The Daubert Standard and Medical Negligence Cases: A Flexible Test of Reliability
It has now been over three years since the Daubert standard went into effect in Wisconsin. However, since that time the courts seem to vary widely in their willingness to enforce it to exclude expert testimony. In medical negligence cases, excluding a plaintiff’s expert testimony will often mean summary judgment for the defense because medical negligence cases require expert testimony. This author’s impression is that this makes courts more hesitant to exclude the testimony. However, bringing a Daubert motion is still necessary to pre- serve the issue and it may be successful in preparing the court to make a favorable ruling later in the case.
This Article will begin with a review of key Daubert- based decisions. Next it will discuss variations throughout the country in applying Daubert to medical negligence cases, as well as Wisconsin decisions on the issue. Finally, the Article will conclude with a discussion of some of the ways this author has seen expert opinions challenged since the change to the statute.
I. The Daubert Standard
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United State Supreme Court held that the trial court had a gatekeeping obligation to test the reliability of expert testimony by evaluating the expert’s theory or technique using the following factors: (1) whether the expert’s theory or technique can be and has been tested; (2) whether it has been subjected to peer review or publication; (3) whether it has a high known or potential rate of error and standards controlling the technique’s operation; and (4) whether it enjoys general acceptance within a relevant scientific community.1
2011 Wisconsin Act 2 revised Wisconsin’s expert testimony statute to reflect the language of Federal Rule of Evidence 702 and to codify the U.S. Supreme Court’s decision in Daubert. Wisconsin Stat. § 907.02 now provides:
(1) 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 the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.
II. The Daubert Standard Was Intended to Be a Flexible Test of Reliability.
Six years after the U.S. Supreme Court’s decision in Daubert, the court clarified that Daubert’s general holding applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” or other “specialized” knowledge.2 In Kumho Tire Company, Ltd. v. Carmichael, the U.S. Supreme Court observed that the test of reliability is flexible, and the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.3 There are times where it will “be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.”4 The objective of Daubert’s gatekeeping requirement is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.5
Specifically, in Kumho Tire, the district court did not doubt plaintiff’s tire expert’s qualifications, which included a master’s degree in mechanical engineering, ten years’ work at a tire manufacturer, and testimony as a tire failure consultant in other tort cases.6 However, it excluded the expert’s testimony because, despite the expert’s qualifications, it initially doubted and then found unreliable the methodology employed by the expert.7 The U.S. Supreme Court affirmed the decision of the district court because nothing in either Daubert or the Federal Rules of Evidence required a district court to admit opinion evidence that was connected to existing data only by the ipse dixit of the expert.8
The 7th Circuit has since held that expert “intuition” is insufficient to support a claim. In Zenith Electronics Corp. v. WH-TV Broadcasting Corp., the 7th Circuit rejected the opinions of defendant WH-TV’s business expert with regard to WH-TV’s lost profits because the expert failed to look outside the defendant’s market for a comparison basis which meant the expert did not have sufficient facts, the expert all but conceded that he did not apply reliable principles and methods, and the expert testified his“method” was “his expertise.”9 The 7th Circuit held: “A witness who invokes ‘my expertise’ rather than analytic strategies widely used by specialists is not an expert as Rule 702 defines that term. [The expert] may be the world’s leading student of [the topic], but if he could not or would not explain how his conclusions met the Rule’s requirements, he was not entitled to give expert testimony. As we so often reiterate: ‘An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.’”10
III. States Have Varied in Applying the Standard to Medical Negligence Cases Since the Decisions in Daubert and Kumho Tire.
States have varied in whether and how to apply the Daubert standard to medical negligence cases. Because the case law applying the Daubert standard to medical negligence cases in Wisconsin is extremely limited, it is likely that plaintiffs will use law from other states to argue that the standard does not apply. Some of these cases are discussed here.
A. Montana: Gilkey v. Schweitzer
In Gilkey v. Schweitzer,11 the Montana Supreme Court ruled that the trial court erred in applying Daubert to exclude an expert’s testimony as to the standard of care required to obtain informed consent for an anesthesiology procedure. The Montana court noted that the “Daubert test should be used only to determine the admissibility of novel scientific evidence.”12 Because the testimony as to the standard of care was only a result of the expert’s specialized medical knowledge, not of novel scientific evidence, it was not subject to the Daubert foundational requirements.
