Opinion
CIV. NO. 3:98-CV-1243-P.
May 18, 2000.
MEMORANDUM OPINION AND ORDER
In late 1999, Defendants Navarro Regional Hospital, Donald Chiles, D.D.S., Larry Stevener, M.D., and Jim Parks, C.R.N.A., filed a motion for summary judgment in this matter. Pursuant to 28 U.S.C. § 636(b), Magistrate Judge Jeff Kaplan denied that motion through his Findings and Recommendation, dated January 11, 2000. Now before the Court are Defendants' Objections to Magistrate Kaplan's Findings and Recommendation, filed January 21, 2000.
For the following reasons, the Court AFFIRMS the Magistrate's Findings and Recommendation to the extent they are consistent with this Opinion, and DENIES Defendants' motion for summary judgment.
* * * Background
The relevant uncontested facts are as follows. On October 10, 1996, Maxine Campbell was admitted to Navarro Regional Hospital for treatment of a broken jaw. However, due to extensive facial swelling, surgery was postponed until October 12, 1996. Following surgery under general anesthesia, Ms. Campbell was monitored by the nursing staff. After experiencing congestion and pain, Ms. Campbell was given two injections of Demerol and Phenergan, which caused her to become drowsy. The next morning, Ms. Campbell was found unconscious, without pulse or breathing, and with blood running from her nose. Although revived following a code at the hospital, she remained in a comatose state. Nine days later, after doctors advised the family that Ms. Campbell's recovery was extremely unlikely, Charles Campbell, Ms. Campbell's husband and Plaintiff in this action, decided to discontinue life support. Ms. Campbell died on October 22, 1996, with a cause of death listed as cardiac arrest and anoxic brain injury due to aspiration.
Following the death of his wife, Plaintiff filed this medical negligence action against the hospital, two doctors and a nurse anesthetist. Defendants jointly moved for summary judgment on the grounds that Plaintiff "failed to establish any relevant, reliable, objective evidence creating a fact question on the critical element of proximate cause." (Def. Motion at 1).
Magistrate Kaplan's Findings and Recommendation
Pursuant to 28 U.S.C. § 636(b), this Court will make a de novo determination of those specified proposed findings and recommendations to which the parties make a written objection. After review, this Court may accept, reject or modify the findings and recommendations of the magistrate. Fed.R.Civ.P. 72(b).
As stated above, Defendants' motion for summary judgment generally attacked the reliability and admissibility of Plaintiff's experts. As such, it implicated both Daubert (as discussed below) and Federal Rule of Evidence 702. More specifically, Defendants contend that Plaintiff's two experts, Drs. Berger and Wooley, (A) failed to rule out other potential causes of death identified by non-party treating physicians, and (B) offered no objective evidence to support their causation theories. As part of these contentions, Defendants' argue that Plaintiff's experts neglected to rule out alternative causes of death by way of "differential diagnosis."
Rule 702 of the Federal Rules of Evidence, which governs the admissibility or expert testimony, provides that: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." Fed.R.Evid. 702.
Differential diagnosis is the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings. Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 807 (3d Cir. 1997), quoting Stedman's Medical Dictionary at 428 (25th ed. 1990). Magistrate Kaplan rejected Defendants' contention that the experts' lack of differential diagnosis renders their opinions unreliable, finding that, "[t]he fundamental flaw in this argument is [that P]laintiff insists his experts did not utilize the differential diagnosis method in forming their opinions on causation. . . . Defendants cannot force [P]laintiff's experts to employ a methodology they think is appropriate. Neither can [P]laintiff be required to respond to a Daubert motion that challenges a scientific technique or methodology that was not used." (Findings and Rec. at 6) (emphasis in original). Because the Magistrate felt unable to perform a Daubert analysis on a technique that was not employed by Plaintiff's experts, he denied Defendants' motion for summary judgment and deemed the expert testimony admissible. ( Id. at 7).
Defendants now fault the Magistrate for not requiring the experts to eliminate alternative causes, regardless of what semantic label — "differential diagnosis" or other — they chose. According to the Objections, Magistrate Kaplan failed to address their arguments by assuming that "as long as Plaintiff's experts deny they used differential diagnosis methodology, they need not rule out alternative causes at all." (Objections at 4). As a result, say Defendants, the Findings and Recommendation wholly fail to discuss whether Drs. Berger and Wooley adequately support their theories of causation. (Objections at 5). To the extent the Findings and Recommendation do not address this point, the Court agrees. However, after a de novo review of the record, briefs and arguments m the case, the Court nevertheless agrees with the result reached by Magistrate Kaplan.
