Summary
In Vitiello, Dr. Goldberger utilized retroactive extrapolation to determine the blood alcohol level of a defendant who was charged with four counts of boating under the influence with serious bodily injury.
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Case No. 5D17-3834
10-04-2019
Krystyna Alicya VITIELLO, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
ORFINGER, J.
Krystyna Vitiello appeals her convictions of two counts of boating under the influence with serious bodily injury and two counts of boating under the influence with personal injury, after a boat she was piloting crashed. Vitiello's primary challenge on appeal concerns the admissibility of the testimony of the State's expert witness who, using retrograde extrapolation, estimated that her blood alcohol content ("BAC") exceeded the legal limit at the time of the crash. We find no error and affirm.
Retrograde extrapolation applies a mathematical calculation "to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken." State v. Eighth Judicial Dist. Court (Armstrong ), 127 Nev. 927, 267 P.3d 777, 780 (2011) (quoting Commonwealth v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (2001) ). Hence, the need for retrograde extrapolation arises when a test puts a suspect's BAC below the legal limit, but the State seeks to prove the suspect was above the legal limit at the time he or she was operating a car or boat. The alcohol metabolization process consists of three phases: absorption, peak blood alcohol level, and elimination. The absorption phase begins immediately upon consumption. Once consumed, some alcohol is absorbed through the lining of the stomach into the bloodstream. The rest passes to the small intestine where it is absorbed into the blood and carried throughout the body. Jennifer Praiser, Note, In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64 N.Y.U. L. Rev. 141, 145–46 (1989) (citing Edward Fitzgerald & Dr. David Hume, Erroneous Expert Opinion in the Civil & Criminal Trial of Intoxication Cases: Widmark Revisited, The Champion (Dec. 1983) reprinted in § 270.03, R. Joye & J. Lovett, Drunk Driving: The Trial Sourcebook § 270-03, at 270-50 (1987)). During the absorption phase, a person's blood alcohol level increases until all the alcohol is absorbed into the blood. Once absorption is complete, the person's blood alcohol level peaks and begins to decline. How long it takes to reach peak alcohol level can vary depending on factors, including the subject's drinking pattern, time of last drink, and when the subject last ate. Alan W. Jones, Alcohol, Its Absorption, Distribution, Metabolism, & Excretion in The Body & Pharmacokinetic Calculations, 1 WIREs Forensic Science (Sept./Oct. 2019), https://onlinelibrary.wiley.com/doi/full/10.1002/wfs2.1340.
Facts
On the evening of April 4, 2016, Vitiello's eighteen-year-old niece was hosting a party at her father's lakefront home in Maitland, Florida. Vitiello and her niece spent the day preparing for the party. Around 6:30 p.m., the guests arrived. As part of the festivities, the partygoers ate and drank alcohol as they watched the televised NCAA Men's Basketball National Championship game. After the game concluded, around midnight, the partygoers took a boat out onto the lake behind the house. Vitiello drove. After only a few minutes on the lake, Vitiello crashed the boat into a seawall, injuring her niece and several other passengers.
One of the passengers called 911. Maitland police officers arrived at the scene and found the boat atop the seawall surrounding the pool in the backyard, three or four feet above the lake's surface. Three people lay injured. Next to the boat, one officer saw Vitiello holding an injured passenger and pressing a towel against a wound on the back of his head. That same officer also observed Vitiello praying and slurring her words. About this time, paramedics arrived and transported the injured individuals to the hospital.
After the injured individuals departed, the officer approached Vitiello, who confirmed that she had been piloting the boat. He smelled the odor of alcohol coming from Vitiello and saw that her eyes were bloodshot. Suspecting she was intoxicated, the officer had Vitiello perform several field sobriety tests. Vitiello performed poorly. She lost her balance several times, failed to complete the walk-and-turn test as instructed, and failed to walk along a straight line. Based on her overall performance during the field sobriety tests and his previous observations, the officer concluded that Vitiello was impaired by alcohol and arrested her for boating under the influence. Vitiello was then transported to the Orange County DUI Center, where she refused to submit to an alcohol breath test. Eventually, law enforcement obtained a warrant to draw her blood. At 6:50 a.m., Vitiello's blood was drawn and registered a BAC of .027.
