“Pushing Against The Current”: Medical Expert Testimony Need Not Be “Conclusive” To Admit Under Daubert Standard

Extensive experience can be an appropriate Daubert, foundation for admission of medical expert testimony and the expert’s opinion “need not be conclusive”; trial court’s exclusion of medical expert who “didn’t see … didn’t examine … didn’t talk to” patient and with “no peer review … no publication” was reversed as “pushing against the current” of FRE 702 interpretation in the Ninth (and other) Circuits, in Primiano v. Cook, 598 F.3d 558 (9th Cir. March 10, 2010) (No. 06-15563)

It is often easy to conflate expertise with certainty – and it is often said of an expert that while they will occasionally be wrong, they are never uncertain. In the decision whether to admit expert testimony under FRE 702, this confusion of expertise with certainty does not persist. Even before the landmark decision in Daubert, courts had noted that a conclusive opinion was not a precondition to admit expert testimony. See, e.g., United States v. Hardrich, 707 F.2d 992, 994 (8th Cir. 1983) (handwriting expert’s testimony that signatures may have been written by defendant was admissible even though the opinion proffered was not conclusive). A recent Ninth Circuit case revisited the issue of the necessity of an equivalence of expertise and certainty. The opinion is instructive for identifying a circuit consensus on how an indeterminant opinion by a expert might still be helpful to the jury and therefore be admissible under FRE 702.

In the case, plaintiff Primiano brought a medical product defect suit against the makers of an artificial elbow that had been surgically implanted in her after she broke her elbow. Subsequent to the procedure, the plaintiff suffered complications and underwent four additional elbow surgeries which eventually ended with her surgeon replacing the defendant’s elbow device with that of a competitor. The district judge granted summary judgment for the defendant. The court excluded the plaintiff’s medical expert testimony concerning the defect in the defendant’s elbow prosthesis device as he “failed to perform in a manner reasonably to be expected by a surgeon using it, because it failed too early.” The district judge excluded this testimony as failing to meet the standards of FRE 702 and
Daubert because it:

“would not be helpful to the jury. The judge reasoned: ‘Well, I mean it’s like res ipsa loquitur, the elbow failed. Now, why did it fail? Maybe it was malpractice, maybe it was [the plaintiff’s surgeon] Dr. Tait.’ The evidence of rapid wear ‘doesn’t make it defective.’ ‘I think [Dr. [Weiss]’s] opinion is weakened by the fact that he didn’t see the plaintiff. He didn’t examine her. He didn’t talk to her.’ ‘[T]here’s no peer review … no publication … there’s got to be an objective source that he relies on.’ The court rejected plaintiff’s argument, that testimony that the premature failure was not attributable to overuse, medical malpractice, ‘her physiology,’ or other factors external to the device, would assist the jury.”

Primiano, 598 F.3d at 563.

The Ninth Circuit reversed the summary judgment, noting that the case involved “admissibility under Daubert of medical testimony.” The circuit premised its analysis on “guidance in the cases for applying Daubert to physicians’ testimony.” In particular:

“‘A trial court should admit medical expert testimony if physicians would accept it as useful and reliable,’ but it need not be conclusive because ‘medical knowledge is often uncertain.’ ‘The human body is complex, etiology is often uncertain, and ethical concerns often prevent double-blind studies calculated to establish statistical proof.’ Where the foundation is sufficient, the litigant is ‘entitled to have the jury decide upon [the experts’] credibility, rather than the judge.’”

Primiano, 598 F.3d at 566 (footnotes omitted; quoting United States v. Sandoval-Mendoza, 472 F.3d 645, 655-56 (9th Cir. 2006) ). This also reflected the findings of other circuits:

“Other circuits have taken similar approaches focusing especially on experience. The Sixth Circuit held that a district court abused its discretion by excluding a physician’s testimony based on extensive, relevant experience even though he had not cited medical literature supporting his view. Likewise the Third Circuit pointed out that a doctor’s experience might be good reason to admit his testimony. Thus under our precedents and those of other circuits, the district court in this case was pushing against the current, but that alone does not imply an abuse of discretion.”

