There were several Daubert related decisions in the Seventh Circuit over the last couple of months, three of which are of particular interest. One recent decision in the Seventh Circuit provides a useful demonstration that a valid Daubert challenge is only one of several tools available to the trial attorney for dealing with junk science. Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006), involved a suit by a terminated employee (Naeem) against her employer (McKesson Drug Co.) and manager for sexual discrimination and intentional infliction of emotional distress. The jury’s verdict was for the defendants on the sexual discrimination claim, but for Naeem on the intentional infliction of emotional distress claim.
Of the many issues raised on appeal, the defendants challenged the testimony of two experts called by Naeem. With respect to one of the experts, the defendants’ appellate challenges concerned new matters that apparently were not part of their Daubert challenge in the trial court.
With respect to the other expert, the defendants raised and then consistently pursued Daubert challenges directed at Dr. Anthony, a management professor who “testified as a human resources expert” for Naeem. Dr. Anthony “gave his opinion as to whether McKesson followed its own human resources policies in dealing with Ms. Naeem.” Id. at 607. The defendants filed a Daubert-based motion in limine directed at Dr. Anthony’s testimony, but that motion was denied. Then the defendants lodged several specific challenges to Dr. Anthony’s testimony during trial. Unsurprisingly, the trial court overruled those objections, but defendants preserved the issue for appeal. On appeal the defendants again challenged Dr. Anthony’s testimony under Daubert and this time they were successful. The appellate court found that Dr. Anthony’s opinions were not tied to the data before him and that the district court abused its discretion in its rulings on the issue because it failed to explain how it applied Daubert to the defendants’ challenges. Id. at 607-08. Ultimately, however, this was a pyrrhic victory. Other witnesses had corroborated Dr. Anthony’s challenged testimony at tria,l leading the appellate court to affirm under the harmless error standard of review. Id. at 609. The case nonetheless provides a good example of how to preserve Daubert issues when the trial court rejects an initial Daubert challenge.
In Bickel v. Pfizer, Inc., __ F. Supp. 2d __, 2006 WL 1390153 (N.D. Ind. May 19, 2006), the district court excluded as unreliable the testimony of the plaintiff’s treating physician who also happened to be her causation expert. Id. at *8. The central issue in the case was whether the plaintiff’s “strokes of the optic nerves and partial vision impairment” were the direct result of ingesting Lipitor, a cholesterol lowering statin drug manufactured by Pfizer. Id. at *1.
In a thorough analysis of the defendants’ motion to bar the plaintiff’s expert, the district court observed first “that factors listed in Daubert, although not pertinent in assessing the reliability of expert testimony in every case, ‘are precisely apt for analysis here.’" Id. at *4 (further citations omitted). The court then analyzed the proffered testimony of the plaintiff’s expert and found it lacking under all four of the traditional Daubert factors. The court found that the plaintiff’s expert “did not rely upon any valid scientific methodology in forming her opinion, particularly epidemiology, toxicology, or pharmacology. She did not conduct any scientific tests, experiments, or clinical studies to bolster her [causation] theory . . . .” Id. at *5. That failing was aggravated by the fact that the plaintiff and her expert cited no epidemiological studies supporting the plaintiff’s theory of causation and the plaintiff’s expert later conceded that her causation theory was based on novel science that had not achieved widespread acceptance. Id. at *6-7. Unsurprisingly, the court entered summary judgment in favor of the defendants. Id. at *8.
In a third interesting case from the Seventh Circuit, the Southern District of Indiana reiterated the standards for an expert’s use of differential diagnoses in establishing causation in Ervin v. Johnson & Johnson, Inc., 2006 WL 1529582 (S.D. Ind. May 30, 2006). The causation issue centered upon whether the medication known as Remicade, manufactured by the defendant, caused the plaintiff’s arterial thrombosis and the subsequent amputation of the lower part of one of his legs. The plaintiff sought to establish causation through the testimony of his treating physician, an internal medicine doctor, who formed a differential diagnosis which concluded that Remicade did cause the the plaintiff’s injuries.
The district court found the doctor qualified to render an opinion and noted that, as a general rule, differential diagnoses are considered reliable and admissible under Daubert. Id. at *5. However, that general rule is based on the supposition that “the expert applied the technique in a manner which is also reliable.” Id. at *6. In this case, the court concluded that the doctor had made two errors that, in turn, rendered the differential diagnosis inadmissible.
The first error was that the doctor had not “ruled in” Remicade in the first instance as a scientifically plausible cause for the plaintiff’s condition. He just assumed that it was a potential cause and then ruled out all other causes. The district court noted that “[i]n a proper differential diagnosis, the physician’s first step is to ‘rule-in’ all of the scientifically plausible causes for the patient’s symptoms. This step of the diagnosis includes the general causation aspect of the test. In other words, in order to rule-in a plausible cause, the expert must first reach the determination that the suspected cause is actually capable of causing the injury.” Id. at *6. By assuming that Remicade was a possible cause of the plaintiff’s condition, the plaintiff’s expert simply assumed causation.
The second error was that the plaintiff’s expert ruled out one potential cause for the plaintiff’s condition that, the plaintiff’s expert later admitted, he “would have to add this to the list of possibilities.” Id. at *8. That change in position left the doctor’s causation testimony speculative. Even assuming that Remicade properly was included in the differential diagnosis, the doctor conceded that there were two potential causes for the plaintiff’s condition – only one of which was the medication manufactured by the defendant. The doctor’s testimony, therefore, could not support a finding that Remicade was more likely than not the cause of the plaintiff’s condition. Id. As a result, the trial court granted the defendant’s Daubert motion barring the plaintiff’s expert’s testimony, and then entered summary judgment for the defendant.
Patrick J. Kenny serves as the Editor-in-Chief of Daubert Online, is a member of the Steering Committee for DRI’s Commercial Litigation Committee and serves as the Expert Witness Chair for that Committee. He is a partner with Armstrong Teasdale LLP where he has practiced since 1993 following a clerkship with the Hon. Pasco Bowman (U.S.C.A., Eighth Circuit). His practice focuses on complex business and insurance disputes including non-compete cases, disputes involving business “divorces,” and commercial fraud and business torts (including statutory actions). He also has significant experience in cases involving professional negligence and other types of tort claims. He has tried cases to juries in Missouri and Illinois, handled and supervised numerous appeals, and served as a neutral in scores of cases. He can be reached at Armstrong Teasdale LLP, One Metropolitan Square, Suite 2600, St. Louis, Missouri 63102, (314) 621-5070 (general line), (314) 552-6613 (direct), (314) 621-5065 (general facsimile), (314) 612-2262 (direct facsimile), e-mail: pkenny@armstrongteasdale.com. For further information click on: http://www.armstrongteasdale.com/Attorney.php?HrID=00201.
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