Vitiello was charged with four counts of boating under the influence with serious bodily injury. The information alleged that she was under the influence of alcoholic beverages to the extent that her normal faculties were impaired or that she had a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood. Before trial, the State notified Vitiello that it intended to call toxicologist Dr. Bruce Goldberger to testify as an expert witness regarding Vitiello's BAC at the time of the accident. Vitiello moved to strike Dr. Goldberger's testimony. At the hearing on the motion, Dr. Goldberger testified that by using retrograde extrapolation, he estimated Vitiello's BAC at the time of the accident was approximately .12. He came to this figure by multiplying the average rate at which alcohol is eliminated from the body (.015 mg/mL/hour) by six and a half (the time between the accident and the blood test) and adding that product to Vitiello's known BAC of .027. He also considered her performance of the field sobriety tests and the police observations of her behavior, all of which he believed confirmed his calculations.
Vitiello was also charged with and convicted of violating navigation rules resulting in a boating accident, section 327.33(3)(a), Florida Statutes (2016). She does not challenge that conviction on appeal.
The equation is (.015) x (6.5 hours) + .027 = .1245 BAC.
Dr. Goldberger explained that he made two assumptions when performing the calculations. First, he assumed Vitiello eliminated alcohol at .015mg/mL/h, although he acknowledged that the rate can be higher or lower depending on factors such as a person's weight or their pattern of alcohol consumption. Second, he assumed Vitiello's blood alcohol level had peaked, meaning her body had finished absorbing alcohol at the time of the crash. Dr. Goldberger conceded that, similar to the elimination rate, many variables could affect when a person has finished absorbing alcohol, including the time of the person's last drink, how much they drank, and when they last ate. Dr. Goldberger admitted that he did not know the time of Vitiello's last meal or last drink. However, he did not perform his calculations in a vacuum—he also considered the reports of law enforcement, including their descriptions of Vitiello's performance on the field sobriety tests, and the depositions of the other passengers, all of which confirmed his estimation of Vitiello's BAC.
In challenging Dr. Goldberger's testimony, Vitiello did not attack the science or reliability of retrograde extrapolation as a general practice. Instead, she attacked the factual basis for his testimony. Specifically, she argued that Dr. Goldberger lacked the information necessary to assume her BAC had peaked and was declining at the time of the accident. This lack of information, she argued, made Dr. Goldberger's opinion speculative, and therefore, inadmissible.
In support of her argument, Vitiello presented the testimony of Dr. Julia Pearson, the chief forensic toxicologist for the Hillsborough County Medical Examiner's Office. Dr. Pearson testified that the State had asked her to perform a retrograde extrapolation in this case before asking Dr. Goldberger to do the same. Dr. Pearson declined to perform the calculation because her lab and the Florida Department of Law Enforcement will not perform an extrapolation on any sample under .03. While Dr. Pearson had performed extrapolations on samples as low as .03, in those cases, a second blood sample taken two to three hours earlier was also available, which helped her establish the elimination rate and determine that the person's BAC was declining. In addition, Dr. Pearson said the six-and-a-half-hour lapse between the accident and the blood test was much longer than usual, making any calculation much less reliable. Finally, Dr. Pearson noted that she had no information about what Vitiello drank that evening. She recalled that the police report indicated that the crash occurred less than five minutes after everyone boarded the boat. But no one could state what Vitiello had been drinking, when she had been drinking, or when she had stopped drinking. According to Dr. Pearson, this lack of information on Vitiello's drinking history was critical. Without it, she could not conclude, or even assume, Vitiello was in a post-absorptive state (meaning her BAC was declining) at the time of the accident, and without assuming post-absorption, a retrograde extrapolation could not be performed.
After considering the testimony of both experts, the trial court denied Vitiello's motion. The court found that Dr. Goldberger's methods were generally accepted by the scientific community and were admissible under the Frye standard. At the parties' request, the trial court also considered the admissibility of the testimony under the Daubert standard. The court noted that "[w]hile the lack of information regarding [Vitiello's] drinking history that day is concerning, these are facts for the jury to consider." It ruled Dr. Goldberger's testimony was also admissible under the Daubert standard because it was the product of reliable scientific principles and based on sufficient data and facts.
The trial took place before the Florida Supreme Court rejected the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and adopted the Daubert standard. See In re Amends. to Fla. Evidence Code, 44 Fla. L. Weekly S170 (Fla. May 23, 2019). We consider this case in accordance with the law in effect at the time of our decision "rather than the law in effect at the time the judgment appealed was rendered." N. Broward Hosp. Dist. v. Kalitan, 174 So. 3d 403, 412 (Fla. 4th DCA 2015) (quoting Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978) ). Therefore, we apply the Daubert standard to this case.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
At the following trial, along with Dr. Goldberger's testimony, the State presented physical evidence, testimony of the officers who administered the field sobriety tests at the accident scene, and the testimony of other people who were onboard the boat when it crashed to prove Vitiello was impaired by alcohol at the time of the accident. The jury found Vitiello guilty on all counts, and the court sentenced her to 108 months in prison.
