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Admissibility Rate: .463    (44/95) 

Feliciano-Hill v. Principi, 439 F.3d 18 (1st Cir. 2006).  Defendant in disability claim presents trial testimony from physician Dr. Ramades Sierra-Zorita, who opines that plaintiff does not have rheumatoid arthritis and does not appear to be disabled.  Plaintiff objects but district court finds testimony reliable and plaintiff's objection untimely.  Jury finds for defendant.  Admissibility affirmed.  District court properly found plaintiff's objection untimely because plaintiff was in possession of physician's expert report for months and yet raised no objection until shortly before physician took the stand.  Nor did district court err in finding physician's testimony reliable.  She did not invoke novel medical theories, and there was no requirement that she cite to published literature to support her routine diagnostic opinion. 

Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15 (1st Cir. 2003).  Abortion clinic performs suction curettage procedure intended to terminate woman's pregnancy.  On experiencing acute abdominal pain two weeks later, woman visits emergency room, where remains of ruptured ectopic pregnancy are removed.  In malpractice suit against abortion clinic, woman offers testimony from general practitioner, Dr. Jose Rodriguez, to show that clinic failed to satisfy prevailing standard of care during examination that missed ectopic pregnancy.  Defendants object that GP is unqualified to opine on standard of care, because he is neither gynecologist nor obstetrician.  District court overrules objection and jury finds for plaintiff.  Admissibility affirmed.  Physician need not be specialist in particular discipline to render opinion regarding that discipline.  Indeed, it would have been error to exclude physician's testimony on those grounds.

LaPlace-Bayard v. Batlle, 295 F.3d 157 (1st Cir. 2002).  Plaintiffs in medical malpractice suit attempt to designate additional expert witness on eve of trial.  District court bars witness from testifying, because his disclosure is untimely and his testimony duplicative.  Exclusion affirmed.  Plaintiffs' expectation that case would settle does not justify tardy disclosure.

Kournoukakis v. Dello Russo, No. 05-2927 (2d Cir. Feb. 14, 2006) (unpublished).  Medical malpractice plaintiff alleging lack of informed consent relies on expert testimony from Bruce Randolph Tizes, M.D./J.D.  District court finds expert unqualified, excludes his testimony, and awards summary judgment to defendant.  Exclusion affirmed.  Expert last practiced medicine in mid-1990's, did not appear to have valid medical license, lacked training in relevant area, and never examined patient.  No abuse of discretion.

Ruggiero v. Warner-Lambert Co., 424 F.3d 249 (2d Cir. 2005).  Man dies from cirrhosis after taking Rezulin for diabetes.  His widow sues drug's manufacturer.  To show causation, widow relies on differential diagnosis from Dr. Douglas T. Dietrich.  Trial court excludes expert's opinion and awards summary judgment.  Exclusion affirmed.  District court did not abuse discretion in concluding that expert lacked basis for generic causation.  It is possible that rigorous differential diagnosis might suffice to show generic causation in some circumstances.  In general, however, technique of differential diagnosis presupposes some prior and independent evidence of substance's capacity to cause relevant harm in humans.  Expert offered no such basis for generic causation here.

Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005).  Man shot in police chase brings civil rights action, alleging that police officer used excessive force.  Officer and his colleague say man was facing them and brandishing weapon when shot, but medical evidence shows man was shot in his back.  To defend officers' credibility, defendants call forensic pathologist Dr. Stuart Dawson, who opines over plaintiff's objection that he believes officers' testimony to be sincere, and that officers likely suffered from visual illusion or "sensory misperception."  Jury finds for defendants.  Admissibility reversed.  Expert invaded province of jury by offering "expert" opinion on officers' credibility.  Nor was his expertise in issues of sensory perception established.  It was methodologically impermissible in any event for expert to develop opinions that were driven by his personal judgment that officers' testimony was sincere. 

Zaremba v. Gen. Motors Corp., 360 F.3d 355 (2d Cir. 2004).  Injured in automobile crash, plaintiffs sue auto's manufacturer on defective design theory.  In support, plaintiffs offer testimony from engineer and accident reconstructionist Donald Phillips, and physician and biomechanical expert Dr. Joseph Burton.  District court excludes testimony from both experts and awards summary judgment to manufacturer.  Exclusions affirmed.  Engineer did not test vehicle, offered no measurements or calculations to support his theory of how accident occurred, conducted no tests and offered no calculations in support of his proposed alternative design, did not subject his theories to peer review and publication, and offered no evidence that others in automotive design community accepted untested propositions underlying his opinions.  Physician's testimony was flawed insofar as it relied on engineer's, and was also speculative in other respects.

Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002).  Worker alleges he developed asymmetric polyneuropathy and other neurological symptoms after exposure to xylene in paint at job site supervised by Amtrak.  Jury at first trial returns multimillion dollar verdict against Amtrak, but district judge concludes that verdict is against weight of evidence and orders new trial, relying in large part on Amtrak evidence suggesting that worker's symptoms are fabricated (e.g., surveillance video of worker walking without apparent difficulty, medical records from subsequent car accident in which neurological symptoms made no appearance, Amtrak expert's opinion that worker suffers at most from pinched nerve).  Case is reassigned to new trial judge.  Amtrak then moves under Daubert to exclude testimony from worker's three experts: (1) Dr. Jacqueline Moline, worker's treating physician, who opines that worker suffers from neurological conditions caused by xylene exposure; (2) toxicologist Dr. Jonathan S. Rutchik, who opines on generic causation; and (3) industrial hygienist Jack Caravanos, who opines on general causation and exposure levels.  District court strikes their testimony and awards summary judgment to Amtrak.  Exclusion affirmed.  Worker argues that district court was too aggressive in its gatekeeping and "traded a judicial robe for a white lab coat" by improperly weighing testimony's credibility rather than merely evaluating its reliability.  But "[t]he district court's rigorous analysis of the methods that plaintiffs' experts used in reaching their opinions was appropriate given the facts of this case."  District court did not err in conducting extensive analysis of underlying literature on which treating physician and toxicologist relied, nor in concluding that literature did not support finding of generic causation at relevant exposure levels.  Trial court likewise acted within its discretion in rejecting industrial hygienist's estimates of xylene concentration, where expert failed to consider variables he acknowledged were relevant.

Franklin v. Consol. Edison Co. of N.Y., No. 01-7559 (2d Cir. Apr. 9, 2002) (unpublished).  Stroke victim sues employer for retaliatory discharge under Americans with Disabilities Act.  District court awards judgment as matter of law to employer after excluding testimony from employee's two experts: physician, Dr. Paul Rosch, who would opine that work-related stress caused stroke; and treating psychologist, Dr. Bessie Duncan, who would opine re employee's emotional distress.  Exclusion affirmed.  As to Dr. Rosch, district court reasonably found that: (1) he is not expert on strokes; (2) no peer-reviewed articles establish link he posits between stress and strokes; (3) he did not interview employee or learn about her medical history; (4) his theory is not generally accepted in medical community; (5) his opinion was developed solely for litigation; and (6) even if stress caused stroke, there is no scientific basis for conclusion that stress arising from discriminatory treatment caused stroke, because Dr. Rosch could not segregate effects of multiple sources of stress in employee's life.  As to Dr. Duncan, district court legitimately found that her diagnosis was inextricably bound up with employee's stroke, and that Dr. Duncan had no reliable information on which to base a pre-stroke evaluation.

Campbell v. Metropolitan Prop. & Cas. Ins. Co., 239 F.3d 179 (2d Cir. 2001).  Lead-poisoned children win verdict in bench trial against landlord's insurer, based in part on testimony from Dr. John F. Rosen that children suffered injury within policy period.  Admissibility affirmed.  Defendant concedes that Dr. Rosen is "preeminent" expert in his field, with "vast credentials," but argues that Dr. Rosen's conclusions were not adequately based on prevailing methods of assessing lead poisoning.  However, Dr. Rosen heads large clinical center for diagnosis and treatment of childhood lead poisoning and has directly or indirectly supervised treatment of over 15,000 children with lead poisoning during his career.  Thus Dr. Rosen's theories have been tested in daily clinical practice.  Defendant insurer offered no evidence of any known or potential rate of error in those theories.  Moreover, Dr. Rosen has authored 48 published and peer-reviewed articles directly related to his opinions, including co-authorship of National Research Council's document on measuring lead in infants and children, which was reviewed by ten reviewers three times.  Finally, Dr. Rosen's theories are widely accepted.  He had significant responsibilities in developing EPA and CDC criteria and reports on lead poisoning in children.  Any gaps or inconsistencies in Dr. Rosen's reasoning go to weight, not admissibility.

Kronisch v. Gottlieb, No. 99-6152 (2d Cir. May 2, 2000) (unpublished), cert. denied, 531 U.S. 1078 (2001).  Plaintiff says CIA, as part of effort to test effects of mind-altering drugs, placed LSD in plaintiff's drink in Paris cafe in 1952, causing delusions that prevented plaintiff from resuming artistic career.  District court admits testimony from defense LSD expert, Dr. Donald Klein.  Jury finds for defendant.  Admissibility affirmed.  Plaintiff says Dr. Klein has limited experience with patients who used LSD to exclusion of other drugs, but Dr. Klein does have extensive knowledge of clinical and academic research concerning LSD in general.

Washburn v. Merck & Co., No. 99-9121 (2d Cir. May 1, 2000) (unpublished).  Woman develops arthropathy, chronic pain syndrome, and fibromyalgia after receiving rubella vaccination.  In suit against vaccine manufacturer, woman offers three physicians who opine that vaccination caused symptoms.  District court excludes testimony from all three and awards summary judgment.  Exclusion affirmed.  Physicians relied largely on mere temporal relationship between vaccination and onset of symptoms, relied on no large-scale epidemiological studies involving this vaccine and plaintiff's conditions, and/or developed their views solely for litigation.

Prudential Prop. & Cas. Ins. Co. v. Remed Recovery Care, No. 04-1727 (3d Cir. June 13, 2005) (unpublished).  Insured suffers serious brain injury in auto accident.  Thirteen years later, he falls from smoking porch at health care facility and seriously injures spine.  Auto insurer files action seeking declaratory judgment that it is not responsible for damages resulting from fall.  In bench trial, insured offers testimony from Dr. David Pleasure and Dr. Barry Snyder, who opine that insured's loss of balance was attributable to neurological injuries sustained in earlier auto accident.  Court finds for insured, and insurer appeals.  Admissibility affirmed.  Evidence showed that insured, like other individuals with similar impairments, fell frequently while reaching for things. Thus it was perfectly reasonable for these experts to conclude that insured fell as result of his impairment.

Magistrini v. One Hour Martinizing Dry Cleaning, No. 02-2331 (3d Cir. June 25, 2003) (unpublished).  Dry cleaning worker is exposed to perchloroethylene (PCE) over two years of employment.  Two years later, she develops acute myelomonocytic leukemia.  In suit versus defendants including PCE manufacturer Dow Chemical Company, worker offers causation testimony from Dr. David M. Ozonoff, who invokes animal bioassays, fourteen human epidemiological studies, and toxicological studies in concluding that PCE can cause leukemia in humans (generic causation).  He then relies on differential diagnosis to conclude that PCE exposures did cause worker's leukemia (specific causation).  Dow moves to strike Dr. Ozonoff's testimony.  District court appoints technical advisor, convenes Daubert hearing, and grants Dow's motion, concluding that Dr. Ozonoff has not sufficiently explained or defended how he weighed various factors under his "weight-of-the-evidence" methodology.  Exclusion affirmed.  No abuse of discretion.  District court properly conducted Daubert hearing, applied proper legal standard, and made no clearly erroneous factual findings.  No purpose would be served by redundant appellate discussion reaching same result.  "Accordingly, we will affirm the decision of the District Court for substantially the reasons set forth in the District Court's thoughtful Memorandum Opinion without further elaboration."

