When Does a Medical Expert Have a Sufficient Factual Basis?

Ever feel like medical experts generally get a pass and can offer opinions on basically anything because being a doctor does in fact make a human a god?  Apparently there is a limit.

Goodwin v. Danek Med. was a medical device case.[1]  To summarize, the patient had orthopaedic bone screws implanted, but afterwards she experienced pain.  So the screws were removed and replaced with another product, eliminating the pain.  That led to a lawsuit against the bone screws’ manufacturer.  The plaintiff disclosed a medical causation expert who concluded the medical device was defective because there was no pain before the screws, but there was pain with the screws and the pain was eliminated after the screws were removed.  The expert was excluded from trial.

This simple, logic driven opinion was insufficient for a variety of reasons.  First, “there is no indication that Dr. Yarus’ method, simple logic, as opposed to medical training, experience, and examination, has gained acceptance in the scientific community as to the cause of spinal pain.”  The opinion was “based solely on his review of Goodwin’s medical records and deposition testimony.”  However, 1) “Dr. Yarus neither personally examined Goodwin nor did he review the depositions of Goodwin’s treating doctors,” who all disagreed with him.  2) “[H]e failed to examine the device and reviewed only a portion of Goodwin’s medical records.”  3)  “Also, Dr. Yarus is not well versed on the procedure at issue.”

Dr. Yarus’ opinion “concluded: ‘There is a high degree of medical certainty that the hardware utilized in the treatment of Goodwin is the proximate cause of her progressive impairment and disability.’”  However, this conclusory statement lacked “any rational basis other than Goodwin’s subjective reports of increased pain after the 1994 surgery.”  Plaintiff presented “no evidence that Dr. Yarus undertook any differential diagnosis to eliminate other possible causes of Goodwin’s pain. His opinion is based solely on the fact that Goodwin had screws implanted and that there was pain. Such reasoning has been rejected in other cases.”[2]

As a final factor in favor of exclusion, “Dr. Yarus has stated that his review of literature in this bone screw case was ‘litigation driven.’  As the Ninth Circuit has stated, ‘a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office.’”[3]

[1] CV-S-95-433, 1999 U.S. Dist. LEXIS 19121, 1999 WL 1117007 (D. Nev. July 2, 1999).
[2] Citing Cartwright v. Home Depot U.S.A., Inc., 936 F. Supp. 900, 906 (M.D. Fla. 1996) (concluding that a causation opinion based solely on a temporal relationship is not derived from scientific method and therefore is insufficient under Fed. R. Evid. 702)
[3] Quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (Daubert II).