Filed: Jan. 09, 2012
Latest Update: Feb. 22, 2020
Summary: approaches to causation in medical malpractice cases.4, We agree with the district court's conclusion that the, expert's testimony failed the relevancy or fit requirement for, admissibility of scientific evidence.F.3d 184, 188 (1st Cir.defendants were entitled to summary judgment on that claim.
United States Court of Appeals
For the First Circuit
No. 11-1480
ANTON K. SAMAAN,
Plaintiff, Appellant,
v.
ST. JOSEPH HOSPITAL AND DAVID KAPLAN, M.D.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
John P. Flynn, III, with whom Richard D. Tucker and Tucker Law
Group were on brief, for appellant.
Elizabeth A. Germani, with whom James F. Martemucci and
Germani Martemucci Riggle & Hill were on brief, for appellee St.
Joseph Hospital.
Teresa M. Cloutier, with whom Phillip M. Coffin III and
Lambert Coffin were on brief, for appellee David Kaplan, M.D.
January 9, 2012
SELYA, Circuit Judge. After extensive motion practice,
the district court ended this medical malpractice case by granting
summary judgment for the defendants. The ensuing appeal requires
us to unravel a jurisdictional tangle, clarify the status of Maine
law concerning causation, and answer a series of questions
regarding the admissibility of scientific evidence. Having run
this gauntlet, we affirm the judgment.
I. BACKGROUND
Plaintiff-appellant Anton K. Samaan is an Egyptian native
who resides in Brooklyn, New York. He enjoys dual citizenship in
Egypt and the United States.
On January 14, 2006, the plaintiff flew from Cairo to
Milan, where he boarded a connecting flight bound for New York.
Toward the end of his journey, he repaired to the galley in search
of a cup of tea. A flight attendant thought that he looked sick,
sat him down, and recruited health-care professionals from among
the passengers.
A second-year medical resident examined the plaintiff and
concluded that he was probably experiencing an ischemic stroke or
transient ischemic attack brought on by the stoppage of blood flow
to part of his brain. The pilot detoured to the nearest airport:
Bangor, Maine. An ambulance took the plaintiff to St. Joseph
Hospital (the Hospital). In all, less than two hours elapsed
-2-
between the time of the flight attendant's intervention and the
plaintiff's arrival at the Hospital.
The record is sparse in regard to how the plaintiff was
treated at the Hospital's emergency room. One thing is clear: no
intravenous shot of tissue plasminogen activator (t-PA) was
administered. The drug is a form of thrombolytic therapy that
works by dissolving clots that are occluding arteries. Its
efficacy in any given patient is uncertain but its goal is to
reduce neurologic injury caused by a stroke.
Not every stroke patient is a candidate for t-PA. First,
t-PA is not a panacea. Second, it has to be used within a
relatively short period of time after the onset of symptoms (a
three-hour window was generally regarded as appropriate at the time
of the plaintiff's stroke). Third, t-PA has the potential to cause
intracranial hemorrhaging, serious systemic bleeding, a new stroke,
and sometimes death. Last — but far from least — accepted protocol
dictates that it should be withheld in many circumstances,
including but not limited to cases where the stroke is severe, the
time of onset is unknown, the patient experienced a seizure at the
onset, or the patient had another stroke or underwent major surgery
in the preceding three months. If used when contraindicated, t-PA
-3-
is not only likely to be ineffective but also may increase the
chances of adverse effects.1
During his time at the Hospital, the plaintiff's
condition deteriorated and then stabilized. When he did not
improve, an ambulance transported him to an institution in New
York. He went from there to a series of other rehabilitation
facilities and eventually returned home (albeit still partially
paralyzed and unable to work).
On December 16, 2009, the plaintiff sued the Hospital and
his attending physician there, Dr. David Kaplan, in a Maine state
court. His complaint alleged professional negligence (medical
malpractice) and negligent infliction of emotional distress, both
relating to a failure to administer t-PA. Fifteen days later Dr.
Kaplan, citing the existence of diversity jurisdiction, removed the
case to the United States District Court for the District of Maine.
See 28 U.S.C. §§ 1332(a), 1441(a). The Hospital neither signed the
removal papers nor otherwise manifested its written consent to the
change in forum. Dr. Kaplan answered the complaint in the federal
court on January 11, 2010, and the Hospital followed suit within
the next couple of days.
1
We include this information for the sake of completeness.
Because this case is resolved on grounds not implicating the
question of whether the plaintiff was a suitable candidate for t-
PA, we need not probe this point.
-4-
The plaintiff moved to remand the action to the state
court on the sole ground that the Hospital had failed to join the
notice of removal. Finding that the Hospital had impliedly
consented to removal, the district court denied the motion. Samaan
v. St. Joseph Hosp. (Samaan I), 685 F. Supp. 2d 163, 165-67 (D. Me.
2010).
Near the conclusion of discovery, Dr. Kaplan filed both
a motion to exclude the testimony of Dr. Ravi Tikoo and a motion
for summary judgment. The plaintiff had designated Dr. Tikoo as
his expert witness on causation (to establish that the negligence
in failing to administer t-PA proximately caused the plaintiff's
injuries).
The district court initially denied the defendants'
motions. Samaan v. St. Joseph Hosp. (Samaan III), No. CV-09-656,
2010 WL 4135287 (D. Me. Oct. 14, 2010) (denying summary judgment);
Samaan v. St. Joseph Hosp. (Samaan II),
744 F. Supp. 2d 367 (D. Me.
2010) (denying motion to exclude). Dr. Kaplan moved for
reconsideration or, in the alternative, a Daubert hearing. See
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 592-93 (1993).
The court scheduled the requested hearing for December 9, 2010.