Schneider v. Fried, 320 F.3d 396 (3d Cir. 2003).  District court dismisses wrongful death action alleging medical malpractice, after excluding testimony from plaintiffs' experts, Drs. Marc Semigran and Gregg Reis, that treating physician violated applicable standard of care by administering the drug Procardia sublingually as pretreatment for angioplasty.  Exclusions reversed.  District court excluded Dr. Semigran's testimony because literature he cited did not specifically address use of Procardia to prevent coronary vessel spasm during surgery.  But reliability of Dr. Semigran's testimony was independently supported by his extensive experience.  District court excluded Dr. Reis's opinion because he initially testified that he could comment only on his own practices and standards, not on standards that physicians elsewhere might have followed.  But Dr. Reis later explained that this disclaimer resulted from his misunderstanding of counsel's question, and in fact he did testify, on reliable grounds, about practices that physicians elsewhere should have followed. 

Matlin v. Langkow, No. 02-1007 (3d Cir. Jan. 22, 2003) (unpublished).  Plaintiff suffers from injuries including herniated disc after her vehicle is rear-ended by defendant's.  At trial, plaintiff offers expert physician, Dr. Kalmon Post, who opines that accident caused injuries.  Admissibility affirmed.  Defendant argues that physician failed to review discovery materials or plaintiff's treatment records.  Defendant also says physician rendered purely subjective opinion, placing undue reliance on temporal connection between accident and injury, and not sufficiently accounting for other potential causes, such as weightlifting.  But physician had sufficient information to make informed inference.  Differential diagnosis need not canvass and rule out every conceivable alternative cause if actual cause appears relatively obvious. 

United States v. Syme, 276 F.3d 131 (3d Cir.), cert. denied, 537 U.S. 1050 (2002).  Operator of ambulance service is convicted of Medicare fraud after jury hears physician testify for prosecution that certain ambulance trips did not satisfy criteria for "medical necessity."  Admissibility affirmed.  Defendant argues that only issue was whether ambulance operator reasonably perceived ambulance transportation to be medically necessary, and that physician's testimony would not assist jury on that issue.  But actual medical necessity was required element of prosecution's proof, and so testimony would in fact assist average juror.  Defendant also argues that expert's testimony did not have valid connection with facts of case.  This is so, according to defendant, because expert disagreed with some Medicare guidelines.  But mere disagreement with Medicare standards does not imply that expert was unable to evaluate facts under those standards or that he refused to do so.

Roche v. Lincoln Prop. Co., No. 03-2064 (4th Cir. Apr. 7, 2006) (unpublished).  Apartment tenants develop respiratory ailments they attribute to toxic mold.  To oppose summary judgment in their suit against owners and managers of property, tenants rely on differential diagnosis testimony from Dr. Richard Bernstein.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Differential diagnosis is valid scientific technique, but expert did not implement it in reliable fashion.  He failed to rule in certain strains of mold, did not rule out other allergens, omitted to perform certain tests while dismissing other test results, and leapt from literature supporting general causation to unwarranted conclusions on specific causation.

Brown v. Ryan's Family Steak Houses, Inc., No. 04-1351 (4th Cir. Oct. 29, 2004) (unpublished).  Former employee brings Title VII action.  Employer moves to dismiss and compel arbitration pursuant to arbitration agreement executed by employee's guardian Mrs. Gassaway (employee's great-great aunt) when employee was sixteen years old.  Employee counters that her guardian, now deceased, lacked requisite mental capacity to enter into binding contract when arbitration agreement was executed.  In support, employee offers testimony from guardian's treating physician of sixteen years, Dr. John Sanders, who opines that guardian was in mental decline due to brain atrophy and subclavian steal syndrome at relevant time.  District court denies employer's motion to dismiss on magistrate's recommendation, and employer appeals.  Admissibility affirmed.  Physician's diagnosis of guardian's ailments was not required to satisfy Daubert, because physician was fact witness describing condition of patient.  Physician's opinion on guardian's mental capacity was admissible as lay opinion under Fed. R. Evid. 701.  "Furthermore, Dr. Sanders is the most qualified person available to testify to Mrs. Gassaway's mental capacity. Gassaway has passed away and is not available for further medical examination. Dr. Sanders was her treating physician for sixteen years. The fact that his practice is internal medicine rather than neurology does not negate the fact that he is a qualified physician with more first-hand knowledge concerning Gassaway's physical and mental well-being than any other medical professional."

Bourne v. E.I. DuPont de Nemours & Co., No. 02-1469 (4th Cir. Jan. 27, 2004) (unpublished), cert. denied, 543 U.S. 917 (2004).  Pregnant woman uses fungicide Benlate in garden.  Her child is born with severe birth defects.  In suit against Benlate's manufacturer, she offers causation testimony from Drs. Charles Vyvyan Howard and Randall L. Tackett.  District court excludes testimony and awards summary judgment to manufacturer.  Exclusion affirmed.  The district court's reasoning was sound.  See Bourne v. E.I. DuPont De Nemours & Company, Inc., 189 F. Supp. 2d 482 (S.D.W. Va. 2002).  

Marsh v. W.R. Grace & Co., No. 98-1943 (4th Cir. Nov. 19, 2003) (unpublished), cert. denied, 543 U.S. 810 (2004).  Plaintiffs contract cancer after using fertilizer contaminated with chemical picloram.  In suit against fertilizer manufacturer, plaintiffs offer causation testimony from Dr. Scott Levin.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Physician assumed causation rather than establishing it, failed to invoke epidemiological literature, performed only one lab test (which did not identify etiologic agent), and did not address alternative causes posited by defendants.  Moreover, his theories are unsupported by published literature and do not enjoy general acceptance.  No abuse of discretion.

Newman v. Motorola, Inc., No. 02-2424 (4th Cir. Oct. 22, 2003) (unpublished).  Plaintiff uses cell phone for several years and is then diagnosed with brain cancer.  In products liability suit against manufacturer and others, plaintiff offers testimony from epidemiologist, Dr. Lennart Hardell, to establish generic and specific causation.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Expert's research linked cell phones with only certain subtype of benign brain tumor, whereas plaintiff suffered from malignant tumor.  Moreover, expert failed to establish dose-response relationship.  No abuse of discretion.

United States v. Clark, No. 02-4126 (4th Cir. Oct. 21, 2002) (unpublished).  Doctor is charged with wrongful prescription of controlled substances.  Expert physician testifies for prosecution that defendant did not issue relevant prescriptions for legitimate medical purposes.  Jury convicts.  Admissibility affirmed.  Defendant did not object to expert's testimony at trial, and so review is for plain error.  Expert was qualified general practitioner, and his testimony was based on review of defendant's patient files and included explanations for his findings.  District court did not err in admitting testimony.

Nettles v. Proctor & Gamble Mfg. Co., No. 01-2109 (4th Cir. Apr. 16, 2002) (unpublished).  Did use of Vicks Sinex nasal spray damage plaintiff's optic nerve, causing blindness?  Plaintiff proffers causation testimony from neuro-opthalmologist, Dr. Alfredo Sadun.  District court grants motion to exclude testimony as unreliable and grants summary judgment to defendant.  Exclusion affirmed.  District court relied on absence of peer-reviewed articles linking oxymetazoline (active ingredient in nasal spray) and anterior ischemic optic neuropathy, and on plaintiff's minimal exposure.  District court legitimately concluded that Dr. Sadun improperly "'inferred causation' from a situation-specific occurrence."

Carson v. Canada Life Assurance Co., No. 01-1418 (4th Cir. Jan. 25, 2002) (unpublished).  Insured sues when insurance company denies claim under disability policy  Two rheumatologists testify that plaintiff is disabled.  Admissibility affirmed.  Insurance company says that while rheumatologists were qualified to testify to insured's medical status, they were unqualified to testify to insured's legal status.  But doctors could properly testify that insured was "disabled" in the medical sense.  Defendant was free to emphasize their lack of expertise in the legalities on cross examination.

Cooper v. Smith & Nephew, Inc., 259 F.3d 194 (4th Cir. 2001).  Plaintiff is allegedly injured by use of defective pedicle screw in spinal fusion surgery, sues manufacturer, offers causation testimony from physician expert who performed differential diagnosis.  District court excludes testimony and awards summary judgment to defendant.  Exclusion affirmed.  Reliable differential diagnoses satisfy Daubert, but this expert's differential diagnosis was unreliable.  Expert's opinion was conclusory and not supported by any scientific method.  Expert appears to have concluded that defect in pedicle screw caused disunion on sole basis that disunion occurred after pedicle screw was used, but expert himself acknowledged that disunion is well-known risk of spinal fusion whether instruments are used or not.  Indeed, he estimated plaintiff's chances of completely successful fusion at only 25%.  Moreover, expert did not satisfactorily address plaintiff's smoking as possible cause of disunion.  Ordinarily, differential diagnosis is not rendered inadmissible merely because physician cannot rule out every alternative cause.  However, differential diagnoses that fail to take serious account of alternative causes can be so lacking that they cannot afford reliable basis for causal attribution.  Here, plaintiff's treating physician thought smoking significant, with substantial support from medical literature, and expert refused to read more than two articles on causal relation between smoking and disunion because, he said, no number of articles would change his mind.  Finally, expert did not perform physical examination of plaintiff, and admitted that this was inconsistent with his own clinical practice.

Fitzgerald v. Smith & Nephew, PLC, No. 00-1145 (4th Cir. June 12, 2001) (unpublished).  Woman with long history of back problems finds that her symptoms worsen after implantation of pedicle screws, which are later removed.  In her suit against pedicle screw manufacturer, woman offers testimony from orthopedist, Dr. Norman N. Krause, on causation.  District court excludes testimony as unreliable and awards summary judgment to defendant.  Exclusion affirmed.  Physician never examined patient, never spoke with patient or her treating physicians, never reviewed her deposition testimony, and never examined x-rays of her spine.  It is true that orthopedist's testimony purported to be based on differential diagnosis, and that differential diagnosis is scientifically valid technique.  But it must be performed with intellectual rigor.  Here, patient had complained of same symptoms for over twenty years predating surgery, and physician's diagnosis was made without reference to, or consultation of, significant parts of that history.  District court did not abuse discretion in concluding that alternative causes were not sufficiently ruled out. 

United States v. Hall, No. 00-4577 (4th Cir. Apr. 25, 2001) (unpublished).  Jury convicts wife of involuntary manslaughter after hearing physician's testimony on amount of force necessary for wife to inflict fatal stab wound on husband.  Admissibility affirmed.  Defendant says expert should have been excluded because not disclosed in pretrial discovery, but nondisclosure was not prejudicial because district court offered defense counsel additional time to consult with defense expert and prepare for cross-examination.  Even if this remedy were inadequate, defendant cannot show actual prejudice, because defense counsel established on cross that physician was not forensic pathologist and had not performed autopsy on defendant's husband, so that jury evidently discounted physician's testimony in finding involuntary rather than voluntary manslaughter.  Defendant also says physician's testimony was unreliable under Daubert, but testimony was properly predicated on physician's experience as surgeon, was relevant, and covered subject outside jury's everyday knowledge and experience.

Daniel v. Pearce, No. 99-1405 (4th Cir. Apr. 28, 2000) (unpublished).  At medical malpractice trial, district court admits testimony on causation and standard of care from plaintiffs' expert, Dr. Robert G. Dillard.  Jury returns verdict for plaintiff and defendant appeals.  Admissibility affirmed.  Witness was well-qualified, demonstrated familiarity with Virginia standard of care, and found his opinions on negligence corroborated by two defense witnesses.

Hafstienn v. BMW of N. Am., LLC, No. 05-20424 (5th Cir. Aug. 17, 2006) (unpublished).  BMW 323i collides with GMC truck, rolls over, splits apart, and fatally ejects six-year-old child.  To show causation in their products liability suit against BMW, child's surviving family members offer crash-test evidence and three experts: (1) Thomas Grubbs, mechanical engineer and accident reconstructionist, whose testimony would explain details of plaintiffs' crash test; (2) metallurgist "Dr. McLellan," who proposes to testify that BMW's defective spot welds made it less crashworthy; and (3) osteopath and biomechanical expert "Dr. Nicodemus," who proposes to opine that child died from blow to head on hitting pavement, not from any injury sustained while still inside car.  After three-day hearing, district court grants BMW's motion to exclude crash-test evidence and testimony from all three experts.  Family stipulates that district court's ruling leaves it without sufficient evidence to show causation, and summary judgment is awarded to BMW.  Exclusion affirmed.  District court legitimately excluded evidence of crash-test, because test used Volkswagen Passat, whose extensive dissimilarities with BMW 323i render test irrelevant.  As for experts: (1) District court excluded Grubbs as unqualified and because he relied on inaccurate data.  Those grounds need not be reached on appeal, because given district court's proper exclusion of plaintiffs' crash-test evidence, testimony from Grubbs explaining that crash test would not have assisted trier of fact in any event.  (2) Nor need admissibility of McLellan's testimony be reached on appeal, because he testified he did not know whether properly constructed BMW 323i would have split apart in accident.  (3) District court ruled that Nicodemus was unqualified and his testimony unreliable, but those issues need not be reached, because even if his testimony were taken as true, plaintiffs' evidence does not establish that any defect in BMW 323i caused child's ejectment.

