Hall v. Flannery

• Decision Date: 04 November 2016
• Docket Number: No. 15-2602,15-2602
• Citation: 840 F.3d 922
• Parties: Sandra Hall, special administrator of the estate of Chelsea Weekley, Plaintiff–Appellant, v. Ann Flannery, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

840 F.3d 922

Sandra Hall, special administrator of the estate of Chelsea Weekley, Plaintiff–Appellant,

v.Ann Flannery, et al., Defendants–Appellees.

No. 15-2602

United States Court of Appeals, Seventh Circuit.

Argued February 17, 2016

Decided November 4, 2016

Rhonda Dee Fiss, Attorney, Law Office of Rhonda D. Fiss, P.C., Belleville, IL, for Plaintiff–Appellant.

Edward S. Bott, Jr., Attorney, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for Defendants–Appellees.

Before Bauer, Flaum, and Williams, Circuit Judges.

Williams

, Circuit Judge.

Chelsea Weekley suffered a skull fracture

as an infant and underwent surgery 17 years later to fix it. She died several days after the surgery, and her mother, Sandra Hall, sued the hospital and the surgeons. Hall argued that the surgery caused Weekley to suffer a seizure and die, and that the surgeons should have prescribed anti-seizure medication. But the defendants argued that no seizure had occurred and that a heart-related ailment was the likely cause of death. A jury trial was held and the jury found in the defendants' favor.

On appeal, Hall argues that the district judge erroneously permitted three of the defendants' experts to opine about Weekley's likely cause of death. We conclude that Hall forfeited her arguments as to two of these experts by making perfunctory and underdeveloped arguments concerning the experts' testimony, qualifications, and methodology. However, we find that the third expert lacked the requisite qualifications to opine that Weekley's heart ailment was the likely cause of death. Because there is a significant chance that the erroneous admission of this expert testimony affected the outcome of the trial, we vacate the district court's judgment and remand for further proceedings.

I. BACKGROUND

A. Weekley's Surgery and Death

When Chelsea Weekley was approximately five months old, she was dropped and suffered a skull fracture

. As the fracture expanded over time, a cyst formed in the area. The fracture and cyst did not become a cause for concern until, at the age of 17, she was hit in the head and suffered a loss of consciousness, blurred vision, and dizziness. After CT and MRI scans confirmed the extent of the fracture and the cyst, Weekley underwent a “cranioplasty ” surgery to repair the fracture and the area of the dura (the thick membrane surrounding the brain) where the cyst had formed. The surgery was performed at SSM Cardinal Glennon Children's Hospital (“Hospital”) by Dr. Ann Flannery, a neurosurgeon, and Dr. Raghuram Sampath, a neurosurgical resident.

Weekley was discharged a day after the surgery and was found dead in her bed three days later. The coroner observed that Weekley was in a “normal resting position,” that her legs were straight and her ankles crossed, and that her right arm was bent near her head “as if using it to lay on.” The coroner also observed that her hands were “cramped up,” that her bladder was empty, and that her feet were near the headboard while her head was near the foot of the bed.

Weekley's autopsy was performed by Dr. Raj Nanduri, a board forensic pathologist. According to Dr. Nanduri, forensic pathology concerns the effect of sudden, accidental, and suicidal death on the human body. After performing a physical, microscopic, and toxicological examination of Weekley's body, Dr. Nanduri was unable to identify a cause of death. So she asked Dr. Mary Case, a neuropathologist, to examine Weekley's brain. Dr. Case found that the surgery damaged the dura and surface of Weekley's brain. Based on this finding, Dr. Nanduri concluded that Weekley had died from a seizure brought about by the surgical damage. Neither Dr. Nanduri nor Dr. Case was aware of or had reviewed the pre-surgery CT and MRI scans when they made their findings.

B. Pre–Trial Proceedings

Weekley's mother, Sandra Hall, sued Dr. Flannery, Dr. Sampath, and the Hospital, alleging that they provided Weekley with negligent post-operative care, and that this negligence caused Weekley to suffer a seizure and die. Before trial, Hall filed two motions in limine (“MILs”) that concerned three of the defendants' expert witnesses: Dr. John Ruge, a pediatric neurologist; Dr. Douglas Miller, a neuropathologist; and Dr. Steven Rothman, a pediatric neurologist.

In MIL # 48, Hall sought to bar Dr. Miller from testifying that anything other than a seizure had caused Weekley's death, on the ground that Dr. Miller had not provided such an opinion to a reasonable degree of medical certainty. The district judge granted this MIL, though only to the extent that Dr. Miller had in fact failed to disclose any such opinion.

