Tuesday, June 22, 2010

Eleventh Circuit Affirms Exlcusion Of Expert Testimony Relating To Cause of Autism

In Hendrix v. Evenflo Company, Inc. (09-10079), the Eleventh Circuit affirmed the district court's order that "concluded that the methods used by Hendrix’s experts were not sufficiently reliable under Daubert v. Merrell Down Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993)."   The district court's order under review is found at Hendrix v. Evenflo Co., Inc., 255 F.R.D. 568 (N.D. Fla. 2009). The Eleventh Circuit described the facts as follows:
Appellant Rhonda Hendrix alleges that her son, G.P., sustained traumatic brain injuries when a child restraint system manufactured by Defendant-Appellee Evenflo Company, Inc., (“Evenflo”), malfunctioned during a minor traffic accident. Hendrix further alleges that those brain injuries caused G.P. to develop autism spectrum disorder (“ASD”) and a spinal cord defect known as syringomyelia.
On April 17, 2002, Hendrix and her fifteen-day-old son, G.P., were involved in a minor traffic accident (“the accident”) while traveling at a speed of 10-12 mph. Hendrix claims that G.P. was properly strapped into the CRS, and that the CRS was located in the rear center position of her SUV. Hendrix’s theory is that during the accident the seat dislodged from its base because it had been “false-latched.”
Nearly eighteen months after the accident, G.P. began to exhibit developmental problems....Approximately three years after the accident, Dr. Suhrbier diagnosed G.P. with an asymptomatic spinal cord cyst....Dr. Suhrbier diagnosed G.P. with ASD in April 2007, when G.P. was five years old.
With regard to the law, the court first rejected the appellant's argument that the district court failed to apply the correct test to the expert testimony.  The court then stated:
Although the standards for finding causation are governed by Florida law, we apply federal law to determine whether the expert testimony proffered to prove causation is sufficiently reliable to submit it to the jury....Therefore, our analysis will focus on whether the district court abused its discretion in excluding the expert testimony of Dr. Hoffman and Dr. Suhrbier upon finding that the testimony was not sufficiently reliable under Daubert....Although experts “commonly extrapolate from existing data . . . nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.”...Rather, the trial court is free to “conclude that there is simply too great an analytical gap between the data and the opinion proffered.”
Hendrix’s experts rely primarily on the differential etiology method to link G.P.’s traumatic brain injury to his ASD diagnosis. Differential etiology is a medical process of elimination whereby the possible causes of a condition are considered and ruled out one-by-one, leaving only one cause remaining....A reliable differential etiology analysis is performed in two steps. First, the expert must compile a “comprehensive list of hypotheses that might explain the set of salient clinical findings under consideration. . . . The issue at this point in the process is which of the competing causes are generally capable of causing the patient’s symptoms.”....Second, the expert must eliminate all causes but one.
Hendrix does not contend that the medical community generally recognizes traumatic brain injury as a cause of autism. Therefore, the district court was correct to apply the Daubert analysis to the question of whether traumatic brain injury can, in general, cause autism.
The district court determined that Dr. Hoffman’s testimony regarding ASD causation was insufficiently reliable under Daubert to warrant admission of that testimony at trial. The district court identified errors in Dr. Hoffman’s differential etiology analysis at both the “rule in” and “rule out” steps. Specifically, the district court determined that Dr. Hoffman “fail[ed] to show how, by ‘scientifically valid methodology,’ traumatic brain injury could ever be a possible cause of autism in anyone.”...We agree with the district court that Dr. Hoffman failed to “rule in” traumatic brain injury as a possible cause of ASD.....We hold that the district court reasonably concluded that none of the literature supported the reliability of Dr. Hoffman’s proffered physiological process, and that none of the literature supported Dr. Hoffman’s opinion that a traumatic brain injury like GP’s could have caused or contributed to the development of ASD....We are satisfied that the district court did not abuse its discretion in concluding, based on the literature Dr. Hoffman himself provided, that there is no reliable support for Dr. Hoffman’s assertion that “perinatal and neonatal intensive care follow-up literature does support the association between injury to the developing brain, including traumatic brain injury, and later occurrence of autism spectrum disorder.”
Finally, the court noted that the "Law lags science; it does not lead it."  The court stated:
We emphasize that we express no opinion regarding whether traumatic brain injury sustained in the perinatal or neonatal period can ever cause or contribute to later development of an autism spectrum disorder. Rather, as we have previously stated: “The courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” Rider, 295 F.3d at 1202 (quoting Rosen, 78 F.3d at 319). We emphasize also that our conclusion, and that of the district court, is based only on the evidence presented in this case. Given the current state of scientific knowledge regarding the causes of autism spectrum disorders (as it has been presented to us by the parties), we are unable to say that the district court abused its discretion in excluding this expert testimony. Because without this testimony there is no genuine dispute of material fact regarding causation of G.P.’s ASD, the district court’s grant of summary judgment on Hendrix’s sole remaining claim was appropriate.


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