Cleveland v. United States, 457 F.3d 397 (5th Cir. 2006).  Patient presents in ER with flu-like symptoms, slightly elevated respiration rate, and history of diabetes.  Patient neglects to mention history of congestive heart failure (which does appear, however, in patient's full medical file).  Physician's Assistant (PA) examines patient, concludes patient needs no x-ray or other tests, and diagnoses upper respiratory infection, bronchitis, and sinusitis.  Without consulting attending physician or reviewing patient's file, PA prescribes meds and sends patient home.  Patient returns on following day, is diagnosed with pneumonia resulting from congestive heart failure, goes into respiratory and cardiac arrest, lapses into coma, and dies some years later.  His wife brings claim for medical malpractice.  To show that PA and other ER employees breached duty of care, she offers expert opinions from: (1) certified legal nurse consultant Wanda Poret, who opines that defendants violated duty of care by failing to take chest film; (2) Dr. Jay Piland, physician who treated patient in ICU after patient fell into coma, who opines that defendants should have run further tests; (3) Dr. Joe Rankin, radiologist, who testifies that he is not qualified to opine on whether physicians should order chest x-rays for patients with heart conditions, though in his experience they generally do; and (4) Dr. Carlos Cuenca, expert in internal medicine, who opines that defendants should have reviewed full medical file and run chest x-rays.  Defendants object to testimony from all four witnesses, arguing that nurses, internists, and radiologists are not qualified to opine on standard of care for ER physicians.  They also object that Dr. Piland prepared no expert report.  District court: (1) excludes Poret's testimony without opinion; (2)rules that Dr. Piland is qualified as internist, but that his testimony goes beyond proper scope for treating physician and is unreliable under Daubert; (3) issues no formal admissibility ruling on Dr. Rankin; and (4) issues no formal admissibility ruling on Dr. Cuenca.  After bench trial, district court finds for defendants, noting that plaintiff produced no expert testimony from any emergency specialist.  Exclusions affirmed.  Louisiana law governs in this FTCA action.  (1) Under Louisiana law, nurses (like Poret) are not competent to testify to breach of care by physicians, or PA's (by extension).  (2) Absent testimony that standards of care for internists and emergency specialists can be equated, district court did not abuse its discretion in holding Dr. Piland unqualified.  (3) To extent that district court excluded testimony from Dr. Rankin, it acted within its sound discretion on similar grounds.  (4) Dr. Cuenca does have some ER experience, but Fifth Circuit need not decide whether district court abused its discretion in disregarding his testimony, because district court was entitled to give greater weight to defendants' expert.

McNabney v. Lab. Corp. of Am., No. 05-50030 (5th Cir. Nov. 9, 2005) (unpublished).  Malpractice plaintiff alleges that her reflex sympathetic dystrophy (RSD) was caused by laboratory employee's attempt to draw blood from plaintiff's left arm.  To show causation on summary judgment, she offers testimony from her treating neurologist, "Dr. Gazda," and from her retained expert, neurologist "Dr. Malkin."  District court excludes Dr. Malkin's testimony and does not consider Dr. Gazda's in awarding summary judgment to lab.  Exclusion affirmed.  Neither of plaintiff's experts was aware of plaintiff's medical history, which included several surgeries to her left wrist at age 14, multiple years of intravenous drug use, serious fall during 1990's, and severe injury to left shoulder in 2001 that caused many symptoms (aching, stiffness, numbness, tingling) attributed by plaintiff to lab's blood test.  Physician need not conduct exhaustive search to rule out every other conceivable cause, but expert must be aware of plaintiff's pertinent medical history.

Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875 (5th Cir. 2004).  In suit against auto insurer, plaintiff misses deadline for designating treating physician as expert.  District court excludes testimony from physician.  Exclusion affirmed.  Plaintiff correctly notes that treating physicians are not required to prepare reports, but they must nevertheless be designated as experts.  Exclusion of testimony was permissible sanction.

Red v. Baum (In re Red), No. 03-50642 (5th Cir. May 3, 2004) (unpublished), cert. denied, 74 U.S.L.W. 3471 (U.S. 2006).  Man drives auto into bar, killing two.  When decedents' relatives bring wrongful death action, man files for bankruptcy.  Was vehicular mishap intentional, barring discharge, or did it result from episode of syncope, as driver contends?  In bench trial, bankruptcy court admits testimony from wrongful death plaintiffs' medical expert, who opines that person suffering episode of syncope could not depress accelerator.  Bankruptcy court denies discharge and district court affirms.  Driver appeals.  Admissibility affirmed.  Driver's only colorable argument is that expert was unqualified, but expert's testimony simply combined his acknowledged medical expertise with common knowledge about driving cars.  Alternatively, other evidence supported bankruptcy court's verdict, and so any error would be harmless.

Vargas v. Lee, 317 F.3d 498 (5th Cir. 2003).  In suit against truck driver and trucking company, plaintiff offers Dr. Edward M. Gaber, who opines that plaintiff's fibromyalgia was caused by trauma sustained in accident.  District court admits testimony and jury awards damages to plaintiff.  Admissibility reversed.  Fifth Circuit has previously held that expert testimony positing causal link between trauma and fibromyalgia is inadmissible under Daubert, and nothing has changed.  Studies cited by plaintiff expressly withhold judgment on causal connection.  Perhaps causal link will someday be scientifically established, but to date it has not been.  District court thus abused discretion in admitting expert's testimony, and case must therefore be remanded for recalculation of damages.

Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir. 2002).  Patient with osteoarthritic pain develops salmonella after his knee is injected with Synvisc (replacement synovial fluid made from rendered rooster combs).  In suit against Synvisc's manufacturer, plaintiff offers causation testimony from Dr. Chad Millet (patient's orthopedist) and Dr. Jeffrey Coco (infectious disease specialist).  District court strikes both physicians' testimony and grants summary judgment to defendant.  Exclusion affirmed; exclusion reversed.  Dr. Millet testified it was "as likely as not" that Synvisc injection was source of salmonella, but conceded he had no "scientific evidence" to support conclusion that it was more likely than not.  Thus even if Dr. Millet's testimony were assumed to be reliable, it would fail Daubert's relevancy prong.  As for Dr. Coco, district court excluded his testimony because Dr. Coco conducted no epidemiological study and discovered no reports of injectable knee products causing salmonella infections in his literature review.  But Dr. Coco explained why epidemiological studies would be inappropriate for rare or unique events such as this, and his failure to find other reports of infection after knee injections actually tends to negate defendant's theory that salmonella resulted from medical personnel's unsterile injection procedures (because if those procedures were plausible source of salmonella infection, other reports of such infections would be expected).  Dr. Coco properly relied on his considerable expertise in infectious diseases in ruling out other potential causes of infection.  His testimony should have been admitted, and summary judgment therefore should have been denied.

Stahl v. Novartis Pharms. Corp., 283 F.3d 254 (5th Cir.), cert. denied, 537 U.S. 824 (2002).  Patient develops cholestatic hepatitis after his dermatologist prescribes Lamisil.  In products liability claim against manufacturer, district court awards summary judgment for defendant in partial reliance on affidavit from patient's treating physician stating that manufacturer's warning was clear and reasonably apprised him of risks.  Affirmed.  Plaintiff argues that treating physician is not expert in liver disease or adequacy of pharmaceutical warnings, and that district court should not have considered physician's affidavit without first conducting Daubert hearing.  But in testifying that warnings reasonably notified him of risks, physician was testifying to personal knowledge, not as expert.

Rolen v. Hansen Beverage Co., No. 05-6405 (6th Cir. Aug. 23, 2006) (unpublished).  Were plaintiff's acute stomach problems caused by drinking Natural Red Berry Juice Blast?  To show causation in products suit against juice manufacturer, plaintiff offers testimony from his treating physician, Dr. Mark Houston, who opines that plaintiff's symptoms were probably caused by staphylococcal toxic poisoning resulting from ingestion of defendant's juice.  District court excludes testimony as unreliable and grants summary judgment to manufacturer.  Exclusion affirmed.  Witness employed no discernible methodology except for fallacious "post hoc, ergo proper hoc" reasoning.  His examination and testing of plaintiff turned up nothing abnormal.  He admitted that testing juice for contaminants would be desirable, but he did nothing to test juice himself, and he said that actual tests conducted by defendant of juice from same lot, which detected nothing amiss, did not affect his opinion.  He also testified that onset of staphylococcal toxic poisoning would normally occur between one and twelve hours after ingestion, whereas plaintiff's symptoms commenced within twenty minutes.  No abuse of discretion.

Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976 (6th Cir. 2004), cert. denied, 125 S. Ct. 1731 (2005).  Following bypass surgery, patient suffers brain damage due to insufficient oxygen.  Patient sues various defendants, including pulmonologist responsible for post-operative respiratory care, alleging her injury was caused by premature removal of ventilation tube.  To show negligence by pulmonologist, patient offers testimony from Dr. W. Dudley Johnson.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion reversed.  District judge excluded testimony on theory that cardiac surgeon from Wisconsin cannot reliably opine on pulmonologist's deviation from standard of care in Tennessee unless familiar with medical literature or published standards governing that specialty.  But "Daubert 's role of 'ensuring that the courtroom door remains closed to junk science' . . . is not served by excluding testimony such as Dr. Johnson's that is supported by extensive relevant experience. Such exclusion is rarely justified in cases involving medical experts as opposed to supposed experts in the area of product liability."

Sommer v. Davis, 317 F.3d 686 (6th Cir.), cert. denied, 540 U.S. 824 (2003).  Spinal fusion surgery ends badly.  Patient brings malpractice action.  Under Tennessee law, violation of local standard of care is necessary element of malpractice claim.  To resist summary judgment, patient offers testimony from Missouri physician, Dr. Matthew F. Fornet.  Defendants move to strike Dr. Fornet's testimony because he admits unfamiliarity with Tennessee standards of care.  District court grants motion to strike and awards summary judgment to defendants.  Exclusion affirmed.  At evidentiary hearing, Dr. Fornet admitted he was unacquainted with characteristics of relevant Tennessee medical community.

Pittman v. ANR Freight Sys., No. 00-2501 (6th Cir. Aug. 29, 2002) (unpublished).  Man is injured when truck rear-ends his auto.  In personal injury action against trucking company, defendant objects to testimony on injury causation from victim's treating physicians, and to testimony re psychological testing from Ph.D. in human relations.  Trial court overrules objections and jury returns verdict for victim.  Admissibility affirmed.  Defendants complain that physicians merely took patient history and did not perform independent tests or "differential diagnosis" eliminating other potential causes of victim's injuries.  But differential diagnosis is merely one permissible methodology for ascriptions of medical causation.  Physicians not only took patient history but also performed physical exams and consulted MRI results.  Likewise, psychological tests taken by plaintiff are generally used in field and have been subjected to review in published peer-reviewed journals.   

Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002).  Medical malpractice plaintiff in Tennessee diversity case offers expert testimony from Dr. Bernard Mittlemeyer, who is licensed only in Texas.  District court excludes testimony because Dr. Mittlemeyer is not competent witness under Tenn. Code Ann. § 9-26-115(b), which requires experts in medical malpractice cases to be licensed "in the state or a contiguous border state."  District court also holds that even if admissible, Dr. Mittlemeyer's affidavit would not create genuine issue of material fact, and awards summary judgment to defendants.  Exclusion affirmed.  Plaintiff argues that in diversity actions, admissibility of expert testimony is controlled by federal law, not state law.  But Tennessee's statute establishes requirements for witness competency, which are governed by state law in diversity cases under Fed. R. Evid. 601.  Moreover, Tennessee's rule does not conflict with Fed. R. Evid. 702; both can be applied.  Plaintiff argues that Tennessee's statute violates equal protection by treating similarly situated medical malpractice patients differently, but other courts have upheld Tennessee's rule against similar constitutional challenge.  District court did not abuse discretion in refusing to afford discretionary exception to Tennessee statute's requirements, or in refusing plaintiff more time to find substitute expert.  In any event, Dr. Mittlemeyer's affidavit was insufficient, because it asserted negligence only conditionally, on assumption that surgeon failed to suture, and no evidence existed to contradict medical records indicating that suturing was indeed done.

Downs v. Perstorp Components, Inc., No. 00-5507 (6th Cir. Jan. 4, 2002) (unpublished). Man is accidentally splashed with Rubiflex (epoxy used in production of foam insulation) and is soon diagnosed with "chemical encephalopathy" by treating physician, Dr. Kaye H. Kilburn, who concludes after extensive testing that Rubiflex was cause of condition. In products liability action against Rubiflex manufacturer, plaintiff offers Dr. Kilburn as causation witness. District court excludes testimony as unreliable and awards summary judgment. Exclusion affirmed. Expert reached conclusion on causation before expert even knew what chemical components Rublifex contained, was unable to identify any specific component as cause, never ascertained dose to which plaintiff was exposed, cited to no scientific literature in support of expert's conclusion, and conducted no study or investigation to test hypothesis that Rubiflex or any of its components could cause plaintiff’s symptoms. Rather, expert simply concluded that temporal relationship between exposure and symptoms was enough.  District court did not abuse discretion in excluding testimony.

Garrett v. Watson, No. 00-6358 (6th Cir. June 18, 2001) (unpublished).  Rape convict seeks habeas corpus, arguing that state court should have convened Daubert hearing before admitting physician's testimony that convict had sexually transmissible disease.  Dismissal affirmed.  State supreme court ruled that no hearing was required because physician was not testifying to any STD test not generally accepted within scientific community.  This ruling was not based on unreasonable application of controlling precedent, and so conviction was supported under state evidentiary law.

Hardyman v. Norfolk & W. Ry., 243 F.3d 255 (6th Cir. 2001).  Railroad conductor and brakeman develops carpal tunnel syndrome (CTS), brings FELA action against employer.  Holding that expert testimony on causation must point to epidemiological or other scientific evidence establishing quantitative dose/response and/or threshold levels for relevant injury, district court excludes testimony from physician who performed differential diagnosis and from ergonomist who detailed workplace activities.  Holding further that causation may be proved only via direct expert testimony, district court awards summary judgment to railroad.  Exclusion reversed.  FELA's causation standard requires only proof that employer contributed in any way, however slight, to injury.  Notwithstanding absence of quantitative epidemiological data, differential diagnosis and ergonomics testimony were admissible on issue of causation.  In any event, district court erred in holding that causation may be proved only through direct expert testimony.  Even if no expert opined that workplace activities caused plaintiff's injury, jury could infer causation from expert testimony that CTS was generally associated with activities of the type plaintiff engaged in at work.

Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244 (6th Cir.), cert. denied, 534 U.S. 822 (2001).  In putative class action arising from exposure to polychlorinated biphenyls (PCBs), seven bellwether plaintiffs agree to trial of their personal injury claims before magistrate judge.  Plaintiffs offer two physician experts on medical causation: Dr. Kilburn, whose study analyzes sample of 98 persons from allegedly contaminated area (including bellwether plaintiffs) versus control group of 58 persons from elsewhere in Tennessee; and Dr. Hirsch, who has examined plaintiffs and testifies that their conditions were more likely than not caused by PCBs.  Magistrate excludes testimony from both physicians and awards summary judgment to defendants.  Exclusion affirmed.  Magistrate did not abuse discretion by failing to hold Daubert hearing, where matter was fully briefed and plaintiffs requested no hearing (citing Kumho Tire).  Nor did magistrate err by refusing to permit plaintiffs to cure deficiencies in their proofs (citing Weisgram).  Plaintiffs were on notice that their experts' testimony was challenged and had adequate opportunity to develop expert testimony and respond to challenges, yet never attempted to offer additional or substitute testimony.  Dr. Kilburn's testimony was properly found unreliable, because he failed to account for confounding factors, did not establish temporal relationship between exposure and illnesses, failed to show sufficient dose to make plaintiffs ill, and did not demonstrate general acceptance of his theories.  Magistrate properly gave weight to lack of peer review or publication of Dr. Kilburn's litigation study, even though Dr. Kilburn had authored and published other peer-reviewed studies.  Dr. Hirsch may have used valid diagnostic procedures to ascertain neurological impairment, but failed to offer reliable scientific support for his conclusion that PCB exposure caused those impairments.  In particular, Dr. Hirsch had no knowledge concerning plaintiffs' PCB exposures or their temporal relationship to onset of symptoms.  He also failed to account for confounding factors or identify specific scientific literature supporting his opinion on causation.  Magistrate properly rejected Dr. Hirsch's "circular reasoning" that because plaintiffs exhibited symptomatology and PCBs had been in plaintiffs' environment, PCBs must have caused plaintiffs' conditions.

Dunlap v. Fields, No. 98-6662 (6th Cir. June 20, 2000) (unpublished).  Federal prisoner files FTCA claim alleging that medical care was improperly withheld following altercation between prisoner and guards.  Prisoner offers no expert testimony in support of claim.  Over prisoner's objection, district court appoints orthopedist and neurologist to examine prisoner, and enters judgment for United States on FTCA claims after reviewing their reports.  Admissibility affirmed.  Reports assisted district court in assessing nature of prisoner's ailments and their relationship to altercation with guards.  No abuse of discretion.

Korte v. ExxonMobil Coal, USA, Inc., No. 05-1168 (7th Cir. Jan. 6, 2006) (unpublished) (see the briefs).  Coal dust blows offsite from refuse disposal areas at coal mine.  Neighboring farmers develop pulmonary and other symptoms.  To withstand summary judgment in their personal injury suit against mine's owner, farmers offer causation testimony from Dr. Peter Orris, specialist in occupational medicine.  District court excludes testimony as unreliable and awards summary judgment to mine owner.  Exclusion affirmed.  Dr. Orris did not rely on any tests or measurements to gauge farmers' exposure, and did not rule out other potential causes.

Estate of Moreland v. Dieter, 395 F.3d 747 (7th Cir.) (see the briefs), cert. denied, 125 S. Ct. 2915 (2005).  Prisoner's estate brings civil rights action after prisoner is beaten to death while in custody.  At trial, estate offers testimony from Dr. Gary Lustgarten, neurologist, on cause of death.  Jury awards damages.  Admissibility affirmed.  Defendants say Dr. Lustgarten's opinion was unreliable, but they failed to preserve that point for appeal.  District court's remarks expressing dissatisfaction with Daubert's requirements, made in context of Daubert objections to testimony from another witness, do not excuse defendants' failure to raise objection to reliability of Dr. Lustgarten's opinions.  No plain error.

Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004) (see the briefs).  Parents bring malpractice action after infant dies while under treatment by home health care personnel.  On summary judgment, parents rely on deposition testimony from treating physicians and nurses.  Defendant moves to strike testimony because parents did not designate witnesses as experts in their discovery disclosures.  District court grants motion to strike and awards summary judgment.  Exclusion affirmed.  It is true that disclosure rules do not require treating physicians or nurses to submit reports.  And it is also true that parents identified these witnesses in their discovery disclosures.  But they did not designate them as expert witnesses, and that omission prejudiced defendant.  Striking their deposition testimony insofar as it embodied expert opinion was legitimate sanction.  Because medical malpractice claims cannot be sustained under Indiana law without expert testimony, summary judgment was properly granted.

Alek v. Univ. of Chicago Hosps., No. 02-2816 (7th Cir. Dec. 16, 2002) (unpublished) (see the briefs).  Employee sues hospital under Americans with Disabilities Act for failing to rehire her.  Hospital moves for summary judgment, relying in part on letters from several physicians.  District court awards summary judgment, because employee offers no evidence that hospital's stated nondiscriminatory reasons for not rehiring employee were untrue.  Affirmed.  Plaintiff says district court should have excluded physician letters under Daubert, but this is one of several arguments raised by plaintiff on appeal that were not presented to district court, or which are unsupported by record citation or legal authority, and which are therefore waived.

Consolidation Coal Co. v. Dir., Office of Workers' Comp. Programs, 294 F.3d 885 (7th Cir. 2002) (see the briefs).  ALJ awards benefits to black lung claimant despite opinion of employer's pulmonologist, Dr. Robert M. Bruce, that claimant's CT scan was negative for black lung.  Affirmed.  Claimant with pneumoconiosis is presumptively entitled to benefits once he establishes employment at coal mines for ten years or more and produces x-ray test that shows black lung disease in opinion of qualified physician.  This claimant satisfied those requirements, and so burden shifted to coal company to show that claimant did not have pneumoconiosis or was not disabled or not totally disabled thereby.  Company argues that opinion of its own physician, Dr. Bruce, should be conclusive, because computed tomography is more sophisticated diagnostic method than x-ray analysis.  But medical community has reached no consensus on this point, and Department of Labor has rejected view that CT scans are conclusive.  Moreover, Dr. Bruce has no expertise in radiology, and it is customarily radiologists who interpret CT scans.  Parties to agency proceedings are not bound by Daubert but must still satisfy ALJ that their experts are qualified and have applied recognized medical principles in reliable way.  Perhaps some coal company could qualify some pulmonologist without radiological credentials to interpret CT scans, but this coal company did not thus qualify Dr. Bruce, and so ALJ could reasonably discount his testimony.

Ueland v. United States, 291 F.3d 993 (7th Cir. 2002) (see the briefs).  Government chase car rear-ends prison van.  Prisoner from van sues under Federal Tort Claims Act, alleging that collision caused him to suffer back and neck injuries, and offers testimony from Jason William, chiropractor cum acupuncturist.  Government objects that chiropractor/acupuncturist is unqualified to testify re etiology of back and neck injuries.  District court refuses to apply Rule 702 or to conduct Daubert hearing, and holds that chiropractor's qualifications go only to weight.  Court rules similarly when government offers prison physician, Dr. James Reed, to testify that prisoner's injuries predated accident.  After trial, district court finds conclusorily that plaintiff has not carried his burden of proof that government's negligence caused his injuries or damages.  Admissibility reversed.  District court's cursory "findings" of fact are too general and vague to satisfy Fed. R. Civ. P. 52(a), and so case must be remanded for retrial and findings compliant with that rule.  It was error to hold that qualifications of experts went only to weight, and on remand district court must conduct Daubert analysis.  Plaintiff's chiropractor will probably flunk Daubert analysis, and government's physician may pass, depending partly on whether his expertise includes soft-tissue and back injuries. 

Peabody Coal Co. v. McCandless, 255 F.3d 465 (7th Cir. 2001).  Administrative law judge in black lung proceeding favors opinion of autopsy prosector over contrary opinions of several other physicians.  ReversedDaubert does not govern agency black lung proceedings, and this case does not present admissibility issues, but judicial policy is to favor sound science, and ALJ must base findings on rational analysis of expert opinions, not on simplistic preference for whoever performed autopsy.

Austin v. Am. Ass'n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001) (see the briefs), cert. denied, 534 U.S. 1078 (2002).  Neurosurgeon is suspended by professional association after it is complained that his testimony in malpractice suit was irresponsible.  Neurosurgeon sues professional association, arguing that trial judge in underlying malpractice suit held that neurosurgeon's testimony satisfied DaubertDismissal affirmed.  Federal courts are bound by Daubert, but professional associations are not.  Judges rely on professional associations to screen experts.  Just as testimony held inadmissible under Daubert does not automatically result in discipline by professional association, so too admissibility of physician's testimony under Daubert does not preclude professional discipline therefor.

