MELLOY, Circuit Judge.
Tami Smith, as a personal representative of the estate of Velda Smith, sued Dr. Bubak and the remaining Defendants (collectively referred to as "Dr. Bubak") for medical malpractice, claiming that Dr. Bubak negligently failed to transfer Velda Smith to a medical facility where she could have received tissue plasminogen activator ("tPA") to treat her stroke. To establish that Dr. Bubak's negligence proximately caused Velda Smith's injuries, Tami Smith offered expert medical evidence showing that Velda Smith possessed approximately a fifty-eight percent chance of at least a partial recovery had she timely received tPA. Dr. Bubak moved to exclude this expert evidence and moved for summary judgment. The district court
On February 9, 2006, Velda Smith arrived for work at the Fort Randall Casino outside of Pickstown, South Dakota, exhibiting stroke-like symptoms. As a result, she was transported by ambulance to Wagner Community Memorial Hospital. Upon arrival at 5:09 p.m., she was seen by Dr. Bubak, who immediately began treating her after noting left-facial weakness and elevated blood pressure of 213/100. Shortly thereafter, at either 5:30 or 6:00 p.m., Dr. Bubak made preparations to transfer Velda Smith to Douglas Memorial Community Hospital in Armour, South Dakota, in order for her to undergo a Computerized Axial Tomography ("CT") scan. At that time, Wagner Community Memorial Hospital did not have a CT machine, and Douglas Memorial Community Hospital was the closest medical facility with an available CT machine. After being stabilized, at approximately 7:15 p.m., Velda Smith was transferred, and at 8:15 p.m., Dr. Bubak was notified that Velda Smith's CT scan was negative for a cerebral hemorrhage. Velda Smith was eventually transported back to Wagner Community Memorial Hospital, where she remained until being transferred to another facility
In the amended complaint, Tami Smith alleges that "[a]t no time on February 9, 2006, or thereafter, did Dr. Bubak chart any consideration of transfer, treatment by tissue plasminogen activator (tPA), nor did he discuss any such options with [Velda Smith], her family, significant other or other medical professionals." When timely given, tPA can mitigate the effects of ischemic strokes through restoring blood flow. According to Tami Smith, the failure of Dr. Bubak to transfer Velda Smith to a facility where she could have timely received tPA constituted a breach of the applicable standard of care and ultimately resulted in the death of Velda Smith. For support, Tami Smith offered the testimony of three expert witness: Dr. John Owens ("Dr. Owens"), Dr. Jerry Walton ("Dr. Walton"), and Dr. James McDowell ("Dr. McDowell"). Dr. Owens and Dr. Walton testified in their respective depositions that Dr. Bubak breached the relevant standard of care by failing to transfer Velda Smith to a hospital where she could have received tPA; however, neither doctor opined as to whether Velda Smith was harmed by Dr. Bubak's inaction. In contrast, Dr. McDowell opined that approximately fifty-eight percent of stroke patients, such as Velda Smith, who timely receive tPA show measurable improvement.
When questioned about the basis of his estimate, Dr. McDowell cited a 1995 National Institute of Neurology and Communicative Disorders Stroke Study ("1995 NINDS Study"). As reanalyzed by a subsequent study in 2004, the 1995 NINDS Study found that thirteen percent of stroke patients recover due to the administration of tPA, another nineteen percent of stroke patients show measurable improvement due to tPA, and twenty-six percent of stroke patients spontaneously improve without tPA. Dr. McDowell testified in his deposition that he arrived at his specific estimate through simply adding each of the three percentages together. Later, however, after the district court voiced its concerns about the propriety of just adding these three percentages together to determine the overall efficacy of tPA, Dr. McDowell began relying on the results of a study published in the Archives of Neurology entitled Review of Tissue Plasminogen Activator, Ischemic Stroke, and Potential Legal Issues ("Zivin Paper"). The Zivin Paper concluded that stroke patients who timely receive tPA are 57.3% more likely to show measurable improvement than stroke patients who do not timely receive the medication.
Dr. Bubak subsequently moved to exclude Dr. McDowell's expert opinion and for summary judgment. Dr. Bubak claimed first that Dr. McDowell improperly included the twenty-six percent of stroke patients who naturally improved without the tPA when calculating the overall effectiveness of the drug. Dr. Bubak secondly claimed that Dr. McDowell could not properly rely on the results of the Zivin Paper when formulating his estimate because the Zivin Paper is methodologically flawed.
The district court generally agreed and granted summary judgment in favor of Dr.
The district court also discounted Dr. McDowell's reliance on the Zivin Paper. The district court concluded that the Zivin Paper was unreliable in part because Tami Smith had failed to present sufficient evidence demonstrating that the Wilcoxon test was an appropriate means of discerning the efficacy of tPA. The district court went further, however, and concluded that even if the Zivin Paper were methodologically sound, Dr. McDowell could not reliably use the Zivin Paper to extrapolate whether giving Velda Smith tPA would have more likely than not caused her to improve. This is because the results of the Zivin Paper did not account for the twenty-six percent of stroke patients who improve without tPA, and as such, the results could not be used to discern the overall effectiveness of the drug. Finding no other evidence of causation, the district court granted the motion for summary judgment.
On appeal, Tami Smith challenges both the exclusion of Dr. McDowell's expert opinion and the resulting grant of summary judgment.
Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir.2010). When examining a district court's decision to exclude expert testimony, we review for an abuse of discretion. Dunn v. Nexgrill Indus., Inc., 636 F.3d 1049, 1054-55 (8th Cir.2011).
Tami Smith argues that the district court abused its discretion when excluding Dr. McDowell's testimony because of his reliance on the Zivin Paper.
For purposes of our analysis, we assume without deciding that the Zivin Paper is methodologically sound and consider only whether Dr. McDowell's expert opinion should be excluded because the results of the Zivin Paper are irrelevant under South Dakota's law on proximate cause. In Jorgenson v. Vener, which was later abrogated by statute, the Supreme Court of South Dakota adopted the "loss of chance doctrine." 616 N.W.2d 366, 371 (S.D.2000), abrogated by S.D. Codified Laws § 20-9-1.1. "The loss of chance doctrine involves the idea that a doctor, by doing something wrong, has decreased the patient's chance of recovery or survival" and that this loss is compensable even though the patient would have likely suffered the same injury had the physician not been negligent. Id. at 368-70. For example, if a doctor's negligence reduced a patient's chance of recovery from thirty-percent to twenty-percent, the patient could recover under the loss of chance doctrine even though the patient would have likely sustained the same injury in the absence of any negligence by the physician. See id. at 370. In contrast, a plaintiff alleging medical malpractice under a traditional proximate cause standard would need to show by a preponderance of the evidence that the physician's negligence caused an injury, which would preclude recovery when the plaintiff would have likely sustained the injury in the absence of any negligence. Id. at 369. When the South Dakota legislature decided to abrogate the Jorgenson decision, South Dakota effectively reverted to the traditional proximate cause standard. SDCL § 20-9-1.1.
Under the traditional proximate cause standard, we do not believe that the results of the Zivin Paper are sufficiently relevant to allow Dr. McDowell's testimony to be admissible under Rule 702. As stated
For the foregoing reasons, we affirm the decision of the district court.