Jennings v. Baxter Healthcare Corp.
Decision Date | 17 November 2000 |
Citation | 331 Ore. 285,14 P.3d 596,331 Or. 285 |
Parties | Nancy R. JENNINGS, Respondent on Review, v. BAXTER HEALTHCARE CORPORATION, a Delaware corporation, and Baxter International Inc., a Delaware corporation, Petitioners on Review, and Dow Corning Corporation, and Willamette Falls Hospital, Defendants. |
Court | Oregon Supreme Court |
Jonathan M. Hoffman, of Martin, Bischoff, Templeton, Langslet & Hoffman LLP, Portland, argued the cause and filed the briefs for petitioners on review.
Linda K. Eyerman, of Gaylord & Eyerman, P.C., Kathryn H. Clarke, Portland, argued the cause and filed the briefs for respondent on review.
David B. Smith, Tigard, and Martin S. Kaufman, of Atlantic Legal Foundation, New York, filed briefs on behalf of amici curiae Robert K. Adair, Bruce N. Ames, Patricia A. Buffler, Michael Gough, Joshua Lederberg, Rodney Nicholas, Robert Nolan, Dimitrios Trichopoulos, M.D., Arthur Canfield Upton, James D. Watson, James D. Wilson, and Richard Wilson.
Paul A. Cooney, of Cooney & Crew, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Association.
Roy Pulvers, of Lindsay, Hart, Neil & Weigler, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.
R. Daniel Lindahl, of Bullivant, Houser, Bailey, Portland, filed a brief on behalf of amici curiae Defense Research Institute and International Association of Defense Counsel.
William B. Crow, of Miller, Nash, Weiner, Hager & Carlsen LLP, Portland, filed a brief on behalf of amicus curiae Product Liability Advisory Council, Inc.
David F. Sugerman, of Paul & Sugerman, PC, Portland, and J.P. Toby Graff, of Graff & O'Neill, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers' Association.
In this product liability action, plaintiff appeals from a defense verdict. She alleges that she was exposed to silicone from breast implants that leaked and ruptured, causing her personal injuries. The Court of Appeals reversed and remanded for a new trial, holding that the trial court committed reversible error in excluding certain opinion testimony of plaintiff's expert witness. Jennings v. Baxter Healthcare Corp., 152 Or.App. 421, 954 P.2d 829 (1998). Defendants seek reversal of the Court of Appeals' decision and reinstatement of the trial court's judgment. For the reasons that follow, we affirm the decision of the Court of Appeals.
In 1978, plaintiff received silicone gel breast implants following a bilateral mastectomy.1 Both implants partially deflated: the first in 1980 (which was replaced), the second in 1992. In 1993, plaintiff had the implants surgically removed, at which time it was discovered that one implant had ruptured. Plaintiff filed this action in 1994, alleging that silicone from the implants had migrated throughout her body and caused personal injuries. Defendants maintained that plaintiff's symptoms were caused by fibromyalgia and were not the result of the breast implants.2
At trial, plaintiff called Dr. Grimm to testify about medical causation. Grimm is a board-certified neurologist with an advanced degree in neurophysiology.3 Defendants did not question Grimm's qualifications to determine the causes of neurological deficits in patients in general, but did challenge Grimm's opinion testimony regarding causation in this case. In response to defendants' admissibility challenge, the trial court conducted an in limine hearing as directed by State v. O'Key, 321 Or. 285, 307 n. 29, 899 P.2d 663 (1995).4
At the hearing, Grimm testified that he became interested in the neurological consequences of silicone in 1993, when he examined "two very sick women." As a result, he began to examine women who had silicone breast implants. At the time of plaintiff's trial, he had examined about 50 women, 45 of them in 1994.
Grimm found that 43 of the 45 women he had examined in 1994 had vestibular difficulties:5
(Emphasis added.) Grimm further testified that the pattern he had observed in the women was distinguishable from a cross section of the population at large. He indicated that the combination of the two conditions is extremely rare, even among people with neurological disorders. Grimm acknowledged that his findings had not been published in any medical literature or subjected to peer review.
Second, he sent the patients to the vestibular laboratory at Good Samaritan Hospital in Portland. That laboratory measured each woman's inner ear function. With some of the women, Grimm had additional tests performed.
In an attempt to determine the cause of the women's symptoms, Grimm then performed a differential diagnosis.6 In a differential diagnosis, a doctor develops a list of all diseases that might cause a patient's symptoms and then, by a process of elimination, narrows the list. Mary Sue Henifin, Howard M. Kipen, and Susan R. Poulter, Reference Guide on Medical Testimony, 463, in Federal Judicial Center, Reference Manual on Scientific Evidence (2d ed. 2000) (hereinafter Reference Guide on Medical Testimony). Grimm also examined the women's histories and possible exposures for other causes of the same symptoms. Silicone was the only common exposure he found among the women. Grimm also considered the research of others on animals.
Respecting Grimm's ultimate conclusions about medical causation, plaintiff's counsel asked:
Plaintiff's counsel then introduced the subject that lies at the heart of this case, viz., Grimm's opinion as to the cause of plaintiff's condition:
(Emphasis added.) It appears that plaintiff's counsel intended the foregoing exchange to be—and that the trial judge and defendants accepted it as—a statement that, in Grimm's opinion, plaintiff's condition was caused by the ruptured silicone gel breast implants.
The trial judge then examined Grimm. The judge apparently had understood Grimm to have testified that the conditions he had observed in the women were not proved by any scientific study. Grimm clarified that point:
The judge asked Grimm whether his technique could be "tested." Specifically, the judge asked whether Grimm had used a questionnaire because, "if [you] have a questionnaire, they can look at that and see if you asked the right questions and what answers you got." Grimm responded that he had not used a questionnaire, but that he had used the "classic technique" of "taking a careful clinical history."
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