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Challenging Causation Testimony Under Daubert


In Texas courts, the 700 series of rules of evidence control the use of experts in civil cases. Under these rule, the trial judge acts as a gatekeeper for the admission of expert testimony. Judges review the expert testimony to ensure it meets a number of prerequisites established by the U.S. Supreme Court in the seminal case, Daubert v Merrell Dow Pharmaceuticals. Under Daubert, a judge must ensure that an expert’s testimony is relevant to the case and is predicated upon a solid foundation.  For example, in order for expert testimony to be admissible, a judge must deem it more likely than not that the methods used by the expert in reaching their conclusions were reliable and applied properly.

If there is any question as to the veracity of the testimony of a plaintiff’s expert, your defense law firm should take immediate action by filing a motion to exclude the expert’s testimony. For example, in Smith v. Terumo Cardiovascular Systems Corp., et al., Case No. 2:12-cv-998 (D. Utah July 12, 2017), a plaintiff sued a hospital and heart-lung machine manufacturer after the plaintiff’s decedent underwent open-heart surgery where the machine stopped working for a brief period. Eleven months later, the patient died of a heart attack.

The plaintiff’s lawyer retained a cardiologist as a causation expert. The cardiologist asserted that heart-lung machine not working for a brief period (approximately ten minutes) caused the patient’s death. Let’s take a step back and recognize the absurdity of this argument. A patient undergoes heart surgery. Almost a year goes by and the patient suffers a heart attack. Yet somehow the machine used during the surgery, which only stopped working for a few minutes is being blamed for causing the patient’s death.

The defendants rightly moved to exclude the cardiologist’s testimony. They argued that his causation opinions were unreliable and he was not qualified to offer expert testimony on neurological injuries.

The court agreed with the defendant’s argument and highlighted the cardiologist’s own deposition where he admitted that he could not testify with certainty that there was a link between the surgery, the lack of oxygen flow that occurred during the ten-minute malfunction period, and the decedent’s heart attack.  Instead, the cardiologist could only claim that the machine malfunction made it more likely than not that the patient would die as the result of a heart attack. Never mind the fact that the patient also had hypertension, a history of smoking, and diabetes.

The court determined that the causation testimony simply was not reliable, because the cardiologist did not provide a basis to conclude that the link was actually causal rather than merely corollary.

This case is an example of how important it is to have an aggressive defense team on your side ready to investigate and challenge the claims and assumptions reached by experts proffered by plaintiff’s attorneys. 

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If your company is facing a product liability or wrongful death lawsuit, you need seasoned, aggressive reputation. The law firm of Colvin, Saenz, Rodriguez & Kennamer, L.L.P. is here to assist your company in virtually any legal issue you may be confronting. We take pride in reviewing all available options in an effort to secure a favorable outcome in your particular case.




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