At the Daubert hearing, both Dr. Tikoo and the
defendants' expert, Dr. Paul Nyquist, testified. Though the
cornerstone of each doctor's opinion was the definitive study of
the efficacy of t-PA — a 1995 study conducted by the National
-5-
Institute of Neurological Disorders and Stroke (NINDS) — a vast
gulf separated their views. For now, it suffices to say that the
two men, though using the same data, strongly disagreed about
whether the failure to administer t-PA proximately caused the
plaintiff's injuries.
In addition to presenting different interpretations of
the data through their experts, the parties argued for different
interpretations of Maine law. The defendants posited that Maine
requires a medical malpractice plaintiff to prove that the
allegedly negligent act was "more likely than not" a substantial
cause of the injury; the plaintiff demurred, arguing that Maine
would recognize the "lost chance" doctrine, which permits recovery
when a patient's chances are diminished to some degree by a
doctor's acts or omissions.
The district court concluded that the applicable standard
for causation was "more likely than not" and that Maine had not
adopted the "lost chance" doctrine. Samaan v. St. Joseph Hosp.
(Samaan IV), 755 F. Supp. 2d 236, 246-48 (D. Me. 2010). The court
then proceeded to analyze Dr. Tikoo's testimony and determined that
his statistical calculations were not responsive to the question of
whether the failure to administer t-PA more likely than not caused
the plaintiff's injuries.
Id. at 248-49. The court therefore
excluded Dr. Tikoo's testimony.
-6-
This ruling prompted the defendants to move for
reconsideration of the court's earlier denial of summary judgment,
see Samaan III, 2010 WL 4135287, at *1, contending that the
plaintiff's case evaporated with the exclusion of the testimony of
its only causation expert. The plaintiff opposed this motion on
various grounds, arguing among other things that two other expert
witnesses could provide competent evidence that the failure to
treat the plaintiff with t-PA proximately caused his injuries.
Finally, he posited that his claim for negligent infliction of
emotional distress survived the exclusion of Dr. Tikoo's testimony.
After pausing to exclude a "to whom it may concern"
letter (to which we shall return shortly), Samaan v. St. Joseph
Hosp. (Samaan V), 764 F. Supp. 2d 238, 239-40 (D. Me. 2011), the
district court denied the defendants' renewed motion for summary
judgment, Samaan v. St. Joseph Hosp. (Samaan VI),
764 F. Supp. 2d
240, 249 (D. Me. 2011). The court predicated this ruling on a
tentative finding that the descriptions of the new experts'
expected testimony appeared sufficient to defeat summary judgment
on the question of causation.
Id. at 247-49. But the court warned
that there might be "other reasons to exclude the[] testimony."
Id. at 249 n.4. On a related topic, the court's rescript made
clear that, with respect to proof of causation, it viewed medical
malpractice and negligent infliction of emotional distress as peas
in a pod.
Id. at 246-47.
-7-
The defendants responded by moving to exclude the
testimony of the newly identified causation "experts" and for
reconsideration of summary judgment in light of that anticipated
exclusion. They offered both procedural and substantive reasons
for excluding the testimony. The plaintiff opposed these motions
but the district court granted them.
The court's principal basis for excluding the newly
identified testimony was its determination that neither of the two
physicians who were the source of that testimony had been
designated as an expert witness with respect to causation. Samaan
v. St. Joseph Hosp. (Samaan VII), 274 F.R.D. 41, 45-50 (D. Me.
2011). The entry of summary judgment followed from that exclusion:
without any expert opinion evidence of causation, the plaintiff's
claims necessarily failed.
Id. at 53. This timely appeal ensued.
II. ANALYSIS
In this venue, the plaintiff raises a gallimaufry of
issues. His most loudly bruited claims of error relate to the
denial of his motion to remand the case to state court, the
formulation of the standard for causation under Maine law, the
exclusion of expert witness testimony, and the entry of summary
judgment vis-à-vis his claim of negligent infliction of emotional
distress. We address this asseverational array piece by piece.
-8-
A. The Motion to Remand.
A motion to remand usually presents a question of federal
subject matter jurisdiction. See BIW Deceived v. Local S6, Indus.
Union of Marine & Shipbuilding Workers of Am., 132 F.3d 824, 830
(1st Cir. 1997). When, as in this case, the pertinent facts are
not in dispute, the district court's denial of such a motion
engenders de novo review. See
id.
In a diversity case, the rule of unanimity requires that,
within a specified time frame, all defendants must consent in
writing to the removal. See 14C Charles A. Wright, Arthur R.
Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and
Procedure § 3730, at 440-59 & n.11 (4th ed. 2009) (collecting
cases). The plaintiff says that the removal here offended this
rule because the Hospital neither signed the removal papers nor
otherwise consented in writing to removal.
Congress has prescribed the framework for removal. The
statutory scheme provides that a defendant may remove a civil
action from a state court to a federal court sitting in that state
only if the federal court has "original jurisdiction" over the
action. 28 U.S.C. § 1441(a). This case meets that rudimentary
benchmark: the parties are of diverse citizenship and the amount in
controversy exceeds $75,000, thus satisfying the criteria set out
in 28 U.S.C. § 1332(a).
-9-
Removal, however, must sometimes satisfy other
requirements as well. In a diversity case, unanimity is one such
requirement. But before turning to that requirement, we must iron
out a wrinkle that neither the parties nor the district court
spotted.
The defendants, though diverse from the plaintiff, are
citizens of Maine (the forum state). The removal of a diversity
case by an in-forum defendant transgresses 28 U.S.C. § 1441(b),
which provides that unless the action is one "arising under"
federal law, removal is permissible only if "none of the
. . . defendants is a citizen of the State in which such action is
brought." In light of this prohibition, it is readily apparent
that the instant action — which is not one arising under federal
law — was improperly removed.
Withal, the statutory scheme creates a safety valve: "[a]
motion to remand the case on the basis of any defect other than
lack of subject matter jurisdiction must be made within 30 days
after the filing of the notice of removal" or else it is waived.
28 U.S.C. § 1447(c). After this 30-day period, only if "the
district court lacks subject matter jurisdiction" must the case be
remanded to state court. Id.
