How not to do a differential diagnosis — UPDATED

diagnosis-memeThe plaintiffs in Sims v. Kia Motors brought products liability claims about the design of a fuel tank. Their main engineering expert “employed a ‘differential diagnosis approach, a scientific technique that essentially involves the process of elimination.” While a potentially reliable technique, the Fifth Circuit noted that it “has cautioned that “the results of a differential diagnosis are far from reliable per se..’ . . . “[M]erely “ruling out” other possible explanations is not enough to establish reliability; experts must also have some scientific basis for ‘ruling in’ the phenomenon they allege.” Here, where “the record does not reflect any reliable facts or data ‘ruling in'” the expert’s theory about how the fuel tank behaved in the accident, “the district court did not abuse its discretion in excluding it.” No. 15-10636 (revised Oct. 11, 2016).

Fact issue raised about boat repairs

boatOTM, the owner of two boats, alleged a poor repair job by Diversified. The district court granted summary judgment for the defendant and the Fifth Circuit reversed, observing: “OTM concedes it has not attempted to prove the ‘precise cause’ of the engines’ malfunction; instead, it maintains it presented sufficient evidence to create the requisite
genuine dispute of material fact for whether the claimed substandard overhauls by Diversified caused the engines’ breakdown. . . . [A]t this stage, OTM is not required to prove exactly which part failed, or disprove that ‘the vessels’ other deteriorating parts or operator error’ was not the cause of the vessels’ breakdown . . . . ” Operaciones Tecnicas Marinas, SAS v. Diversified Marine Services, LLC, No. 15-30932 (Aug. 5, 2016, unpublished). The opinion illustrates the interaction between the requirements of Rule 56 and the requirement of Daubert case law that an expert adequately exclude alternative causes.

Causation proved.

causationmemeIn the trial of a dispute about the handling of another lawsuit, the plaintiffs’ lawyer in that other suit testified that he would not have settled for less than $3 million. On appeal, two expert reports were cited in opposition to that testimony, and the Fifth Circuit rejected them. It noted that the trial court was within its rights to credit the lawyer’s testimony, and that the reports had been prepared pretrial and thus could not have addressed that testimony. RSUI Indemnity Co. v. American States Ins. Co., No. 15-30976 (July 8, 2016, unpublished).

Keep the gate!

no pass lotrCarlson alleged injuries from the ProNeuroLight, an infrared therapy device. At trial, the defendants called a chiropractor with some experience using the device. The Fifth Circuit expressed skepticism about his qualifications, noting: “While he does make diagnoses and orders tests as part of his chiropractic and alternative medicine practice, [his] qualifications do not align with or support his challenged medical causation testimony.” The Court did not rule on that basis, however, instead finding that “a district court must . . . perform its gatekeeping function by performing some type of Daubert inquiry and by making findings about the witness’s qualifications to give expert testimony.”  Here, admitting the chiropractor’s testimony without taking those steps was an abuse of discretion. The Court found harm, noting that he was the sole defense witness, that his testimony was cited in closing, and that the defendants won. Accordingly, it reversed and remanded. Carlson v. Bioremedic Therapeutic Systems, Inc., No. 14-20691 (May 16, 2016).

Revised opinion in Daubert case about pharmacy

pharmacy_logo_for_webThe Fifth Circuit issued a revised opinon in Kovaly v. Wal-Mart Stores, No. 14-20697 (Sept. 22, 2015, unpublished).  The new opinion reaches the same result — reversal of the Daubert exclusion of an expert about the standard of care for a Texas pharmacist asked to issue a 72-hour emergency prescription.  It provides more detail about the expert’s analysis, eliminating some uncertainty in the original opinion about the role of Texas regulations in the expert’s work: “Brooke specifically analyzed how the various regulations overlap and how the history of the regulations led to the codification of particular exceptions but not others.  He explained that his opinion was based not only on the regulations but also on their history, accepted practice, and pharmacist training.”

Class certification rulings about Deepwater Horizon

bplogoIn the wake of the Deepwater Horizon accident, plaintiffs sought to bring two class actions against BP alleging violations of federal securities law — one regarding BP’s representations about its pre-spill safety procedures, and one about BP’s post-accident statements as to the flow rate of oil after the spill occurred. The district court certified the post-spill class, concluding that the plaintiffs had established a model of damages consistent with their liability case and capable of measurement across the class, and refused to certify the pre-spill class, finding that it had not satisfied the “common damages” burden established by the Supreme Court in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). The Fifth Circuit affirmed.  As to the post-spill class, the Court reviewed BP’s criticisms of the plaintiffs’ damages expert, and found that they were not so potent as to invalidate his theory at the class certification stage.  As to the pre-spill class, however, the Court agreed that the expert failed to exclude class members who would have bought the stock even with full knowledge of the alleged risks, making his analysis infirm for certification purposes.  Ludlow v. BP, PLC, No. 14-20420 (revised Sept.15, 2015).