Dr. Goldberger's testimony at trial generally conformed to his testimony during the Frye hearing. Dr. Pearson did not testify at the trial.
Vitiello also asserts that a second officer's testimony was cumulative and improper. We reject that contention without discussion.
Analysis
"A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court's ruling on evidentiary matters will not be overturned." LaMarr v. Lang, 796 So. 2d 1208, 1209 (Fla. 5th DCA 2001) (citing Dale v. Ford Motor Co., 409 So. 2d 232, 234 (Fla. 1st DCA 1982) ). However, "that discretion is limited by the rules of evidence." Michael v. State, 884 So. 2d 83, 84 (Fla. 2d DCA 2004).
Section 90.702, Florida Statutes (2016), codifies the Daubert standard found in Federal Rule of Evidence 702 and governs the admissibility of expert testimony. That section provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it 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.
§ 90.702, Fla. Stat. (2016).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court charged the trial court to assume the role of gatekeeper, requiring the trial court to make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." 509 U.S. 579, 592–93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In short, Daubert provides that expert testimony is admissible if it is relevant and reliable. Id. at 589, 113 S.Ct. 2786.
The relevance inquiry goes to whether the testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 591, 113 S.Ct. 2786 (citing Fed. R. Evid. 702). To satisfy this requirement, the proffered testimony must be "tied to the facts of the case [so] that it will aid the jury in resolving a factual dispute." Id. (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985) ). The reliability inquiry "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592–93, 113 S.Ct. 2786. Factors that tend to inform whether a particular methodology is reliable "include whether the expert's theory or technique: (1) can be or has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of error or standards controlling its operation; and (4) is generally accepted in the relevant scientific community." Pipitone v. Biomatrix, 288 F.3d 239, 244 (5th Cir. 2002). This list of factors, however, is not exhaustive. Many other factors may be relevant to this inquiry, and the trial court has "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Once the trial court has found the methods and principles upon which the testimony is based are reliable, it must assess whether those methods and principles were reliably applied to the facts of the case. § 90.702(3), Fla. Stat. (2016).
When a Florida rule is based on a similar federal rule, we may look to federal cases as persuasive authority in the interpretation of the rule. Bawtinhimer v. D.R. Horton, Inc., 161 So. 3d 539, 540 (Fla. 5th DCA 2014).
While this test may seem exacting, rejection of expert testimony under Daubert "is the exception rather than the rule." Fed. R. Evid. 702 advisory committee's note to 2000 amendment. The trial court's gatekeeper function is not intended "to serve as a replacement for the adversary system." Id. (quoting United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996) ). Instead, the Daubert Court stressed that "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 596, 113 S.Ct. 2786. These tools remain the "appropriate safeguards," and not "wholesale exclusion," where the basis for expert testimony meets the standards set forth by the rules of evidence. Id.
Vitiello does not challenge the science of retrograde extrapolation in a general sense. Rather, she argues it could not be reliably applied here because Dr. Goldberger lacked the facts necessary to conclude her blood alcohol level was declining at the time of the accident, such as when she had her last drink or what and when she had eaten prior to the crash. The absence of this information, she claims, makes any retrograde extrapolation unreliable.
Thus, the question presented in this appeal is whether the trial court properly exercised its gatekeeping function in determining that Dr. Goldberger's testimony was reliable and admissible under Daubert. Neither our research, nor that of the parties, has located any Florida case that directly addresses the issue. Looking to other jurisdictions, we find that the courts are divided on the admissibility of expert testimony under the circumstances presented here. For example, in State v. Burgess, 188 Vt. 235, 5 A.3d 911 (2010), on similar facts, the Vermont Supreme Court admitted the expert testimony, holding that the lack of information goes to the weight of the testimony, not its admissibility, explaining:
The Daubert Court itself noted that "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 596, 113 S. Ct. 2786. This Court has similarly stated that "to tease out deficiencies of expert testimony, opponents should attack testimony of this nature through the adversarial process," rather than through excluding the evidence altogether. In re JAM Golf, LLC, 2008 VT 110, ¶ 9, 185 Vt. 201, 969 A.2d 47 [Vt. 2008]....
Here, we recognize that the trial court had good reasons for questioning the validity of the State's retrograde extrapolation analysis. In particular, the court was concerned that the State simply did not have enough information to make an accurate analysis. We conclude, however, that the court's concerns relate to the proper weight to be afforded the evidence, not whether the evidence is admissible in the first place....
