Opinion
Civil No. SA-03-CA-0509-OG.
December 9, 2004
ORDER
Pending before the Court is Defendant's Motion to Exclude Expert Testimony of Stanley Malkin, M.D. and Motion for Summary Judgment (Dkt. # 28). Plaintiffs have filed a response (Dkt. # 29) and Defendant has filed a reply (Dkt. # 30). Supplemental briefs have also been filed (Dkt. # 44, 45, 53). In Defendant's motion, it seeks to exclude the testimony of Dr. Stanley Malkin, M.D., who is Plaintiffs' testifying expert on causation. Defendant contends that Dr. Malkin's testimony is not reliable under Daubert and cannot support Plaintiffs' theory of causation because he failed to exclude other possible causes of injury with reasonable certainty.
Defendant does not challenge the expert's qualifications.
A. Legal standard for admissibility:
FED. R. EVID. 702, which governs the admissibility of expert testimony, states:
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.
The trial court serves a "gatekeeper" role in determining whether to admit expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795 (1993). The central goal of Daubert's gate-keeping requirement "is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1174, 1176 (1999). The burden of proof on a Daubert issue rests on the proponent of the testimony. The proponent need not prove the testimony is correct, but she must prove that the testimony is reliable. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc); Newton v. Roche Laboratories, Inc., 243 F.Supp. 2d 672, 677 (W.D. Tex. 2002). Mere association or coincidence is not enough to establish a causal relationship, Newton, 243 F.Supp.2d at 677, and an expert's own subjective opinion, without objective validation or scientific support, amounts to mere speculation and will not assist the trier of fact. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) ("it is not so simply because `an expert says it is so'") (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. 1987)).
In a medical malpractice case, "[t]here can be many possible `causes,' indeed, an infinite number of circumstances can cause an injury. But a possible cause only becomes `probable' when in the absence of other reasonable causal explanations it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue can be submitted to the jury." Parker v. Employers Mutual liability Ins. Co. of Wisconsin, 440 S.W.2d 43, 47 (Tex. 1969) (emphasis added). "[I]f there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty." Havner, 953 S.W.2d at 720 (emphasis added). If a causation expert does not rule out other causes of the injury, his opinion is little more than speculation and will not be admissible as evidence. E.I. DuPont de Nemours and Co., Inc. v. C.R. Robinson, 923 S.W.2d 549, 559 (Tex. 1995).
B. Prior medical history:
The Court first finds it necessary to discuss Ms. McNabney's medical history prior to the incident in question. Her history indicates that Plaintiff suffered an injury at work on December 29, 2001 when she was closing the store where she worked. She was pulling down an 8-10 foot security gate and injured the left side of her neck, left shoulder and left shoulder blade region. (Dkt. # 28, Exh. C). She went to Alamo Healthcare for treatment. On January 21, 2002, Plaintiff described her pain as constant, aching, stiffness, numbness, tingling and throbbing, and stated that the pain was in her shoulder and neck, and down her left arm to her fingers. (Dkt. # 28, Exh. C, p. 24). The therapist noted that "[h]er left arm was very cold to touch." (Dkt. # 28, Exh. C, p. 24). On January 23, 2002, Plaintiff again described the pain as aching, numbness/tingling and throbbing, in the shoulder and down the left arm. (Dkt. # 28, Exh. C). She stated that the pain was constant, went "all the way down" the left arm, and she rated her pain as "8" on a scale of 1-10. Plaintiff also stated that her "left arm [was] cold compared to [the] right," and that she had "lost strength in [her] left arm." (Dkt. # 28, Exh. C; Exh. D-1, admitted at hearing). At subsequent visits on January 25th, January 28th and January 30th, February 11th, February 13th and February 18th, Plaintiff continued to describe pain that radiated "down [her] arm." (Dkt. # 28, Exh. C). By April 2002, Plaintiff stated that her pain was no longer constant, and she seemed to be improving. (Dkt. # 28, Exh. C, p. 10). On February 19, 2003, however, Plaintiff returned to Alamo Healthcare complaining of intense pain in her left shoulder. (Dkt. # 28, Exh. C, p. 7). She also stated that the general strength in her left arm was "poor." (Dkt. # 28, Exh. C, p. 6). Her condition was described as "chronic." (Dkt. # 29, Exh. E). The incident which allegedly caused the injury in question occurred on April 22, 2003 — two months later. However, it is apparent that Plaintiff's prior work injury was still problematic after the incident in question because she visited Pat Booker Chiropractic Center on September 10, 2003, complaining of constant pain in her neck, left shoulder and shoulder blade.
Additional records provided in a supplemental motion reflect that Plaintiff was a former intravenous drug abuser for at least six years. (Dkt. # 53, Exh. C, p. 10-12). Plaintiff was incarcerated in 1997, and the medical records from the Texas Department of Criminal Justice indicate that Plaintiff complained numerous times of left wrist pain. In April 1997, she complained of left wrist pain and swelling, and gave a history of surgery at age 14. She was given a wrist splint. (Dkt. # 53, Exh. C, p. 43). In August 1997, Plaintiff reported to medical staff that her continuing pain was "due [to] several surgeries to that wrist." (Dkt. # 53, Exh. C, p. 36). In September 1997, she complained that she had hurt her left wrist and hand during a fall. (Dkt. # 53, Exh. C, p. 33).
