Here's a shocker: being a tv star doctor does not make one a viable expert under Federal Rule of Evidence 702. That's not just our say-so (or ipse dixit). One of our reliance materials is Thelen v. Somatics, LLC, 2023 U.S. Dist. LEXIS 101970 (M.D. Fla. June 12, 2023). The plaintiff in that case claimed that he suffered serious neurological injuries from undergoing electroconvulsive theory (ECT). (We have written about ECT litigation before – here for example. Indeed, we have written about the Thelen case a couple of times before; for example, this post was about confidentiality.) To support this claim, the plaintiff hired a doctor as an expert to testify that ECT could injure brains. That expert turns out to be the same doctor who became famous for diagnosing concussion-related brain injuries in football players. He should have stuck to football players.
The defendant moved to exclude the expert's opinions on both general causation (can ECT cause brain injury) and specific causation (did the ECT cause the plaintiff's injuries in this case.) The court denied the motion on specific causation, but granted the motion on general causation. Why did the plaintiff expert's general causation opinion flunk Rule 702? It wasn't on the basis of lack of qualifications. The court assumed that the doctor was qualified. But his opinions on ECT suffered from lack of reliability. His opinion was basically "because I say so." He never articulated any methodology based on either epidemiology or dose response. Of course, the plaintiff expert did not go down without a fight. The court had to do some blocking and tackling before getting to the right Rule 702 result. (Yes, the court talks in terms of Daubert, but if you've been following this blog, you know that we're moving away from that terminology, freighted as it is with so much obsolete, bad law, and sticking to the current, and soon even better, version of Rule 702).
In the course of its opinion, the court said some things we like to see in a Rule 702 analysis (the court should be a "gatekeeper," the plaintiff bears the burden, etc.) and some things we don't like so much (e.g., the hated "flexibiity"). But the court's analysis of general causation is, at least to our defense hack eyes, completely persuasive. The Thelen court observed that the primary methods for establishing general causation "are analysis of epidemiological studies (to the extent they can be reliably applied to the facts of the particular case), analysis of dose-response relationship, and examination of the background risk for the particular disease or condition." So far, so good. Then the Thelen court observed that "[s]econdary methods include the identification of plausible explanations for the mechanism of injury, generalized case reports, hypotheses, and animal studies." The court emphasized that these "secondary methods do not by themselves provide proof of general causation." That is a critical point, because in many cases the plaintiff expert comes in armed with those secondary methods without employing any of the primary methods.
The Thelen court also focused on "whether the expert's testimony grows out of research the expert has conducted independently of the litigation, as opposed to having developed the opinions for the purpose of testifying." Would you care to guess which category applied here? The plaintiff expert adopted the usual pose of acting like a real treating medical doctor by dressing up his opinion as a "differential diagnosis." Nice try. The Thelen court held that a differential diagnosis is a specific causation theory inapplicable to general causation. (The Thelen court is also awarded points for mentioning that "differential diagnosis" in this scenario is really a loose term for a "differential etiology." Plaintiff experts invariably choose the looser, incorrect term because it sounds more like what treaters actually do.) Up to this point, the plaintiff expert's methodology looks both wrong and pointless.
What about the expert's opinions that purported to demonstrate general causation? After being deposed and reaching opinions, he attempted to back them up with scientific studies after the fact. That was rejected as improper methodology − a result-before-research opinion. Simply reading the titles of articles at a deposition with no explanation is not reliable methodology. At his deposition, the expert "deflected questions about the specific content of the article by pointing out, as if to end the discussion, that the article had the word 'morbidity' in the title." The plaintiff expert also claimed to rely on studies published in foreign languages he could not read. (Instead, the expert had relied on the abstracts.)
At bottom, the plaintiff expert's general causation opinion rested on two propositions: "it is well accepted that the very purpose of ECT is to cause brain injury, and thereby induce a supposedly therapeutic seizure, and (2) the fact that ECT causes brain damage follows necessarily and obviously from basic scientific principles relating to brain injury." That not-quite-syllogism did not impress the court. Rather, the court required the expert to provide copies of the medical/scientific literature he said he relied upon. The court then read the literature (gatekeeping, I'd done right, can be hard work) and determined that the literature did not support the expert's opinions – in fact, some of the purportedly relied on articles directly contradicted his opinions. Oops. The court, as referee, blew the whistle and sent the expert off the field.
The Thelen court elegantly ended its Rule 702 exclusion of the plaintiff expert general causation opinion: "Choosing one side of the existing medical and scientific literature on a contested point, and citing one's education, training, and experience as the basis for the choice, is not sufficient to demonstrate the admissibility of a general causation opinion." That's a judicial spiking of the football.
This article is presented for informational purposes only and is not intended to constitute legal advice.