In MIL # 49, Hall sought to bar the defendants and their witnesses from denying that Weekley's death was caused by a seizure. In doing so, Hall argued that Dr. Ruge and Dr. Rothman were “not qualified through education or experience to give an opinion to a reasonable degree of medical certainty as to Weekley's forensic cause of death.” In addition, Hall argued that Dr. Ruge had failed to offer any scientific explanation for his opinion that Weekley had not died from a seizure, and that Dr. Rothman had failed to offer any cause-of-death opinions to a reasonable degree of medical certainty. The district judge denied the MIL, noting that the defendants' experts could provide any cause-of-death opinions that had been previously disclosed.

C. Trial Proceedings

At trial, the defendants elicited cause-of-death testimony from Dr. Ruge, Dr. Miller, and Dr. Rothman. Dr. Ruge testified that Weekley's death was not brought about by a seizure, and opined that “focal interstitial chronic inflammation

” of Weekley's heart (i.e., thickening of the heart's connective tissue) was the likely cause of death. Hall's attorney objected immediately, stating,

[T]here's been absolutely no foundation laid, no qualifications, nothing that would suggest that this gentleman is qualified to give, nor has that been disclosed as one of the opinions as to cause of death.

A sidebar ensued in which the parties and the district judge focused on whether Dr. Ruge had previously expressed these opinions with the requisite degree of medical certainty. No one mentioned Dr. Ruge's qualifications or methodology. After consulting Dr. Ruge's expert report and deposition transcript, the district judge concluded that the opinions had been properly disclosed and did not violate her ruling on MIL # 49.

Dr. Miller testified next. Before he shared his cause-of-death opinions, Hall's attorney objected, stating,

The Court has already determined after argument and briefing that defendants' expert Dr. Douglas Miller is barred from testifying, suggesting or implying that Chelsea Weekley's cause of death was anything other than a seizure. In addition, this motion in limine was also granted that defendants' opinion witnesses cannot express any opinions as to cause of Chelsea Weekley's death that has [not] previously been stated to a reasonable degree of medical certainty.

The district judge concluded that although Dr. Miller had previously stipulated that he had reached his opinions with a reasonable degree of medical probability but not medical certainty , his opinions had been adequately shared before trial and thus would not constitute a prejudicial surprise to Hall. Dr. Miller then testified that “it's overwhelmingly probable that [Weekley's death] was not caused by a seizure.”

Finally, Dr. Rothman testified that he did not believe Weekley suffered any seizures before her death. Hall did not object to any of Dr. Rothman's cause-of-death opinions during trial.

At the end of trial, the jury returned a general verdict “find[ing] for all of the defendants and against the plaintiff.” This appeal followed.

II. ANALYSIS

Hall argues on appeal that the district court erred in permitting Dr. Ruge, Dr. Miller, and Dr. Rothman to testify about the specific cause of Weekley's death. The admissibility of expert testimony is governed by Federal Rule of Evidence 702

and Daubert v. Merrell Dow Pharmaceuticals. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Such testimony is permitted if the witness is “an expert by knowledge, skill, experience, training, or education,” and her opinion is “the product of reliable principles and methods” that have been reliably applied to the facts of the case. FED. R. EVID. 702. Because we are not concerned with the witness's general qualifications but instead with his “foundation for ... answer[ing] a specific question[,] ... we must look at each of the conclusions he draws individually to see if he has the adequate education, skill, and training to reach them.” Gayton v. McCoy , 593 F.3d 610, 617 (7th Cir. 2010) (citations and internal quotation marks omitted).

We review de novo whether a district judge has properly followed Rule 702

and Daubert. Kunz v. DeFelice , 538 F.3d 667, 675 (7th Cir. 2008). So long as the judge applied the Rule 702/Daubert framework, we review the judge's decision to admit or exclude expert testimony for abuse of discretion. Id. If, however, the district judge failed to apply the framework, we review the judge's decision de novo. Metavante Corp. v. Emigrant Sav. Bank , 619 F.3d 748, 760 (7th Cir. 2010) ; see also

United States v. Adame , 827 F.3d 637, 645 (7th Cir. 2016) ; Naeem v. McKesson Drug Co. , 444 F.3d 593, 608 (7th Cir. 2006).

Even if an expert's testimony was erroneously admitted or excluded, reversal is not warranted unless the error has affected a party's “substantial rights.” FED. R. CIV. P. 61

; see

Naeem , 444 F.3d at 608–09. This occurs when the erroneous ruling has had a “substantial influence over the jury, and the result reached was inconsistent with substantial justice.”

Farfaras v. Citizens Bank & Trust of Chi. , 433 F.3d 558, 564 (7th Cir. 2006)

(citation omitted); Jones v. Lincoln Elec. Co. , 188 F.3d 709, 725 (7th Cir. 1999). “Evidentiary errors satisfy this standard only when a significant chance exists that they affected the outcome of the trial.” EEOC v. Mgmt....