On Thursday a unanimous Mississippi Supreme Court partially affirmed the trial court's grant of summary judgment on Daubert issues in Patterson v. Tibbs, et al. Here is the Court's opinion.
Facts:
A baby was born at Bolivar County Medical Center and died the same day. Plaintiff argued that the baby died from an over-dose of Demerol that was administered to the baby after birth or his mother before birth. The medical records did not show that Demerol was given to the baby. Plaintiff's theory was that it was given in connection with a circumcision or to the mother before birth.
The opinion does not state whether the mother received Demerol before birth. [Correction: footnote 5 states that the mother did recieve Demerol and the parties disputed the amount that she recieved.]
The defendants contended that the baby died from hypoplastic left heart syndrome—a serious heart defect that is fatal without surgery.
Daubert issue:
Plaintiff had two experts. One said that the half-life of Demerol in a child was 3–3.5 hours. Plaintiff's other expert was Dr. Steven Hayne. Dr. Hayne testified that the gunshots did indeed come from the grassy knoll. Just kidding. If you don't get it, ask around. Dr. Hayne opined the half-life of Demerol was 4.5–5 hours. Plaintiff had no medical literature to support either opinion.
Defendants offered medical literature that the half-life for Demerol in week old babies ranges 4.9 to 16.8 hours, with an average of 11 hours.
The trial court excluded plaintiff's experts and granted summary judgment because—according to the trial court—the ranges of possible half-lives for Demerol are so wide that they cannot be determined with any reasonable degree of medical or scientific certainty.
George 'Boo' Hollowell represented the plaintiff. Carl Hagwood represented the defendants. Judge Charles Webster was the trial judge.
The Court's Decision:
The key holding of Justice Carlson's 27 page opinion is this language on page 14:
Patterson is correct in her assertion that lack of consensus among sources does not automatically render an expert inadmissible. An offered opinion that has been contradicted by published and peer reviewed data, however, must be supported by some evidence of support and acceptance in the scientific community.
The plaintiff didn't offer any literature to support her experts' opinions on the half-life of Demerol, so the Court found that striking the experts' testimony on this issue was appropriate.
Despite affirming the trial court on Daubert, the Court reversed the grant of summary judgment in favor of one of two doctor defendants and the hospital because one of the plaintiff's experts testified that breaches in the nursing standard of care and delays in treatment by a doctor contributed to the death. The Court rejected the argument that the expert's testimony was predicated on the assumption that the baby died of a Demerol overdose because “the cause of death is an issue for the trier of fact to determine.”
My Take:
The opinion doesn't say this, but I interpret the decision to mean that the trial court made the right ruling for the wrong reason on the Daubert issue. It appears that the defendants established the half-life of Demerol to a reasonable degree of medical certainty. It looks to me like the problem was that the opinions of plaintiff's experts were not anywhere in the range of possible half-lives. Does someone have a different take on this?
I don't really follow the Court's logic on the last part of the opinion, but I think I know the reason for the Court reversing summary judgment. The Court was hung up on the fact that the procedural posture of the summary judgment motion and ruling was muddled (see p. 17–18). On the issue of summary judgment, there was no written motion, response or hearing transcript. Apparently, somewhere along the way Defendants moved for summary judgment ore tenus and the trial court granted the motion.
I watched the oral argument of this case and the panel asked a lot of questions about the procedural posture of the case. The attorneys answered the questions as best they could, but this is an example of why making a written record is important.
Plaintiff's counsel argued that plaintiff could show causation without the excluded Demerol testimony. The Court felt compelled to give the plaintiff the benefit of the doubt based on the evidence that was in the record and the fact the the defendants did not develop this issue on the record.
At the end of the day I still wonder if plaintiff can get there from here, but the Supreme Court is giving her the chance.
The Court wrote another opinion on the medical literature Daubert issue last year in Hill v. Mills, which I discussed here.