The pivotal question, then, is whether removal in
contravention of the prohibition against removal by an in-forum
defendant is jurisdictional in nature or merely a procedural defect
-10-
that may be waived. See Grubbs v. Gen. Elec. Credit Corp., 405
U.S. 699, 702 (1972) ("[If] after removal a case is tried on the
merits without objection and the federal court enters judgment, the
issue in subsequent proceedings on appeal is not whether the case
was properly removed, but whether the federal district court would
have had original jurisdiction of the case had it been filed in
that court."). We hold that removal in contravention of the
prohibition against removal by an in-forum defendant creates a
procedural defect that is subject to waiver under 28
U.S.C. § 1447(c).
This holding echoes the holding in Farm Construction
Services, Inc. v. Fudge, 831 F.2d 18 (1st Cir. 1987) (per curiam).
There, the defendants had improperly removed the case to their
home-state federal court.
Id. at 22. We concluded that the
plaintiff's "continued prosecution of the case in federal court for
approximately one year, and its failure to object to removal until
after judgment had been rendered, constitue[d] implicit consent to
federal court jurisdiction and waiver of its right to object to
removal."
Id. Because all the requirements for diversity
jurisdiction were satisfied, the improper removal had no effect on
the federal court's capacity to hear the case. Accord In re 1994
Exxon Chem. Fire,
558 F.3d 378, 392-93 (5th Cir. 2009); Lively v.
Wild Oats Mkts., Inc.,
456 F.3d 933, 939-40 (9th Cir. 2006); Hurley
v. Motor Coach Indus., Inc.,
222 F.3d 377, 379 (7th Cir. 2000);
-11-
Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 50
n.2 (2d Cir. 2000); Moores v. Greenberg,
834 F.2d 1105, 1106 n.1
(1st Cir. 1987). But see Horton v. Conklin,
431 F.3d 602, 605 (8th
Cir. 2005).
We need not tarry over the question of whether a waiver
transpired here. The plaintiff did not raise the defendants' Maine
citizenship in support of his motion to remand. He has litigated
the case for years (first in the district court and presently in
this court) without advancing any argument based on the defendants'
in-forum citizenship. Consequently, any objection to removal based
on that citizenship has been waived. See, e.g., Moores, 834 F.2d
at 1106 n.1;
Fudge, 831 F.2d at 22. The fact that the plaintiff
objected to removal on a different basis does not avert this
waiver. See Hartford Accident & Indem. Co. v. Costa Lines Cargo
Servs., Inc.,
903 F.2d 352, 358-60 (5th Cir. 1990) (finding
objection to removal on different ground insufficient to preserve
objection to violation of in-forum defendant rule).
We now move from the objection that the plaintiff did not
make to the one that he did make: his plaint that the defendants
failed to comply with the rule of unanimity. On this point, the
case before us is controlled by our decision in Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72 (1st Cir. 2009).
In Esposito, we explained that the driving forces behind
the rule of unanimity are the desire to prevent duplicative
-12-
litigation and the desire to protect one defendant from seizing a
tactical advantage at the expense of a fellow defendant. Id. at
75. With these concerns in mind, we eschewed a "wooden rule" for
demonstrating unanimity, holding that, at a minimum, an apparent
lack of unanimity could be remedied by a non-signing defendant's
timely opposition to a motion to remand.
Id. at 77. Such a course
of conduct adequately evinces the non-signing defendant's
willingness to remain in the federal forum and, thus, satisfies the
concerns that inform the rule of unanimity.
To be sure, the better practice is for all defendants to
sign the notice of removal. Under our precedent, however,
effective consent to the removal can be manifested in other ways.
Here, the Hospital did not sign the notice, but it filed an answer
in the federal court and vigorously opposed the plaintiff's motion
to remand. In the words of the Esposito court, it thereby "clearly
communicat[ed] its desire to be in federal court." Id. No more
was exigible to cure the technical defect in the notice of removal.
See
id. Accordingly, the court below did not err in denying the
plaintiff's motion to remand.
B. The Causation Standard.
Maine state law prescribes the substantive rules of
decision in this diversity case. See Erie R.R. v. Tompkins, 304
U.S. 64, 78 (1938). In Maine, causation is an element of a
-13-
negligence-based cause of action.2 See Baker v. Farrand, 26 A.3d
806, 811 (Me. 2011); Dickey v. Vermette,
960 A.2d 1178, 1185 (Me.
2008). Maine's highest court has held that an examination of
causation requires a two-part inquiry, which asks whether the
negligent act played a "substantial part in . . . causing the
injury" and, if so, whether the injury was a "reasonably
foreseeable" result of the act. Crowe v. Shaw,
755 A.2d 509, 512
(Me. 2000). This case centers on what the plaintiff must prove to
meet the "substantial part" requirement of causation under Maine
law.
The district court determined that Maine requires a
medical malpractice plaintiff to prove a probability of harm; that
is, that the alleged negligence more likely than not brought about
the plaintiff's injuries. Samaan IV, 755 F. Supp. 2d at 246-48.
Because this determination rests on the court's assessment of the
law and not on its assessment of the facts, our review is plenary.
See Salve Regina Coll. v. Russell,
499 U.S. 225, 239-40 (1991);
United States v. Gifford,
17 F.3d 462, 472 (1st Cir. 1994).
The crux of the plaintiff's argument is that the Maine
Supreme Judicial Court (the Law Court) has left the door open for
2
Because this case turns on causation, we assume, without
deciding, that the failure to administer t-PA occurred in
circumstances that satisfy the other elements of the tort of
professional negligence (medical malpractice). Thus, we need not
address whether the plaintiff was a proper candidate for t-PA, or
whether the failure to give him t-PA was in fact a departure from
the standard of care.
-14-
Maine to embrace the "lost chance" doctrine. He asserts that this
doctrine should be applied here and that his proof is adequate to
establish a trialworthy issue thereunder. The district court
disagreed with the proposition that Maine law encompasses the lost
chance doctrine, and so do we.
