Scott JOHNSON, as guardian ad litem of H.T.P., a minor v. MEAD JOHNSON & COMPANY, LLC
Nos. 13-1681, 13-2685
United States Court of Appeals, Eighth Circuit
June 6, 2014
Rehearing and Rehearing En Banc Denied July 11, 2014
557
Submitted: Feb. 11, 2014.
Anthony John Anscombe, argued, Chicago, IL (Mary E. Buckley, Chicago, IL; Frederick W. Morris, Minneapolis, MN; Jonathon T. Naples, Minneapolis, MN, on the brief), for Defendant-Appellee.
Before SMITH, BEAM, and BENTON, Circuit Judges.
BEAM, Circuit Judge.
Scott Johnson, guardian ad litem for minor H.T.P., appeals the district court‘s
I. BACKGROUND
In this summary judgment appeal we view the facts in the light most favorable to Johnson, the non-moving party. Sappington v. Skyjack, Inc., 512 F.3d 440, 445 (8th Cir.2008). H.T.P. was born via Cesarean section on May 4, 2005. H.T.P‘s mother decided to feed H.T.P. infant formula. While in the hospital and for a short time upon returning home, H.T.P. was fed a sterile liquid infant formula, and then upon H.T.P.‘s pediatrician‘s recommendation, a powdered infant formula (PIF) thereafter. Mead manufactures and sells PIF products which are not sterile, and have been occasionally found to be contaminated with a bacterium Enterobacter sakazakii, a/k/a Cronobacter sakazakii, or C. sak. Mead has issued two nationwide recalls of PIF products because of C. sak contamination, one in March 2002, and the other in January 2003. H.T.P. was fed Enfamil Lipil with Iron, a Mead PIF product, when he was a “neonate” (less than 28 days old). Because their immune and gastrointestinal systems have not yet fully developed, neonates are less able to cope with bacteria than even slightly older infants and are thus more susceptible to infection. H.T.P.‘s mother always prepared the PIF in their kitchen with tap water, warmed in the microwave, anywhere from 20 to 60 seconds, and then allowed to cool to room temperature. H.T.P.‘s mother was also apparently an extremely fastidious cleaner, wiping the kitchen clean with antibacterial agents over 20 times a day. She also boiled the nipples and bottles for five minutes after washing. She prepared only enough formula for one feeding at a time and discarded any unused formula after feedings. H.T.P‘s mother testified that the baby was not fed outside of their home prior to his illness; H.T.P. was fed primarily by her; and H.T.P was fed nothing other than liquid sterile formula and Mead PIF mixed with tap water.
On May 20, 2005, H.T.P. was taken to the St. Cloud, Minnesota, hospital emergency room because he was fussy, not eating well, and had a fever. A septic work-up was done, including a lumbar puncture, and H.T.P.‘s cerebral spinal fluid was cloudy. H.T.P. was treated with antibiotics for presumed bacterial meningitis. On May 21, H.T.P. had seizures and a respiratory arrest, requiring ventilation and anti-seizure medications. Tests began to show brain inflammation and other abnormalities. He continued to be irritable and had seizures, but was sufficiently stable by May 31 to be transferred from pediatric intensive care to a medical floor. On June 6, H.T.P. was discharged and returned home. Two days later, H.T.P. rеturned to the St. Cloud emergency room because he was fussy, vomiting and had decreasing activity. He was admitted for intravenous hydration, and discharged home on June 10. On June 17, H.T.P. returned to the St. Cloud Hospital with hydrocephalus. He was transferred to the St. Paul Children‘s Hospital where a brain MRI showed extensive cerebral destruction. This is the first point at which doctors recognized possible C. sak infеction. An external ventricular shunt was placed, and indeed, the spinal fluid culture subsequently grew the bacterium C. sak. On June 17, doctors discussed options with H.T.P.‘s parents, including the option of
On June 20, Children‘s Hospital contacted the Minnesota Depаrtment of Health (MDH) to report the C. sak infection, and MDH then interviewed H.T.P.‘s family and collected all of the unopened Mead PIF cans at H.T.P.‘s house, as well as one open can H.T.P.‘s mother was then using. MDH was unable to collect one can of Enfamil that H.T.P‘s mother had completely used and discarded. MDH gave the cans to the Food and Drug Administration (FDA) and Centers for Disease Contrоl (CDC) for testing. Their tests did not detect any bacteriological contamination.1 H.T.P.‘s home environment was not tested, nor was the specific Mead plant where this Enfamil was manufactured tested.
