Filed: Nov. 09, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT November 9, 2005 Charles R. Fulbruge III Clerk No.05-50030 ERIN L. McNABNEY, Individually and as Next Friend of Cami McNabney and Ricky McNabney, Minor Children, Plaintiff-Appellant, versus LABORATORY CORPORATION OF AMERICA, doing business as Labcorp San Antonio, doing business as Labcorp Patient Service Center, Defendant-Appellee. Appeal from the United States District Court for the Western Distr
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT November 9, 2005 Charles R. Fulbruge III Clerk No.05-50030 ERIN L. McNABNEY, Individually and as Next Friend of Cami McNabney and Ricky McNabney, Minor Children, Plaintiff-Appellant, versus LABORATORY CORPORATION OF AMERICA, doing business as Labcorp San Antonio, doing business as Labcorp Patient Service Center, Defendant-Appellee. Appeal from the United States District Court for the Western Distri..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No.05-50030
ERIN L. McNABNEY, Individually and as Next Friend of Cami
McNabney and Ricky McNabney, Minor Children,
Plaintiff-Appellant,
versus
LABORATORY CORPORATION OF AMERICA, doing business as Labcorp San
Antonio, doing business as Labcorp Patient Service Center,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
No. 5:03-CV-509
Before JOLLY and BARKSDALE, Circuit Judges, and LITTLE, District
Judge.*
PER CURIAM:**
Erin McNabney appeals the summary judgment awarded Laboratory
Corporation of America (Lab) against her negligence action.
Primarily, McNabney claims the district court improperly excluded
the testimony of one of her two expert witnesses and failed to
consider that of the other. AFFIRMED.
*
District Judge for the Western District Of Louisiana,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
McNabney maintains: on 22 April 2003, she went to Lab for a
routine blood draw procedure, known as a venipuncture; Lab’s
employee conducted this procedure negligently because she was
unable to draw blood from McNabney’s left arm and then tried again
using her right arm; McNabney suffered an intense burning pain from
the procedure; and, after consulting with a doctor, McNabney
utilized neurologist Dr. Gazda, who diagnosed her with reflex
sympathetic dystrophy (RSD) and deemed the venipuncture its cause.
Prior to the venipuncture, however, McNabney had suffered
considerable trauma to her left arm: she had undergone several
surgeries for her left wrist at age 14; she was an intravenous drug
user for at least six years; she sustained a serious fall during
the 1990s; and she suffered a severe injury to her left shoulder in
2001. The 2001 injury caused many of the RSD symptoms – aching,
stiffness, numbness, tingling, and coldness to the touch – she
attributed to the venipuncture.
After McNabney sued Lab in state court for negligence, the
action was removed on the basis of diversity. In awarding summary
judgment to Lab, the district court excluded the testimony of
McNabney’s causation expert, neurologist Dr. Malkin, and apparently
did not consider expert testimony by Dr. Gazda. McNabney v. Lab.
Corp. of Am., No. SA03CA0509OG, 2004 WL 3241969 (W.D. Tex. 9 Dec.
2004) (unpublished).
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II.
McNabney asserts: the district court erred by excluding Dr.
Malkin’s testimony and by not considering Dr. Gazda’s; and a
material fact issue prevents summary judgment.
A.
The decision to exclude expert testimony is reviewed for an
abuse of discretion. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999); Tyler v. Union Oil Co. of Cal.,
304 F.3d 379, 392
(5th Cir. 2002). Such testimony’s admissibility is governed by
Federal Rule of Evidence 702, which states that a qualified expert
may testify in order to
assist the trier of fact to understand the
evidence or to determine a fact in issue ...
if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the
product of reliable principles and methods,
and (3) the witness has applied the principles
and methods reliably to the facts of the case.
FED. R. EVID. 702. For admitting such testimony, medical causation
experts must have considered and excluded other possible causes of
injury. Viterbo v. Dow Chem. Co., 826 F.2d 420, 423 (5th Cir.
1987) (rejecting expert testimony where “the history [a medical
expert witness] used lacked reliability because it was incomplete
in a critical area”, namely an awareness of the plaintiff’s
relevant medical history). This does not necessitate an exhaustive
search that forces an expert to “disprov[e] or discredit[] every
possible cause other than the one espoused by him”,
id. at 424;
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but, an expert must be aware of the plaintiff’s pertinent medical
history. Viterbo answered negatively “the question whether it is
so [merely] if an expert says it is so”, id. at 421, and excluded
the testimony of a medical expert who based his opinion on the
plaintiff patient’s oral history and was thus unaware of the
plaintiff’s relevant medical symptoms. (Texas case law is
consistent with this requirement. E.I. du Pont de Nemours & Co.,
Inc. v. Robinson,
923 S.W.2d 549, 559 (Tex. 1995) (“An expert who
is trying to find a cause of something should carefully consider
alternative causes. [An expert’s] failure to rule out other causes
of the damage renders his opinion little more than speculation.”
(internal citation omitted)).)
1.
McNabney’s listed causation expert, Dr. Malkin, failed to
exclude other possible causes of McNabney’s RSD, in part because he
was unaware of McNabney’s past medical history; he reviewed only
her deposition testimony, which did not discuss her medical
history. His failure to consider and exclude other potential
causes of McNabney’s injury before offering an opinion renders his
testimony unreliable. FED. R. EVID. 702; Viterbo, 826 F.2d at 423.
Accordingly, the district court did not abuse its discretion in
excluding Dr. Malkin’s testimony.
2.
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Unlike Dr. Malkin, who was retained after this action
commenced, Dr. Gazda had treated McNabney since shortly after the
venipuncture. Although not listed as a causation expert, McNabney
claims Dr. Gazda was available to testify regarding her treatment
of McNabney.
In awarding summary judgment, the district court stated: Dr.
Gazda had not been provided McNabney’s complete medical history;
and “[d]uring [her] deposition, Dr. Gazda agreed that information
regarding [McNabney’s] prior injury would have been important to
her diagnosis”. McNabney, 2004 WL 3241969, at *3 & n.5. The
district court, however, did not exclude Dr. Gazda’s expert
testimony. On the other hand, the court does not appear to have
considered it.
Lab maintains such testimony was not relied upon by McNabney
in opposing summary judgment. Assuming the testimony was properly
presented in opposition to summary judgment, it, like Dr. Malkin’s
testimony, was not admissible expert testimony. Similar to Dr.
Malkin, Dr. Gazda was unaware of McNabney’s history of arm trauma
when she concluded that the venipuncture caused McNabney’s RSD; in
a progress report for McNabney, Dr. Gazda deemed McNabney’s past
medical history “[c]ompletely unremarkable” and noted no prior
surgeries. Therefore, Dr. Gazda’s testimony was not proper expert
testimony on the same basis as Dr. Malkin’s testimony was not: her
opinion, lacking an awareness of McNabney’s medical history, fails
5
to consider and exclude other possible causes of her RSD. Viterbo,
826 F.2d at 423.
B.
Finally, we review the summary judgment de novo. E.g.,
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). Such
judgment is proper if there is no material fact issue and the
movant is entitled to a judgment as a matter of law. FED. R. CIV.
P. 56(c). Because the expert testimony of Drs. Malkin and Gazda
could not be considered, McNabney was unable to prove causation, an
essential element of her negligence claim. Celotex Corp. v.
Catrett,
477 U.S. 317, 322-23 (1986). Therefore, no material fact
issue precluded summary judgment, and such judgment was proper.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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