As the Law Court recognized in Phillips v. Eastern Maine
Medical Center, 565 A.2d 306 (Me. 1989), the "more likely than not"
standard and the "lost chance" doctrine are the two prevailing
approaches to causation in medical malpractice cases. The "more
likely than not" standard requires a showing of probability: in
jurisdictions following this approach, by "show[ing] a better than
even chance of avoiding harm in the absence of medical negligence,"
a plaintiff proves that the negligence played a substantial part in
causing the injury.
Id. at 308. By contrast, in jurisdictions
following the "lost chance" doctrine, the plaintiff need only "show
that he was deprived of a significant chance of avoiding harm" to
meet the "substantial part" requirement.
Id. A showing of
probability is not required.
The plaintiff's argument that Maine has left the door
open for the lost chance doctrine starts with this discussion in
Phillips. However, the Phillips court mentioned the lost chance
doctrine in that context only to present an overview of the
approach. The court stopped at this point; it neither approved nor
rejected the doctrine.
-15-
That is the high-water mark of the plaintiff's argument,
and his singular reliance on Phillips ignores the remaining corpus
of Maine malpractice law. Going beyond Phillips, we find valuable
guidance in the Maine Health Security Act (MHSA), which governs
professional negligence actions against health-care providers. See
Me. Rev. Stat. Ann. tit. 24, §§ 2501-2987. The case at hand rests
on claims of professional negligence and, thus, falls within the
compass of the MHSA. See id. § 2502(6); see also Saunders v.
Tisher,
902 A.2d 830, 832-35 (Me. 2006) (explaining that negligence
and negligent infliction of emotional distress claims against
doctors, arising out of medical treatment, are covered).
In the MHSA, the Maine legislature required a medical
malpractice plaintiff to show "a reasonable medical or professional
probability that the acts or omissions complained of constitute a
deviation from the applicable standard of care." Me. Rev. Stat.
Ann. tit. 24, § 2502(7)(A). The plaintiff also must show "a
reasonable medical or professional probability that the acts or
omissions complained of proximately caused the injury complained
of." Id. § 2502(7)(B) (emphasis supplied). This formulation of
the causation standard is clear and unambiguous. It admits of only
one interpretation: the phrase "reasonable medical probability"
demands that the injury be a probable or likely result of the
negligent act or omission. See, e.g., Harvey v. H.C. Price Co.,
957 A.2d 960, 968 n.5 (Me. 2008); see generally Black's Law
-16-
Dictionary 1380 (9th ed. 2009) (defining "reasonable medical
probability" as "a standard requiring a showing that the injury was
more likely than not caused by a particular stimulus, based on the
general consensus of recognized medical thought"). It is,
therefore, beyond serious question that the standard of causation
articulated in the MHSA is incompatible with the lost chance
doctrine.
This understanding of the Maine standard of causation is
buttressed by the Maine case law which, though scanty, indicates
that the more likely than not standard controls. For example, in
Merriam v. Wanger, 757 A.2d 778 (Me. 2000), the Law Court stated
that in medical malpractice cases, "[t]he mere possibility of
. . . causation is not enough, and when the matter remains one of
pure speculation or conjecture, or even if the probabilities are
evenly balanced, a defendant is entitled to a judgment."
Id. at
781. Although the court did not discuss the lost chance doctrine,
it held that because the plaintiff had failed to present evidence
that her injury would "more likely than not[] have been avoided" in
the absence of negligence, judgment for the defendant necessarily
followed.
Id. Other cases are similar in tenor. See, e.g., Cyr
v. Adamar Assocs. Ltd. P'ship,
752 A.2d 603, 604-05 (Me. 2000);
Champagne v. Mid-Me. Med. Ctr.,
711 A.2d 842, 845 (Me. 1998);
Spickler v. York,
566 A.2d 1385, 1390 (Me. 1989).
-17-
That ends this aspect of the matter. The standard for
causation in medical malpractice actions in Maine is more likely
than not, and that standard is satisfied only when the plaintiff
can show a reasonable probability that, absent the negligent act,
the injury would have been avoided. The Maine legislature has
prescribed this standard, the Maine cases are consistent with it,
and there is simply no room for judicial interpolation of the lost
chance doctrine into Maine medical malpractice law.
As a fallback, the plaintiff invites us to certify to the
Law Court the question of the applicability of the lost chance
doctrine. We decline the invitation. "[W]e have held with
monotonous regularity that certification is inappropriate when the
course that the state courts would take is reasonably clear."
González Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 323 (1st
Cir. 2009) (collecting cases). So it is here.3
C. The Daubert Hearing.
With the proper causation standard in place, we turn to
the plaintiff's failed attempt to make out a trialworthy issue on
causation. Courts in Maine typically require expert testimony to
establish that a physician's acts or omissions in the course of
diagnosis or treatment proximately caused a patient's injuries.
See, e.g., Cox v. Dela Cruz, 406 A.2d 620, 622 (Me. 1979). This
3
At any rate, the clear language of the MHSA makes it likely
that the causation standard can only be altered by the legislature,
not by the courts.
-18-
requirement is ironclad where, as here, causation is not within the
realm of common knowledge or experience. See id.; Cyr v. Giesen,
108 A.2d 316, 318 (Me. 1954).
Recognizing the need to bridge this gap, the plaintiff
offered Dr. Tikoo's testimony. The district court convened a
Daubert hearing to screen that proffer and ultimately rejected it
based on a determination that the testimony failed to cross the
Daubert threshold. Samaan IV, 755 F. Supp. 2d at 248-49. We
review this determination for abuse of discretion. Ruiz-Troche v.
