*1 But disparity tors. “a among sentences not, more,
co-defendants does without con-
stitute an abuse of discretion. The defen- rely upon
dants cannot their co-defen- yardstick
dants’ sentences as a for their Devine,
own.” United States v. (5th Cir.1991) (internal
1325, 1338 citations
omitted).
IV. argument,
At oral government indi-
cated that it would abandon appeal its
the dismissal of the bank fraud-related
charges if Castle’s and Stalnaker’s other upheld.16
convictions were Having found
no error in regard to those convictions or
sentences, we therefore do not reach the
bank fraud issue.
AFFIRMED. HUSS; Rodney Huss,
Plaintiffs-Appellees, GAYDEN, M.D.;
John Overton Mem
phis Gynecological Obstetrics and As
sociation, PC, Defendants-Appellants.
No. 04-60962.
United States Court of Appeals,
Fifth Circuit.
Junе Specifically, argument govern- at oral bank fraud explained issue.” He that ad- stated, attorney ment’s "If the court dressing were to unnecessary, the issue would be be- otherwise find appropriately the defendants cause it would not affect the defendants’ guilty counts, and convicted of the beyond we potential special $100 sentences asking would not be the court to reach the assessment. *2 Chapman, disquali E. & Ralph Chapman, judges Lewis active service and not Daniels, Clarksdale, MS, Swan, H. granting John fied not vote in favor of re (Huss & III, Daniels, Gayden en banc. Huss v. Dyer, Dyer, hearing Jones Green- *3 (ar- ville, MS, 5013195, Myers II), Jane Horne Virden at *1 Cir. WL Dec. & Swan, 2006) curiam). Chapman, Madison, However, gued), 27, Lewis (per pan this MS, Plaintiffs-Appellees. for rehearing In granted panel. el before the Mississippi light Supreme Court’s Priestly Caraway (argued), Meta Mark Ritter, opinion in Sutherland v. 959 So.2d Carter Child & Copeland, Wise Cara- S. (Miss.2007), sua panel majority Jackson, MS, way, Defendants-Appel- sponte requested Mississippi that the Su lants. preme accept question Court certified limitations. Huss regarding the statute (Huss III), Gayden 240, 508 F.3d 245-48 (5th Cir.2007). Mississippi Supreme The accepted question, Court held HIGGINBOTHAM, Before DeMOSS defendants’ limitations fails as defense OWEN, Judges. Circuit (Huss Huss v. Gayden See of law. matter IV), (Miss.2008). 991 So.2d We DeMOSS, Judge: Circuit prior now vacate our decision and address malpractice diversity medical remaining issues. suit, appeal jury’s million $3.5 plaintiff award to Barbara re- Huss. We II.
verse and remand for a new trial. This is a malpractice suit I. against physician and a professional cor- begin We with a brief overview of poration physicians. Barbara Rod- litigation. Barbara Huss and her husband Huss, ney of Mississippi, allege citizens Rodney Huss filed this lawsuit on June Gayden that defendants John and Mem- parties 2000. The consented to have the phis Gynecological Obstetrics and Associa- magistrate case heard judge. before a OB/GYN”), (“Memphis tion PC citizens of Greenville, Trial was held Mississippi Tennessee, administered negligently 17-20, August jury eight A re drug Terbutaline sulfate1 to Barbara dur- general turned a verdict favor of Bar her ing pregnancy. The manufacturer of $3,500,000. bara Huss awarded her Terbutaline was not sued. also a verdict in returned favor Huss, argued Husses at trial Rodney that defen- nothing. but awarded him panel A dants breached the standard of care divided of this Court concluded applicable administering that the subcutaneous Terbutaline to Mississippi statute (an tocolytic agent limitations barred a Barbara as a to slow or the Husses’ claims as (Huss I), Gayden contractions), Huss v. matter of law. halt premature labor (5th Cir.2006). prescription tocolytic physical 208-09 of a without requested rehearing Husses en A examination physician, prescrip- banc. poll any was taken and a majority tocolytic tion of when Barbara was not generic 1. Terbutaline sulfate is the name for Terbutaline. drug We throughout Brethine. refer to the Barbara, labor, ally examine but communicated prescription actually nurse, first by telephone ordering there was with a weeks when for four Terbutaline hydration and the drug in labor. intravenous Stadol. no indication continued, contractions Dr. Albrit- Barbara would When The Husses also said injections of Terbuta- ton ordered subcutaneous to treatment with have consented given injec- risks. two informed of the Terbutaline. Barbara had she been line tions, Bar- and the contractions ceased within a say Terbutaline caused The Husses morning, cardiomyopathy,2 pulmo- few hours. The next March develop bara edema, Gayden, failure. defendant Dr. John a Mem- nary congestive heart phis physician, prescribed admin- OB/GYN
A. of 2.5 milligram istration oral Terbutaline initially pills, tablets. Barbara received 30 An- patient of Dr. Barbara became every pill was to hours. and take six Giddens, Memphis of a member drea OB/ times, prescription refilled three 17, was GYN, At that February on meaning pills, Barbara received or time, twenty-seven weeks Barbara was approximately for four weeks. Al- supply May and had a due date pregnant, ceased, Gay- had Dr. though contractions her Dr. Barbara informed Giddens prophylactical- prescribed den Terbutaline history included one childbirth ly prevent pre-term to the recurrence section, prior miscarriages, three Cesarian premature and to forestall la- Bar- contractions cysts, hypertension. and ovarian delivery. discharged on and Barbara was factors bor medical conditions and bara’s hospital weight morning of for- from the on the of March February gain included: fifty pounds during swell- 9. ty pregnancy, vomiting, near-constant nausea and
ing, 10, 1998, March Barbara On returned (i.e., pregnancy-in- gestational diabetes follow-up for a exami- Memphis OB/GYN diabetes), cigarette continued duced Dr. expe- nation Giddens. Barbara was Dr. Gid- smoking throughout pregnancy. riencing contrаctions at occasional weight that the “excessive” dens believed pro- Dr. in the time. Giddens concurred excess part was to retention of gain due prescription of oral Terbutaline phylactic fluid, edema, well as eat- as excessive trial, tocolytic. Dr. was At Giddens Dr. concluded that Barbara ing. Giddens in obstetrics and recognized “high-risk pregnancy” and directed had testified that she was gynecology. She for working to cease the remainder her past with Barbara’s Cesarian concerned her term. “I Dr. said: was con- Giddens section. contracting at about her home March when Barbara cerned On ... prior for with a increasing she the risk contractions thirty pregnant, weeks felt rupture, is uterine which can be experienced She section cramping pressure. devastating. baby can die. The apart, and five to ten minutes contractions can die. I did not want her to sought in labor. mother So thought she was She she Moreover, regularly.” emer- have contractions Memphis treatment from OB/GYN’s deliv- premature testified that p.m. room 11:15 The on-call Giddens gency Albritton, ery impacts would have severe adverse attempted physician, Dr. John Dr. Giddens said person- He the health the child. did not stop contractions. purposes same for of this “cardiomyopathy,” "postpartum fer to the condition 2. The terms cardiomyopa- cardiomyopathy,” "peripartum litigation. all re- thy,” "peripartal cardiomyopathy” medically delivery until proper, it was Hannah. She testified she believed remember, however, care, that she did not when prescribe within the standard she her refill. obtained last Terbutaline prophylactically tocolytic. as a Terbutaline April When asked whether the date Terbutaline is labeled for treatment of correct, Barbara “It was in 1998 was said: asthma, that, but Dr. Giddens indicated April I don’t know the exact sometime. tocolytic, prescribed when off-label as it date.” recalled that she received She effective, safe, appropriate. pills, supply. testify- or a one-week While Barbara Giddens indicated because ing, Barbara reviewed her own medical any signs high had blood not shown records. She asked whether was pressure problems, heart it was noted that she still on Terbutaline on necessary prior conduct cardiac tests April 15. She indicated that the records drug. prescribing the said as much. When asked if she contin- premature her Aside from treatment point, ued to take Terbutaline after this 8-10, on March contractions yes. Barbara said When asked whether experienced complications taking April she was Terbutaline on caused her to seek treatment emergency *5 yes. she also answered Barbara’s medical on her daughter several occasions before indicate, however, records that the drug May Hannah Marie Huss was delivered on 21, was on April discontinued 1998. A 6, Although disputed record from for Barbara’s treatment ear trial, Barbara, at of her