In coming to this conclusion, the Supreme Court of Montana may not have considered the U.S. Supreme Court’s decision in Kumho Tire. The briefing by the parties in Gilkey was completed only one week after the Kumho Tire decision came out. Since Kumho Tire specifically applied Daubert to “specialized knowledge,” one would expect the court in Gilkey to have stated that it was explicitly rejecting Kumho Tire if that was what it intended to do.
B. Massachusetts: Palandjian v. Foster
In Palandjian v. Foster,13 the Supreme Court of Massachusetts held that expert testimony concerning the standard of care generally need not be subject to a Daubert analysis. It held that “it need not be scientifically tested or proven effective: what the average qualified physician would do in a particular situation is the standard of care.”14 Such testimony is based on the expert’s knowledge of the care provided by other qualified physicians, not on scientific theory or research: “How physicians practice medicine is a fact, not an opinion derived from data or other scientific inquiry by employing a recognized methodology.”15 Because the standard of care is determined by the care that the average qualified physician would provide, it is “generally accepted” almost by definition.16 Moreover, the methodology employed by an expert testifying to the applicable standard of care will be based on the expert’s experience and education.17
The Palandjian court thought it was difficult to imagine how Daubert would apply to testimony concerning the standard of care.18 That said, the court did distinguish that, when an expert witness incorporates scientific fact into a statement concerning the standard of care, that science may be subject to the Daubert analysis.19
C. Sixth Circuit: Dickenson v. Cardiac & Thoracic Surgery of East Tennessee, P.C.
In Dickenson v. Cardiac & Thoracic Surgery of East Tennessee, P.C.,20 a 6th Circuit case, the plaintiff was prematurely extubated following a heart bypass surgery, leading to poor oxygenation and brain damage.21 Plaintiff’s cardiac surgery expert gave an opinion that the timing of the extubation was below the standard of care.22 As a basis for his opinion he cited his experience with the post-operative care of cardiac patients.23 The defense moved for summary judgment arguing that the surgeon was not qualified to offer an opinion on ventilation because he was not a pulmonologist, did not review pulmonology literature, and was not familiar with the ventilating medical equipment.24
The 6th Circuit held that Daubert’s role of excluding junk science from courts is not served by excluding testimony from a practitioner with extensive relevant experience.25 It felt such exclusion is rarely justified in cases involving medical experts, as opposed to supposed experts in the area of product liability.26 The court did not reject the Daubert analysis for the medical negligence case, however; it just concluded that the expert’s extensive experience in that case was sufficient to meet the standard.
D. Other States’ Exclusion of Testimony Based on the Daubert Standard
While some states have rejected Daubert or only used it loosely for medical negligence cases, the federal courts have applied it to exclude testimony. For example, the 9th Circuit has noted that while the Daubert factors were not intended to be exhaustive or unduly restrictive, district courts should still proceed as good surgeons would in determining what is reliable knowledge in the surgical profession.27
In Berk v. St. Vincent’s Hospital, the Southern District of New York excluded plaintiff’s expert testimony in a medical negligence case based on Daubert.28 The court noted that it had to analyze the first prong of the Daubert inquiry by evaluating the expert’s methodology or reasoning leading to his conclusions.29 In engaging in this evaluation, the court had to examine not only the validity of the expert’s methodology, but also the analytical connection between the application of the expert’s proffered theory to the facts at issue in the case.30 When an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.31 The district court focused on the reliability prong of Daubert, and determined that plaintiff’s expert relied on an erroneous version of the facts.32 Further, the expert had not reviewed any deposition testimony when he came to his conclusions in the case.33 There was too great an analytical gap between the data and the opinion for the expert’s conclusion that the defendant had committed medical malpractice.34 Accordingly, the court excluded the opinion.