Ms. McNabney denied this fact during deposition. (Dkt. # 53, Exh. A. p. 59).
As discussed below, none these medical records were reviewed by Dr. Malkin, and he did not consider the information contained therein when formulating his opinions in this case.
C. The blood draw incident and subsequent treatment:
On April 22, 2003, Plaintiff consulted her gynecologist for a number of symptoms, including night sweats and mood swings. (Dkt. # 29, Exh. B). The doctor ordered a blood draw for thyroid function studies. (Dkt. # 29, Exh. B). Plaintiff went to Lab Corp, and Ms. Sharon Small, a phlebotomist, attempted to perform a venipuncture on her left arm. (Dkt. # 29, Exh. F). Plaintiff reported feeling a "burning" sensation, then intense pain in the left forearm radiating down to her fingers. (Dkt. # 29, Exh. B). Ms. Small withdrew the needle from her left arm, and obtained the blood specimen from the right arm instead. (Dkt. # 29, Exh. B, F). Plaintiff reported that the pain continued in her left arm, and she had difficulty extending her elbow. (Dkt. # 29, Exh. B). On April 22, 2003, Plaintiff went to the Texas Medical Clinic. The doctor whom she saw believed that she had suffered a nerve injury and advised her to consult with a neurologist. (Dkt. # 29, Exh. B, H). On April 30, 2003, Plaintiff saw Dr. Suzanne Gazda, a local neurologist. Plaintiff did not provide a complete medical history, as reflected in the doctor's notations describing her past medical history as "completely unremarkable" and her past surgical history as "none." (Dkt. # 29, Exh. I). Dr. Gazda noted that Plaintiff did have difficulty using her left arm, it was sensitive to touch and painful upon extension. Her initial clinical impression, based upon the physical examination and limited history provided by the patient was radial nerve injury "clearly related to her blood draw." (Dkt. # 29, Exh. I). An MRI of the cervical spine was performed, with negative results (Dkt. # 29, Exh. I). An EMG and Nerve Conduction Study was also normal. (Dkt. # 29, Exh. I). After further follow up, Dr. Gazda believed there was "actually no injury to the nerve as a result of the blood draw," and that Plaintiff had suffered a soft tissue injury that later developed into RSD. (Dkt. # 30, Exh. B, p. 28). Plaintiff was treated primarily with pain medication.
In his report, Dr. Malkin notes that Ms. Small inserted the needle "all the way to the hub" and "drew back" on the plunger, with no blood return. (Dkt. # 29, Exh. B). He also states that Ms. Small continued to "dig" for a blood return until Ms. McNabney told her to take it out. (Dkt. # 29, Exh. B).
In his report, Dr. Malkin notes that Ms. McNabney told the phlebotomist to "take it out now," and Ms. Small allegedly yelled to a co-worker that "I think I hurt Ms. McNabney." (Dkt. # 29, Exh. B).
During deposition, Dr. Gazda agreed that information regarding Plaintiff's prior injury would have been important to her diagnosis. (Dkt. # 30, Exh. B, pp. 35-36).
D. Opinion of testifying causation expert:
After this lawsuit was filed, Plaintiffs retained Dr. Stanley Malkin, a neurologist from New York, as a causation expert. Dr. Malkin had previously arranged a trip to San Antonio in February 2004, and he scheduled a visit with Plaintiff and her counsel at the same time. (Exh. D-3, deposition of Dr. Malkin, p. 47). Dr. Malkin saw Ms. McNabney in her attorney's office. (Exh. D-3, p. 47). She told him her account of the blood draw incident, as reflected in his written report. (Exh. D-3, p. 48-50; Dkt. # 29, Exh. B). She also told him about her complaints at that time, which included pain radiating down the left forearm and into the wrist and fingers, a cold or clammy feeling in her left hand, and weakness and swelling in the left arm and hand. (Exh. D-3, p. 52-53; Dkt. # 29, Exh. B). His notes from the office visit mention, in passing, that Ms. McNabney had a "left should injury in 2001," that it was a "major disability" and that it "creates some problems for her," but there was no further comment on the prior injury or its effect on her current condition. (Exh. D-3, p. 52).
Upon examination, Dr. Malkin did not find hyperpathia (increased sensitivity) or allodynia (disproportionate pain to stimuli) (Exh. D-3, p. 56; Dkt. # 29, Exh. B). He did not find any swelling or changes in skin color (Exh. D-3, p. 59). He did not observe any muscle weakness or motor deficit (Exh. D-3, p. 62, 64). He did note a cyst on her left wrist, diminished pin prick sensation, and that her left hand was cold and sweaty when compared with the right (Exh. D-3, p. 53, 60-61; Dkt. # 29, Exh. B). His clinical impression, which was based purely on his one-time physical examination and the history provided by the patient, was complex regional pain syndrome/reflex sympathetic dystrophy ("RSD") caused by the venipuncture on April 22, 2003. (Dkt. # 29, Exh. B).