family, members infection, 23, 1998, out on April filled lists acquaintance and an that testified Barbara taking; Barbara medications was Ter- experienced severe shortness of breath. listed. butaline is not When asked how a Barbara testified that for two and one-half that run supply four-week should have out delivery, to three months before she had in mid-April lasted so long, how the 20, severe shortness of breath. On March final refill week’s lasted well over two 1998, during family a Barbara outing, felt weeks, explained she Barbara that did not leaking and five contractions minutes always pills per take day four instruct- apart. thought She that her water had ed, but was skipped sleeping dose she experi- broken. She testified that she also well. But she insisted that this seldom enced shortness of breath. Barbara was occurred, generally and she took Terbuta- placed oxygen by emergency on line as she told. was Barbara also testi- transported hospital. technicians and to a fied that she after Hannah’s birth still had 5, 1998, April On Barbara felt uncontrolla- one or two “left over.” Terbutaline tablets ble leaking sought treatment at a local 1998, 5, By May experienc- Barbara was room. emergency Sunday, On Easter ing swelling in Dr. legs. severe her Gid- April 12, experienced Barbara short- time, dens that at testified Barbara during family ness of breath dinner and had toxemia. Toxemia known is also sought once more at an treatment emer- preeclampsia; high pressure this is blood gency April, room. late Barbara was can during pregnancy. Toxemia lead to prescribed ear antibiotics for an infection. eclampsia, a seizure of pregnancy, Barbara that in preced- testified the weeks which can baby oxygen lose and suffer birth, ing experienced Hannah’s she such retardation, palsy, or death. Dr. cerebral severe shortness of breath that she had go Giddens instructed Barbara to the speaking sitting up. trouble and slept hospital delivery. Barbara’s OB As- Barbara continued to see Giddens sessment of her Record the date ad- mittance, physicians Memphis and the at May not indicate does OB/GYN causing backup fluid the heart taking was Terbutaline at that she 5,May attempts throughout body. Cardiologists on hospital At the meas- time. fraction, severity ejection ure its They to induce labor. were were made is day, May ability which the measure of heart’s unsuccessful. The next Giddens, pump. temporary of Dr. An- This condition can be Dr. Gus husband Giddens, successfully Pulmonary pres- or chronic. edema is the performed drea section, seeping and Hannah born ence fluid from the Cesarian was vessels lungs discharged lungs. from the into the air sacs of the healthy. Barbara 9,May breathing on Her medical The condition inhibits and can hospital days spent life-threatening normally Barbara or fatal. It is from the four records temporary condition which can be com- hospital indicate she difficulty. pletely Testimony present- breathing normally without remedied. congestive ed heart failure can be 9,May home Bar- returning After edema, pulmonary associated with as the shortness breath. experienced bara presence lungs may of excess fluid one tablets She took Terbutaline ability inhibit to move the heart’s fluid over.” heard that she had “left She had throughout the body effectively. open that Terbutaline is used to the bron- sufferers, she An ER physician, chial tubes asthma who not defеndant case, Albritton, in this and Dr. who believed the Terbutaline would ameliorate was a However, OB/GYN, Memphis at member saw the shortness of breath. Bar- evening, point diag- some later that bara Methodist South and each leaned and could not breathe. In the nosed her conditions. Albritton re- back *6 early morning May quested hours of was that she Barbara transferred to (also Hospital emergency taken to the room of Methodist Methodist in Germantown defendant) Memphis. facility McDonald, South in This is not not and that Dr. her, cardiologist, not affiliated with with defendant is defen- consult which he Dr. day, diag- dants. did. That same McDonald having cardiomyopathy nosed Barbara as 10, 1998, May diag- On Barbara was congestive heart failure. Her medical three at by physicians nosed Methodist records from these admissions reflect se- peripartum cardiomyopathy, South with of vere shortness breath and Barbara’s edema, pulmonary congestive heart complaining statement that had been she Cardiomyopathy failure. refers to a weak of for the last shortness breath three can heart muscle. The condition be tem- months. Dr. porary Gary Murray, or chronic. Bar- treating cardiologist to see Dr. bara’s time Barbara continued McDonald trial, cardiomyo- peripartum treating cardiologist through testified that as her In development year, “is defined as the fall of October of that pathy he congestive light failure in a to return to work. heart woman occur- released her Bar- ring delivery by one within month of or bara testified she felt worse after this delivery,” after is grandparents five months whеre there her referred her to cardiologist, Murray, “no cause” Dr. other obvious for disorder. another whom in Murray peripartum Dr. said that cardiom- she consulted November of 1998. He in yopathy occurring diagnosis cardiomyopa- is a rare condition concurred in the thy in one three thousand fifteen thousand and continued treat Barbara Congestive through births. heart failure is the ina- the time of trial. At the time of trial, bility normally, progress, Barbara had made some heart contract cardiomyopa- why from how she obtained these but continued suffer Through Murray, opinions why Dr. did not or thy. treatment she could ejection obtained earlier. Barbara’s fraction increased them 30%) (around range the low late conflicting heard evidence re- (50-55%) at the time range the low-normal garding the standard of obstetrical care July Murray’s deposition of Dr. and whether it breached. Husses However, developed Barbara had presented although evidence that Terbuta- drop which is a hypotension, orthostatic used line is “off label” obstetricians to patient stand- while is pressure blood contractions, preterm slow or halt it should condition, Dr. ing. Because which used cervix not be when the has not dilat- car- say could not related to Murray labor, there preterm ed and is no and that taking had to diomyopathy, stop Barbara it should not for have been administered Coreg drug Coreg. helped had contrast, In four weeks. Dr. tes- Giddens ejection Barbara’s raise fraction. that it is to use tified safe Terbutaline that, Murray although testified he had ob- patients, obstetrical and that this was a improvement “a served substantial her practice accepted among common and ob- fraction,” ejection cardiomyopa- Barbara’s like stetricians cases Barbara’s. congestive thy and associated heart failure can car- Whether Terbutaline cause likely life-long problems. would remain diomyopathy, and whether cause Murray believed these conditions cardiomyopathy, heavily Barbara’s endangered life and Barbara’s necessitated disputed Murray, at trial. Dr. Barbara’s frequent continual treat- medication treating agreed cardiologist, deposi- in his However, longer ment. Barbara no had tion, evidence, which was submitted into pulmonary edema at the time of trial. peripartum cardiomyopathy is idio- pathic, meaning “pathogenesis B. words, In idiopathic known.” means Rodney June etiology that the or medical cause of the Huss sued Dr. Andrea Giddens for medical Dr. Murray agreed condition is unknown. *7 malpractice. Dr. Giddens was Barbara’s diagnosis of the condition results primary treating physician Memphis at exclusion,” a “diagnosis of which he until birth Bar- Hannah’s OB/GYN said means that “one can find no other discharge hospital May bara’s from the on for cardiomyopathy reason the other than against 1998. The suit Dr. Giddens fact that pregnant.” the the woman was jurisdictional on grounds. dismissed contrast, primary the Husses’ causation Jr., it Carlton, Barbara testified that was not until Dr. expert, Frederick testi- “shortly” year” a “less than before the fied that is known in Terbutaline the med- present 30, 2000, suit was filed on June ical community cardiomyopаthy. to cause that she became aware that her medical opined Dr. Carlton had by records had been experts experienced reviewed of out shortness breath of experts that those proportion physician had concluded that the awhat would ex- of a pect “beginning administration Terbutaline and the in late-term pregnancy by course of treatment the con- a of couple [delivery],” months such before negligence may just stituted which have caused fact “moves less and less from or contributed to car- development idiopathic cardiomyopa- her the peripartum failure, diomyopathy, congestive heart thy” and led him believe that Terbuta- pulmonary explain edema. She line caused or contributed to Barbara’s argument, the During closing Husses’ signifi- It conditions. lung heart and pro- attorney records from said the defendants did the medical him that cant to 10, 1998, May support on literature to their readmission Barbara’s duce had suf- that she objected her arguments. reflected statements Defendants’ counsel of breath for shortness from severe fered as a mis-characterization of events this of Han- the birth two months before about the magistrate overruled ob- trial. The nah. jection is counsel’s view of “[t]his because Ultimately, jury the ren- the matter.” that, the experts testified while