IV. Wisconsin Decisions
Wisconsin’s federal courts have also applied the Daubert criteria to medical negligence cases. In Williams v. Health Professionals Ltd., the Eastern District of Wisconsin granted summary judgment to the defendant physician in a medical malpractice case based on a Daubert evaluation of the plaintiff’s expert opinion.35 While plaintiff’s expert’s report established breach, cause, and damages, once the expert was presented with additional facts at deposition, he could no longer testify that the defendant physician breached the standard of care, nor that the defendant’s care caused damages.36 As a result, the plaintiff did not have sufficient expert testimony under Daubert to support his medical negligence case.37
In Wallace v. McGlothan, the 7th Circuit reviewed whether the plaintiff’s evidence in a medical negligence case pertaining to a negligently performed LASIK surgery was sufficient to support a verdict in favor of the plaintiff.38 The defense contended that plaintiff’s expert’s opinions were not reliable according to Daubert.39 Because the defense had not objected to the reliability at the trial court level, the appellate court determined the argument was forfeited, but it also did not reject the defendant’s contention that Daubert would have applied to test the expert’s testimony in a medical negligence case.40
In Armagost v. Gundersen Clinic, Ltd., the Wisconsin Court of Appeals foreshadowed in an unpublished decision that the Daubert standard will apply to medical negligence cases under the newly revised Wis. Stat. § 907.02.41 The court of appeals observed that, effective February 1, 2011, Wisconsin adopted the reliability standard set forth in Federal Rule of Evidence 702, including the Daubert analysis.42 That said, Daubert did not apply in Armagost because the case had been filed before the statutory change.43
Finally, on January 22, 2014, the Wisconsin Court of Appeals issued Rupert v. Tandias, an unpublished, per curiam opinion concluding that the Daubert standard, set forth in Wis. Stat. § 907.02(1), applies to medical standard of care testimony.44 The court observed that, “quite simply, the statute does not set forth any exceptions to its application to expert testimony. The statute’s meaning is plain.”45 Despite the plaintiff’s argument in Rupert that Daubert did not apply to medical negligence cases in Wisconsin because Daubert turned upon highly technical scientific testimony, the court noted that Kumho Tire explained that Daubert applied not only to testimony based on scientific knowledge, but also to testimony based on “technical” or other “specialized” knowledge.46 The test of reliability is flexible.47
V. Practical Application in Wisconsin
Since the change in the statute, this author has had the opportunity to challenge expert opinions in medical negligence cases using the Daubert criteria. These experiences are shared here with the hope that the specific examples will help defense counsel to identify the various ways an expert opinion can be confronted.
A. Attacking Qualifications
In an Outagamie County case, the plaintiff alleged that the defendant family practitioner misdiagnosed the plaintiff with bipolar II disorder. The physician then prescribed a medication, Lamictal, for the plaintiff, who developed a severe and life threatening reaction to the medication involving her skin sloughing off.
Plaintiff’s expert was a family practitioner from Florida who spent most of his professional time treating auto accident and workers compensation patients. The expert also had over a day a week dedicated to his medical-legal work. In the prior 15 years, the expert had developed a differential diagnosis of bipolar disorder 3-5 times, and each time he sent those patients to a psychiatrist for verification of the diagnosis. The expert had never initiated treatment in a patient with Lamictal, and he did not understand how it functioned as a mood stabilizer.
At deposition, the expert’s sole criticism was that the defendant failed to document the specifics of plaintiff’s symptoms and of her hypomanicepisodes. He disregarded the defendant’s deposition testimony and essentially opined that he did not believe the documentation adequately supported the diagnosis. However, he did not opine the defendant misdiagnosed the plaintiff, that she breached the standard of care by prescribing Lamictal, or that any breach by the defendant caused the plaintiff’s injury. With this deposition testimony, we moved for summary judgment. The court denied the motion, and at trial the expert attempted to develop new, more substantial opinions that there was a misdiagnosis. The jury returned a no negligence and no cause verdict.
During summary judgment and trial, we felt strongly that the expert was not qualified to offer the relevant liability opinions, even though he was a family practitioner like the defendant. On the specific issue of diagnosing bipolar disorder, he had almost no experience or training. When it came to cause, he did not know if Lamictal was an appropriate treatment for bipolar II, and he did not know that it was also an appropriate treatment for depression (which is what plaintiff believed was her correct diagnosis). While the jury ultimately returned a favorable verdict, it was frustrating that the court forced the case to go through trial when the expert’s lack of qualifications and standard of care opinions were so striking.
