The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court is defendant's motion for partial summary judgment. We deny defendant's motion for the reasons explained below.
Plaintiff Barbara Fordham was diagnosed with stage 2B cervical cancer in 2003. (Pl. Local Rule 56.1(a) Stmt. of Material Facts (hereinafter "Pl. Stmt."), ¶ 50.) This diversity case arises from a series of pap smears pre-dating her diagnosis that Fordham claims the defendant, H.J. Choi, negligently misread as "negative" or within "normal limits." Fordham's gynecologist sent Fordham's pap-smear slides to Mendota Community Hospital, and Choi reviewed them pursuant to a series of contracts with the hospital. (Def. Local Rule 56.1 Stmt. of Material Facts (hereinafter "Def.Stmt."), ¶ 18; see also Choi. Dep. at 24-20.) Choi, who never met Fordham or reviewed her medical records, did not otherwise participate in Fordham's medical care. (Def. Stmt. ¶¶ 11-12.) Dorothy Rosenthal, plaintiff's expert pathologist, testified at her deposition that Choi's pap-smear interpretations fell below the standard of care in November 1990, November 1991, May 1994, June 1996, June 1997, March 2000, August 2001 and August 2002. (Pl. Stmt. ¶¶ 14, 19, 20, 27-29, 35, 37.)*fn1 Choi also read Fordham's pap-smear slides in May 1995 and January 1999. (Id. at ¶¶ 6-7.) With respect to the 1995 pap-smear, Rosenthal testified that the slides contained insufficient endocervical material to identify a "high grade squamous in epithelial lesion." (Rosenthal Dep. at 97.) In Rosenthal's opinion, Choi should have indicated that the slides were deficient - there was even a "space on her form for her to check it off." (Id. at 96.) Moreover, Choi failed to recognize the "abnormal cells" that were on the slides. (Id. at 97-100.)*fn2
Choi's interpretation of the January 1999 pap-smear, which Rosenthal described as Choi's "least egregious," also failed to note that the slide contained "inadequate endocervical component." (Id. at 107-08.) Rosenthal's testimony about the 1999 pap-smear is disjointed, but she ultimately concluded that, in this instance, Choi's conduct did not fall below the standard of care:
A: She should have said no endocervical component. It's a question at the component of her report [sic]. It was the standard in those days, in '99, to indicate whether a slide had an endocervical component or not. It did not disqualify a slide from being satisfactory, but it should be noted so the clinician knows in following the patient whether an endocervical component has been obtained.
Q: And is there some endovervical on this '99 slide?
A: One group. Maybe. I'm not sure.
Q: Okay. Is - if I understand you correctly, Dr. Choi's lack of reporting the inadequate endocervical component, while you would have liked to have seen it there, did not fall below the standard of care?
A: You are welcome. (Rosenthal Dep. at 107-08 (emphasis added).) Later in the deposition, in response to a hypothetical question posed by Fordham's counsel, Rosenthal indicated that Choi would have breached the standard of care if she had known that Fordham had previously tested positive for abnormal cells but failed to note that a subsequent slide lacked endocervical component. (Id. at 130.) Fordham argues in her opposition to defendant's motion that Rosenthal's testimony creates a material issue of fact concerning the 1999 pap smear because Choi should have concluded that the slides from previous years were abnormal. (Pl. Opp'n at 16.) But Rosenthal specifically testified that counsel's hypothetical did not change her opinion that Choi had not breached the standard of care with respect to the January 1999 slides. (Id. at 130-31.)