Walker v. Soo Line R.R., 208 F.3d 581 (7th Cir.), cert. denied, 531 U.S. 930 (2000).  Employee is struck by lightning while working in railroad tower and subsequently suffers from psychological damage and impaired ability to work.  In FELA action against railroad, district court excludes testimony from plaintiff's psychologist re plaintiff's pre-accident IQ, because psychologist did not examine plaintiff before accident, and also because psychologist relied in part on erroneous account of plaintiff's educational history.  District court also excludes testimony from plaintiff's physician, because physician relied in part on psychologist's inadmissible findings, and also because physician, being neither psychiatrist nor psychologist, is unqualified to opine that plaintiff suffers from post-traumatic stress disorder (PTSD).  Defendant's expert physician is permitted to testify re plaintiff's post-accident condition.  Jury finds for defendant.  Exclusion of plaintiff's expert testimony reversed and admissibility of defense expert's testimony affirmed.  To estimate plaintiff's pre-accident IQ, psychologist administered National Adult Reading Test -- which is specifically designed to estimate pre-trauma IQ -- and patient's self-reported educational history, even if inaccurate, is type of information on which psychologists commonly rely.  Psychologist therefore employed legitimate methodologies in estimating pre-accident IQ, and any weaknesses in testimony were grist for cross-examination and jury evaluation.  Plaintiff's physician was entitled to rely on input from other members of medical team she headed, and mere fact that another of plaintiff's experts disagreed with physician's PTSD diagnosis does not render diagnosis inadmissible.    Defendant's physician was entitled to rely on medical records in opining on plaintiff's condition, without examining plaintiff.  Remanded for new trial.

Cooper v. Carl A. Nelson & Co., 211 F.3d 1008 (7th Cir. 2000).  Worker slips and falls on construction site.  At trial of personal injury action against contractor, worker offers testimony from three physicians that fall caused his chronic pain syndrome (CPS).  District court excludes testimony because physicians lack suitable foundation for causal attribution.  Jury finds for defendant.  Exclusion reversed.  Defendant says physicians cannot rely exclusively on temporal relationship between accident and symptoms in cases where biological mechanisms of causation are not well understood, and also that physicians improperly relied on dishonest statements re onset of symptoms supplied by plaintiff when he gave medical history.  But there was medical testimony that temporal association between accident and symptoms was sufficient to ground this diagnosis, and physicians routinely rely on medical histories provided by patients.  District court was too aggressive in its gatekeeping.

Robinson v. GEICO Gen. Ins. Co., No. 05-3191 (8th Cir. May 19, 2006).  Several hours after auto collision, insured begins to experience pain in neck, shoulder, and back.  Insured visits orthopedist, who diagnoses her with rotator cuff contusion.  X-rays also reveal pre-accident condition involving Type II acromion with bone spur.  Insured undergoes surgery to remove bone spur and part of clavicle (to increase space between rotator cuff and acromion).  Insured sues insurer, invoking underinsured motorist coverage.  During bench trial, insurer offers testimony from neurologist, Dr. Simon Horenstein, who opines that insured's symptoms arose from pre-existing shoulder condition.  Judge finds for insurer.  Admissibility affirmed.  Insured says neurologist's testimony fell outside his expertise.  But Fed. R. Evid. 702 does not require that defense medical experts must belong to same specialty as plaintiffs' experts.  Physician with general medical knowledge may testify regarding conditions that specialists would normally treat.  Moreover, expert's opinion on onset of shoulder pain did fall within his expertise as neurologist.  No abuse of discretion. 

Sosna v. Binnington, 321 F.3d 742 (8th Cir. 2003).  After surgery to remove small bowel obstruction, patient develops sepsis and dies.  Widow brings malpractice action against surgeon.  At trial, surgeon offers expert testimony from internist Dr. John S. Daniels, who opines that surgeon complied with applicable standard of care.  Jury finds for surgeon.  Admissibility affirmed.  Though not a surgeon, Dr. Daniels had performed research involving small bowel obstructions and regularly treated patients suffering from such obstructions.  He did not testify to details of surgical procedure, and was competent to testify on points of pre- and post-operative care that he did.

Rustenhaven v. Am. Airlines, Inc., 320 F.3d 802 (8th Cir. 2003).  Plaintiff's expert physician [?] testifies that plaintiff's seizures resulted from injuries sustained in airline crash, and jury returns verdict for plaintiff.  Admissibility affirmed.  Defendants raised their Daubert objection only on eve of trial.  "We have no reason to believe that the district court did not give the objection the careful attention it deserved in the time available for review."

Smith v. BMW N. Am., Inc., 308 F.3d 913 (8th Cir. 2002).  Plaintiff suffers quadriplegia after air bag fails to deploy in accident.  In suit against vehicle's manufacturer, she offers Dr. Larry Williams, accident reconstructionist, to opine that vehicle's "barrier equivalent velocity" was high enough that properly functioning air bag would have deployed, and Dr. Stephen Erickson, forensic pathologist, to opine that plaintiff's injuries would have been mitigated or prevented, had air bag deployed.  Defendant moves to strike both experts.  District court holds Daubert hearing, grants motion to strike, and awards summary judgment to defendants.  Exclusion reversed.  District court correctly ruled that Dr. Williams's computation of barrier equivalent velocity rested on flawed measurements, and therefore properly excluded Dr. Williams's opinion on that point.  However, when defendants' own accident reconstructionist corrected those flawed measurements and recalculated barrier equivalent velocity adopting Dr. Williams's admissible opinion on principal direction of force, resulting velocity of 14.4 m.p.h. fell in range in which genuine issue of material fact exists as to whether air bags should deploy.  As for Dr. Erickson, district court's exclusion seems ultimately predicated on Dr. Erickson's lack of expertise in biomechanics, physics, or engineering.  However, Dr. Erickson was not called to quantify force applied to plaintiff's body during accident, or to calculate how much force her neck could withstand.  He was called to offer opinion that she suffered injury when auto struck embankment and not during subsequent rollover.  He based this opinion on information that did fall within his field (medicine) -- viz., injuries plaintiffs sustained (e.g., wedge fracture in neck) versus injuries she did not (e.g., no head trauma).

Bendet v. Sandoz Pharms. Corp., 308 F.3d 907 (8th Cir. 2002).  Plaintiff Carole Bendet suffers stroke after taking Parlodel to suppress post-partum lactation, sues Parlodel's manufacturer.  Defendants move for summary judgment and also seek to exclude Bendet's causation experts.  Because Bendet relies on two causation experts whose testimony on same subject was excluded by district court in prior litigation within Eighth Circuit, Bendet seeks and obtains stay of proceedings pending Eighth Circuit's disposition of appeal in earlier case.  After Eighth Circuit issues its decision in Glastetter v. Novartis Pharms. Corp., 252 F.3d 986 (8th Cir. 2001), which affirms exclusion of experts in prior proceeding (see infra, this page), district court issues order to show cause why Bendet's claims should not be dismissed as well.  Bendet responds that district court should await further appellate proceedings in Glastetter and/or permit briefing on Daubert issues to proceed in Bendet's case.  District court treats order to show cause as equivalent to motion for summary judgment, states that Bendet has already enjoyed opportunity to be heard on issue, and awards judgment to defendants.  Exclusion reversed.  Bendet was not judicially estopped from reliance on experts whose testimony was rejected in Glastetter, and was entitled to be heard for herself in her own proceedings.  District court's order to show cause did not afford sufficient notice and opportunity to be heard.  If Bendet's causation evidence were identical to evidence at stake in Glastetter, stare decisis would mandate identical result.  But Bendet says she relies on additional causation evidence.

Mattis v. Carlon Elec. Prods., 295 F.3d 856 (8th Cir. 2002).  Apprentice electrician develops reactive airways dysfunction syndrome (RADS) after using cement compound to lay PVC pipe.  At trial versus manufacturer, electrician offers causation testimony, over defendants' objections [?], from his treating pulmonologist, "Dr. Hansen," and from industrial hygienist, Robert Wadeke.  Jury returns verdict for plaintiff, and defendants appeal.  Affirmed.  Defendants say plaintiffs' causation testimony was legally insufficient.  Defendants fault Wabeke for failing to determine plaintiff's precise exposure level, but plaintiffs in toxic tort suits need not establish mathematically precise exposures.  It is enough to show exposure at levels capable of causing relevant harm, and Wabeke did so, through procedures in use for over 25 years and well-accepted by industrial hygienists.  Dr. Hansen, for his part, relied on differential diagnosis, which is reliable technique under Daubert, as well as consulting published studies on effects of solvents similar to those found in cement.  Experts' testimony was admissible and legally sufficient to show causation.

Proctor v. UNUM Life Ins. Co. of Am., No. 01-3000 (8th Cir. Jan. 29, 2002) (unpublished).  After conducting similar tests with differing results, two examining physicians reach opposite conclusions on whether employee suffers from disabling latex allergy.  ERISA plan administrator denies employee's claim for disability benefits, and employee sues plan.  District court concludes that administrator's decision was reasonably supported by relevant evidence and awards summary judgment to plan.  Affirmed.  Employee's reliance on Daubert is misplaced.  Key issue in ERISA benefits claim is whether administrator's decision is supported by substantial evidence, although that determination is made in part by considering quality of evidence.  Even if Daubert applies, employee did not present her test-reliability arguments to plan administrator, and so district court was precluded from considering those arguments or medical literature on which they were based.

United States v. Kirkie, 261 F.3d 761 (8th Cir. 2001).  In trial for aggravated sexual abuse of child, prosecution presents testimony from Dr. Richard Kaplan, who opines that absence of physical evidence of abuse does not preclude possibility that abuse actually occurred as reported by victim, and who also testifies that victim delay in reporting is not unusual.  Admissibility affirmed.  Testimony did not vouch for victim's credibility, because it did not exclude possibility that victim's report was inaccurate.  Witness's opinion was helpful to trier of fact, and district court did not abuse discretion in admitting it.

Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th Cir. 2001).  Plaintiff alleges that workplace exposures to defendant's organic solvent caused: (1) psychological problems, caused both by initial exposure and subsequent health problems; (2) cognitive impairments and personality disorders, caused by brain damage; and (3) Parkinsonian symptoms caused by brain damage.  Plaintiff offers two causation experts: Dr. Terry Martinez (pharmacologist and toxicologist), and Dr. Raymond Singer (neuropsychologist and neurotoxicologist).  Defendant moves to exclude their testimony under Daubert.  District court bars Dr. Martinez from testifying re Parkinsonian symptoms but permits his testimony re plaintiff's acute post-exposure symptoms.  Dr. Singer is permitted to testify that plaintiff suffers from organic brain dysfunctions and personality disorders consistent with exposure to defendant's solvent at toxic levels.  Defendant appeals from jury verdict for plaintiff.  Admissibility affirmedIn general: Toxic tort plaintiffs must prove both that toxin is capable of causing injuries like plaintiffs' in human beings and that it did in fact cause plaintiff's injuries.  However, first several victims of new toxic tort should not be barred from suit simply because medical literature, which will eventually support causal connection, has not yet been completed.  Plaintiffs need not produce mathematically precise tables equating levels of exposure with levels of harm, but need merely offer evidence from which jurors can reasonably conclude that exposure probably caused injuries.  There is no requirement that plaintiff's expert must always cite published studies on general causation, nor that pertinent epidemiological studies supporting plaintiff's position exist.  Even if trial judge believes there are better grounds for some alternative conclusion, and that there are some flaws in expert's methods, expert's opinion should be admitted if there exist good grounds to support it.  Only question is whether testimony is sufficiently reliable and relevant to assist jury.  Factual basis of expert opinion generally goes to credibility, not admissibility.  As for Dr. Martinez, he testified that acute symptoms suffered by plaintiff immediately after exposure (nausea, headache, tiredness, respiratory problems, trembling, skin irritation) were caused by exposures, basing his testimony on temporal relationship between exposure and symptoms, animal studies on chemical contained in solvent, studies of other chemicals with similar structures, studies of mechanism by which chemical acts on nerve pathways, and plaintiff's medical records.  Defendant argues this testimony was irrelevant, and also prejudicial because it could support improper inference that if chemical could cause short-term symptoms like plaintiff's, it could also cause similar long-term ones.  But whether or not latter inference would be permissible, testimony was relevant both to Dr. Martinez's analysis of whether and to what extent plaintiff was exposed and to other expert's analysis of plaintiff's exposure level.  Defendant also argues testimony was unreliable, because Dr. Martinez cited no epidemiological studies supporting conclusion that solvent could cause relevant symptoms through inhalation as opposed to ingestion, never quantified plaintiff's exposure, did not rule out other potential causes, and had not yet tested his theory.  But immediate temporal association with acute post-exposure symptoms was strong indicium of causation, and defendant's own consumer literature lists inhalation symptoms similar to plaintiff's.  It was not required that expert quantify exposure, only that plaintiff produce evidence of exposure above safe levels.  Plaintiff offered several witnesses to establish that plaintiff was exposed to quantities sufficient to cause absorption through skin of at least one quarter teaspoon.  And Dr. Martinez testified he followed same diagnostic procedures with plaintiff that he normally would follow in clinical practice.  As for Dr. Singer, he testified that exposure to solvent caused plaintiff to suffer permanent organic brain dysfunction manifesting itself in Parkinsonian physical symptoms, cognitive impairments, and personality disorders.  He also testified that inhalation was more potent exposure mechanism than ingestion, and that he followed normal procedures for evaluating patients with potential toxic exposure.  Defendant says Dr. Singer's theory was developed for litigation, not subjected to peer review, had not been published in scientific literature, and was unsupported by epidemiology.  Defendant also says Dr. Singer did not quantify plaintiff's exposure, did not opine on threshold exposure necessary for injury, failed to rule out other potential causes, and did not follow established guidelines for evaluating brain injury.  But district court's role was not to determine whether Dr. Singer's theory was correct, and appellate court's role is not to duplicate district court's analysis, which correctly held after exacting scrutiny that Dr. Singer's testimony was based on sufficiently good science to go to jury.  Defendant offered no studies indicating its solvent was incapable of causing permanent damage.  Defendant argues, finally, that Dr. Singer had no degree or academic work in toxicology, but credentials were unchallenged below.

