Cabrera v. Cordis Corp., 96-17017

• Decision Date: 29 January 1998
• Docket Number: No. 96-17017,96-17017
• Citation: 134 F.3d 1418
• Parties: 48 Fed. R. Evid. Serv. 874, Prod.Liab.Rep. (CCH) P 15,157, 98 Cal. Daily Op. Serv. 780, 98 Daily Journal D.A.R. 1061 Laura CABRERA, Plaintiff-Appellant, v. CORDIS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1418

134 F.3d 1418

48 Fed. R. Evid. Serv. 874, Prod.Liab.Rep. (CCH) P 15,157,

98 Cal. Daily Op. Serv. 780,

98 Daily Journal D.A.R. 1061

Laura CABRERA, Plaintiff-Appellant, v. CORDIS CORPORATION, Defendant-Appellee.

No. 96-17017.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 4, 1997.

Decided Jan. 29, 1998.

Gerald I. Gillock, Gillock, Koning, Markley & Killebrew, Las Vegas, NV, for plaintiff-appellant.

Kathlene Landgraf Kolts (argued), Kolts and Nawa, Pasadena, CA, and Leann Sanders, Alverson, Taylor, Mortensen, Nelson & Sanders, Las Vegas, NV, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-94-00720-PMP.

Before: BOOCHEVER and KLEINFELD, Circuit Judges, and WILSON, ^* District Judge.

BOOCHEVER, Circuit Judge:

Laura Cabrera sued Cordis Corporation, alleging that a brain shunt manufactured by Cordis and implanted in her head was defectively designed, and that the silicone components in the shunt made her ill. The district court excluded the testimony of Cabrera's expert witnesses under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and granted summary judgment to Cordis. Cabrera appeals.

FACTS

In 1977, Laura Cabrera, who was then fifteen years old, was diagnosed with hydrocephalus, a condition in which excess cerebral spinal fluid collects in the brain. To drain the excess fluid, Cabrera's neurosurgeon implanted a hydrocephalus shunt (technically known as a ventriculoperitoneal shunt) manufactured by Cordis Corporation. The shunt had a fin tipped catheter and a valve system, both of which were constructed with silicone rubber.

In the 1980s, Cabrera began experiencing severe allergies, chronic fatigue, and autoimmune disorders. She consulted a neurosurgeon about having the shunt removed, and he told her she was "shunt dependent," that is, she could not live without the shunt.

In 1994, Cabrera filed a complaint in federal district court (based on diversity of citizenship), alleging that her medical problems were the result of silicone toxicity. She claimed that the toxicity was caused by her body's production of silicone antibodies in response to the inappropriate composition of silicone in the shunt's component parts. She also alleged that the shunt was defectively designed, in that removal or replacement of the fin tipped catheter would require major surgery and removal of a portion of her brain tissue.

After discovery, Cordis filed a motion for summary judgment along with four motions in limine to exclude the testimony of Cabrera's four expert witnesses. The district court conducted a hearing to examine the experts and granted the motions in limine, excluding the testimony of all Cabrera's experts. The court then granted summary judgment in favor of Cordis, because without the expert witnesses, Cabrera had no evidence of causation, and there was no genuine issue as to any material fact on an essential element of the claim.

Cabrera appeals.

DISCUSSION

This court reviews rulings on the admissibility of expert testimony under Fed.R.Evid. 702 for an abuse of discretion. General Elec. Co. v. Joiner, --- U.S. ----, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 596 (9th Cir.1996). We "give the trial court the deference that is the hallmark of abuse of discretion review," even though the ruling on the admissibility of expert testimony was dispositive of the motion for summary judgment and determined the outcome of the case. Joiner, --- U.S. at ----, 118 S.Ct. at 518; see Lust, 89 F.3d at 597.

I. Hearing procedure

Cabrera argues that the district court followed the wrong procedure at the hearing when it allowed Cordis to cross-examine Cabrera's witnesses first and did not allow the experts to testify on several issues. Cabrera's counsel made no objections to the order of proof or the time he was allotted for questioning. Cabrera therefore cannot complain now. Long v. Director, OWCP, 767 F.2d 1578, 1583 (9th Cir.1985) (party who failed to object at hearing cannot challenge on appeal failure to allow cross-examination); Hawaiian Rock Prods. v. A.E. Lopez Ents., 74 F.3d 972, 976 (9th Cir.1996) (arguments not made before district court are waived).