On November 9, 2010, Scott Johnson was appointed H.T.P.‘s guardian ad litem, and in January 2011, Johnson brought this lawsuit against Mead in Minnesota state court asserting causes of action for products liability, nеgligence and failure to warn-alleging that Enfamil was defective or unreasonably dangerous due to C. sak contamination. Mead successfully removed the case based upon diversity jurisdiction. The case proceeded through discovery, including extensive expert witness depositions. Subsequently, Mead moved the district court to exclude or substantially limit the testimony of Johnson‘s expert witnesses and also moved for summary judgment. The district court held a
The district court took issue with the way that Johnson‘s experts “ruled out” other possible sources of H.T.P.‘s C. sak
II. DISCUSSION
We review the district court‘s decision to exclude expert testimony for an abuse of discretion. Kuhn v. Wyeth, 686 F.3d 618, 624 (8th Cir.2012). Although Minnesota law governs whether Johnson can ultimately prevail on the merits of this products liability action, the sole issue on appeal is the propriety of the district court‘s exclusion of Johnson‘s experts’ reports. Admissibility of expert testimony is governed by
First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, thе proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.
Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir.2008) (quotation omitted). An expert‘s opinion is to be based on “facts or data in the case that the expert has been made aware of or personally observed.”
When the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), federal сourts were divided over the issue of whether the test from Frye v. United States, 293 F. 1013 (D.C.Cir.1923) or the standards set forth in the Federal Rules of Evidence (which were not in existence when Frye was decided), governed the admissibility of expert testimony. Daubert, 509 U.S. at 586-87 & n. 5, 113 S.Ct. 2786. The restrictive Frye test allowed scientific expert testimony only with regard to concepts that had “general acceptance in [a] particular field.” Frye, 293 F. at 1014. The Daubert Court held that the 1972 adoptiоn of the Federal Rules of Evidence superseded the Frye test, finding that the admissibility of scientific evidence no longer was limited to knowledge or evidence “generally accepted” as reliable in the relevant scientific community. 509 U.S. at 588-89, 113 S.Ct. 2786. Instead,
Daubert and
Thе district court in the instant case violated these liberal admission standards by resolving doubts in favor of keeping the testimony out and relying upon its own assessment of the correctness of the expert opinions. By doing so, it disallowed the adversarial process to work. Considering the three factors from the
In Glastetter, the plaintiff sought to admit expert testimony that the drug Parlodel, which she took to suppress lactation after giving birth, can cause intracerebral hemorrhages (stroke). The expert used a differential diagnosis, which we found was, generally speaking, a reliable method under Daubert. Id. at 989. However, the expert in Glastetter opined that Parlodel might cause strokes bеcause Parlodel likely caused arteries to constrict, and vasoconstriction is a known cause of strokes. The problem with this testimony was that the experts had no scientific proof that Parlodel caused vasoconstriction. Id. As we noted, “its major premise remains unproven” because there was no “scientifically convincing evidence that Parlodеl causes vasoconstriction.” Id. Although the experts attempted to present such evidence in the form of case reports and medical texts, we found these sources to be unreliable. Id. at 989-90.
Here, no one disputes that Enfamil can be and has been a source of C. sak. Thus, the major premise of Johnson‘s experts does not remain unproven. Glastetter is an example of а case wherein experts failed to properly “rule in” the accused source of the problem. The district court agreed that Dr. Jason4 at least properly “ruled in” Enfamil as a likely source. Other than providing the general framework that differential diagnoses are admissible under Daubert unless “scientifically invalid,” id. at 989, we fail to see how Glastetter is particularly relevant to this case. In the instant case, the district court found that Johnson‘s experts did not efficaciously “rule out” the other plausible sources of C. sak. However, we have consistently ruled that experts are not required to rule out all possible causes when performing the differential etiology analysis. Lauzon, 270 F.3d at 693; In re Prempro Prods. Liab. Litig., 586 F.3d 547, 566-67 (8th Cir.2009) (rejecting the argument that expert testimony on the cause of
As previously noted, we have already affirmed the fundamental principle that differential diagnoses in general pass muster under the four considerations identified in Daubert. Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir.2000) (agreeing with other circuits who have held that “a differential diagnosis is a tested methodology, has been subjected to peer review/publication, does not frequently lead to incorrect results, and is generally accepted in the medical community“). So even if the district court believed there were better grounds for some alternative conclusion (perhaps that the microwave killed any C. sak), or there were some flaws in the experts’ methods (for not having tested the household environment or that water testing was incomplete), because the expert testimony in this case was within “the range where experts might reasonably differ,” the jury, not the trial court, should be the one to “decide among the conflicting views of different experts.” Kumho Tire, 526 U.S. at 153, 119 S.Ct. 1167.
The district court abused its discretion in excluding Johnson‘s experts. The methodology employed by Johnson‘s experts was scientifically valid, could properly be applied to the facts of this case, and, therefore, was reliable enough to assist the trier of fact. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. With the expert testimony proposed, Johnson hаs created an issue of fact for a jury on the issue of the specific cause of H.T.P‘s C. sak infection. Accordingly, he is entitled to attempt to prove his claim for products liability pursuant to Minnesota law.
III. CONCLUSION
We reverse the orders of the district court excluding the testimony of Johnson‘s experts, and granting summary judgment and costs in favor of Mead, and remand this matter for proceedings consistent with this opinion.