Glastetter v. Novartis Pharms. Corp., 252 F.3d 986 (8th Cir. 2001).  Woman takes medication to suppress postpartum lactation, suffers stroke, sues medication's manufacturer.  District court excludes causation testimony from plaintiff's two physician experts and awards summary judgment to defendant.  Exclusion affirmed.  Plaintiffs' physician experts offered differential diagnosis testimony, which is presumptively admissible unless scientifically invalid.  Differential diagnosis consists of two steps: first, "ruling in" all scientifically plausible causes of patient's condition, and second, "ruling out" least plausible causes until only most likely cause remains.  Physicians here lacked scientific basis to "rule in" defendant's medication as potential cause.  Their opinions on causal association between medication and stroke were based largely on case studies, and causal attributions based on case studies must be viewed with caution.  Experts did show temporal relationship between ingestion of medication and stroke, but mere temporal association is insufficient, by itself, to show causation.  Fact that some ergot alkaloids cause vasoconstriction and vasospasm did not establish that this medication could do so, because even minor variations in molecular structure can radically alter substances' properties.  Plaintiffs' experts' "rechallenge" and "dechallenge" data may be more probative than ordinary case study reports, but district court did not abuse discretion in discounting these.  And experts did not offer sufficient basis for extrapolation from animal studies.  Not only was each of these bases insufficient to "rule in" medication as potential cause of stroke; evidence was also insufficient to do so in the aggregate.  Plaintiffs complain that district court erred in requiring epidemiological proof.  If district court had done so, reversal would be likely, because epidemiological proof is not necessary to support causation under Daubert.  But district court imposed no such requirement.

Turner v. Iowa Fire Equip. Co., 229 F.3d 1202 (8th Cir. 2000).  Fire extinguishing system at delicatessen accidentally activates during inspection, releasing large quantities of sodium bicarbonate (baking soda).  Exposed employee develops respiratory symptoms later diagnosed as hyperreactive airway disorder.  District court excludes causation testimony from treating physician and awards summary judgment to defendant.  Exclusion affirmed.  Proper differential diagnoses satisfy Daubert, but plaintiff's physician admitted he was more interested in identifying her condition than in ascertaining its cause, and he did nothing to rule out alternative causes.

Cano v. Cont'l Airlines, Inc., No. 04-16622 (9th Cir. July 20, 2006) (unpublished).  Passenger suffers sudden and fatal cardiac arrhythmia in plane's lavatory.  In suit against airline, her heirs offer cardiologist Dr. Gerald B. Lee, who opines that passenger likely experienced 10 to 25 minutes of prodromal symptoms, resulting in mental confusion that prevented her from opening lavatory door, pushing call button, exiting lavatory, or summoning help.  District court excludes testimony and awards summary judgment to airline.  Exclusion affirmed.  Expert's theory was developed for litigation and he offered no independent, objective support for it.  His conclusion was not fully supported by medical literature he submitted, and some of that literature was not peer-reviewed.  Nor was there much evidence that he applied his methodology in reliable fashion.  Given gaps between literature and expert's conclusions, district court did not abuse its discretion in excluding testimony. 

Kilian v. Equity Residential Props. Trust, No. 04-16723 (9th Cir. June 30, 2006) (unpublished).  Woman sues landlord for illness she attributes to mold exposure.  District court strikes testimony from plaintiff's experts Dr. Michael Gray, Dr. Kilburn, and industrial hygienist David Rueckert.  Trial court proceeds to find for landlord in bench trial.  Exclusions affirmed.  Trial court did not abuse its discretion in finding experts' testimony unreliable.  Dr. Gray followed unorthodox practices not generally accepted in field and used tests that another of plaintiff's own experts described as useless for detecting mycotoxin exposure.  Dr. Kilburn failed to review medical records before diagnosing epileptic seizures that other specialists had ruled out, and followed his own specially concocted array of diagnostic tests.  Moreover, he admitted his opinion went only to impairment, not causation.  Industrial hygienist never tested plaintiff's apartment for mycotoxins and admitted mold levels at plaintiff's apartment were in normal range.

Armstrong v. Lab One, Inc., No. 04-15061 (9th Cir. Nov. 28, 2005) (unpublished).  Claimant sues ERISA plan for long-term disability benefits.  Plan relies on opinions from non-examining physicians and nurses.  District court awards summary judgment to plan.  Admissibility affirmed.   Claimant waived Daubert objection by failing to present it in district court.

Meyer v. General Nutrition Center, No. 03-56883 (9th Cir. June 15, 2005) (unpublished).  Did plaintiff's consumption of nutritional supplements containing defendant's L-tryptophan cause plaintiff's eosinophilia-myalgia syndrome (EMS)?  Dr. Gerald Gleich so opines for plaintiff.  District court strikes his testimony as unreliable and awards summary judgment to defendants.  Exclusion reversed.  Based on literature review and his own extensive research, expert concluded that defendant's L-tryptophan was only known cause of EMS.  District court's decision was based on disagreement with expert's conclusions, rather than any failing in his methodology.

Sullivan v. United States Dep't of the Navy, 365 F.3d 827 (9th Cir. 2004).  Following breast reconstruction surgery, patient develops wound with necrotic tissue in lower back, at site where tissue was harvested.  Patient subsequently experiences muscle weakness in back and requires later surgery to correct scarring and disfigurement.  In medical malpractice action against original surgeon, patient offers testimony from Dr. Anne M. Wallace, who opines that surgery's unusual length caused infection and necrosis.  District court excludes testimony and awards summary judgment to surgeon.  Exclusion reversed.  Trial court's ruling rested on erroneous conclusions concerning legitimately disputed issues of fact (location of infection, nature of wound).  Moreover, trial court applied inappropriately rigid Daubert standard to medical expert testimony.  Although Daubert is relevant, Kumho Tire's standards for experience-based testimony are more apposite.  Basic medical principles on which expert relied are generally accepted, and application of those principles is proper domain of surgeon experienced in field.  District court should conduct new admissibility analysis on remand, "proceed[ing] as a good surgeon would in determining what is reliable knowledge in the surgical profession."

McGregor v. Paul Revere Life Ins. Co., No. 02-16817 (9th Cir. Jan. 15, 2004) (unpublished).  In suit against insurer for refusal to pay disability benefits, insured offers testimony from her treating physician, "Dr. Markison," who opines that plaintiff is unable to perform her duties as court reporter.  Jury finds for plaintiff.  Admissibility affirmed.  Trial court's reliability findings were brief, but did not represent abdication of gatekeeping function.  Trial court did not err in ruling that credibility issues could be addressed through cross-examination.  Even assuming trial court had erred, any error would be harmless, because witness could have offered most of his testimony based on his status as plaintiff's treating physician. 

Bennett v. Schuberth Helme GMBH & Co., No. 02-35747 (9th Cir. Oct. 8, 2003) (unpublished).  In product defect litigation, district court excludes testimony from plaintiff's expert, Dr. Malcolm Newman, on causation of plaintiff's injuries.  Exclusion affirmed.  Expert admitted he could not identify plaintiff's specific injuries or analyze them to determine what forces caused them.

United States v. Garabet, No. 02-50388 (9th Cir. June 26, 2003) (unpublished).  Ophthalmologist is indicted for mail fraud in services-not-performed scheme.  Another ophthalmologist, Dr. Steven Schwartz, testifies for prosecution that five of defendants' patients show no retinal scarring, whereas laser surgery performed within parameters indicated on defendant's charts would always leave a scar.  Admissibility affirmed.  Defendant did not object to expert's testimony at trial and so review is for plain error.  Prosecution expert based his testimony on examinations of patients and reviews of their fluoroscein angiograms -- methods accepted by every eye doctor who testified.

Schudel v. General Electric Co., No. 99-36089 (9th Cir. May 10, 2002) (unpublished), cert. denied, 537 U.S. 887 (2002).  Plaintiffs allege that exposure to solvents during environmental cleanup caused respiratory problems.  At trial, district court admits causation testimony for plaintiffs from three physicians over defendants' objections.  Jury returns verdict for plaintiffs.  On first appeal, Schudel v. General Electric Co., 120 F.3d 991 (9th Cir. 1997), testimony from physicians is held inadmissible, and case is remanded for further proceedings.  On remand, district court orders plaintiffs to come forward with new, admissible causation evidence.  Plaintiffs do so.  District court concludes that "new" evidence does not differ materially from previous causation evidence, excludes it, and awards judgment to defendants.  Exclusion affirmed.  There was only one material change in expert testimony -- viz., one physician who previously testified that injuries were "related to" toxins now opined instead that toxins "more probably than not" caused injuries.  Such tailoring of testimony fatally undermines any contention that physician's opinion is based on scientific methods.

Mason v. Equitable, No. 00-56588 (9th Cir. Feb. 27, 2002) (unpublished).  Employee files long-term disability claim after physician performing surgery for bladder cancer tells employee that further exposure to industrial solvents could cause recurrence.  Insurer denies claim and employee sues.  District court excludes testimony from employee's physician experts for want of relevance and reliability.  Exclusion affirmed.  District court did not abuse discretion.  Even assuming that continued performance of employee's occupation would require some exposure to solvents, employee offered no competent medical evidence to show that risks would be greater for him than for population at large.  [See also Mason v. Equitable, No. 02-56384 (9th Cir. Oct. 14, 2003) (unpublished) (affirming subsequent grant of summary judgment).]

