We told you last year about a district court’s favorable Daubert ruling in one of the cases alleging that a bupivacaine shoulder pain pump caused chondrolysis (a breakdown of the cartilage in the shoulder joint). The district court rejected a well-qualified doctor’s general causation opinion under Daubert and, for good measure, rejected his specific causation opinion. The Eleventh Circuit recently affirmed that ruling in an opinion available here. Kilpatrick v. Breg, Inc., No. 09-13813 (11th Cir. Aug. 12, 2010).

Because the Eleventh Circuit opinion approvingly rehashes the trial court opinion we analyzed last year, we’ll just give you the highlights:

Animal studies: Studies of bupivacaine use on cows and rabbits were not reliable under Daubert because, among other reasons, the studies did not provide data on the human equivalent of the dose given to the animals or explain how their results applied to humans. Id. at 16, 21.

Case reports: Unreliable because they did not include any statistical analysis, account for other causes, or reach a conclusion about the general causation of chondrolysis. Id. at 13-14, 17-18.

Editorial: An editorial is not a scientific study or even a case report. Everyone who reads scientific literature knows that an editorial does not provide an adequate basis for a scientific judgment, and even plaintiff’s expert Dr. Poehling agreed. Id. at 19.

Claim that expert relied on articles not identified in his deposition: On appeal, Kilpatrick argued that his expert relied on six articles that the district court did not consider. But those articles “are nowhere mentioned in Dr. Poehling’s deposition testimony despite extensive and repeated requests by Breg’s counsel exhorting Dr. Poehling to identify every single article and study he relied upon.” Id. at 22. The good doctor’s vague reference to various other articles on his home computer did not allow him to rely on those articles because he did not identify the articles. Id.

Any lawyer who has tried to pin down an expert about what, exactly, the expert relied on should recognize this testimony and be gratified with the result. Sometimes that hard work at deposition pays off on appeal.

Background risks: A reliable methodology should consider background risks, the court said, but neither Dr. Poehling nor the articles upon which he relied considered the background risks of chondrolysis. Id. at 24. That failure placed the reliability of his conclusions in doubt. Id.
Temporal relationship: Other than the unreliable literature, the only support for Dr. Poehling’s specific causation opinion was the temporal relationship between Kilpatrick’s shoulder surgery and chondrolysis. The court reiterated that temporal relationship is inherently unreliable to show specific causation. Id. at 25, 27.

Differential diagnosis: Dr. Poehling tried to support his specific causation opinion with differential diagnosis, a reliable methodology, but his application of that methodology was flawed. “In order to correctly apply this methodology, Dr. Poehling must have [compiled] a comprehensive list of potential causes of Kilpatrick’s injury and must have explained why potential alternative causes were ruled out.” Id. at 26. He didn’t do that. He ruled out only two causes and could not explain why unknown or idiopathic alterative causes were not ruled out. Id.
Even though its opinion confirms that the trial judge was right, the Eleventh Circuit concluded by emphasizing the broad discretion given to district courts when conducting a Daubert analysis. The appellate court referred to the deference given to the district court’s Daubert analysis as “the heavy thumb – really a thumb and a finger or two – that is put on the district court’s side of the scale.” Slip op. at 29 (citation omitted). And so the trial judge’s decision to give the expert the thumb was affirmed.