Analysis
Because Defendants challenge the reliability of Plaintiff's experts on the causation issue, Magistrate Kaplan properly analyzed the summary judgment motion through the standards first articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the Supreme Court instructed district courts to function as gatekeepers in order to ensure that only reliable and relevant expert testimony is presented to the jury. Id. at 590-593. The analysis focuses on the reasoning or methodology employed by the expert, not the ultimate conclusion. Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997). The district court has wide latitude in deciding how to determine reliability, just as it has considerable discretion with respect to the ultimate reliability determination. Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167, 1176 (1999).
Whether or not the experts employed a methodology they call "differential diagnosis," this Court is obligated to address Defendants' arguments concerning the experts' reliability. See Watkins, 121 F.3d at 991 ("whether an expert's testimony is based on `scientific, technical or other specialized knowledge,' Daubert and Rule 702 demand that the district court evaluate the methods, analysis and principles relied upon in reaching the opinion").
As Defendants admit, Drs, Berger and Wooley are not held to a standard of medical certainty; rather, their testimony will be considered reliable so long as it is based upon reasonable medical probability. (Objections at 8). Indeed, the parties are in agreement that Plaintiff must establish the requisite causal element in his negligence case through testimony that is "beyond the point of conjecture" or "mere possibilities." See Def. Moving Br. at 4 and Pl. Br. at 13, citing Duff v. Yelin, 751 S.W.2d 175 (Tex. 1988) and Bowles v. Bourdon, 219 S.W.2d 779 (Tex. 1949).
As noted above, Defendants' chief contention is that Drs. Berger and Wooley failed to rule out other potential causes of death identified by non-party treating physicians, and failed to offer objective evidence to support their causation theories. As applied to the facts of this case, Defendants complain that Plaintiff's experts "pick and choose" a single causation possibility — that of airway obstruction — and ignore those possible causes of death — including aspiration, pulmonary embolus, cardiac arrest, cardiac arrhythmia and seizure — raised by other experts.
While Ms. Campbell's treating physician, Dr. John Updegrove, concludes that aspiration was the most likely cause of Ms. Campbell's death, he also considers pulmonary embolism, stroke, seizure and arrhythmia as "possible" causes. ( See Def. Ex. D, Updegrove Dep., pp. 37-38). Dr. Charles Biltz, a consulting physician in the intensive care unit at the time of Ms. Campbell's code, concurs in several of these possible causes of death. ( See Def. Ex. F, Biltz Dep., pp. 21-24).
The Court notes that Dr. Updegrove's opinion that aspiration was the most likely cause of death could be construed as supporting Drs. Berger and Wooley's ruling out of such other "possibilities" as pulmonary embolism or stroke. In other words, although Dr. Updegrove refused to rule out these possible alternative causes of death completely, he clearly does not credit them as the most probable reason for Ms. Campbell's untimely death. ( See Def. Ex. D, Updegrove Dep., pp. 37-38).
Keeping in mind this standard, and following a review of the briefs, underlying documents and relevant case law, the Court does not believe that either Dr. Berger or Dr. Wooley failed to offer objective evidence to support their causation theories, or failed to rule out other potential causes of death so as to make their testimony inherently unreliable.
A. Objective Evidence Cited by Experts
At his deposition, Dr. Berger specifically was asked whether there was any objective physical evidence supporting his airway obstruction theory. Dr. Berger responded in the affirmative, and testified that:
. . . There was definite evidence in that respect of airway obstruction [such as] swelling, deviation of the trachea, signs on the initial CAT scan of swelling of the soft tissues of the throat and pharynx pushing the trachea to one side. And also certain characteristic sounds emitted by the patient later that were recorded by nursing staffs which is indicative of some airway obstruction. The evidence of aspiration would also be nursing notes relating to the fact that after the patient had the arrest and was intubated there was a note claiming copious secretions of blood and tenacious fluid, I believe. So there was some evidence in that respect that something was aspirate.
Court notes that the lack of certain types of medical evidence in this case is due to Plaintiff's refusal to allow an autopsy to be performed on his wife.
(Def. Ex. B, Berger Dep., pp. 11-12). Dr. Berger also testified that the notes recorded by the nursing staff immediately after the code reflected blood running from Ms. Campbell's nose, and that fluids were suctioned containing blood and thickened secretions. ( Id. at 13). Plainly, Defendants' disagreement with Dr. Berger's conclusions cannot alter the fact that a great deal of the data underlying his opinion constitutes objective evidence.
