior to the chemical peel, Cinque’s face was smooth. Three years later, at the time of the trial, Cinque’s face was bumpy and easily turned red when exposed to the sun or temperature increases. Wearing the gear required for Cinque’s occupation as a firefighter paramedic also aggravates her rosacea. The bumps on her face form the same shape as the burn she experienced immediately after the chemical peel.

Plaintiff’s Expert Witnesses

Dr. Peter Wallach, a dermatologist, treated Cinque for rosacea before her chemical peel. She returned to him on the day following the chemical peel for burn treatment. He diagnosed irritant contact dermatitis that was caused by the chemical peel. He testified that Cinque’s rosacea was improving during his treatment but noted that her face was very red when he examined her. Dr. Wallach prescribed an antibiotic cream. During later visits, he prescribed medication to reduce the inflammation of her skin.

Dr. Quang Le, a dermatologist, treated Cinque after Dr. Wallach. His efforts to control her rosacea outbreaks were unavailing. He opined that the exacerbation of Cinque’s rosacea was caused by the chemical peel. He explained that damage to the top and mid-dermal layer of her skin changed her condition from one that was easily controlled to one that was difficult to control. He expected her to need a lifetime of treatment. He suggested that she explore laser treatment.

Cinque eventually stopped seeing Doctors Wallach and Le and stopped taking her medications. She testified that the medications were not working and she did not obtain further treatment from dermatologists because the treatment was ineffective.

Dr. Thomas Zaydon, a cosmetic surgeon, testified that the chemical peel had removed the skin’s protective barrier, permanently damaging Cinque’s face, producing scarring and aggravating her rosacea. He testified that a chemical peel should not be administered to a person with rosacea because it penetrates the skin’s protective barrier and worsens the inflammatory process.

Dr. Zaydon opined that Cinque suffered from a permanent injury to her skin and would suffer from periodic outbursts of rosacea. He testified that Cinque would never regain the appearance she had prior to the chemical peel and that she would need a lifetime of dermatological care.

Dr. Zaydon testified about various treatments that might benefit Cinque in the future, including laser treatments, stem cell treatment, and a deep tissue facioplasty. He also projected the cost of each treatment.

Defense Expert

The spa retained Dr. Evan Schlam, a dermatologist, to testify as an expert. He performed a 20-minute examination of Cinque. In his deposition, he testified that he observed mild rosacea during his examination and opined that the rosacea was not caused or permanently aggravated by the chemical peel.

Cinque was taking medication at the time of the examination. Dr. Schlam did not examine her when she was off her medication to determine whether the medication changed the appearance of her rosacea. He did not did not see a photograph of her before the chemical peel. He testified that it would have been helpful, but not necessary, to compare her appearance before and after the chemical peel. The rosacea he observed was so minimal that he deemed her prior appearance to be unimportant to his findings.

Dr. Schlam also testified that he assumed Cinque had a classic distribution of rosacea before the chemical peel because the medical records he reviewed did not specify otherwise. Dr. Schlam also assumed that a particular visit to Dr. Wallach was for rosacea even though the records of that visit do not mention rosacea.

Cinque moved to exclude Dr. Schlam’s testimony because it was not based on a reliable methodology or on adequate data, as Florida’s version of the Daubert standard requires. The trial court granted that motion. The spa based its appeal, in part, on the claim that the trial court erred by excluding Dr. Schlam’s expert testimony.

Daubert Analysis

The Florida District Court of Appeal agreed with the trial court that Dr. Schlam’s opinion was not based on a reliable methodology that was supported by adequate data. The appellate court concluded that Dr. Schlam did not have sufficient information upon which to base an opinion about the impact of the chemical peel on Cinque’s rosacea. He viewed no pictures of Cinque before the chemical peel. He made assumptions about the intensity and distribution of the rosacea based on Dr. Wallach’s medical records, but those records did not support the inferences he drew.

The trial court regard it as “unreliable to base an entire causation analysis on a one time examination while the patient was medicated for the subject condition.” The appellate court did not expressly adopt that reasoning, but did not question it. The decision should stand as a reminder to experts who perform an independent medical examination that admissible expert opinions must be based on adequate data, which a brief physical examination and a review of medical reports might not always provide.

The appellate court noted that, in some cases, existing medical records will give a physician enough data to support a medical opinion. In this case, however, Dr. Schram based his opinions “on assumptions not rooted in any facts actually contained in the medical records relied upon.” Perhaps reasonably drawn inferences can support an opinion if they are supported by facts, but Dr. Schram’s opinions were based on conjecture. His opinions therefore did not meet Daubert’s reliability standard and were properly excluded.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.