Hope springs eternal, but not your anticipated work life.

community_chest_life_insurance_cardBartos, an injured seaman, sued for future lost wages.  His expert offered calculations based on a retirement age of 55.8 (from a table of work-life expectancies) or 67 (the Social Security full-retirement age).  The Fifth Circuit reversed a damages award based on the older age and rendered an award based on the younger one, reasoning: “Barto’s economist did not provide any reason to TexasBarToday_TopTen_Badge_Smallbelieve that Barto would continue to work past his statistical work-life expectancy. The only relevant evidence Barto presented at trial was his testimony that he plans to work ‘[a]s long as I can retire. Whatever the retirement age is.’ This scant evidence was not enough to show that Barto ‘by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average.'”  Barto v. Shore Construction LLC, No. 14-31326 (revised Sept. 29, 2015).

Illegal, but admissible? (THIS OPINION LATER WITHDRAWN)

pharmacy_logo_for_webThe issue in Kovaly v. Wal-Mart was whether a pharmacist was negligent in not providing a 72-hour emergency supply of a patient’s medicine, despite some confusion about the quantity in the prescription issued by the patient’s physician.  No. 14-20697 (Aug. 12, 2015, unpublished).  The district court found that Brooke, the plaintiff’s expert, was well-qualified by experience and training to testify about the standard of care.  The district court went on to hold, however, that “nothing in the regulations definitively authorizes a pharmacist to provide a 72-hour emergency supply for an original prescription, and it concluded that doing so would actually violate Texas law,” and thus excluded his opinions as unreliable.  The Fifth Circuit reversed, concluding: “Even if Brooke’s opinion that the pharmacist legally could have filled the emergency supply is an incorrect interpretation of Texas law, that does not render it unreliable in light of his qualifications, experience, and foundation for the opinion.”  In support, the Court cites several cases about the ultimate “correctness” of an expert’s factual conclusion.

Causation experts stricken; manfuacturer wins summary judgment.

rangePlaintiffs sued Whirlpool, alleging that a gas range it manufactured made them sick from carbon monoxide emissions.  They offered two causation experts, whose testimony was stricken by the district court under Daubert, which the Fifth Circuit affirmed.  The first opined about the “general causation” link connection between carbon monoxide and health problems, but the main studies he relied on involved significantly higher concentrations than what was measured in Plainitffs’ apartment.  The second, an “accomplished engineer with significant expertise in vehicular accident reconstruction and fire and explosion analysis,” did not have expertise on the issue in this case: “No gas appliance fire is at issue in this case; rather, the core claim here is that the gas range was defective because it emitted carbon monoxide in excess of an amount that is safe.”  Macy v. Whirlpool Corp., No. 14-20603 (June 4, 2015, unpublished).

No, that’s not why I did it.

metocPlaintiff alleged birth defects from the prescription of metoclopramide, off-label, to control nausea during pregnancy. The prescribing doctor gave “unequivocal” deposition testimony that he chose the medicine because of his clinical experience, and had no contact with marketing efforts by the drug manufacturer.  Accordingly, preempted or not, plaintiff’s claims failed for lack of causation. Whitener v. Pliva, Inc., No. 14-30468 (April 9, 2015, unpublished).

They are lumberjacks and they’re OK

paul bunyan and babeThe issue in Lowman v. Jerry Whitaker Timber Contractors, LLC was whether certain timber companies had vicarious liability for allegedly unlawful logging activities, in DeSoto Parish, Louisiana, in violation of that state’s timber cutting statute. Evidence showed that the loggers sold timber to the mills and in return received a “scale ticket” — a sort of commercial paper that can be bought and sold and allows small loggers immediate access to sale proceeds — which featured a description of the wood. Plaintiffs offered an affidavit from a state investigator who described the defendants’ “prior schemes involving the theft of timber and the falsifying of scale tickets,” and opined that he saw “‘the same pattern’ of activity” here. The Fifth Circuit affirmed summary judgment for the defendants, finding that the evidence showed no connection between the tickets he reviewed and the timber at issue, much less any “right of control or supervision” by the defendants over the loggers.  No. 14-30787 (Feb. 10, 2015, unpublished).