Hendrix v. Evenflo Co. Inc

• Decision Date: 22 June 2010
• Docket Number: No. 09-10079.,09-10079.
• Citation: 609 F.3d 1183
• Parties: Rhonda HENDRIX, Parent and Guardian of G.P., a minor child, Plaintiff-Counter Defendant-Appellant,v.EVENFLO COMPANY, INC., a foreign corporation Defendant-Counter Claimant-Appellee,Fort Walton Beach Medical Center, a Florida corporation, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

609 F.3d 1183

Rhonda HENDRIX, Parent and Guardian of G.P., a minor child, Plaintiff-Counter Defendant-Appellant,v. EVENFLO COMPANY, INC., a foreign corporation Defendant-Counter Claimant-Appellee,Fort Walton Beach Medical Center, a Florida corporation, Defendant.

No. 09-10079.

United States Court of Appeals Eleventh Circuit.

June 22, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

R. Douglas Gentile, Evan A. Douthit, Douthis Frets Rouse Gentile & Rhodes, LLC, Kansas City, MO, Norwood S. Wilner, Aaron Metcalf, Wilner, Hartley & Metcalf, P.A., Jacksonville, FL, for Plaintiff-Counter Defendant-Appellant.

H. Christopher Bartolomucci, Hogan Lovells US LLP, Washington, DC, Timothy J. McDermott, Akerman Senterfitt, Jacksonville, FL, Katherine Eastmoore Giddings, Akerman Senterfitt, Tallahassee, FL, for Defendant-Counter Claimant-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before CARNES, HULL and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Plaintiff-Appellant Rhonda Hendrix alleges that her son, G.P., sustained traumatic brain injuries when a child restraint system manufactured by Defendant-Appellee Evenflo Company, Inc., (“Evenflo”), malfunctioned during a minor traffic accident. Hendrix further alleges that those brain injuries caused G.P. to develop autism spectrum disorder (“ASD”) and a spinal cord defect known as syringomyelia. The district court excluded testimony from two of Hendrix's expert witnesses that the accident caused G.P.'s ASD. The district court concluded that the methods used by Hendrix's experts were not sufficiently reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Hendrix v. Evenflo Co., Inc., 255 F.R.D. 568 (N.D.Fla.2009). The district court then granted partial summary judgment to Evenflo on Hendrix's compensatory damages claim, determining that without the excluded testimony there was no reliable evidence to support Hendrix's theory that the accident caused G.P.'s ASD. Hendrix voluntarily dismissed, with prejudice, her remaining damages claims and filed a notice of appeal.

I. FACTS AND PROCEDURAL HISTORY

The product at issue in this product liability case is the Evenflo Discovery Model 212 Child Restraint System (“the CRS”) owned by Hendrix. The CRS, which was manufactured in December 2000, consists of a plastic base that is secured to the vehicle's seat by the safety belt and a padded plastic carrier. The carrier is either locked into the base or secured directly to the vehicle's seat with a safety belt. The CRS meets the requirements imposed by federal regulations. See 49 C.F.R. § 571.213. When used properly, the base is positioned in a rear seat with the carrier locked into the base so the child faces the rear of the vehicle.

On April 17, 2002, Hendrix and her fifteen-day-old son, G.P., were involved in a minor traffic accident (“the accident”) while traveling at a speed of 10-12 mph. Hendrix claims that G.P. was properly strapped into the CRS, and that the CRS was located in the rear center position of her SUV.¹ Hendrix's theory is that during the accident the seat dislodged from its base because it had been “false-latched.” A false-latch occurs when the mechanism that attaches the carrier to the base fails to properly latch even though the latch makes an audible click leading the person installing the seat to believe the seat is properly installed. Hendrix argues that because of the false-latch the carrier separated from the base at impact and struck the console between the SUV's front seats.

It is undisputed that the carrier fractured during the accident. While it is also undisputed that G.P. suffered a closed-head injury as a result of the accident, the parties do dispute the severity of the injury and whether G.P. suffered brain damage. G.P.'s medical records reveal that he suffered, at the very least, a contusion on his forehead and bleeding in his brain. G.P.'s injuries do not appear to have caused immediate neurologic impairment, as G.P. exhibited no developmental problems at his 2, 4, or 10-month check-ups.

Nearly eighteen months after the accident, G.P. began to exhibit developmental problems. When occupational therapy failed to cause improvement, G.P. was referred to Dr. Suhrbier, a pediatric neurologist. Dr. Suhrbier administered a neurologic evaluation to address G.P.'s severe neurodevelopmental delay, impaired social interactions, and history of seizures.