Domingo v. T.K., 276 F.3d 1083 (9th Cir.), amended, 289 F.3d 600 (9th Cir. 2002).  After hip replacement surgery, patient suffers from fat embolism syndrome (FES), goes into coma, and suffers severe brain damage.  Did unusual length of time required to mallet prosthesis during surgery cause patient's injury?  Plaintiff's expert physician so testifies in medical malpractice action, based on expert's experience, observation, and review of pertinent studies.  Defendants move to exclude expert's testimony and/or for appointment of special master.  District court appoints board-certified orthopedic surgeon as technical advisor, and advisor issues report concluding that plaintiff's expert's testimony is neither scientifically derived nor based on objectively verifiable scientific principles.  After parties have opportunity to respond to advisor's report, district court excludes plaintiff's expert testimony.  Plaintiff then argues that causation is supported by portions of defense experts' testimony, but district court concludes otherwise, and further holds that relevant testimony from defense experts is subject to exclusion under Daubert in any event.  There being no expert evidence from any quarter to support causation, district court awards summary judgment to defendants.  Exclusion affirmed.  Plaintiff's expert reasoned that unusual malleting time was only unusual aspect of plaintiff's surgery, but FES is risk associated with all hip replacement surgery, and nothing in literature cited suggests that risk increases when some aspect of surgery proceeds atypically.  Expert's malleting theory was not published, peer-reviewed, or clinically tested, does not enjoy general acceptance, and is not otherwise supported by objective and verifiable scientific principles.  District court acted within sound discretion in excluding plaintiff's expert's testimony.  As for defense experts, district court correctly ruled that their testimony would not support permissible jury inference of causation, and so summary judgment was properly awarded.  Accordingly, Ninth Circuit need not reach question whether district court's exclusion of defense experts' testimony under Daubert was appropriate.   (NB: Text of opinion was amended by order of 4/12/02 denying rehearing and rehearing en banc; revised opinion appears at 289 F.3d 600.)

Nadell v. Las Vegas Metro. Police Dep't, 268 F.3d 924 (9th Cir. 2001), cert. denied, 535 U.S. 1057 (2002).  To support claim she suffered physical injury when police applied excessive force, civil rights plaintiff offers testimony of physician [?] who performed quantitative electroencephalogram (QEEG).  District court excludes testimony after finding QEEG methodology unreliable following two-day Daubert hearing.  Exclusion affirmed.  Hearing included testimony from leader of joint task force of American Academy of Neurology and American Clinical Neurophysiology Society that QEEG technique's subjectivity and tendency to produce "false positives" had kept it from gaining general acceptance as tool for diagnosing closed head injuries.  Moreover, plaintiff had suffered head injuries as child and QEEG test could not distinguish her childhood injuries from any injuries sustained from police.

Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001).  Is herbal concoction safe?  News story raises doubts.  Herbal company sues reporter and television station for trade libel.  Company presents testimony from five risk assessment experts, and from physician re her unpublished cardiovascular risk study, animal toxicity tests, and short-term efficacy studies.  Trial court excludes all testimony as unreliable.  Exclusion affirmed in part and reversed in part.  District court erred in imagining that per se rule barred all use of animal studies to prove human effects, and also in supposing that research conducted outside United States is presumptively unreliable.  Nor is extrapolation from high-dose short-term studies to low-dose long-term situations impermissible per se; it depends on details about studies themselves.  Rather than exclude cardiovascular study because it was commissioned by defendant and not peer-reviewed, district court should have evaluated reliability of methods.  And district court should not have excluded risk assessment evidence on conclusory grounds.  District court did correctly rule that efficacy studies went to effectiveness of herbal product and were not relevant to safety.

Gebhardt v. Mentor Corp., No. 00-15279 (9th Cir. Aug. 1, 2001) (unpublished).  Anti-reflux prosthesis is implanted in surgery, is found during subsequent exploratory surgery to have eroded into patient' stomach and pericardium.  Patient sues device manufacturer.  Plaintiff offers testimony from Ph.D. with industry experience in labeling of medical devices and FDA regulations.  District court excludes testimony because expert is not medical doctor and because plaintiff has not shown how expert is qualified to testify on medical issues.  Exclusion affirmed.  Expert had no medical training or experience and was in no position to offer opinion on how warning label would have affected surgeons in their decisions whether to employ prosthesis.  Experts need not have medical degrees to testify on medical matters, but this expert's experience with FDA was not enough.  In any event, testimony was irrelevant to causation because surgeon here was learned intermediary who did not rely on labeling.

Tingey v. Radionics, No. 04-4216 (10th Cir. Aug. 8, 2006) (unpublished).  During nerve ablation procedure to alleviate back pain, patient receives unplanned electrical shock to nerve tissue from medical device.  Patient soon develops apparently permanent urinary incontinence.  Patient sues device manufacturer, alleging that design defect caused her shock and resulting medical condition.  Manufacturer moves for summary judgment.  To show causation, patient responds with: (1) affidavit from urologist Dr. McKay L. Platt; and (2) deposition testimony, taken in separate state court proceedings, from anesthesiologist Dr. Richard Rosenthal, who performed her procedure.  District court strikes their testimony as unreliable, and strikes Rosenthal's testimony on additional ground that manufacturer was not named as party to state court proceedings in which deposition was conducted and received no notice of it.  No other causation evidence being sufficient to create genuine issue of fact, district judge awards summary judgment to manufacturer.  Exclusions reversed.  District court's contrary conclusions notwithstanding: (1) Platt recited sufficient facts to ground his opinion and was qualified to render it, and his factual disagreement with another expert on existence of nerve damage went to weight, not admissibility; and (2) Rosenthal was qualified, had reliable basis on which to "rule in" electrical shock as cause of incontinence, and also took suitable steps, in his differential diagnosis, to "rule out" opiate abuse.  Absence of notice of deposition to defendant did not render Rosenthal's deposition transcript inadmissible on summary judgment; it was analogous to testimony offered via affidavit.

Fitzgerald v. Corrections Corp. of Am., 403 F.3d 1134 (10th Cir. 2005).  Inmate brings malpractice claim against prison doctor, alleging that doctor failed to provide adequate treatment for inmate's broken hip.  Doctor moves for summary judgment, relying on affidavit from in which expert physician opines in conclusory fashion that inmate's treatment was "appropriate" and "within the accepted standard of care."  Inmate responds that "[the] proffered affidavit is not evidence, having not been subjected to examination by the plaintiff, or even qualified as expert. Neither is it a learned treatise of which the court could take judicial notice. As such, it should not be considered."  District court relies on affidavit in granting summary judgment to doctor.  Inmate appeals.  Reversed.  Conclusory affidavit, which recited no specific facts in support of expert's views, was insufficient to support motion for summary judgment, and inmate therefore was not required to tender expert evidence in response.  Dissent: Majority concludes that defense expert's affidavit is insufficient without explicitly considering its admissibility under Daubert and without applying deferential abuse-of-discretion standard appropriate for evidentiary decisions.

Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir. 2005).  Plaintiff's physician experts opine that plaintiff's silicone breast implants caused her connective tissue / autoimmune disease.  District court excludes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Experts' differential diagnoses were flawed because they lacked any basis to "rule in" implants as cause of plaintiff's disease, given substantial epidemiological literature disclosing no generic causal link.

Solorio v. United States, No. 02-4227 (10th Cir. Jan. 15, 2004) (unpublished).  Government vehicle veers into barricaded construction area, striking and killing construction worker.  Following accident, driver is observed having seizure.  Driver has no prior history of seizures.  Victim's estate brings FTCA claim against government.  Did impact of accident cause seizure, as plaintiff contends, or did seizure cause accident, negating negligence, as government contends?  Driver has no useful memory of incident, and so plaintiff offers testimony on timing of seizure from  neurologist, Dr. Phillip S. Savia.  Government moves for summary judgment on negligence.  In its summary judgment brief, government includes footnote citing Daubert and containing this sentence: "Dr. Savia's subjective belief or unsupported speculation is inadmissible as expert testimony."  However, government files no motion to strike.  Plaintiff's responsive summary judgment brief does not address government's footnoted reference to admissibility.  On reply, government attacks admissibility of neurologist's opinion in earnest.  District court hears argument on issue at summary judgment, but convenes no separate Daubert hearing or other evidentiary proceedings.  District court strikes neurologist's testimony and awards summary judgment to government.  Exclusion affirmed.  Plaintiff claims surprise but was on notice of objection and provided insufficient support of neurologist's opinion.  Neurologist testified at deposition that many of his findings were based on assumptions, that he had no support in published literature for his opinion, and that he would defer to government's expert as more knowledgeable concerning epilepsy and seizures.

Goebel v. Denver & Rio Grande Western R.R., 346 F.3d 987 (10th Cir. 2003).  Railroad engineer develops neurological symptoms and cognitive deficits following exposure to diesel fumes in tunnel at high altitude.  In engineer's FELA action, jury awards verdict of $755,000, after hearing toxicologist Dr. Daniel T. Teitelbaum testify to causation, but court of appeals vacates and remands for new trial because record reflects no Daubert analysis by district court.  See Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000) (infra).  On remand, district court conducts Daubert inquiry and holds toxicologist's testimony to be admissible.  Parties stipulate to entry of judgment in amount of prior jury verdict, with railroad reserving right to appeal Daubert ruling.  Admissibility affirmed.  Railroad contests toxicologist's opinion on general causation, and also faults differential diagnosis he conducted to opine on individual causation.  But district court acted within its discretion in concluding that his opinions reasonably flowed from data on which he relied.

Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir.), cert. denied, 540 U.S. 1003 (2003).  In toxic tort suit arising from operation of uranium mill, plaintiffs offer expert testimony from: (1) geologist Glen Miller, to show presence in environment of toxic substances from mill; (2) Dr. Malin Dollinger, to provide physician testimony that exposure to those toxic substances caused plaintiffs' health conditions; and (3) toxicologist Martyn Smith, Ph.D., to provide additional causation testimony.  Defendant files 47-page motion to strike, appending thousands of pages of expert reports, deposition testimony, and relevant literature.  District court concludes that motion and appendix violate local rules re length, and instructs defendant to file motion and appendix not exceeding twenty pages apiece.  District court also advises parties it will convene Daubert hearing but would prefer not to hear live testimony unless absolutely necessary.  At hearing, defendant seeks to introduce testimony from three of its own experts, but district court refuses, citing defendant's failure to notify court in timely manner.  After four hours of argument, district court then reserves ruling until trial.  During in camera voir dire at trial, district court issues oral rulings that testimony will be admitted, offering explanations focusing primarily on expert's qualifications.  Jury returns verdict for plaintiffs.  Admissibility reversed.  District court's various limitations on defendant's ability to present information, taken together, constituted abuse of discretion.  Moreover, district court did not prepare sufficiently detailed findings on reliability issues to permit appellate review.  Remanded for new trial.

Hollander v. Sandoz Pharmaceutical Corp., 289 F.3d 1193 (10th Cir. 2002), cert. denied, 537 U.S. 1088 (2002).  Woman takes Parlodel to suppress postpartum lactation, suffers stroke, and sues Parlodel's manufacturer, offering causation testimony from three physicians: Dr. Kenneth Kulig (toxicology), Dr. Leslie Iffy (obstetrics and gynecology), and Dr. Pedro A. Jose (biophysics).  District court excludes testimony from all three as unreliable and awards summary judgment to defendants.  Exclusion affirmed.  Some argot alkaloids cause vasoconstriction, and Dr. Kulig concludes from this that bromocriptine, an ergot alkaloid contained in Parlodel, may also do so.  But bromocriptine has different chemical structure from other ergot alkaloids, and even minor differences in chemical structure can lead to major differences in physiological effects.  Dr. Kulig's testimony on Parlodel's pharmacological properties is similarly speculative; e.g., he does not identify "company studies" on which he purports to rely.  Dr. Jose also testifies to pharmacological mechanism by which bromocriptine might cause vasoconstriction, but although Dr. Jose's theory is elegant, it is untested, and district court did not show manifestly unreasonable judgment in excluding it.  Both Dr. Kulig and Dr. Iffy testify based on studies linking Parlodel to postpartum hypertension, but those studies did not address strokes.  Likewise, animal studies invoked by plaintiffs' experts show only that bromocriptine may act as vasoconstrictor in certain animals and narrow circumstances, and do not suffice to establish stroke causation.  Plaintiffs' experts also rely on case studies and differential diagnosis, which district court rejected as unscientific methodologies.  Tenth Circuit need not reach question whether these techniques can ever constitute sound methodology, because even assuming that differential diagnosis is legitimate medical technique, district court could reasonably conclude that plaintiffs' experts provided no sound basis on which to "rule in" bromocriptine as potential cause.  District court could also properly discount reliance on rechallenge and dechallenge data, especially given sparsity of those data. 

