Having three experts couldn’t save plaintiff’s claims in Robinson v. Davol Inc., 2019 WL 275555 (7th Cir. Jan. 22, 2019). Plaintiffs’ decedent underwent surgery involving a surgical mesh patch and approximately one year later, she developed an abdominal wall abscess that led to various infections that ultimately led to her death. Id. at *2. The model of the mesh patch used in the surgery was the subject of a recall a few months after the decedent’s surgery. Id. The reason for the recall was that the design of the patch caused it to adhere to the bowel or to break and perforate organs. Id. at *1.
An autopsy concluded that decedent’s death was caused by pneumonia and complications therefrom. The autopsy report also reported abdominal adhesions but noted that the “small bowel and colon [were] intact without perforation.” Id. at *2. Despite that conclusion, plaintiffs filed suit under the Indiana Products Liability Act alleging that decedent’s injuries were caused by the mesh patch. The district court granted summary judgment after excluding all three of plaintiffs’ experts and the Seventh Circuit affirmed.
Plaintiffs’ first expert was Dr. William Hyman, a biomedical engineer who opined that the device was “inherently dangerous” and then speculated that the device caused decedent’s injuries. But Dr. Hyman had to concede that he had never examined the images of the mesh patch used in decedent’s surgery and that he wasn’t qualified to offer an opinion “on the microbiology of her infection.” Id. at *3. In other words, he wasn’t offering a causation opinion. First strike.
Plaintiffs’ second expert was the coroner who had performed decedent’s autopsy. He tried to distance himself from his original findings by testifying that “there could have been superficial breaches scarred over with additional inflammation” and the adhesions “suggested the possibility of a breach.” Id. As it turns out, plaintiffs neglected to disclose that they would be relying on the coroner as an expert and so his opinion was excluded on that ground. Id. Strike two.
That left only plaintiffs’ medical expert, Dr. Stephen Ferzoco. Dr. Ferzoco had testified in other mesh cases where the device broke or adhered to the intestines. But because those things didn’t happen to decedent, Dr. Ferzoco came up with a new suggestion of causation – that the device didn’t break, but “buckled,” rubbed up against the bowel, and caused a perforation that “sealed up” prior to the explantation of the device. Id. at *2.
New theories may be OK, but they still have to pass Daubert. Dr. Ferzoco’s causation theory had never been presented in any formal or professional setting and was not published in any medical literature. His only support for his theory was that he had seen it in other patients, but he was unwilling to identify those patients or provide their medical records for corroboration. He also admitted, there was no support for his conclusions in either the decedent’s medical records or the autopsy report. Id. at *3. So the district court excluded his opinion as failing to meet the reliability threshold of FRE 702.
On appeal, plaintiffs only challenged the court’s ruling as to Dr. Ferzoco without whom they could not establish medical causation, an essential element of their claim. The Seventh Circuit agreed with the district court’s reasoning based on the facts identified but they also had one more to consider. Plaintiffs argued for the first time on appeal that Dr. Ferzoco’s conclusion was the “equivalent of a differential diagnosis.” Id. at *4. Putting aside the procedural argument that you can’t raise issues for the first time on appeal, do we really need to bastardize differential diagnoses any further? Doctors perform differential diagnoses to diagnose disease in their patients so they can eliminate possibilities and prescribe the most effective treatment. They do not use differential diagnoses in the regular course of clinical practice to determine substantial factor causation, which is a litigation-driven concept. You can find plenty of our thoughts on differential diagnosis in prior posts. We certainly don’t welcome any equivalents.
Fortunately, the court didn’t have open arms either. An expert’s decision “to rule in or rule out potential causes must itself be scientifically valid.” In other words, you can’t “rule in” an unsupported causation theory. “Dr. Ferzoco needed to establish the reliability of his [buckling] theory in order to rule [it] in as a potential cause of [decedent’s] death.” Id. “Differential diagnosis” isn’t a magic incantation that gets a causation opinion over the Daubert hurdle. All the standard scientific processes must be in place.
And with strike three . . . plaintiffs are out.