B. An Insufficient Opinion
In an Oconto County case involving a bunionectomy, plaintiff’s expert was a well-qualified foot and ankle surgeon that had performed thousands of bunionectomies in his career. However, at deposition he admitted he had formed his opinions in the case based on review of only one post- operative x-ray. By the time of trial, the expert had reviewed additional materials, but still admitted that he had formed his opinions after reviewing only the one post-operative x-ray. The expert defined the standard of care as “do not remove excessive bone,” and “do not violate the articular cartilage of the joint.” While he put up these standards, his trial testimony was only that the surgeon removed excessive bone. He never testified that the surgeon violated the articular cartilage.
Finally, his standard of “do not violate the articular cartilage” was also internally inconsistent because he admitted: (1) there was no guideline for what percentage of contact must remain between the articular surfaces after the bunionectomy; (2) there could be circumstances where leaving only 75% articular surface contact after the procedure could be within the standard of care; (3) there was no guideline for how many millimeters of bone should be removed before the joint is compromised; and (4) if the surgeon had maintained 100% articular surface contact, he could not say the outcome would have been any different.
We moved for a directed verdict after the close of plaintiff’s case arguing that the expert did not define a discernible standard of care, nor did he testify that there was a breach of a definable standard of care. The court denied the motion at that time, and the jury was unable to reach a verdict. In post-trial motions, the court granted our renewed motion for directed verdict.
The plaintiff appealed, arguing her expert’s opinion was based on his vast experience and was, therefore, inherently reliable. We argued that the expert’s opinion had no methodology and no analytical connection when his baseline conclusion was that the surgeon removed excessive bone. There was no substance to his opinion that too much bone had been removed, aside from his claim that it was because he said so. His opinion was an ipse dixit opinion, and inherently unreliable.
The court of appeals, in Rupert, affirmed the circuit court’s decision granting a directed verdict in our favor, noting, “While [plaintiff’s expert] opined generally that [the surgeon] removed too much bone during the procedure, the question remains: excessive compared to what?”48 In fact, the court of appeals stated that it would have affirmed even if Daubert did not apply.49
In sum, since the passage of the revised Wis. Stat. § 907.02, Wisconsin courts have indicated the Daubert criteria will be applied to medical negligence cases. The criteria should be adapted for a more flexible approach to test the reliability of “medical judgment,” which is not always conducive to a set formula or guideline. The same flexibility will likely be necessary in other types of cases involving judgment, as opposed to strict scientific or technical standards. In turn, while expert opinions should be challenged with the Daubert criteria, this author has not yet seen courts willing to apply it before a verdict, which would usually result in dismissal of plaintiff’s case.
1 509 U.S. 579, 592-594 (1993).
2 Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137,141 (1999).
3 Id. at 142, 152.
4 Id. at 151.
5 Id. at 152.
6 Id. at 153.
8 Id. at 157.
9 395 F.3d 416, 418 (7th Cir. 2005).
10 Id. at 419.
11 983 P.2d 869 (Mont. 1999).
12 Id. at 871 (quoting Hulse v. Montana, 961 P.2d 75, 91 (Mont. 1998)).
13 446 Mass. 100, 842 N.E.2d 916 (Mass. 2006).
14 Id. at 105.
15 Id. at 108.
16 Id. at 108 n.12.
19 See id. at 108.
20 388 F.3d 976 (6th Cir. 2004).
21 Id. at 977-78.
22 Id. at 981.
23 Id. at 979.
24 Id. at 979-80.
25 Id. at 982.
27 See Sullivan v. United States Department of the Navy,365 F.3d 827, 833 (9th Cir. 2004) (citing United States v.Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000)).
28 380 F. Supp. 2d 334, 349 (S.D.N.Y. 2005).
29 Id. at 350.
32 Id. at 352.
34 Id. at 353.
35 2012 U.S. District LEXIS 26704, at *21 (E.D. Wis. 2012) (unpublished decision).
38 606 F.3d 410 (7th Cir. 2010).
39 Id. at 421.
41 Appeal No. 2011AP522, ¶ 15 n.2 (Ct. App. May 31, 2012) (unpublished decision).
44 Appeal No. 2013AP1705, ¶ 8 (Ct. App. Jan. 22, 2014) (unpublished decision).
46 Id., ¶ 9.
48 Id., ¶ 8 n.5.