Approximately three years after the accident, Dr. Suhrbier diagnosed G.P. with an asymptomatic spinal cord cyst. Hendrix argues that the cyst is a syringomyelia, which can be caused by trauma but may not appear for several years following the causative trauma.²

Dr. Suhrbier diagnosed G.P. with ASD in April 2007, when G.P. was five years old. There is little information in the record regarding G.P.'s current impairments related to his ASD diagnosis. A report filed in December 2007 by Hendrix's second medical expert, Dr. Hoffman³, describes G.P. as completely nonverbal, aggressive, lacking fine motor skills, and refusing or unable to use utensils, and as suffering from delayed sleep-onset, hyperactivity (i.e., constant motion, running away), and decreased response to pain. Based on information provided by Hendrix and his personal examinations of G.P., Dr. Hoffman concluded that G.P. has “autism spectrum disorder, a behaviorally defined disorder with qualitatively impaired social interaction, qualitatively impaired communication (not compensated by gesture), and restrictive repetitive and stereotyped patterns of behavior, interests and activities.” Evenflo's medical expert, Dr. Epstein, also examined G.P. and described impairments consistent with those described by Dr. Hoffman. The experts all agree that, as a result of his ASD, G.P. will never be gainfully employed.

On April 12, 2006, Hendrix filed suit against Evenflo both individually and on behalf of G.P., claiming the defective CRS caused G.P. to sustain injuries that ultimately led him to develop ASD and syringomyelia. Evenflo removed the case to the Northern District of Florida on the basis of diversity jurisdiction. The parties then commenced discovery.

Hendrix sought to introduce testimony by Dr. Suhrbier and Dr. Hoffman that the injuries G.P. sustained in the accident caused him to develop ASD and syringomyelia. Evenflo moved to exclude this testimony, citing as one basis for exclusion the fact that there is no scientifically reliable basis for the experts' opinions, as required by Daubert.

The district court assessed the admissibility of Dr. Suhrbier's testimony based on Dr. Suhrbier's deposition taken by Evenflo in July, 2007, and Dr. Suhrbier's post-discovery affidavit prepared on September 9, 2008. In his deposition, Dr. Suhrbier stated that “recognized causes of autism include genetic disorders, metabolic disorders, epileptic encephalopathies, structural injuries and malformations to the brain, as well as reasons that have not been fully elucidated.” Dr. Suhrbier also claimed that autism had been associated with severe head injury and stated his opinion that there was a “high probability” the accident had caused G.P.'s ASD. When asked for scientific or medical literature relating autism spectrum disorders and trauma, however, Dr. Suhrbier stated that he could not cite from memory any specific articles.

In his post-discovery affidavit, Dr. Suhrbier stated that his diagnosis of G.P. was based on:

personal examinations, interaction with and observations of [G.P.], testing that I had performed on him, my review of some of his medical records, multiple interviews with his primary caregiver, my training, education and experience my own base of knowledge and the utilization of the generally accepted medical methodology referred to as “differential diagnosis.”

Dr. Suhrbier explained that “[d]ifferential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable cause is isolated.” Dr. Suhrbier further stated that in performing his differential diagnosis, he determined that G.P. did not have the Fragile X genetic disorder, “the most common ‘known’ cause of autism,” and therefore concluded “[t]his means, based on our current knowledge, that the cause of his autism is most likely not genetic in nature.” In addition to the differential diagnosis method, Dr. Suhrbier also stated that he sought a unifying mechanism to explain both G.P.'s ASD and his syringomyelia. According to Dr. Suhrbier, it was important and “consistent with generally accepted methodologies within the field of pediatrics-to the extent possible-to look for unifying theories of diagnosis in an effort to explain a presentation of symptoms.” Dr. Suhrbier stated that he was “quite familiar with the concept that trauma is a recognized cause of autism and syringomyelia in very young patients.” Again, Dr. Suhrbier provided no research or literature to support this statement. Dr. Suhrbier stated: “I concluded that the most likely cause of [G.P.]'s autism and syringomyelia was the trauma that he sustained in that motor vehicle accident in April of 2002. It was, and still is, my opinion that trauma was a substantial factor in causing the disabilities that [G.P.] is experiencing today.”

Dr. Hoffman first examined G.P. on March 22, 2006, approximately four years after the accident. The district court assessed the admissibility of Dr. Hoffman's testimony based on Dr. Hoffman's Independent Medical Evaluation & Report prepared on December 14, 2007; a deposition taken by Evenflo on January 16, 2008; and a Supplemental Report prepared on June 18, 2008.

In his Independent Report, Dr. Hoffman stated:

[G.P.] has multiple neurodevelopmental impairments that will be handicapping lifelong. My medical opinion, to a reasonable degree of medical certainty, is that [G.P.'s] medical

...