Cabrera contends that this rule does not apply to procedural objections. The reason for alerting a court to the grounds of objections so that they may be addressed applies equally to procedural and substantive objections, however, and we reject this distinction.

II. Expert testimony

In Daubert, the Supreme Court held that the test for admitting scientific expert testimony under Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which required that a scientific technique be "generally accepted" as reliable in the scientific community, was superseded by the adoption of the Federal Rules of Evidence. Daubert, 509 U.S. at 587, 113 S.Ct. at 2793-94. Federal Rule of Evidence 702 provides:

Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Under Daubert, a district court may admit expert scientific opinion if it qualifies as "scientific knowledge," that is, if it has a "grounding in the methods and procedures of science ... [and is] more than subjective belief or unsupported speculation." 509 U.S. at 590, 113 S.Ct. at 2795. "[I]n order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method .... [to] establish[ ] a standard of evidentiary reliability." Id.

District court judges perform a "gatekeeping role," id. at 597, 113 S.Ct. at 2798, and may apply four nonexclusive factors to determine whether proffered expert opinion is developed by the scientific method or is "junk science:"

District court judges are to consider not only (1) whether the method has gained general acceptance in the relevant scientific community, but also (2) whether the method has been peer-reviewed, (3) whether the method "can be (and has been) tested," and (4) whether there is a "known or potential rate of error." Id. at 594, 113 S.Ct. at 2797.... [T]he Daubert inquiry is flexible.... "One very significant fact" is whether the expert has "developed [his] opinions expressly for purposes of testifying," since "a scientist's normal workplace is the lab or the field, not the courtroom or the lawyer's office." Daubert, 43 F.3d at 1317. That the expert failed to subject his method to peer-review and to develop his opinion outside the litigation is not dispositive, but if these guarantees of reliability are not satisfied, the expert "must explain precisely how [he] went about reaching [his] conclusions and point to some objective source ... to show that [he has] followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in [his] field." Id.

Lust, 89 F.3d at 597 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir.) ("Daubert II "), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995)). "[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology." Daubert II, 43 F.3d at 1318.

Cabrera presented four expert witnesses, and the district court rejected the testimony of all four.

A. Saul Puszkin, Ph.D.

Saul Puszkin is a Ph.D. in neuroscience, and he has worked more than twenty years in the fields of pathology and immunology. Puszkin testified that he examined under a microscope two tissue slides from Cabrera. One showed no foreign bodies. The other, taken from a cyst on Cabrera's head, showed the presence of a giant cell reaction to a foreign particle that Puszkin could not identify. Puszkin could have tested the slide for the identity of the foreign particle, but did not because he was not asked to do the test, and because the test would have required taking the prepared slide apart. He thus testified that he "never talked about silicone at all in [his] report." On cross-examination, defense counsel asked Puszkin about the report of Dr. Allan Anes, M.D., a pathologist who examined the tissue and found that the foreign body was not silicone but keratin, which occurs naturally in the human body. ¹ Puszkin was not aware of the test but conceded that he did not know whether keratin or silicone was present.

The district court concluded that because Puszkin could not identify the foreign body causing the giant cell reaction, his testimony was "simply irrelevant under F.R.E. 401 and is not, in and of itself, helpful to the trier of fact under F.R.E. 702."

On appeal, Cabrera argues that Puszkin's testimony was "highly relevant" because he "testified that based upon his examination of the two tissues [sic] slides, Plaintiff was suffering from a foreign body reaction most likely caused by the shunt." Yet, at the Daubert hearing, plaintiff's counsel stated that Puszkin would testify to the location of the cells relative to the shunt, "but he's not going to testify that the shunt is the source of the ... cells." Because he had never tested for the source of the reaction, Puszkin could not connect it to silicone or any other substance. Puszkin's only testimony thus would have been that the tissue from the cyst showed a foreign body reaction.

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Cabrera argues that the testimony regarding the reaction was relevant as a "building block," and that other experts would establish the nature of the foreign...