Standard v. Union Pac. R.R., No. 00-7083 (10th Cir. Apr. 8, 2002) (unpublished).  Defendant in FELA action challenges qualifications of plaintiff's vocational rehabilitation expert, Dr. Cary Bartlow.  Admissibility affirmed.  Defendant's challenge was to expert's qualifications; no explicit Daubert challenge attacked expert's methods for want of reliability.  District court conducted extensive hearing on admissibility and acted within its sound discretion in admitting testimony.  Credibility issues were for jury.

Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002), cert. denied, 125 S. Ct. 2301 (2005).  Man convicted of murder in state court petitions for habeas corpus, alleging that state trial court erred in barring testimony from petitioner's physician re "Steroid Rage Syndrome" (SRS), and that counsel rendered ineffective assistance by not presenting expert's more general testimony re effects of steroids on petitioner's state of mind.  District court denies petition.  Reversed.  District court determined that state trial court did not err in barring testimony re SRS, because defense counsel: (a) failed to establish reliability of SRS theory under either Daubert or Frye; (b) expressly disclaimed any intent to use SRS evidence in guilt phase; (c) did not seek to offer steroid evidence in sentencing phase.  Tenth Circuit agrees with district court's conclusions, but dispositive fact is that state trial court barred only testimony relating specifically to SRS, leaving admissibility of other steroid evidence open, and never barring the latter.  Remaining question is whether trial counsel rendered ineffective assistance in failing to offer any steroid evidence.  As to guilt phase, petitioner has failed to show that counsel's performance fell sufficiently far below par to constitute ineffective assistance; steroid evidence would not have lessened defendant's culpability.  As for penalty phase, however, physician's testimony re effects of steroid usage was relevant and reflected emerging scientific consensus (although physician conceded that "Steroid Rage Syndrome" was not specifically recognized).  Testimony was therefore admissible under Daubert.  District court should determine on remand whether counsel's failure to offer that testimony during sentencing phase amounted to ineffective assistance.

Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (10th Cir. 2001).  After surgery for cancer of femur, patient trips and fractures femur.  Device is surgically implanted to hold bones together so they can heal.  Patient subsequently twists leg at work, and physical examination reveals that implanted device has broken.  Original surgeon replaces original device with intramedullary nail.  Plaintiff subsequently complains of pain.  Specialist in oncologic orthopedics examines patient and concludes that original fractures have failed to heal, though not by reason of any failure of original device.  New orthopedic surgeon removes intramedullary nail and performs total knee replacement.  Patient brings failure to warn claim against manufacturer of original device and offers second surgeon as expert.  District court excludes testimony from second surgeon because she is unqualified and also for want of reliability under Daubert.  Summary judgment is then awarded to defendant.  Exclusion affirmed.  Court of appeals need not reach reliability issues, because district court properly excluded witness as unqualified.  Expert's sole qualification was that she was orthopedic surgeon.  Expert admitted she was not expert in intramedullary nailing, had done no research on subject, was not retained as expert on warnings, and had never drafted any warnings for this or any other medical product. 

Tusshani v. United States, No. 00-8031 (10th Cir. Apr. 5, 2001) (unpublished).  Prisoner brings Federal Tort Claims Act Claim for medical malpractice, alleging transfer to different facility interrupted rehabilitative treatment for his spinal injuries, permanently and/or temporarily interfering with his recovery.  Treating physician testifies at deposition that interruption did adversely affect condition but that she knows of no reason why interruption should prevent prisoner from reaching full potential for ambulation upon resumption of treatment.  District court awards summary judgment to United States, relying on treating physician's testimony that with resumed therapy prisoner could achieve his full potential for ambulation, excluding physician's other testimony on "fit" grounds, and noting absence of any neurological evidence.  Exclusion affirmed in part and reversed in part.  Physician did testify that interruption in treatment caused substantial non-permanent injuries to prisoner, and so summary judgment should not have been awarded as to those.

Phillips v. Hillcrest Medical Center, 244 F.3d 790 (10th Cir. 2001), cert. denied, 535 U.S. 905 (2002).  Decedent's estate brings medical malpractice action after emergency personnel misdiagnose his acute bacterial endocarditis as pneumonia.  District court permits hospital, in support of its comparative negligence defense, to introduce evidence that decedent failed to inform them of his use of illegal drugs when decedent provided his medical history.  (Hospital contends knowledge of illicit drug use would have precipitated more extensive testing.)   Decedent's estate seeks to rebut with physician testimony that any illicit drug use did not cause decedent's death.  Exclusion affirmed.  Ordinarily, Tenth Circuit would review exclusion of expert testimony under standards set forth in Daubert, but district court  excluded physician's testimony not pursuant to Daubert, but as irrelevant, because causation of death was not in issue.  Such decisions are reviewed for abuse of discretion, and will not be reversed unless district court's ruling was "arbitrary, capricious, whimsical, or [showed] manifestly unreasonable judgment."  Estate suffered no prejudice, because hospital never argued that decedent's drug use caused his death.

Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000).  Train breaks down in Moffat Tunnel -- which is six miles long and crosses continental divide in Colorado at altitude of nearly two miles.  Conductor attributes subsequent neurological symptoms to prolonged inhalation of diesel fumes while trapped in tunnel.  Over railroad's objection, district court admits testimony from conductor's toxicologist to this effect.  Admissibility reversed.  District courts enjoy considerable leeway in procedures they adopt to evaluate reliability, but nothing in record indicates that district court conducted any Daubert inquiry at all, as it should on remand.  [For developments following remand, see Goebel v. Denver & Rio Grande Western R.R., No. 02-1391 (10th Cir. Oct. 9, 2003), supra.]

United States v. Koruh, No. 99-2138 (10th Cir. Apr. 3, 2000) (unpublished).  Charged with sexual abuse of his two underage nieces in Indian country, defendant denies any molestation.  Prosecution offers pediatrician, Dr. Renee Ornelas, to testify that children commonly do not disclose sexual abuse for years, and also that when children are sexually abused but not penetrated, she would expect no medical findings.  District court admits testimony and jury convicts.  Admissibility affirmed.  Defendant did not contest expert's qualifications at trial, but objects that expert had not spoken with either victim, and was improperly offered to bolster victims' credibility.  But profile evidence that generally describes emotional and psychological characteristics of abused children is helpful to trier of fact, where molestation is contested, and is admissible without regard to performance of medical or physical examination.  No abuse of discretion.

Giddens v. Equitable Life Assurance Soc'y, 445 F.3d 1286 (11th Cir. 2006).  Suing for benefits under disability policy, plaintiff offers testimony from treating gastroenterologist, Dr. James Richard Spivey, and treating psychiatrist, Dr. Mary Patrice Webster.  Admissibility affirmed.  Both experts conducted extensive review of plaintiff's medical history.  Additional tests could have been performed, but both doctors' opinions were sufficiently reliable, without further testing, for them to opine on plaintiff's medical condition and job tasks he could and could not perform.

McClain v. Metabolife Int'l, Inc., 401 F.3d 1233 (11th Cir. 2005).  Did herbal diet supplement (mixture of caffeine and ephedrine) cause plaintiffs' injuries (heart attack and stroke)?  To show it did, plaintiffs offer expert causation testimony from James O'Donnell, Pharm. D., and Hashim Hakim, M.D.  Defendants move to exclude their testimony.  District court denies motion, noting that defendants have offered no competing expert testimony, and concluding that court lacks sufficient scientific knowledge to say that plaintiffs' evidence is unreliable. Jury finds for plaintiffs and awards damages.  Admissibility reversed.  District court impermissibly abdicated its gatekeeping function.  Even if it had not, testimony was inadmissible as matter of law.  Dr. O'Donnell did not address dose response -- "the hallmark of the science of toxic torts."  Pharmacological analogy between ephedrine and phenylpropanolamine (PPA), on which Dr. O'Donnell placed major reliance, is unproven.  Nor do anecdotal consumer complaints, or FDA's withdrawn proposals to regulate ephedrine, supply sufficiently reliable bases for his opinions.  Dr. Hakim lacked sufficient basis for generic causation to "rule in" ephedrine as one potential cause.

McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004).  Prisoner with back pain is sent to hospital, treated, and returned.  Prisoner visits jail nurse on following day, complaining of inability to urinate and difficulty walking.  Nurse determines that prisoner should be transported to hospital to rule out pneumonia and "acute abdomen." Nurse so informs jail personnel but allegedly fails to communicate urgency of prisoner's need for attention.  After twelve hours have elapsed without prisoner's being transported, prisoner informs corrections officer that he no longer has feeling in his legs.  He is now finally transported, whereupon hospital medical staff discover spinal epidural abscess and perform surgery, reversing prisoner's total paralysis but leaving him partially paraplegic.  Prisoner brings claims for medical malpractice under Georgia law against hospital medical personnel, and also against jail nurse and her contractor employer.  In support, prisoner offers testimony from three expert physicians, Drs. James Merikangas, Rabih O. Darouiche, and David Gower, who seek to testify that delay in treatment caused or exacerbated prisoner's injury, and who also opine on applicable duty of care.  Hospital moves to exclude prisoner's experts, but jail nurse does not join in motion.  District court grants hospital's motion, and notes in doing so that all three experts for prisoner stated they were unqualified to opine on hospital nurses' duty of care.  District court then reopens discovery to permit prisoner to develop further causation evidence, but not as to issue of jail nurse's negligence.  Hospital defendants settle.  Relying on prior ruling that prisoner's experts were not qualified to opine on standard of care applicable to nurses, district court then grants summary judgment to jail nurse.  Prisoner appeals.  Judgment affirmed; exclusions affirmed in part and reversed in part.  Prisoner did offer competent evidence on jail nurse's duty of care: Dr. Dariouche testified that he could not comment on hospital nurses' conduct, but that jail nurse should have called ambulance to transport prisoner.  Physicians are competent to opine on nurses' duty of care under Georgia law, which governs in light of Fed. R. Evid. 601.  Physicians' qualifications necessarily extend to opinions on nurses' duty of care, and Dr. Dariouche's ability to opine on that subject did not require special acquaintance with jailhouse nursing, because issue was medical, not correctional.  But district court permissibly excluded physicians' opinions on causation.  They lacked reliable bases for their opinions that surgery would have altered outcome if provided more promptly.

Toole v. Baxter Healthcare Corp., 235 F.3d 1307 (11th Cir. 2000).  At trial of products liability claim against breast implant manufacturer, four physicians testify for plaintiff that ruptured implants caused her disease, and three additional physicians testify to disease process associated with human body's reactions to silica.  Admissibility affirmed.  Physicians had conducted research, published in peer-reviewed journals, and treated hundreds of patients with silicone gel implants.  District court did not abuse discretion in admitting their testimony.

Meister v. Med. Eng'g Corp., 267 F.3d 1123 (D.C. Cir. 2001).  Silicone breast-implant plaintiff with scleroderma offers treating physician and pathologist as causation experts.  Trial court initially denies defendants' Daubert motions but later grants defendants' motion for judgment as matter of law or new trial after jury returns verdict for plaintiff.  Exclusion affirmed.  Treating physician performed differential diagnosis, but case study reports were not sufficient to "rule in" silicone as potential cause of scleroderma in face of strong body of epidemiological research showing no causal nexus, and pathologist's causation opinion was tentative and insufficient; "chemical, in vitro, and in vivo ... studies ... singly or in combination, are not capable of proving causation in human beings in the face of the overwhelming body of contradictory epidemiological evidence."  Courts elsewhere are unanimous in rejecting similar causation evidence in silicone breast implant cases.

Helms v. Sec'y of Health & Human Servs., No. 00-5110 (Fed. Cir. May 29, 2001) (unpublished).  In proceedings under National Childhood Vaccine Injury Act, plaintiff's neuropathologist blames plaintiff's encephalopathy on vaccine, whereas HHS's neuropathologist blames suffocation.  Special master finds for HHS.  Court of Federal Claims remands, because unclear on how special master applied Daubert in evaluating plaintiff's evidence.  Special master again finds for HHS, and Court of Federal Claims now affirms, because special master presented rational analysis of evidence.  Affirmed.  Review of special master's factual findings under Vaccine Act is highly deferential, with affirmance required unless special master's ruling was arbitrary and capricious.

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