Pepsi Cola of P.R. Bottling Co.,
161 F.3d 77, 81 (1st Cir. 1998).
We begin with an overview of the principles that govern
the admissibility of scientific evidence. We then explain why we
uphold the district court's determination that Dr. Tikoo's
testimony falls short.4
A qualified expert may testify in the form of
an opinion or otherwise if: (a) the expert's
. . . knowledge will help the trier of fact to
understand the evidence or to determine a fact
in issue; (b) the testimony is based upon
4
We agree with the district court's conclusion that the
expert's testimony failed the relevancy or "fit" requirement for
admissibility of scientific evidence. See Samaan IV, 755 F. Supp.
2d at 248. But our explanation differs in some respects from that
of the district court. For example, we think that it overstates
the matter to say that Dr. Tikoo's opinion "[was] not supported by
sound science or reliable methodologies."
Id. We also struggle
with the notion that proof of causation always requires particular
statistical evidence, either of absolute benefit or relative risk.
See
id. at 248, 249. We do not dwell on these discrepancies,
however, because we may affirm the district court's decision on any
valid basis that is made manifest by the record. Polyplastics,
Inc. v. Transconex, Inc.,
827 F.2d 859, 860-61 (1st Cir. 1987).
-19-
sufficient facts or data; (c) the testimony is
the product of reliable principles and
methods; and (d) the expert has reliably
applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. The Daubert Court explained that this rule
requires district courts to act as gatekeepers, ensuring that an
expert's proffered testimony "both rests on a reliable foundation
and is relevant to the task at hand." 509 U.S. at 597. These two
requirements — a reliable foundation and an adequate fit — are
separate and distinct.
The reliable foundation requirement necessitates an
inquiry into the methodology and the basis for an expert's opinion.
To perform the required analysis, the district court must consider
a number of factors, including but not limited to "the
verifiability of the expert's theory or technique, the error rate
inherent therein, whether the theory or technique has been
published and/or subjected to peer review, and its level of
acceptance within the scientific community." Ruiz-Troche, 161 F.3d
at 81. Given the nature of this analysis, the expert's methodology
is commonly the "central focus of a Daubert inquiry."
Id.
The second requirement has attracted less attention.
This requirement seeks to ensure that there is an adequate fit
between the expert's methods and his conclusions. See
Daubert, 509
U.S. at 591. This prong of the Daubert inquiry addresses the
problem that arises when an expert's methods, though impeccable,
-20-
yield results that bear a dubious relationship to the questions on
which he proposes to opine. See id. at 591-92.
Seen in this light, the scope of a Daubert hearing is not
limited to an appraisal of an expert's credentials and techniques
but also entails an examination of his conclusions to determine
whether they flow rationally from the methodology employed. See
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); Heller v. Shaw
Indus., Inc.,
167 F.3d 146, 153 (3d Cir. 1999). If perscrutation
reveals "that there is simply too great an analytical gap between
the data and the opinion proffered," the expert's testimony should
be excluded.
Joiner, 522 U.S. at 146.
The plaintiff attacks both the mechanics and the outcome
of the Daubert hearing. His claims of procedural error are
patently meritless and do not warrant extended discussion.
Instead, we adopt the well-articulated reasoning of the lower court
in regard to these points. See Samaan VI, 764 F. Supp. 2d at 244-
46; see also Vargas-Ruiz v. Golden Arch Dev., Inc.,
368 F.3d 1, 2
(1st Cir. 2004) (declining to expound on issues cogently dispatched
by district court).
By the same token, we need not linger over the
plaintiff's suggestion that the district court impermissibly
shifted the summary judgment burden by opting to hold an antecedent
Daubert hearing. It is settled in this circuit that a Daubert
hearing appropriately may be held at the summary judgment stage.
-21-
See, e.g., Cortés-Irizarry v. Corporación Insular de Seguros, 111
F.3d 184, 188 (1st Cir. 1997).
This leaves the plaintiff's principal plaint: that the
district court abused its discretion in excluding Dr. Tikoo's
testimony. In support, he argues that Dr. Tikoo's qualifications
were impressive and that his statistical methods were comfortably
within the realm of acceptable science. These arguments miss the
mark.
The district court did not seriously question either Dr.
Tikoo's credentials or the reliability of his methods; the problem,
as the court saw it, was that the results produced through that
methodology left an analytical gap. In other words, those results
did not sufficiently ground his conclusion that the plaintiff's
condition likely would have improved had t-PA been administered.
See Samaan IV, 755 F. Supp. 2d at 248. This is a finding about the
inadequacy of the fit; and in reviewing it, we can for the most
part leave to one side the expert's qualifications, his numerical
calculations, and the scientific community's acceptance of the
study on which he relied.
Refined to bare essence, Dr. Tikoo presented two analyses
of statistical data drawn from the NINDS study, peer-reviewed
articles, and the European Cooperative Acute Stroke Study (ECASS-
III Study). His first analysis examined odds ratios between a
group of patients who had received t-PA and a placebo group. He
-22-
concluded from these ratios that a person's chances of improvement
increase by 50% with administration of the drug. Dr. Tikoo's
second analysis used absolute efficacy rates, in some instances
exceeding 50%, which he asserted were sufficient to prove that the
plaintiff's injuries likely derived from the defendants' failure to
administer t-PA. Using these analyses, Dr. Tikoo concluded that
had the plaintiff been given a timely injection of t-PA, he likely
would not have suffered the stroke-related injuries.
There is simply too great a divide between the numbers
that Dr. Tikoo employed and the conclusions that he tried to wring
from them. We elaborate below.
Dr. Tikoo's first analysis depended upon odds ratios
drawn from the literature. These odds ratios are, as the term
implies, ratios of the odds of an adverse outcome, which reflect
the relative likelihood of a particular result.5 Observing that
some of the odds ratios exceeded 1.5, Dr. Tikoo sought to testify
that the chances of a patient in the treated group recovering
increased by over 50%. Building on this foundation, Dr. Tikoo
opined that the plaintiff more likely than not would have recovered
had he received the drug.
5
For example, if the chances of an outcome are 50% (one in
two) with treatment and 33a% (one in three) without treatment, the
odds ratio for the treated group would be ½ divided by a, or 1.5
(signifying a 50% greater chance of recovery in the treated group).