E. Admissibility of the expert opinion:
During deposition, Dr. Malkin stated that he did not review any medical records relating to Plaintiff's prior injury, or any records pre-dating the venipuncture. (Exh. D-3, p. 81). As a result, he was unaware that Plaintiff had complained of many of the same symptoms before the venipuncture. (Exh. D-3, p. 82). Defense counsel exposed this obvious flaw in Dr. Malkin's opinion during the following colloquy:
Q: In the course of your work in this case, did you review any of the medical records related to the injury that you made reference to earlier where she had a gate come down on her at Mervin's and had some problems with that?
A: No, I didn't.
Q: Are you aware from any source that in receiving medical treatment in connection with that problem that Ms. McNabney reported that she had numbness and tingling and aching pain going down her left arm and into her fingers?
A: From the gate injury?
Q: Yes.
A: I don't think so, I don't think so.
Q: Were you aware from any source that in connection with her treatment for that injury that she reported and health professionals that examined her reported that her left arm felt cold relative to her right arm?
A: I haven't seen that. . . .
Q: You'd agree with me though that reports that a patient's extremity is cold relative to the other extremity and that they're experiencing pain, numbness, tingling down into the extremity and the fingers, that those symptoms are consistent with RSD?
A: Can be, absolutely.
Q: And they're consistent with some of the symptoms you found with examining Ms. McNabney?
A: Right, although the history I have is those started subsequent to the blood draw.
* * *
Q: In order for you to make a proper clinical diagnosis in this case, you would agree with me you need a complete and accurate history of the patient's medical condition, at least as it's relevant to her current problem?
A: Yes.
Q: And if she was experiencing problems and symptoms before the blood draw that are similar to some of her problems and symptoms now, that's something you would want to know about to factor into your diagnosis?
A: Yes . . .
Q: For you to reach a proper and correct diagnosis, you would want to know and to factor in whether she had been experiencing some of these symptoms, numbness and tingling, temperature differences in her left hand before she had the blood draw?
A: Yes.
Q: And because you haven't looked at the medical records specifically related to that injury that happened with the gate coming down on her at Mervin's, I take it you would agree with me you don't have enough information to exclude that event to any pain she's having now?
A: In a way I do. I always take what the patient tells me as gospel . . .
* * *
Q: . . . Is it possible that someone could sustain a blunt injury to their shoulder, and if the circumstances are right have that develop into an RSD problem?
A: Well, first of all, a shoulder injury could, yes. Any injury could, but not in this case; but as a general question, yes . . .
* * *
Q: As part of your work in this case, is there anything that you've done specifically to exclude other events in Ms. McNabney's life as causes or possible causes of her pain problem in her left arm?
A: No.
(Exh. D-3, pp. 81, 82, 84-86, 88).
As Dr. Malkin stated in his deposition, laboratory results are of "limited value," and in this case the results were completely normal and offered no support whatsoever for a diagnosis of RSD. (Exh. D-3, p. 29, 89-90). Therefore, his diagnosis was based solely on his one-time examination and the history provided by the patient at that time. (Exh. D-3, pp. 29, 30). Because the history upon which Dr. Malkin relied was incomplete and wholly inadequate, his opinion hinges on the one-time observation of temperature differences in Ms. McNabney's hands. This limited observation has minimal value, if any. Dr. Malkin stated that he had "no reason to doubt" Dr. Hill's finding that were was no temperature difference or a sweat difference, and "it's just where [they] each saw her." (Exh. D-3, pp. 88-89). Moreover, it is clear that intermittent temperature differences were occurring before the blood draw on April 22, 2003.
In Dr. Malkin's opinion, the lab results neither confirmed nor negated a diagnosis of RSD. The results simply had no value whatsoever.
Dr. Hill performed an independent medical examination and has been designated as Defendant's testifying expert.
Because Dr. Malkin failed to exclude other possible causes of Ms. McNabney's injury with reasonable certainty, his opinion lacks a reliable foundation. When asked whether a shoulder injury could develop into RSD, he replied "yes . . . [a]ny injury could, but not in this case." (Exh. D-3, p. 86). However, it is not so "simply because an expert says it is so." Viterbo, 826 F.2d at 421. Plaintiffs have failed to meet the legal requirements for admissibility, and Defendant's Motion to Exclude the Expert Testimony of Stanley Malkin, M.D. is GRANTED.
F. Summary judgment:
Plaintiffs' sole cause of action is negligence, and proximate cause is an essential element of such cause of action. (See Dkt. # 6). In a medical malpractice case, plaintiffs cannot prove proximate cause without an expert on causation. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). Because Dr. Malkin is Plaintiffs' only testifying expert on causation, and his testimony must be excluded, summary judgment on the issue of causation is appropriate as a matter of law. Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280, 292 (Tex. 2000). Defendant's Motion for Summary Judgment is GRANTED.
It is ORDERED that costs be taxed against Plaintiffs, and judgment be entered in accordance herewith.