Saturday, April 24, 2004

9th Circuit on Causation Testimony in Medmal Case: Kumho Tire More Apposite Than Daubert

The Ninth Circuit has published an opinion reversing the trial court's exclusion of plaintiff's causation testimony in a surgical malpractice case. In doing so, the panel held that although Daubert was "relevant," the standards of reliability for experience-based testimony announced by the Supreme Court in Kumho Tire were "more apposite."

The facts: Following a mastectomy, the plaintiff underwent breast reconstruction surgery. For reasons including complications with equipment in the operating room, the reconstruction lasted thirteen hours -- considerably longer than usual. The plaintiff voiced post-operative complaints that she felt a "hole" in her back, near the site where tissue had been harvested for the reconstruction. The surgeon initially advised the patient that she was experiencing a seroma ("an area of skin and tissue that sometimes goes dead during surgery," as the surgeon explained it). But when the bandages were removed a week later, there was a wound in the patient's back, with necrotic tissue subsequently attributed to an infection. The surgeon performed an additional procedure to debride the wound. The plaintiff suffered severe scarring and subsequently experienced muscle weakness in her lower back. She later had additional surgery to correct the disfigurement of her back.

A malpractice action followed. The plaintiff's expert, a professor of clinical surgery at the University of California at San Diego and director of its Breast Care Unit, opined that the unusual length of the reconstructive surgery increased the risk of complications at the donor site, including infection and necrosis. The district court excluded her testimony under Daubert and awarded summary judgment. The district court's ruling rested in part on its conclusion that the patient's infection occurred close to the site of a surgical drain near the plaintiff's armpit, and not near the wound at the harvest site. The district court also concluded that the harvest site showed mere bruising. Plaintiff's expert, the district court said, "has not set forth the steps used to reach the conclusion that literature addressing the effect of operative length on the incidence of surgical wound infections is analogous to the effect of operative length on the incidence of surgical drain infections, much less how that literature applies to bruising at the skin harvest site."

The Ninth Circuit reversed, resting its ruling on two independent grounds. First, it held that the district court's ruling rested on erroneous conclusions concerning legitimately disputed issues of fact (the location of the infection, the nature of the wound). That, according to the panel, was sufficient ground for reversal.

But the panel went further. "Even if the district court had not abused its discretion by misapprehending the evidence," the panel held, "it applied an inappropriately rigid Daubert standard to medical expert testimony." The Kumho Tire standards for experience-based testimony, it said, were more apposite:

The principle that the duration of the surgery bears on the likelihood of infection appears to be generally accepted. It is a particular application of broader principles going back to Pasteur and Lister on the role of bacteria and the likelihood of bacteria infecting open wounds. The application of both the broader and narrower principles to the case at hand is properly the domain of a surgeon experienced in the field. The textbooks cannot say what increase in the risk of infection is probable in the case; that estimate may be made by the expert putting the principles to work. Therefore, the district court abused its discretion and invaded the province of the expert by requiring the texts to state the precise type of harm explained by the specialized testimony of a medical expert.
The appellate court remanded the case for a new determination on the admissibility of the expert's testimony, directing the trial court "to proceed as a good surgeon would in determining what is reliable knowledge in the surgical profession."

The panel also ordered the reassignment of the case on remand. It specifically disclaimed any belief that the trial judge could be charged with bias, but because this was an FTCA action, the judge would also act as trier of fact. The panel believed that because the district judge had embraced the defendant's account of the facts, it would be difficult for him to try the matter with an open mind.

See Sullivan v. United States Dep't of the Navy, No. 02-57006 (9th Cir. Apr. 23, 2004) (Noonan, Thomas, & Bea, JJ.).
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.