The odds ratio is, therefore, a metric that provides insight only
on relative benefit or relative risk.
-23-
As the district court recognized, this reasoning is
structurally unsound and leaves a wide analytical gap between the
results produced through the use of odds ratios and the conclusions
drawn by the witness. When a person's chances of a better outcome
are 50% greater with treatment (relative to the chances of those
who were not treated), that is not the same as a person having a
greater than 50% chance of experiencing the better outcome with
treatment. The latter meets the required standard for causation;
the former does not.
To illustrate, suppose that studies have shown that 10
out of a group of 100 people who do not eat bananas will die of
cancer, as compared to 15 out of a group of 100 who do eat bananas.
The banana-eating group would have an odds ratio of 1.5 or a 50%
greater chance of getting cancer than those who eschew bananas.
But this is a far cry from showing that a person who eats bananas
is more likely than not to get cancer. Even if we were to look
only at the fifteen persons in the banana-eating group who did get
cancer, it would not be likely that any particular person in that
cohort got it from the consumption of bananas. Correlation is not
causation, and a substantial number of persons with cancer within
the banana-eating group would in all probability have contracted
the disease whether or not they ate bananas.6
6
This is not to say that the odds ratio may not help to prove
causation in some instances. See, e.g., Milward v. Acuity
Specialty Prods. Grp., Inc., 639 F.3d 11, 13-14, 23-25 (1st Cir.
-24-
We think that this example exposes the analytical gap
between Dr. Tikoo's methods and his conclusions. Although he could
present figures ranging higher than 50%, those figures were not
responsive to the question of causation. Let us take the "stroke
scale" figure from the NINDS study as an example. This scale
measures the neurological deficits in different parts of the
nervous system. Twenty percent of patients who experienced a
stroke and were not treated with t-PA had a favorable outcome
according to this scale, whereas that figure escalated to 31% when
t-PA was administered. Although this means that the patients
treated with t-PA had over a 50% better chance of recovery than
they otherwise would have had, 69% of those patients experienced
the adverse outcome (stroke-related injury) anyway.7
The short of it is that while the odds ratio analysis
shows that a t-PA patient may have a better chance of recovering
than he otherwise would have had without t-PA, such an analysis
does not show that a person has a better than even chance of
2011) (reversing exclusion of expert prepared to testify as to
general rather than specific causation using in part the odds
ratio). Indeed, it is theoretically possible that a particular
odds ratio calculation might show a better-than-even chance of a
particular outcome. Here, however, the odds ratios relied on by
Dr. Tikoo have no such probative force.
7
Dr. Tikoo noted that the figures used to measure recovery in
his analyses only accounted for patients who were fully
rehabilitated. He surmised that including those who made partial
recoveries would increase the recovery percentages. But he offered
nothing to quantify this surmise and, therefore, the district court
properly disregarded it.
-25-
avoiding injury if the drug is administered. The odds ratio,
therefore, does not show that the failure to give t-PA was more
likely than not a substantial factor in causing the plaintiff's
injuries. The unavoidable conclusion from the studies deemed
authoritative by Dr. Tikoo is that only a small number of patients
overall (and only a small fraction of those who would otherwise
have experienced stroke-related injuries) experience improvement
when t-PA is administered.
Nor can Dr. Tikoo's reliance on efficacy rates salvage
his testimony. Although certain of the efficacy rates in the NINDS
study and/or the ECASS-III Study break a 50% barrier, the question
remains: "50% of what?" Looking at those rates in a vacuum ignores
the substantial number of stroke patients who would improve anyway
(that is, without receiving t-PA).
Once again, an example is useful. Dr. Tikoo, relying on
numbers derived from the ECASS-III Study, stated that 52.4% of
patients receiving t-PA recovered as measured by a particular
scale. Based on this percentage, he suggested that had the
plaintiff received t-PA, he more likely than not would have avoided
stroke-related injuries. But this suggestion completely overlooks
the 45.2% of people who recovered even without the benefit of t-PA.
For a small number of patients who would not otherwise have
recovered, t-PA would offer some advantage, but for the majority of
-26-
patients whose conditions would not improve on their own, the
administration of the drug would make no difference.
Experts may present epidemiological statistics in
different ways to indicate causation. Either absolute or relative
calculations may suffice in particular circumstances to achieve the
causation standard. See, e.g., Smith v. Bubak, 643 F.3d 1137,
1141-42 (8th Cir. 2011) (rejecting relative benefit testimony and
suggesting in dictum that absolute benefit "is the measure of a
drug's overall effectiveness"); Young v. Mem'l Hermann Hosp. Sys.,
573 F.3d 233, 236 (5th Cir. 2009) (holding that Texas law requires
a doubling of the relative risk of an adverse outcome to prove
causation), cert. denied, 130 S. Ct. 1512 (2010). But the
testimony here left too many unanswered questions, and it would
serve no useful purpose for us to guess about what statistical
measures Dr. Tikoo might have used in an alternate universe. The
methods that Dr. Tikoo employed and the data that he presented were
simply too distant from the conclusion that he drew, thus negating
an adequate fit.
Daubert demands relevancy, and Dr. Tikoo's testimony
falls short of this requirement. As a result, it does not support
a finding of causation under Maine law. The testimony was,
therefore, inadmissible under Daubert and Rule 702.
Many aspects of science are a mystery to laymen without
the aid of experts. In the world of the blind, the one-eyed man is
-27-
king; and Daubert relevancy is the sentry that guards against the
tyranny of experts. As the gatekeeper, the trial judge has the
duty to insulate the jury from expert testimony when reliance on
authoritative studies and methods threatens to mask the lack of an
adequate fit. An expert might be able to testify on the phases of
the moon to prove that it was dark by a particular time, but he
could not offer the same testimony to prove that a person was
likely to act in an unusual manner on that night. Daubert, 509
U.S. at 591-92.
