Carlson v. Bioremedi Therapeutic Sys., Inc.

Decision Date16 May 2016
Docket NumberNo. 14–20691.,14–20691.
Citation822 F.3d 194
PartiesDavid CARLSON; Betsey Carlson, Plaintiffs–Appellants v. BIOREMEDI THERAPEUTIC SYSTEMS, INCORPORATED ; Light Emitting Designs, Incorporated, Defendants–Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Kyle Wayne Farrar, Esq. (argued), Farrar & Ball, L.L.P., Houston, TX, for PlaintiffsAppellants.

Steven C. Barkley (argued), Beaumont, TX, for DefendantsAppellees.

Appeal from the United States District Court for the Southern District of Texas.

Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.


, Circuit Judge:

David Carlson suffered severe injuries soon after being treated with the defendants' product, the ProNeuroLight. He and his wife brought this products liability suit against the defendants. At trial, the defendants' only witness was a chiropractor who had examined Carlson and had been trained to use the ProNeuroLight. We agree with the Carlsons that the district court erred in allowing that witness to give expert testimony without first making a determination about his qualifications.



In 2010, David Carlson began to lose nerve sensation in his feet, a diabetic condition known as “peripheral neuropathy

.” Carlson visited Dr. Lance Durrett, “a chiropractor and alternative medicine specialist” who had been promoting a new treatment for “diabetic neuropathy.” Dr. Durrett examined Carlson and recommended treatment using the ProNeuroLight device. The ProNeuroLight uses infrared light “to heat up the area to increase the presence of nitrous oxide, which ... dilates the vessels to allow more circulation to get to the area.”1 Dr. Durrett did not personally perform Carlson's ProNeuroLight treatment; it was performed by a staff member in the same treatment facility.

Carlson did not experience complications during treatment, and he was not examined before leaving the treatment facility. Within 48 hours, Carlson discovered ulcers on the bottom of his heels. Carlson's diabetic podiatrist determined these ulcers were in fact “burn eschar

.” Ultimately, Carlson's podiatrist concluded these burns caused a bone infection that required “over a year of hospitalization culminating in a below the knee amputation on one leg, as well as a heel amputation on the opposite foot.”

The Carlsons brought this suit against both the manufacturer and the distributor of the ProNeuroLight device, respectively Light Emitting Designs, Incorporated and Bioremedi Therapeutic Systems, Incorporated. The Carlsons sought damages on three counts of alleged products liability:

(1) design defect; (2) manufacturing defect;2 and (3) marketing defect, i.e., a failure to warn. Before trial, the Carlsons filed a motion to exclude Dr. Durrett's medical testimony. The district court denied the motion without explanation. Dr. Durrett was the defendants' only witness during the five-day trial. The jury returned a unanimous verdict for the defendants. The Carlsons timely appealed, challenging only the admission of Dr. Durrett's expert testimony.


The Carlsons contend the district court abused its discretion by allowing Dr. Durrett, a chiropractor, to “opine[ ] on medical matters relating to wound

care, podiatry, neurology, nephrology and diabetic medicine,” as well as “the temperature necessary to cause a burn injury” and “opinions on the [ProNeuroLight] device itself.” When asked whether the ProNeuroLight caused the injuries to Carlson's feet, Dr. Durrett testified, “I couldn't conclude the device did it or did not do it.” Later, though, he stated clearer opinions. He testified that Carlson's injuries “look[ed] like diabetic ulcers.” When asked to comment on a different witness's conclusion that the ProNeuroLight did cause Carlson's injuries, Dr. Durrett stated: “There is not enough data to make that decision.” Dr. Durrett also testified that the ProNeuroLight could not have caused Carlson's injuries. Indeed, he stated the device was incapable of causing burns because, by design, it cannot raise surface temperatures by more than two degrees Fahrenheit.