Primiano, 598 F.3d at 566 (footnotes omitted; citing Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F .3d 976, 982 (6th Cir. 2004) ; Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 406-07 (3d Cir. 2003)) .

The circuit focused on three factors in reaching its conclusion that the exclusion of the expert medical opinion was erroneous. First, the circuit examined the “foundation” for the expert opinion. The expert was qualified to “render an opinion on elbow replacements” as:

“a board certified orthopedic surgeon and a professor at Brown University School of Medicine in the Division of Hand, Upper Extremity and Microvascular Surgery, … has published over a hundred articles in peer-reviewed medical journals including several specifically on the elbow … He has years of experience implanting various elbow prosthetics and has performed five to ten revisions of total elbow replacements that had been performed by other physicians. He has examined the various types of prosthetics available, and has maintained familiarity with the peer-reviewed literature. He testified that the very short lifespan of Ms. Primiano’s artifical elbow is ‘outside of my review of the known literature.’ He conceded on cross examination that there was ‘no published peer-reviewed article that [I’m] aware of that states a strict minimum lifespan of a polyethylene component in a total elbow system,’ but explained that ‘I wouldn’t expect any literature, because you don’t see it. It’s hard to write a paper about something that doesn’t occur. I mean, this is really bizarre.’”

Primiano, 598 F.3d at 566 (footnote omitted)

Second, the circuit found the district judge abused his discretion in concluding that the expert’s testimony would not assist the jury. This finding was based on the district judge’s expectation that the expert should be able to say “why the plastic part of the artificial elbow failed so quickly.” Such an opinion was not required, explained the circuit, because requirement to assist the jury “under Daubert, ‘goes primarily to relevance.’” Relevance depending on “what must be proved” which under the law of the forum state, Nevada, was only that the product not “fail to perform in the manner reasonably to be expected in light of their nature and intended function.” Accordingly, since the expert “with a sufficient basis in education and experience, testified that the artificial joint ‘fail[ed] to perform in the manner reasonably to be expected in light of [its] nature and intended function,’ that was enough to assist the trier of fact. He did not have to know why it failed.” Primiano, 598 F.3d at 567 (footnotes omitted; citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993); Allison v. Merck & Co., 878 P.2d 948, 952 (Nev. 1994) (Nevada standard for product liability)).

The circuit also discounted the district judge’s concern that the expert’s opinion did not satisfy other discretionary factors identified by Daubert. The circuit concluded that the expert’s “background and experience, and his explanation of his opinion, leave room for only one conclusion regarding its admissibility. It had to be admitted. Once admitted, the opinion precluded summary judgment.” Sufficient foundation was shown for admission of the opinion, so any deficiency in other Daubert factors went to the weight of the opinion, not admissibility:

“The district court’s other concerns, that Dr. Weiss never saw or talked to Ms. Primiano, and there was no publication supporting his opinion that the device failed extraordinarily early, both might be useful to the jury as impeachment, but neither furnished an adequate basis for excluding his opinion. What he most needed to see was what was inside her arm, not outside it, and he did. He saw the x-rays. He also saw the polyethylene from the implant installed in Primiano’s first surgery. As for lack of a publication backing his opinion up, Daubert offers several reasons why an opinion unsupported by peer-reviewed publication may be admissible, and Dr. Weiss furnished another one, that the phenomenon is so extraordinary that the specialists who publish articles do not see it in their practices.”

Primiano, 598 F.3d at 567 (footnote omitted).

That expert opinion may be less than definitive or certain is a view shared by more than the Third and Sixth Circuits, as suggested in Primiano. For instance, in the past decade, the Seventh Circuit as also suggested this lack of equivalence. See United States v. Allen, 390 F.3d 944, 949 (7th Cir. 2004) (??Daubert?? satisfied by proffer of expert’s shoe print testimony, which although “inconclusive” was sufficient to aid the jury in considering whether the defendant’s shoes “could have made” the prints found); Walker v. Soo Line R. Co., 208 F.3d 581, 587 (7th Cir. 2000) (reversible error to exclude expert psychologist testimony concerning impact of lightening strike on plaintiff’s mental state, despite fact that the expert could not “state definitively” that electric strike caused plaintiff’s drop in IQ).


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