Turning to Dr. Wooley, he, too, testified that the presence of certain objective factors led to his opinion that Ms. Campbell's death was caused by airway occlusion: "Number one, she had a fractured jaw with a significant amount of swelling of her posterior airway tissues, which was noted on the CT scan. . . . Number two, she was a difficult intubation according to the C.R.N.A. She had a significant amount of bleeding, 150 cc's of blood which is a lot of blood . . . when you normally would expect maybe 10, 15 cc's [of] bleeding. . . . Number three, [there was] airway swelling in the back of the throat with the bleeding. . . ." (Def. Ex. C, Wooley Dep., pp. 9-10, 26-27).
B. Ruling Out Alternative Causes of Death
Drs. Berger and Wooley also satisfactorily explained why they ruled out certain possible causes of death identified by other experts. For example, Dr. Wooley ruled out a seizure causing Ms. Campbell's death because, in his words, "seizures don't kill people. . . . And if she did have a seizure her CPKS would have been off scale, her — her cardiac enzymes . . . and . . . I don't believe they were elevated." (Def. Ex. C, Wooley Dep., pp. 14-16). Similarly, at least in part, Dr. Berger ruled out Ms. Campbell's heart as the cause of her death by a seemingly normal electrocardiogram signed by Dr. Biltz which evidenced no major infarct. (Def. Ex. B, Berger Dep., pp. 17-18). Dr. Wooley also ruled out a stroke, because "you're going to see something on her CT scan" if there was a stroke powerful enough to occlude her airway. (Def. Ex. C, Wooley Dep., pp. 14-15).
A pulmonary embolism was ruled out by Dr. Wooley because, "number one . . . [Ms. Campbell] had no medical problems which would predispose her to developing clots in her legs and that's where the pulmonary embolist comes from. . . . Number two, if she had a pulmonary embolist as the cause of this, her blood oxygen would not have increased to 300 or so plus on her postarrest blood gases because the blood clot blocks off portions of the vasculature in the lung, and you can't get your blood oxygen up because you're not getting blood flow to portions of the lung. Number three, a pulmonary embolist that massive to kill her would have caused her to be hypotensive and then vascular collapse." ( Id. at 16-18).
Defendants cite a number of cases in support of their argument that Plaintiff's experts are unreliable and inadmissible, none of which move the Court. By way of example, in Brown v. Parker-Hannifin Corp., 919 F.2d 308, 312 (5th Cir. 1990), the Fifth Circuit upheld the trial court's exclusion of expert testimony which failed to establish "the most likely cause" of an equipment failure. In that case, the "expert" knew virtually nothing about the equipment in question or the conditions of its use, and merely developed two theories consistent with plaintiff's version of the facts. Id. at 311-12. The Court held that while the expert's theories "are possibilities, other theories explain the failure equally we. . . . Without some basis to establish that one of his theories is the most likely cause of the failure on this occasion, his testimony amounts to speculation and is of no assistance to the jury." Id.
In Viterbo v. Dow Chemical Co., 826 F.2d 420, 421-22 (5th Cir. 1987), the Fifth Circuit also upheld exclusion of a physician's expert testimony because it was lacking in reliability and probative value. That "expert," however, diagnosed the plaintiff's condition as resulting from exposure to a chemical agent that the physician had no experience with, without the aid of medical tests, and solely based upon the plaintiff's oral history. Id. at 422. Furthermore, none of the plaintiff's four treating physicians would diagnose the chemical agent as the cause of his condition. Id.
In Edmonds v. Illinois C.G.R.R., 910 F.2d 1284 (5th Cir. 1990), a trial court prohibited a psychologist from testifying as to whether stress caused plaintiff's heart disease. The Fifth Circuit affirmed the district court, both because the witness was unqualified to opine about plaintiff's heart disease since he was not a medical doctor, and because the proffered opinion relied solely upon studies suggesting a general link between stress and illness, instead of relying upon medical tests of the plaintiff Id. at 1287. "Without more than credentials and a subjective opinion," the Fifth Circuit noted, "an expert's testimony that `it is so' is not admissible." Id. (internal citation omitted).
As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility, and should be left for the jury's consideration. Dixon v. lnternational Harvester Co., 754 F.2d 573, 580 (5th Cir. 1985). As should be evident given the above conclusion that Drs. Berger and Wooley have both ruled out other potential causes of death and offered objective evidence to support their causation theories, the Brown, Viterbo and Edmonds cases are distinguishable and inapposite. Unlike the scenarios in those cases, the Defendants have not demonstrated that these experts' opinions so lack "a reliable basis in the knowledge and experience of the discipline" as to fail to be of assistance to a jury. Daubert, 509 U.S. at 592.
The Court has considered Defendants' other objections and arguments, and finds them to be without merit.
Conclusion
The Court AFFIRMS the Magistrate's Findings and Recommendation to the extent they are consistent with the reasons set forth above, and DENIES Defendants' motion for summary judgment.
So ordered.