Other On a hand-writ- general verdict. dered cardiomyopathy are peripartum causes of jury paper, ten of note the found for piece unknown, multiple factors include risk $3,500,000. her and awarded Barbara Huss weight during gain pregnancies, exсessive Huss jury Rodney also found for but Bar- smoking, and toxemia. pregnancy, court damages. him no en- awarded by the end of all of these bara exhibited verdict. The defen- judgment tered sought Defendants pregnancy.3 her judgment filed a motion for expert, their Dr. dants testimony from elicit alternative, law, Reddix, upon that medical literature relied matter forming opinion does by Dr. Carlton new trial. This denied. between relationship
not show causative arguing that: appealed, The defendants cardiomyopathy. The Terbutaline (1) claims are barred the Husses’ Dr. permit did not Red- magistrate judge limitations, (2) there is insuffi- statute of was “out- opinion, dix to state prove cient evidence Terbutaline On the expertise.” area of his side the (3) injuries, caused Barbara Huss’s trial, following cross-exam- day final por- magistrate judge improperly excluded witness, last ination defendants’ testimony regarding Dr. Reddix’s tions of Tucker, magistrate judge Martin (4) causation, in the there were errors jury: “Re- presence quipped (5) judge’s about charge, comment running.” His meter direct? (6) prejudicial, “meter” was Tucker’s agreed that Tennessee’s parties judge failed to correct mischaracteri- malpractice law of medical substantive Husses’ coun- zation of evidence sought to recover governed. The Husses during closing arguments. sel administering negligence on theories con- a lack of informed Terbutaline and III. had reasoning that if Barbara been sent— jurisdiction the trial court’s The basis of Terbutaline, she risks of informed *8 citizenship. The diversity of Husses not consented treatment would Mississippi, are defendants arе citizens of objected Defendants drug. with that Tennessee, in of and the amount citizens instruction on the the informed consent $75,000. controversy exceeds See 28 Tennessee, theory does basis cases, diversity we ap- § 1332.4 In U.S.C. a physician prescribing between apply evidentiary ply procedural federal The ob- drugs patient. and a therapeutic rules, of the fo- overruled, and the substantive laws the instruction jection was Tompkins, R.R. Co. v. rum state. Erie jury. given parties to have this case tried did 4. The consented risk factors which Barbara Other magistrate judge. See 28 U.S.C. years, age and Afri- over 30 exhibit include 636(c). jurisdiction appellate pur- § We have race. can-American 636(c)(3). § § to 28 U.S.C. 1291 suant 450 817, (1987), 64, 78, § recognized
304
58 S.Ct.
Even
party preserved
had either
scribed oral Terbutaline. On the other
objection
law,
to this
choice
which
hand, the Husses reside in Mississippi, and
not,
parties plainly
see Kucel v.
chiefly
has suffered harm
Co.,
E.
Walter
&
Heller
813 F.2d
balance,
state. On
we believe that
(5th Cir.1987),
arewe
confident that it was
gravity”
“center of
in this case is in Ten-
proper
apply
Mississippi’s statute of
nessee,
Mississippi
and that
does not have
limitations and
law
Tennessee’s
of medical
a more significant relationship to the case.
malpractice. Mississippi
generally
courts
See, e.g.,
Crowley,
Bledsoe v.
849 F.2d
treat
procedural
statutes of limitations as
(D.C.Cir.1988)
642-43
(applying Restate-
apply
and thus
domestic
peri
limitations
holding
ment and
that where patient-phy-
ods. See
Imperial Corp.,
Allison v. ITE
Cir.1991);
relаtionship
Maryland,
sician
based
cf.
Mach., Inc.,
Maryland
applied
Williams v. Taylor
law
to D.C.
So.2d
resident’s
(Miss.1988),
claim);
Denman,
superseded
malpractice
on other medical
cf.
statute,
(“Under
grounds by
Laws,
law,
Miss.
ch.
451 granting re- did not vote favor of injury fied place law the substantive II, 2006 WL hearing en banc. Huss more state has a another controls unless However, panel at *1. sua to the occurrence relationship significant rehearing by panel. sponte granted omitted). (citation parties.”) and the sub- Mississippi Supreme The Court Id. opinion its Sutherland sequently issued IV. (Miss.2007). Ritter, 1004 A 959 So.2d v. poten limitations issue Because the panel of this concluded no majority ad panel initially dispositive, this tially Mississippi Supreme case of the Court majority held panel A that issue. dressed III, Huss clearly controlling. See 508 law, that, procedural a matter of federal re- panel majority The F.3d at 245-48. preserved argument had defendants Mississippi Supreme quested that as a judgment they were entitled ques- certified accept following Court I, 205 F.3d at of law. Huss matter tion: (“There jury question submitted no (1) negligence is аd- alleged When the cause the date the Husses’ concerning drug physician, a or by ministration of a therefore, accrued; can action (2) a what reasonable failure disclose de statute limitations prevail their disclosed about practitioner would have only if the Husses’ claims accrued fense drug, experts disagree the risks of law.”). as matter June before plain- drug as to whether the caused the that, Mississip held under panel The then alleged injuries, tiffs is the date law, or have knew should pi act, neglect might, omission or with rea- the defen connection between known diligence, been first known sonable injuries day and her on the conduct dants’ plaintiff or the date discovered cardiomyopathy, diagnosed with she was is diagnosed her condition or illness 10, 1998. (citing Wright Id. at 207-08 May or or physicians experts, non-defendant (Miss.2004)). Quesnel, So.2d pertinent the date the facts are available filed that the Husses light of the fact records, is limitations in medical or forty days after this two years suit of physicians tolled until one in series time, the Husses’ majority held that experts plaintiff consults or other as matter of law time-barred claims were drug her caused her first tells that the malpractice Mississippi’s medical under or condition illness? Id.; of limitations. see Miss.Code statute Judge Higginbotham at 241-42. dis- Id. majority § The vacated 15-1-36.6
Ann. certification. Id. at 248-55 sented from judgment jury’s verdict and rendered J., dissenting). (Higginbotham, I, favor. Huss defendants’ accept- Supreme Court Mississippi dissented. Judge Higginbotham 208-09. Supreme question. the certified ed rehearing en Husses’ claims requested response Husses Court’s —that a matter law—has majority prescribed are not banc. This failed: issue, and we va- resolved the limitations disquali- judges active service and neglect with reasonable part: shall or provides omission in relevant 6. The statute diligence might have been first known brought against a may be in tort [N]o claim discovered. inju- hospital ... physician [or] licensed 15-1-36(1), (2). change statutory § While a arising wrongful out of the death ries or accruing on or after took effect for claims medical, surgical profes- or other course of change affect the July does not two filed within sional services unless *10 act, (2) presented in this case. See id. alleged issues years date from the 452 disposition hold trial prior “gate-keepers”
cate our
of
courts act as
“preliminary
magistrate judge properly
that the
denied which make a
of
assessment
reasoning methodology
un-
defendants’ motion
directed verdict
whether the
grounds.
necessarily
derlying
testimony
scientifically
panel
limitations
val-
jurisdiction of the
retains
remainder of
id and of whether that
meth-
reasoning or
raised
in this
by
odology
issues
defendants
can
properly
applied
be
to the
appeal.
points
Biomatrix,
of
five
error
Pipitone
facts
issue.”
v.
by
sufficiency
Inc.,
(5th Cir.2002)
asserted
are:
of
239,
288 F.3d
243-44
causation,
ruling
to
Pharm.,
evidence
establish
(quoting Daubert v. Merrell Dow
expert testimony, prejudi-
on Dr. Reddix’s
Inc.,
579, 592-93,
2786,
509 U.S.
113 S.Ct.
magistrate judge,
cial
(1993)).
comments
mis-characterization evidence quali Whether an individual is argument. closing to testify expert question fied is a Mathis, (citing law. 302 459 F.3d at Fed.