This is a hard case. When the harm alleged is a failure
to treat and the causation standard is more likely than not, a
plaintiff must vault over a higher bar in order to prove that the
failure to treat a condition in a particular way — rather than the
underlying condition itself — caused the adverse outcome. We
understand that the plaintiff, given the benefit of hindsight, may
wish that he was given any treatment offering even a tiny chance of
preventing the adverse outcome that he experienced, regardless of
the risk. But that is not the question that the district court was
duty-bound to answer. Instead, the court was tasked with
determining whether the evidence could support the expert's
conclusion that there was causation, and it fulfilled that
responsibility.
-28-
D. The Other Evidence.
After the district court excluded Dr. Tikoo's testimony,
the plaintiff claimed to have identified two alternate causation
experts: Dr. Maryann Walsh (an employee of the Hospital) and Dr.
Elsayed Hussein (his treating physician in Brooklyn). The court
precluded this testimony primarily as a sanction for the
plaintiff's failure seasonably to designate either physician as a
causation expert. Samaan VII, 274 F.R.D. at 45-50. The plaintiff
assigns error to this ruling. He argues that he properly
designated both doctors as causation experts; that in all events,
preclusion was too severe a sanction; and that the testimony should
have been allowed on independent grounds, regardless of any
discovery violation.
We review the district court's exclusionary order for
abuse of discretion. Santiago-Díaz v. Laboratorio Cliníco y de
Referencia del Este & Sara López, M.D., 456 F.3d 272, 275 (1st Cir.
2006). "This standard of review obtains both as to the finding
that a discovery violation occurred and as to the appropriateness
of the sanction selected."
Id.
The Civil Rules require litigation adversaries to
disclose to each other the identity of proposed expert witnesses
and the subjects on which their testimony will be offered. Fed. R.
Civ. P. 26(a)(2)(A)-(C). Time is of the essence, and the
disclosures must be made well in advance of trial. See generally
-29-
Fed. R. Civ. P. 26(a)(2)(D). In this case, the district court
entered a pretrial order requiring the reciprocal disclosure of
experts by specified deadlines. In response, the plaintiff
designated Dr. Tikoo "to testify that the defendants' failure to
administer t-PA to Mr. Samaan, more likely than not, was a
proximate or legal cause" of his injuries. By contrast, he
designated unnamed "medical treatment providers" (a blanket term
that he now asserts included Drs. Walsh and Hussein) to "testify
regarding their treatment of [the plaintiff], the cost of such
treatment . . . , the level of disability that they have assessed
him with, [and] the reasonably foreseeable medical treatment he
will require into the future." This designation further recited
that those anonymous physicians would "testify consistent with
their medical reports." Words such as "causation" and "t-PA" were
conspicuously absent from this designation.
Taking the plaintiff's designations in context and
crediting his assertion that Drs. Walsh and Hussein were within the
penumbra of "medical treatment providers," it is nose-on-the-face
plain that these two physicians were intended to be fact witnesses
who would testify only as to the nature of the plaintiff's
condition and the extent of his damages. The plaintiff knew how to
designate a causation expert — his designation of Dr. Tikoo was
direct and to the point — and he did not make even a semblance of
such a designation with respect to Drs. Walsh and Hussein. We
-30-
agree with the district court that the plaintiff did not adequately
identify either one as a causation expert.
In an attempt to salvage the disputed testimony, the
plaintiff adverts to a sentence in the "medical treatment
providers" designation, which states that the physicians would
testify "consistent with their medical reports." This reference
cannot carry the weight that the plaintiff loads upon it. The
designation declares that medical treatment providers, presumably
including Drs. Walsh and Hussein, will be called as witnesses on
four subjects: past treatment rendered by them, the cost of that
treatment, the level of disability, and anticipated future
treatment. It goes on to limit this designation by averring that
the providers will testify on these subjects "consistent with their
medical reports." Viewed in this light, the reference to "medical
reports" cannot plausibly be read to enlarge the scope of the
designation.
In an effort to change the trajectory of the debate, the
plaintiff cites Dr. Hussein's retrospective note in a July 5, 2007
"to whom it may concern" letter, which was intended to help the
plaintiff obtain insurance benefits. The letter remarks that
"[t]he patient should have received a TPA shot which if given 3
hours window before 2:20 a.m. should have saved his left side from
paralysis." He argues at great length about the admissibility of
this statement and suggests that Dr. Hussein should have been
-31-
permitted to testify about it. This suggestion puts the cart
before the horse.
The district court found that Dr. Hussein had not been
properly designated as a causation expert (and, therefore, could
not offer expert opinion evidence on causation). The admissibility
vel non of the letter is not material to that determination. The
relevant question is whether the record supports the district
court's finding that Dr. Hussein was not properly designated to
speak to causation. It does. That is the end of the matter.
The plaintiff has another string to his bow. The
district court sanctioned the plaintiff for the discovery violation
by excluding the witnesses' opinion testimony on causation. See
Fed. R. Civ. P. 37(c)(1) (empowering district courts to impose this
type of sanction). The plaintiff insists that even if his failure
to designate Drs. Walsh and Hussein constituted a discovery
violation, the sanction that the district court selected was too
severe.
A district court has wide discretion in choosing
sanctions for discovery violations. See Santiago-Díaz, 456 F.3d at
275. Even so, when "[a] sanction carrie[s] the force of a
dismissal, the justification for it must be comparatively more
robust."
Esposito, 590 F.3d at 79. In evaluating whether a
specific sanction is appropriate in a given case, we take into
account "a multiplicity of pertinent factors, including the history
-32-
of the litigation, the proponent's need for the challenged
evidence, the justification (if any) for the late disclosure, and
the opponent's ability to overcome its adverse effects," including
"[s]urprise and prejudice." Macaulay v. Anas, 321 F.3d 45, 51 (1st
Cir. 2003). We may also take into account "what the late
disclosure portends for the court's docket."