....
... According to defendant, the testimony from the State's expert is unreliable because it fails to take into consideration a number of important factors, such as the amount of food defendant ate and his drinking pattern before operation. The trial court agreed and noted that "[i]nformation critical to this calculation would include the amount and time of food, if any, consumed at or near the period of time the Defendant consumed alcohol and it must be known when the Defendant commenced drinking and stopped drinking and the total number and type of drinks consumed." Though the court was correct that this information would undoubtedly make for a more accurate analysis, that is an issue that goes to the weight of the evidence, and the court went too far in holding that the test results here were unreliable as a matter of law. See, e.g., People v. Wager, 460 Mich. 118, 594 N.W.2d 487, 491 (1999) (admitting BAC test results that were taken more than two hours after operation and holding that "[t]o the extent that the passage of time reduces the probative value of the test, the diminution goes to weight, not admissibility, and is for the parties to argue before the finder of fact").
As the Kentucky Supreme Court noted in [Commonwealth v.] Wirth, many of the facts needed to make retrograde extrapolation as accurate as possible, including the food and drinking patterns that the trial court held to be "critical" here, are facts that are "known only to the defendant." 936 S.W.2d [78,] 84 [Ky. 1996]. Thus, if we were to affirm the
trial court's ruling here, the practical effect would be to create a bright-line rule that would exclude the relation-back of breathalyzer test results anytime a defendant withheld information that only he knew regarding his eating and drinking patterns. In those situations, the trial court's ruling that information on food and drinking patterns is "critical," taken to its logical conclusion, would even exclude test results taken shortly after operation that revealed a BAC that was many times higher than the legal limit—results that all but guarantee that the defendant was intoxicated at the time of operation, regardless of his eating and drinking patterns. Such a rule is untenable and cannot be reconciled with the limited analysis required under Daubert for determining the admissibility of evidence.
5 A.3d at 915–17 ; see also State v. Jensen, 482 N.W.2d 238, 240 n.2 (Minn. Ct. App. 1992) ("Variables affecting absorption and elimination rates would most likely go to the weight, rather than admissibility of retrograde extrapolation testimony."); State v. Giese, 356 Wis.2d 796, 854 N.W.2d 687, 693–94 (Wis. Ct. App. 2014) (admitting retrograde extrapolation testimony, stating that defendant's challenges to accuracy of expert's assumptions went to weight of testimony, not its admissibility).
In contrast, other jurisdictions take the view that the assumptions relied upon by Dr. Goldberger, when unsupported by facts in evidence, result in an estimate of the subject's blood alcohol level that is nothing more than mere conjecture and render the opinion inadmissible. For example, in State v. Downey, 145 N.M. 232, 195 P.3d 1244 (2008), the New Mexico Supreme Court excluded such testimony, writing:
Defendant does not challenge the validity or reliability of the science of retrograde extrapolation generally, but rather claims only that the evidence in the present case was insufficient to permit its reliable application....
....
"Expert testimony may be received if, and only if, the expert possesses such facts as would enable him to express a reasonably accurate conclusion as distinguished from mere conjecture." Leon, Ltd. v. Carver, 104 N.M. 29, 35, 715 P.2d 1080, 1086 (1986). Smock did not know when Defendant had consumed his last drink and, therefore, whether Defendant was pre-absorptive, post-absorptive, or at the peak of alcohol absorption either at the time of the collision, or at the time his BAC test was administered. This information is critical to perform retrograde extrapolation calculations because if Defendant was in the pre-absorptive phase of the BAC curve, both at the time of the collision and at the time his BAC test was administered, then his BAC at the time of the collision would have been lower than the results of his BAC test. On the other hand, if Defendant was in the post-absorptive phase of the BAC curve, both at the time of the collision and at the time his BAC test was administered, then his BAC at the time of the collision would have been higher than the results of his BAC test as Smock testified. If Defendant peaked somewhere in between, then his subsequent BAC could have been higher or lower depending on the facts and circumstances. If Defendant peaked somewhere in between, then his subsequent BAC could have been higher or lower depending on the facts and circumstances.
....
Experts may, and often do, base their opinions upon factual assumptions, but those assumptions in turn must find evidentiary
foundation in the record. Here, by contrast, the State did not produce any evidence regarding when Defendant last consumed alcohol, much less the quantity consumed, which rendered Smock's assumption mere guesswork in the context of this particular case. Accordingly, because Smock's expert conclusions were nothing more than mere conjecture and should have been excluded, the trial court abused its discretion in permitting this evidence to go to the jury. See, e.g., Hathaway v. Bazany, 507 F.3d 312, 318–19 (5th Cir. 2007) (concluding that testimony of expert witness was unreliable and inadmissible because it was premised on a series of factual assumptions unsupported by the evidence).