V. 104(a)). However, we review the R.Evid. up now argument We take that the expert admission or exclusion of testimony magistrate erred in judge striking portions for an abuse of discretion. See Martin St. testimony the defendants’ causa- Exploration v. Mobil Producing & U.S. expert, (5th Cir.2000). tion Dr. Reddix. hold Inc., 402, We 224 F.3d 405 “A magistrate judge erred in prohibiting district court should refuse to allow an from expressing opinions Reddix on medi- expert testify witness finds that the causation, cal such error not qualified witness is testify par in a harmless. given subject.” ticular field or on a Wil Woods, son 163 F.3d 937 Cir.
A.
1999). Rule 702 does not mandate that an
governs
State
qualified
law
the substance of
expert
highly
order
testi
case,
but “the Federal
fy
Rules of Evi
about a given issue.
Differences
dence control
of expert
the admission
testi
expertise
chiefly
weight
bear
on the
to be
mony.”
Corp.,
Mathis v. Exxon
302 F.3d
assigned
testimony by
to the
the trier of
(5th Cir.2002).7
fact,
459
Experts qualified
Daubert,
admissibility.
its
See
skill,
“knowledge,
experience, training
U.S. at
2786 (“Vigorous
S.Ct.
may present
cross-examination,
education”
opinion testimo
presentation
con
ny
jury.
evidence,
to the
Fed. R. Evid.
“A trary
and careful instruction on
party seeking
to introduce
proof
testimo
the burden of
are the traditional and
‘(1)
ny
testimony
must show
appropriate
shaky
is based
of attacking
means
but
(2)
data,
upon
evidence.”);
sufficient facts or
the testi
admissible
Lykes
Holbrook v.
(3d
mony
product
Co., Inc.,
is the
reliable principles Bros. S.S.
80 F.3d
(3)
methods,
Cir.1996)
ap
the witness
(reasoning
has
that “most arguments
plied
reliably
the principles and methods
an expert’s qualifications
about
relate
”
to the facts of
case.’
weight
Smith v.
given
expert’s
Good more
to be
Co.,
year
&
Tire Rubber
admissibility”).
than
its
Rul
(5th Cir.2007)
702).
(quoting
subject
ings
analysis,
are
error
harmless
Fed.R.Evid.
parties' briefing
7. The
admissibility
ex-
fore not relevant.
pert testimony under Tennessee law is there-
*11
administering Terbuta-
will
about whether
ruling
an incorrect
under which
cardiomyopa-
or
not cause
line did
did
a substantial
unless it affected
affirmed
thy here?
party. See St.
complaining
right
Martin,
medicine who B. He has cardiomyopathies. tients with in Public degree from Harvard Dr. designated Reddix Defendants Health, including studying statistics. Dr. Reddix has witness. expert as the medical literature. He’s reviewed pub degree degree, master’s medical mean, the patients has all time I he health, inter and is board-certified lic He knows cardiomyopathy. have who he had At time trial nal the medicine. drug the interactions. internist. as an years experience fifteen that last I don’t know about knowledge he cardi The Court: had He stated think I’m inclined to this toxicology medical statement. and ac conditions expertise. area his is outside the training an internist. school patients, treated pregnant He had Focusing “experi- on Dr. Reddix’s lack of diseases, patients with heart had treated which would training” “enable[] ence or edema. pulmonary cardiomyopathy, say him that the administration of this Dr. Reddix asked Defendants’ counsel drug probably or did not cause car- did medical he had studied Barbara’s whether judge magistrate the sus- diomyopathy,” relied the medical literature records and magistrate objection. the tained experts; Dr. Reddix upon by the Husses’ judge on the opinion focus whether then whether had. Counsel asked said he opinions set beyond scоpe the reasonable opinion, upon had an “based he report. Rule forth in Dr. Reddix’s education, your probabilities Following ruling, coun- defendants’ experience physician, as a training, Dr. the pres- sel Reddix outside of asked I just review of materials your well as to state in narrative form ence of the read, or not Terbutaline as to whether opinion for his that Terbutaline basis cardiomyopa caused contributed cause or to Barbara did not contribute by Huss?” The thy suffered cardiomyopathy. Dr. Reddix said: Huss’s attorney objected on basis Husses’ “Basically, no there’s established evidence in his that Dr. Reddix had stated Rule in ma- published been tested and has report that he did not know cause jor [Physician’s Desk Ref- journals cardiomyopathy Barbara’s because cardiomyopathy.” it causes erence] idiopathic.8 condition is then “what in the medical Counsel asked requested that the magistrate judge you records caused believe Terbu- objection outside the attorneys discuss the agent?” taline is the causative chambers, jury. presence could not deduce a caus- Reddix said one exchange occurred: following the articles re- relationship ative because very Now, by experts lied the Husses’ had on what basis Court: sizes, additionally, sample some any opinion small qualified witness offer port detailed of the medical lit- Contrary objection the Huss- has criticism made counsel, plaintiffs’ experts relied. in his erature on which es’ Dr. Reddix said study involving cardiomyopathy Reddix also attaches a report "can- that Barbara’s 9,000 few, аny, patients had car- ... in which been caused not be said diomyopathy. re- oral Terbutaline.” The administration of *12 may pulmonary articles have confused ede- Defendants note that Dr. Reddix had a By contrast, ma cardiomyopathy. with degree, was in in- board-certified testify prepared Reddix was to based medicine, practiced ternal internal medi- 9,000 upon study patients who took years, cine patients for fifteen treated with develop Terbutaline and did cardiom- heart conditions—some of whom were yopathy.9 proffered The thrust of the tes- pregnant, was “familiar with the term car- timony was that Terbutaline could not be patients diomyopathy,” treated en- with be the said to cause Barbara’s cardiom- larged cardiomyopathy, hearts and yopathy, and that the cause her condi- prescribed drugs similar to Terbutaline. determined, i.e., tion could not be the con- Moreover, “Dr. anticipated Reddix’s testi- idiopathic. proffer, dition is Following mony a natural was extension of his medi- to the returned courtroom. The cal public training health his expe- explained magistrate judge jury: to the “I physician rience as a practicing of fifteen objection have sustained an the opinion to years.” posit quali- Defendants that this requested express Dr. Reddix was to fied Dr. Reddix to opine the medical the ground that it was outside field of literature and Barbara’s records did not expertise.” Defendants then called allow to one infer that Terbutaline causes their next witness. cardiomyopathy, or that it in caused trial, After for a moved new case. say Barbara’s Defendants Dr. Red- part trial in due the allegedly erroneous dix qualified give was at least as causa- testimony. exclusion of Dr. Reddix’s Carlton, testimony tion as was Dr. magistrate judge denied motion in Husses’ main on causation. Defen- order, reasoning: written dants argue ruling prejudicial Dr. Reddix’s ... resume reveals the de- prevented because it them challeng- in ficiencies background Dr. Reddix’s ing the Husses’ causation experience insofar as a causation Dr. Carlton’s characterization of the medi- expert in this ease is concerned. Dr. cal virtually literature. Reddix has no experience in gynecology obstetrics and no experi- The Husses note that Dr. Reddix was ence whatsoever with Terbutaline. neither a cardiologist toxicologist. nor a employment Since Dr. Reddix’s Westbrook, Relying on Tanner v. 174 F.3d primarily physician has as a been staff (5th Cir.1999), superseded part by in [sic], Corp the Job the Student 103(a) grounds, rule on other Fed.R.Evid. Health Center of Jackson State Univer- (2000), Mathis, recognized in sity, and the Hinds County Detention at 459 n. argue Husses that Dr. simply nothing Center. There in Reddix could not provided competent Reddix’s background which entitled him testimony about a particular whether heart express opinions as to whether Terbu- condition (cardiomyopathy) be, can taline caused plaintiffs cardiomyopa- case, thy or cardiomyopathy whether the Barbara’s was caused a particular idiopathic. (Terbutaline). drug The Husses also aver 10,000 part: 9. Dr. Reddix testified patients. jour- So a lot of times the [M]any [by nals that were listed ex- they the articles that talk Husses’ about vеry, very perts] pos- were also confused what small studies. And the was said about sibility pulmonary very part chance were problem, occurrences edema as a high. you When had people four cardiomyopathy [of] out which would lead ato 5,000 only where it any occurs in one of those studies. expert’s opinion that the ous admit an wrong, defen- ruling that even baby’s actions led to cere- prejudice oth- defendants’ not suffer because dants did the medical literature did palsy bral when presented opinions similar er experts *13 causation, theory of the express, support not this was to prepared Dr. Reddix those baby, the and the expert had not examined the studies relied for the claim that except expert personal experience also had no illogical. Carlton are byon Dr. theory. at his Id.