The parties appear to agree the challenged testimony is properly labeled expert testimony, instead of lay opinion testimony. Though the defendants never designated Dr. Durrett as an expert, it is the content of testimony, not a witness's formal designation as an expert witness, which determines whether Rule 702

applies. See Fed.R.Evid. 702. That rule must be used to assess “any part of a witness's opinion that rests on scientific, technical, or specialized knowledge....” United States v. Cooks, 589 F.3d 173, 180 (5th Cir.2009). The defendants even referred to “Dr. Durrett's expert opinions” when responding to the Carlsons' pretrial motion to exclude his medical testimony and then described the legal standards a court must use to qualify a witness for expert testimony. Thus, we assess the challenged testimony under Rule 702.

We also conclude that the Carlsons preserved their challenge to Dr. Durrett's testimony. Initially, the Carlsons filed a pretrial motion to exclude Dr. Durrett's medical testimony. A “pre-trial objection is sufficient to preserve the error for appellate review.” Mathis v. Exxon Corp., 302 F.3d 448, 459 & n. 16 (5th Cir.2002)

(citing the 2000 amendment to Federal Rule of Evidence 103 ).3 The Carlsons' motion to exclude did not cite Rule 702 or the caselaw for analyzing admissibility of expert opinions, but it sufficiently put before the district court the issue of Dr. Durrett's qualification to give expert testimony. The motion argued Dr. Durrett was not qualified “to provide any manner of expert medical testimony”; for support, the Carlsons cited an out-of-circuit decision considering the proper scope of a chiropractor's expert testimony. Additionally, the Carlsons preserved the issue by twice objecting at trial when Dr. Durrett began to testify about medical causation. A party need not repeatedly object to preserve an issue where the district court has already denied the initial objection. See Douglas v. Alabama, 380 U.S. 415, 420–23, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)


Because the issue was preserved for appeal, we review the admission of expert testimony for an abuse of discretion. Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003)

. The ruling will be upheld unless it was “manifestly erroneous.” United States v. Valencia, 600 F.3d 389, 423 (5th Cir.2010). If we find an abuse of discretion, we still may affirm unless the ruling “affected the substantial rights of the complaining party.” Nunez v. Allstate Ins. Co., 604 F.3d 840, 844 (5th Cir.2010).

I. Abuse of Discretion

The gatekeeping function identified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)

, “imposes a special obligation upon a trial judge to ‘ensure that any and all scientific testimony ... is not only relevant, but reliable.’ Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786 ). “To trigger a Daubert inquiry, an expert's testimony, or its ‘factual basis, data, principles, methods, or their application,’ must be ‘called sufficiently into question.’ Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir.2001) (quoting Kumho, 526 U.S. at 149, 119 S.Ct. 1167 ).

District courts are to make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (5th Cir.2002)

(quoting Daubert, 509 U.S. at 592–93, 113 S.Ct. 2786 ). “A party seeking to introduce expert testimony must show (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.’ Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir.2007) (quoting Fed.R.Evid. 702 ).

An expert witness's testimony should be excluded if the district court “finds that the witness is not qualified to testify in a particular field or on a given subject.” Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.1999)

. That said, Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.2009).

Initially, we dispose of the defendants' contention that Dr. Durrett gave no opinion testimony whatsoever. When asked whether the ProNeuroLight could have caused Carlson's injuries, Dr. Durrett explained there were “conflicting facts” and that he could not reach a conclusion. Dr. Durrett's ostensibly equivocal opinion in fact supported the defendants' case by suggesting there was insufficient evidence to prove the ProNeuroLight caused Carlson's injuries.5 Further, Dr. Durrett affirmatively testified that “the placement of the [ProNeuroLight] pads couldn't have” caused Carlson's injuries. This statement alone qualifies as a medical opinion. We thus consider whether Dr. Durrett's expert medical testimony was properly admitted.

Dr. Durrett has been a practicing chiropractor and alternative medicine specialist for over 31 years. He graduated with honors from Texas Chiropractic College, has two certifications in acupuncture

, and is board certified as a chiropractic internist and clinical nutritionist. Dr. Durrett had used devices similar to the ProNeuroLight for approximately 14 years at the time he testified. Notwithstanding his various professional achievements, Dr. Durrett is not a medical doctor, cannot prescribe medicine, did not attend medical school, and does not possess a degree from a four-year university. While he has considerable experience using the...

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