We recognize that information regarding when a defendant had begun or ceased drinking may be difficult to obtain absent an admission from the defendant. We point out, however, that the State may be able to glean this information from third-party witnesses or from circumstantial evidence. See, e.g., State v. Day, 2008-NMSC-007, ¶ 3, 143 N.M. 359, 176 P.3d 1091 [ (N.M. 2008) ] (noting that the defendant was placed into police custody immediately after the police "recovered a half-full twelve-ounce can of Budweiser beer on the seat of the car which was still cool to the touch, ‘a freshly opened can’ "); [ State v. ]Cavanaugh, 116 N.M. [826,] 828, 867 P.2d [1208,] 1209 [ (N.M. Ct. App. 1993) ] (noting that defendant failed a field sobriety test before he got behind the wheel of a car and "sped off").
Downey, 195 P.3d at 1251-52 (some citations omitted). Accord State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 267 P.3d 777, 781-82 (2011) (reasoning that expert's lack of knowledge about whether defendant was absorbing or eliminating alcohol at time of blood draw created too great a danger of unfair prejudice to defendant); State v. Babich, 797 S.E.2d 359 (N.C. Ct. App. 2017) (holding that BAC expert's assumption that defendant was in post-absorptive state at time of traffic stop was not based on facts, rendering expert's testimony on retrograde extrapolation results inadmissible).
Having carefully considered the arguments of the parties and the authorities from other jurisdictions, we conclude that the trial court did not abuse its discretion in admitting Dr. Goldberger's testimony. We believe that the lack of information cited by Vitiello, which was presented and argued to the jury, goes to the weight of Dr. Goldberger's testimony and not its admissibility, when, as here, the expert testifies that he or she considered such additional facts such as the suspect's performance on the field sobriety tests and observations of the suspect's behavior to confirm his or her opinion.
Our supreme court's opinion in Miller v. State, 597 So. 2d 767 (Fla. 1991), supports this conclusion. Miller was charged with driving under the influence. One hour and twenty minutes after being stopped, he was given a breath test that registered a blood alcohol level of .14. He refused to tell police when he consumed his last alcoholic beverage. The State's expert toxicologist testified that because of this refusal, it was impossible to determine with reasonable certainty Miller's blood-alcohol level at the time he was stopped because alcohol "is not completely absorbed into the system immediately upon being consumed. Some portion of recently ingested alcohol will remain in the stomach. Thus, the blood-alcohol level may rise over time as this alcohol is absorbed." Miller, 597 So. 2d at 768. The trial court suppressed the evidence, but the supreme court reversed, holding that the delay between the arrest or crash and the blood test goes to the weight of the evidence, not its admissibility, writing:
[I]n some circumstances, evidence of blood-alcohol content obtained a significant time after a person is stopped on suspicion of driving under the influence may be relevant and probative evidence.... Clearly, there are circumstances under which evidence of blood-alcohol content would be relevant and probative even though a significant amount of time has passed after the defendant was stopped and even where the state cannot establish probable blood-alcohol content at the time the defendant was in control of a vehicle.
....
... [T]he inability of the State to "relate back" blood-alcohol evidence to the time the defendant was driving a vehicle is a question of credibility and weight-of-the-evidence, not of admissibility, provided the test is conducted within a reasonable time after the defendant is stopped.
What is "reasonable" in this context will depend upon the facts of each case.
Id. at 769-70. Accord Haas v. State, 567 So. 2d 966 (Fla. 5th DCA 1990) (adopting rationale that delay between driving and testing for blood alcohol level is properly viewed as going to weight of blood test results, rather than admissibility), approved 597 So. 2d 770 (Fla. 1992). Similarly, the deficiencies in an expert's testimony would go to the weight of the expert's testimony and not its admissibility when, as here, the expert testifies that he or she considered additional facts such as the suspect's performance on the field sobriety tests and observations of the suspect's behavior to confirm his or her opinion.
For these reasons, we hold the information that Dr. Goldberger lacked goes to the weight to be given to his testimony, not its admissibility. Because Vitiello had the opportunity to highlight the alleged deficiencies in Dr. Goldberger's opinions for the jury, we affirm.
AFFIRMED.
LAMBERT and SASSO, JJ., concur.