that would validate
C.
case,
parties
mainly
fought
In this
can cause car-
of Dr.
over whether Terbutaline
exclusion
believe that
We
Dr.
expert,
The Husses’
testimony
diomyopathy.
an abuse
opinion
was
Reddix’s
(who
a
toxicologist,
is a
not
car-
Bar- Carlton
Dr. Reddix reviewed
of discretion.
general premise
on
diologist),
literature
relied
records and the medical
bara’s
that Terbutaline caused Bar-
by
Through
opining
Dr. when
the Husses.
relied
cardiomyopathy. Dr.
ex-
sought bara’s
Carlton
testimony, the defendants
Reddix’s
opinion
his
in
plained
part
that he formed
to
the contention
primarily
discredit
by
Specifically,
cardiom-
exclusion.
he believed
is a known cause of
Terbutaline
culprit
he
was the
because
consequently,
that Terbutа- Terbutaline
yopathy,
identify
any
or think
than
Barbara’s
could
likely
line
not caused
more
develop car-
that Barbara would
Dr. Reddix did
need
reason
cardiomyopathy.
diomyopathy.
purpose
toxi-
main
Dr.
cardiology
in
to
board-certified
opinion was to rebut an untenable
explain that the studies relied on Reddix’s
to
cology
knowledge quali-
Dr.
causative
conclusion.
Reddix’s
prove
do not
a
by the Husses
that Dr.
very
fied him tell
Carlton’s
relationship especially given
—
leap
unsupported
medi-
in those studies.
inferential
patients
number of
small
literature,
judgment,
in
experience
cal
and that
training and
as
Dr. Reddix’s
peripartum cardiomyopathy
tell
him to
the Barbara’s
professional qualify
do not think that
Red-
idiopathic.
does not establish
We
jury why the literature
Moreover,
specialized
cardiology
dix
to be
link.
Dr. Reddix iden-
needed
a causal
counterpoint
act
9,000
toxicology
people
over
which
study
tified
experts.
the Husses’
the Husses’ claims.
tended
undermine
short,
education and
Dr. Reddix’s
on the
magistrate judge
focused
him to form a reliable
knowledge allowed
training
less
fact that Dr. Reddix had
whether,
matter,
general
opinion as to
as a
Dr. Carl-
experience with Terbutaline than
cardiomyopathy.
causes
Terbutaline
purpose
This
for which
ton.
missed
sought to elicit
Reddix’s
general
think that the more
nature
We
Moreover, the
standards
opinion.
to distin-
Daubert
helps
Reddix’s conclusions
of Dr.
flexible,
ques-
important
are
most
from Tanner.
guish
present
case
party’s
tion
not whether one
is
There,
general
is
experts agreed
all
rather,
other’s,
thаn the
but
qualified
can cause cere- more
asphyxia
that birth
matter
expert’s testimony
is reliable.
whether
VI. juror insufficient to allow reasonable We turn argument position now to defendants’ likely conclude more than they true, are judgment entitled to as a not is the court remains free direct matter of law or a new trial a judgment[.]”). because the review sufficiency We differently Husses did not establish the causation depending ele- on whether the issue ment their malpractice claim. at preserved trial. See Polanco v. trial, (5th Austin, After judg- City defendants moved for 78 F.3d 973 Cir. day one 1996). Approximately the motion. we ask preserved, If issue was elapsed the close of the Husses’ supported between evidence substantial whether and the close of the defendants’ City v. Texas evidence McCann verdict. See time, During that defendants Inc., Cir. evidence. F.2d Refining, (albeit with 1993). preserved, elicited causation was not we If the issue opinion errone- portions of Dr. Reddix’s supported any evidence ask whether excluded). case, Polanco, ously At close their at 974. 78 F.3d See verdict. the motion for preserved by defendants failed to renew Sufficiency evidence circumstances, close verdict. similar in a at the of directed motion raising issue non-compliance of at “Even we have excused See id. 973. all of the evidence. McCann, verdict, See this kind “de minimis.” supports if no evidence Therefore, judgment enter power lacks the Court Instead, to a trial. appellate relief would at most be entitled new appellant. for the already we a new trial.” See id. at 671. Because ordering is limited necessary due McCann, concluded that a new trial is F.2d at *15 testimony, of erroneous exclusion the raise at failed to causation Defendants sufficiency we not rule on the need The Huss of of the evidence. close all However, observations evidence. some the issue forfeited. urge es us to consider may aid the parties about the evidence not they that did raise concede Defendants retrial. evidence, all of the at the close of the issue their fail that we should excuse argue but B. whether substantial evi and determine
ure past, In the supported the verdict. dence mal- establish a claim for medical To preservation re have construed we Tennessee, plaintiff in a must practice liberally Rule 50 we quirements of —but evidence, show, that by preponderance a of may simply ig not insisted that we the standard of the defendant breached See, Taylor Publ’g Co. e.g., the Rule. nore care, proximately that the breach and (5th Jostens, 465, Inc., 472-73 v. plaintiffs injuries. caused Tenn.Code Cir.2000). departure ask whether the We 29-26-115(a) Kilpa- (Supp.2006); § Ann. minimis” was “de and the Rule Bryant, 598-99 v. 868 S.W.2d trick were fulfilled. purposes the Rule’s whether (Tenn.1993). Supreme The Tennessee Polanco, pur The 78 F.Sd at 974-75. See “is a matter Court counsels that causation the trial are “to enable poses two-fold: possibility, and probability, of sufficiency of the court re-examine case, such must be malpractice medical if, as matter of law after ver evidenсe medical degree to a of shown reasonable dict, must a motion for the court address at S.W.2d certainty.” Kilpatrick, 868 law, matter and to alert as a of judgment (1) Thus, plaintiff must show that: there insufficiency party to the opposing is a known medical nexus between being submitted case before his (2) suffered, and the harm conduct v. Tex. Health MacArthur Univ. jury.” indepen- not an physician’s conduct—and (5th Cir. Tyler, 45 897 Ctr. at F.3d than likely not caused dent factor—more 1995). toxic tort and injury. id. In See cases, fac- these two sufficiency prescription negligent challenged Defendants to, re- are referred ets of causation often of the Husses’ close the evidence specific causa- spectively, general magistrate did not facie case. The prima Int’l, v. immediately tion. See McClain denied judgment, but reserve Metabolife 458
Inc., Cir.2005); development cardiomyopathy 401 1239 line F.3d Co., 424 Ruggiero v. Warner-Lambert study compares four The these women. (2d Cir.2005) n. (explaining F.3d group sixty four with a women control “general” distinction between cardiomyopa- women who did not develop that “specific” recognizing causation and thy. Only patients in three the control prove negli- failure to either undermines took group study Terbutaline. claim). gence investigate frequently cardiomyo- how pathy in all primarily The Husses relied on the ex- occurred Terbutaline users. testimony of Dr. Carlton pert to establish As Dr. Reddix testi- proffered noted Leung, causation. See Stokes mony, study’s sample small size cre- (“[I]n (Tenn.Ct.App.1982) S.W.2d unjustified ates risk conclusions cases, malpractice negligence medical and were drawn from scant data and chance ordinarily required causation are to be occurrences.10 Dr. Carlton insisted that proved by testimony.”). study’s the Hibbard case-control method opined Dr. Carlton that Terbutaline is a way was “the best at an arrive answer.” cardiomyopathy, “known cause” study long-term concludes use likely more than not caused or “positively Terbutaline is with associated development contributed to Barbara’s of peripartum cardiomyopathy.” Id. at 189. words, cardiomyopathy. he testi- study warns: “Caution should be ex- “general” “specific” fied both causa- ercised understanding the case- tion. This testimony adequate lacked an design control provide does not a caus- *16 basis science fact. ative relationship between use of oral Major literature, e.g., sources of medical therapy cardiomyopa- [Terbutaline] and