Id.
In this situation, some factors weigh in favor of the
plaintiff. He did not have a history of noncompliance with the
district court's orders and his need for causation evidence was
great. Those factors, however, comprise only part of the story.
The plaintiff offered absolutely no justification for the
late designation. In addition, the district court pushed back the
trial date more than once in a painstaking attempt to determine
whether the plaintiff could make out a triable issue on causation.
Throughout this process, the plaintiff gave no hint that he
believed he had designated any causation expert other than Dr.
Tikoo. Although he knew for many months that the defendants were
challenging the admissibility of Dr. Tikoo's testimony, he took no
steps to designate either Dr. Walsh or Dr. Hussein as a backup. A
party who knowingly chooses to put all his eggs in one basket is
hard-pressed to complain when the basket proves inadequate and the
trial court refuses to allow him to substitute a new and previously
undisclosed basket for it.
-33-
The sockdolager, of course, is the extreme prejudice that
would have attended an eleventh-hour decision to allow the
plaintiff to convert two fact witnesses into experts on causation.
The deadline for designating the plaintiff's experts expired on
March 30, 2010, and discovery closed on August 16 of that year.
From that date forward, the defendants pursued litigation
strategies based on their justifiable understanding that Dr. Tikoo
was the plaintiff's only causation expert. Their strategic
direction was made manifest by the filing in tandem of a motion to
exclude Dr. Tikoo's testimony and a motion for summary judgment
premised on the plaintiff's inability, without that testimony, to
prove causation.
It was not until March of 2011 — nearly a year after the
deadline for designating experts, seven months after discovery
closed, three months after the exclusion of Dr. Tikoo's testimony,
and a mere month before the scheduled start of trial — that the
plaintiff for the first time claimed that Drs. Walsh and Hussein
had been designated all along to provide expert testimony on
causation. It strains credulity to explain the plaintiff's actions
as anything other than a Hail Mary pass to resurrect a case fatally
wounded by Dr. Tikoo's exclusion.
The district court dealt with this complicated case for
several years. When faced with an egregious discovery violation,
it weighed the relevant factors and made a sensible (though not
-34-
inevitable) choice of sanctions. We cannot, from the remote vista
of an algid appellate record, second-guess that choice. We hold,
therefore, that the sanction imposed, though severe, was within the
realm of the district court's discretion.
There remains the plaintiff's optimistic assertion that
Drs. Walsh and Hussein should have been allowed to testify on
causation regardless of whether they were designated as experts
with respect to that subject. He offers a different rationale for
each of those physicians. Dr. Walsh worked for the Hospital, and
the plaintiff argues that her views regarding the effectiveness of
t-PA are admissions of a party-opponent, see Fed. R. Evid.
801(d)(2), and admissible on that basis. As to Dr. Hussein, the
plaintiff suggests that the statement about causation contained in
the "to whom it may concern" letter and other statements should be
admitted because they come within the class of statements made for
the purpose of medical diagnosis or treatment. See Fed. R. Evid.
803(4).
These assertions are problematic on their face, but we
need not inquire into them. In a medical malpractice case, Maine
law requires expert testimony on causation unless the causal
connection is a matter of common knowledge and experience. See
Cox, 406 A.2d at 622. Given the complex medical question that
underlies the issue of causation in this instance, expert testimony
was essential. See
Cyr, 108 A.2d at 318. Thus, witnesses who were
-35-
not designated to speak as experts on causation, such as Drs. Walsh
and Hussein, could not supply competent proof of causation.
Consequently, the district court did not abuse its discretion in
excluding the proffered evidence.
E. The Emotional Distress Claim.
It cannot be gainsaid that, absent proof of causation,
the plaintiff's medical malpractice claim failed. Hence, the
defendants were entitled to summary judgment on that claim.
Here, however, the plaintiff advanced a second claim —
for negligent infliction of emotional distress — and he insists
that this claim should have been allowed to go forward. We think
not.
We review a district court's entry of summary judgment de
novo, considering the facts and all inferences therefrom in the
light most hospitable to the non-moving party (here, the
plaintiff). Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d
178, 184 (1st Cir. 1999). Affirmance is warranted if the record
demonstrates "that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
Maine law requires a plaintiff to prove causation as an
element of a claim for negligent infliction of emotional distress.
See Curtis v. Porter, 784 A.2d 18, 25 (Me. 2001). When such a
claim arises in a medical setting, the Law Court has made it
-36-
pellucid that the claim falls within the ambit of "professional
negligence" under the MHSA. Saunders, 902 A.2d at 832-33; see Me.
Rev. Stat. Ann. tit. 24, § 2502(6). This ensures that form will
not triumph over substance.
The plaintiff in this case had the burden of proving
causation to a reasonable medical probability. Me. Rev. Stat. Ann.
tit. 24, § 2502(7). The only damages alleged by the plaintiff
incident to his claim for negligent infliction of emotional
distress relate to the emotional suffering and depression resulting
from his failure to recover from the incipient stroke.8 As we
already have explained, the plaintiff could not prove to a
reasonable medical probability that his injuries were caused by the
defendants' failure to administer t-PA. See supra Part II(C). It
follows inexorably that he could not carry his burden of proof on
the issue of whether the wholly congruent failure to administer t-
PA caused the emotional damages he suffered as a result of those
injuries.
8
At oral argument in this court, plaintiff's counsel asserted
that his client had suffered emotional damages as a result of the
"fact that [the doctors] failed to even discuss with him the
treatment that was . . . required." The plaintiff has neither
pleaded nor adequately briefed this theory of damages.
Accordingly, we will not entertain it here. See United States v.
Gertner, 65 F.3d 963, 971 n.7 (1st Cir. 1995); United States v.
Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
-37-
III. CONCLUSION
We need go no further. The district court handled this
difficult case with commendable skill and, for the reasons
elucidated above, we uphold the judgment that it entered.
Affirmed.
-38-