Physicians’ Desk Reference and re- added). thy.” Id. (emphasis ports manufacturers, from Terbutaline Dr. Carlton testified re- about other provide a list risks associated with Ter- ports, say none of which Terbutaline butaline; cardiomyopathy among is not causes cardiomyopathy. Vague state- them. Carlton’s statement that Ter- drug ments that led to “cardiovascular cardiomyo- butaline is a “known cause” of complications” or even do death not show pathy mainly study. single relies on a See general for causation is- conditions at Hibbard, M.D., Judith U. Chronic Terbu- Likewise, sue. anecdotes detailing individ- Therapy Peripartum taline Cardiom- Hy- ual patients’ experiences taking when 15(2) yopathy: A Study, Cаse-Control pertension drug, pain, such as chest fall Pregnancy (1996) (“the short providing scientifically reliable study”). evidence study Hibbard The Hibbard ob- applicable to patients. all other Dr. Carl- served that four peripartum out of fifteen 26.7%, analogy ton drew cardiomyopathy patients, or at between Terbutaline Chicago hospital drugs family, sym- in its received Terbutaline as a called tocolytic. pathomimetics. study temporal prox- shows amphet- Cocaine and imity between administration of Terbuta- are in family, amines and to some developed cardiomyopa- women who cardiomyopathy patients preeclamp- had smoked, thy likely sia, were to have more drunk only group 3.3% of control did. Id. alcohol, cocaine, abused and used narcotics above, smoking, As noted African-American during pregnancy. Id. at 185-86. Of the race, age toxemia/preeclampsia over (or 93.3%) cardiomyopathy patients, 14 of 15 recognized peripartum are risk factors car- Hispanic. were African-American. One was diomyopathy. age average was over 30. While 20.0% Here, pre- at the Husses anoth- 401 F.3d way extent, “they all tend one evidence of statistical correlation sented up.” individual Carlton rev the er to peripar- use of Terbutaline and between in a drugs “can assume that one said cardiomyopathy. Any tum scientist or sta- effects class similar particular however, acknowledge, must tistician effects,” sympathomimetics and that side Moreover, correlation not causation. “potential as a cardiomyopathy can lead cardiomyopathy is re- peripartum typically However, Dr. Carlton did complication.” idiopathic as an condition: garded theory has been not indicate whether community has poor medical understand- community or in the scientific accepted ing Consequently, what causes it. method. On cross- tested via the scientific drug, who that a not anoth- plaintiff insists sympa- acknowledged that examination he factor, high er caused disease faces dissimilar effects. can have thomimetics A proving general causation. burden theory regarding similarities Dr. Carlton’s single must more than a plaintiff present provides cocaine and Terbutaline between correlation, study showing accompanied a scienti- what is in essence support no quasi-scientific unrelated anecdotes thesis. fically untenable drugs about how a class of affects musings link Terbutaline The medical between However, body. the human that is what to sup- too tenuous cardiomyopathy is presented the Husses at trial. degree “to reasonable port causation It is axiomatic that causation Kilpatrick, certainty.” See upon if an expert is inadmissible relies 602; Haykal, Dubois S.W.2d cf. publications, studies or authors of (Tenn.Ct.App. n. 3 638-39 & S.W.3d con unwilling which were themselves 2004) were not (holding proven. that causation had been clude summary judgment on causa- entitled See, Joiner, Co. v. 522 U.S. e.g., Gen. Elec. presented peer-re- plaintiff tion because 136, 145-46, 118 512, 139 S.Ct. L.Ed.2d 508 showing drug studies viewed scientific (studies (1997) support experts’ did not efficacy of oral *17 prescribed to her reduсed can exposure conclusion that PCB caused contraceptives). As the Eleventh Circuit’s cer doctors who conducted the because the cogently explains, decision McClain unwilling studies were to draw that conclu temporal must not allow evidence of courts Lee, sion); Vargas v. 317 F.3d 501-02 a to serve as substitute for correlation Cir.2003) (5th (two did support studies not evidence: science-based causation fibromyalgia conclusion that trauma causes [Sjimply person drugs takes because because authors of both studies deter not injury then an does show suffers established); not mined that causation was (studies a conclusion Drawing causation. such McClain, 401 at 1247-48 F.3d did relationships leads temporal from not conclusion that combination authorize ergo hoc post propter of the hoc blunder be dangerous and caffeine is ephedrine ergo hoc hoc fallacy. post propter cau indicated that cause authors of studies causality temporal from fallacy assumes proven). Strangely, was not sation this, “after sequence. literally request, It means and the court parties did not conduct, hearing. However, of this.” Black’s Daubert because not Law Dictio- ed.1999). (7th gatek called a nary “assigned It is the trial court a 1186 Daubert assumption testimony fallacy eeper [expert] it makes an is because role ensure Hodges v. that a tem- reliable and relevant.” on the false inference both based (5th Trucks, Inc., 188, 194 Mack 474 F.3d relationship causal rela- poral proves Cir.2006). retrial, hearing such a Upon tionship. 460 “preliminаry Hodges,
will be essential the court’s tered on this basis. See (“An court, or at reasoning appellate deciding assessment of whether 193 methodology underlying [judgment is whether as a matter law] awarded, scientifically valid and of whether rea- should have been must first ex- evidence; soning methodology properly or can cise inadmissible such evidence applied nothing legally to the facts in issue.” See Dau- to a ‘contributes sufficient ”) bert, 592-93, evidentiary (quoting 509 at 113 Weisgram U.S. S.Ct. basis.’ v. 440, 454, Marley, 528 120 U.S. S.Ct. case, The Husses have identified no (2000)). proce- 145 L.Ed.2d Given none, we have found Tennessee case, posture only dural of this a new trial elsewhere, finding that Terbutaline causes is available. cardiomyopathy.11 Courts must be arbi- truth, junk guess- ters science and Even Terbutaline a “known 596-97, at work. See id. of cardiomyopathy, S.Ct. cause” there scant general i.e., causation, causation specific evidence marshaled evidence of at suggests speculation, trial reason- cardiomyo- Terbutaline caused Barbara’s degree certainty. pathy able medical Kilpa- related conditions.12 See trick, parties and the trial carefully court must S.W.2d at 598-99. Dr. Carlton personally consider retrial whether the Husses’ any as- did not examine at reliable, scientifically time, sertions are drug but believed that the caused her theory whether sup- cardiomyopathy their of causation is because “she Ter- was on ported by other evidence which was not butaline. Terbutaline is known cause. presented or was not you any available at time And don’t have explanation why first trial. The court also not must she would developed it.” conflate “admissible” with “sufficient”: the Post ergo propter hoc hoc. Dr. Carlton say-so of is not necessarily also taking believed that Barbara was Ter- grounds deny judgment “basically as a matter of up butaline until delivery.” She 2786; law. See id. 113 S.Ct. actually taking ceased drug weeks be- cf. States, Guile United delivery. F.3d 227 fore Barbara’s records (“A Cir.2005) claim cannot stand or conspicuous demonstrate absence of fall on the ipse breathing mere dixit of a credent- problems in the before weeks witness.”) (citation omitted). ialed delivery during Had the four days she adequately preserved objec- spent in the hospital at the Han- time of admissibility tions and sufficiency of nah’s birth. Belabored breathing is a *18 evidence, causation judgment symptom could be en- cardiomyopathy of conges- and Miller, plaintiff In Richardson v. 44 alleged S.W.3d 1 that Terbutaline led to car- 11. (Tenn.Ct.App.2000), Appeals the Court de- diomyopathy, Appeals the Tennessee Court of a physi- clined direct verdict in favor affirmed trial court’s dismissal on limita- cians sued for administration of Terbutaline grounds. Beatty, tions v. 108 Crawford tocolytic. plaintiff’s as a Id. at 30-31. The (Tenn.Ct.App.2003). S.W.3d 879-80 expert opined that Terbutaline caused ar- heart, split tery plaintiff's causing in jury only gener- The asked return a accepted heart attack. Id. at court may al upon verdict. It make more sense value, testimony at face as was based pose separate questions retrial to jury to the expert's experience on the and exam- regarding allegedly each the conditions case, plaintiff. ination of the Id. In this peripartum caused Terbutaline: cardiom- however, Dr. Carlton did not examine Bar- failure, yopathy, congestive pulmo- heart bara, and he testified on based medical litera- nary edema. prove ture which does the causal link. In only reported Tennessee case in which a
461 failure, therapeutic drug nection with treatment.” both of which the Husses tive heart objection The nature defendants’ to this developed weeks or months say Moreover, jury likely Bar- that instruction is construed Hannah’s birth. before claim, recog- informed consent as stand-alone history included attributes bara’s focusing as risk instead of on Husses’ medical by medical literature factors nized claim, provides malpractice which a suffi- cardiomyopathy: prior pregnan- four for disagreed. The Husses cies, gain, gesta- remedy. cient smoking, weight severe instruction, diabetes, at- If Dr. Carl- of the the Husses’ support and toxemia. tional Ensor, torney at trial Mitchell v. thought possess that Barbara did not cited ton characteristics, 2002 opinion (Tenn.Ct.App. his WL 31730908 Nov. these 2002) (not reported). If disre- Defendants insisted on inaccurate facts. he based designated publi- was not characteristics and concluded Mitchell garded these binding precedent. De- must have been the sole cation that Terbutaline fantasy. trial post-verdict on fendants moved for new opinion his borders “culprit,” consent the basis informed spe- general The observations about prejudicial instruction was error. part holding are not a cific causation magistrate judge Cary did not consider However, important it is to identi- today. authority, binding Burroughs v. cited fy aspects the scientific and problematic (Tenn. Magee, 118 S.W.3d 332-33 proof necessary this case so that factual 2003), Co., Upjohn Pittman v. 890 shortcomings properly ad- any can be (Tenn.1994), in holding S.W.2d 430 retrial. upon dressed that an consent instruction is informed malpractice On proper medical cases. VII. appeal, argue still Husses argument now turn to defendant’s We informed consent instruction was consis- jury should not have been in- claim, citing malpractice tent with their theory of lack of informed structed on Assocs., Oncology Ashe v. 9 Radiation consent. Because this case must re- (Tenn.1999). 119 S.W.3d trial, a new our resolution of manded for parties this issue will aid the and court in a prevail To lack informed consent crafting proper jury instructions. “We case, patient prove must that the doctor jury challenges to instructions for review supply appropriate “did not information Battle, F.3d at abuse discretion.” 228 obtaining informed con- patient Monroe, (citing United States plain- out which procedure sent to ” (5th Cir.1999)). judg- “A F.3d allegedly claim arose.... tiffs Tenn. charge (2006 if the only will be reversed supp.). § ment 29-26-118 Code Ann. whole creates substantial ineradica- plaintiff also failure prove must that such prop- doubt whether the has been ble malpractice. to disclose constituted See (cita- erly guided Ashe, in its deliberations.” Id. (citing at 121 S.W.3d Tenn.Code *19 omitted). 29-26-115). tion by § In on Cary, relied Ann. defendants, Appeals Tennessee Court objection, the jury defendants’ was Over reasoned: on the of informed consent instructed issue Cary on The doctrine of lack of informed consent Relying under Tennessee law. v. Arrowsmith, “battery.” “If informed (Tenn.Ct.App. upon 777 is based S.W.2d 8 obtained, 1989), effectively not the that the instruction consent is defendants aver departure the standard improper was because a “doctor is not defendant’s ...” negligence battery. in con- but for lack of informed consent care not liable 462 Bechtol, pleading v. 724 750 treatment invalid. Id. The
Cardwell S.W.2d (Tenn.1987) (emphasis supplied). “[I]f such a factual proffer of scenario rendered shown, battery can be then the issue proper no informed an consent instruction clearly emerges malpractice.” one of as the Notably, that case. Id. Court did not battery necessarily A re- Id. holding involving surgical limit its to cases unpermitted touching an of the quires procedures, opposed therapeutic by the plaintiff by defendant some id, treatments, drug see nor we do see object set in motion the defendant. reason to read a limitation into the Court’s simply omitted). holding that is not there. (citation 21 S.W.2d at Supe- Pennsylvania court then discussed light of this statement of the case, Smith, Boyer rior Court court, highest law Tennessee’s we do (Pa.Su- 66, 497 Pa.Super. A.2d 646 not believe that was an abuse discre per.Ct.1985), that: concluding before the magistrate judge tion for to instruct treating physi- the better rule is that a along on the informed consent with patient’s cian must informed obtain malpractice. medical The Husses raised consent for medical treatment of pretrial lack of consent in the order. Bar component patient part and not for each bara testified at trial that she was not process. patient of the treatment with informed the risks associated Ter ie., adequate legal remedy, has a butaline, and that she would not have con sounding negli- action malpractice tocolysis sented to with Terbutaline thera gence, injurious consequence for the of py apprised had she been of the risks of therapeutic drug treatment. taking drug. also com instruction Cary, S.W.2d at 21. ported “objective ap with Tennessee’s Ashe, However, in proach” Tennessee Su- to informed consent. See id. at preme sum, recently Court more clarified that physician 123. In must warn the informed bat- consent cases and medical “all patient significant perils.” Id. at tery cases are the same: may proper The court craft the in- jury upon struction to the retrial.
A battery may typically occur (1) when: a professional performs pro- patient
cedure that was unaware VIII. going that the doctor was perform; Lastly, argued appeal on (2) procedure performed magistrate judge prejudi- made a part body part other than that expert’s cial comment about their “meter” (ie., explained the patient amputation jury, the presence of the and that coun- wrong leg). A lack of informed prejudicial sel for the Husses made a mis- typically consent claim occurs when the during characterization the evidence patient procedure aware that closing argument. no perceive We need to going performed pa- but issues, discuss the merit vel of such non tient was unawаre of the associated risk the case must be retried. procedure. with the at 121 (citing S.W.3d Blanchard v. Kel- IX. lum, (Tenn.1998)). 522, 524 975 S.W.2d Supreme The Tennessee Court noted We hold the Husses’ claims are not plaintiff contended she was barred as matter of law on limitations *20 apprised judge of risks in her treat- that grounds; magistrate inherent the com- ment, portions and this rendered her consent to in striking mitted reversible error in this excluding particular that discretion testimony; and of expert defendants’ of on either opinion ground, of expression his did not abuse magistrate judge the ground evidentiary for an solid a theo- and one instructing the on in discretion sufficient for our deferential A new is informed decision consent. lack of ry of review. is ordered. trial REMANDED.
REVERSED and I OWEN, Judge, concurring: Circuit panel. in binds this decision Tanner Our VI(B) forego- of the join part in all but to allow Dr. I error It would been reliability the scientific opinion ing opinion. express regarding While an Reddix to causation pertaining majority the evidence con- flips of causation. The specific merit scru- Husses would by the into reversible error. presented formity to Tanner challenged, the issue tiny judgment on remand we for In Tanner reversed court. objec- in this pursued where the trial court over plaintiffs general doctor with tion allowed medical HIGGINBOTHAM, E. PATRICK training opinion venture dissenting: Judge, Circuit a childbirth the attending caused doctors palsy. to contract cerebral child real in this only is one issue There committed judge the trial case—whether Tanner, sought As Reddix move excluding part of reversible error testimony of to matters part the latter his expert testimony of оf defendant’s one depth ... of “hinge[d] [his] on witnesses.1 of knowledge complicated, specialized subject It this matter.”2 judge medical magistrate that the agree I cannot rightfully ob- plaintiff to which the to allow move refusing his discretion abused it would have been Under Tanner express opinion jected. Dr. Michael Reddix opinion error to admit Reddix’s reversible caused to whether Terbutaline After cause. at trial that Terbutaline was Plaintiffs cardiomyopathy. Huss’ explanations for ex- judge’s question quoting defense counsel’s objected that testimony, part Reddix’s cluding of to exceed his disclosure invited Reddix repeats pro- majority defense-supplied colloquy to a Looking under Rule 26. filed ar- competence, but these tests of Reddix’s during a of judge proffer with sa- judge’s do not undermine guments testimony post-verdict Reddix’s thin trial, regarding observations Reddix’s majority holds lient new denial training experience on the relevant on a assess- ruling rested broader majority’s subjects. The both weakness qualifications. Perhaps, but ment pages deei- speaks from the of its position was no abuse were sound. There grounds Westbrook, 2. Tanner v. may quickly put aside. Two matters 1999) writing grounds instructs a doc- Judge (reversing for himself on DeMoss Cir. I do not think erroneously the trial court on remand. expert testimony was admit- tor’s join judge can I exegesis is sound. Nor one ted, beyond general standard when went majority's it need not panel statement that specific into causation issues care and sufficiency evi- question decide background knowl- which he lacked relevant being is remanded. dence since the case demanding edge experience). Tanner was witnesses was the Husses' expert wit- qualifications plaintiffs’ ques- objection at trial. To admitted without relaxed for defendants. It cannot be nesses. record, inexpli- sufficiency, on this tion the cable. *21 condition, argued report opined, Even if matter could be Huss’ Reddix’s sion.3 caused, be said to to a ways, there it must lie. “cannot have been both reasonable of medical certainty/proba- [sic] bility, by the administration of oral Terbu- II Postpartum cardiomyopathy taline. oc- expert report Dr. Reddix’s filed under in curs a small number of women who are opinion that Rule 26 stated his would be pregnant. is in idiopathic Such condition cardiomyopathy idiopathic. He further, At trial he sought go nature.” jury any gave opinion without bridge gap by eliciting an opinion objection. This accords with the core de- that Terbutaline was not the cause. This at trial —that did fense asserted science crucial the ground distinction underlies sustained, know cardiomyopathy objection, rightly not the cause at trial. prescribing hence the doctors could not majority claims that Dr. Reddix’s have known. The trial court was well has medi- “report detailed criticism the allowing within its discretion not literature,” cal but the full extent of this witness to expand plain- over “outdated,” criticism is that the are studies objection, from “it was not knowable” tiffs’ they “often confuse pulmonary edema injury.” to “it was not a cause of did Nor cardiomyopathy,” with and that use they objection surprise. come as a Defen- data IV administration Terbutaline trial sought dants had on eve of to when oral administration was at issue expand anticipated trial Reddix’s testimo- Important points, Huss’ case. but the cri- ny beyond Report the filed Rule 26 but detailed, tique emphatically is is it nor start judge of the trial the sustained damning. importantly, latter Most plaintiffs’ objection to the effort. It is not points abundantly two to at were testified happenstance that defense counsel led the trial —and point the former was never testimony first ground direct over the proffered.4 report Nowhere does Reddix’s put within the Rule 26 disclosure. This sample mention sizes or other statistical jury opinions before the Reddix’s challenges general to the causation claims cardiomyopathy is idiopathic, the heart plaintiffs articles; “study as for the Only the defense. then 9,000 did defense coun- involving patients,” it merely push envelope sel of the trial court report, attached to the and the of- report expansion it, it, refusal to allow last minute no commentary fers reference report. description it or of whatsoever.5 "Well, majority's argument judge’s ruling, reply, counter to the was: he magistrate get judge essentially point- did so. It took him amounts to forever around to going express it. But I’m not to let him ing out that Reddix was "familiar with opinion as to whether the administration of cardiomyopathy,” "prescribed term had drug caused did not cause the car- drugs Plainly, similar to Terbutaline.” these diomyopathy here.” inadequate challenges judge’s are to a trial exercise of discretion. report if it been Even had discussed in the testimony, it would have affected little. said, 4. The defense counsel in chambers: The article no means decisive refuta- brought up pulmonary "Plaintiffs have edema tion the causal connection car- between put tried in the same intellectual diomyopathy and Terbutaline under cir- cardiomyopathy wastebasket like act presented cumstances Huss. The article they’re thing. important the same It’s that he experiment, involve controlled nor explains they to the are not the same were the ade- factors relevant to Huss’ case thing.” quately analysis. accounted for in the data *22 yields case trial the Further, into view of the defense at never offered the defense to prejudicial that it was not the insight article that Reddix referred the evidence many case, ample at points airing which received proffer, despite defense to his testimony so. defense proffered have done The at trial. The lacks which it could De- try persuade to admission. to even seek sufficient its did not coherence Tucker, vastly qual- jury Dr. more expert prejudicial. fense was was exclusion med- peer-reviewed testimony ified Reddix to already than awash with of both sides testifying immediately causation, specific ical literature all regarding admitted exclusion, allegedly after the erroneous objection length at explained without This asked about the article.6 was not examination. And Dr. in direct and cross testify fact Dr. Tucker did despite the was another defense Reddix followed article would be point to a at which the expert length who to conclude testified relevant, here correct: majority if the were the case. any able to find relation-
“I’ve never been
Ill
relationship
Terbu-
ship, a causal
between
Granted, Ter-
cardiomyopathy.
taline and
jury
erasing
After
the Husses’
verdict
effects,
we’ve
has other side
butaline
on the
exclusion
based
district court’s
those. But as far as cardiom-
talked about
testimony, Judge
of Dr. Reddix’s
portion
any
never
able to find
yopathy, I’ve
been
pages
DeMoss then includes nine
dicta
the
relationship
two.”
causal
between
the
“making observations” about
admissi-
plaintiffs
defense never cross-examined
evidence,
expert
the
an
bility of
Husses’
basis for
using
article
witnesses
court;
plainly not before this
issue
repeatedly
would
challenge, even when
in the
finding reversible error
dis-
while
They
do so.
appropriate
been
part
trict court’s refusal
admit
oth-
them with other articles and
confront
expert
a defense
—which
specific
causa-
literature on
er medical
its
Daubert
escapes
somehow
volunteer
arguments,
care
be-
tion and standard of
Judge Owen nor
examination. Neither
of actual conflict
cause these were the sites
myself join
part
opinion
ad-
Gayden
at trial.
defendant
missibility.
Judge
opinion
DeMoss’
itself
causation,
he
challenged on
but
directly
acknowledges
waived
article.
mentioned this
too never
admissibility
of the
any challenge to
objecting
not
Huss’
evidence
sum,
not
free-
the defense did
offer
trial,
explicit
during
despite
before
challenges, and Red-
standing statistical
that all
warning
pretrial
order
ob-
sup-
were to
dix’s statistical observatiоns
not
to the
jections
depositions
submitted
that Reddix
a causation conclusion
port
days prior
trial —includ-
judge ten
trial
rendering.
rightly
restricted
deposition
Murray
of Dr.
ing the video
an er-
partial exclusion
Reddix’s
for the
waived.7
ror,
played
that was
certainly
abuse
discretion.
no
—are
acknowledges
the defendants
error, any
It also
reasonable
Even if there were
States,
U.S.-,
manuscript
7. Puckett United
was a
reviewer
Tucker
("If
(2009)
IV questions answers no scientific case
This of science on light little of the
and sheds Able law- problems.
its difficult This answered this case.
yers tried lawyers court questions
put to it. *24 day in have their three had
Defendants and, do the answer accepting as we
courts Mississippi Court of Supreme limita- question regarding
our certified grounds of
tions, raised no other persuade me to disturb which
error the court to- eyes To these verdict. doing and in judicial its role oversteps
day lowering grave error. produces
so fails of Tanner
hurdle with an and defendants plaintiffs
treat perversely process
even hand junk science it decries.
invites the affirm.
I would WU, Hing as
Hing known also Chuen Wu, Huang as also known
Cheun Hing Wu,
Cheung also known C. Wu, Hing
Wu, Petition known as also
er,
v. Jr., Attorney HOLDER, U.S.
Eric H.
General, Respondent.
No. 08-60073. Appeals, States Court
United
Fifth Circuit.
June law); evidence, Spletzer, U.S. preting may be Texas any considered 1976). verdict.”) (inter- Cir. support 955 n. jury in of its by the