Johnson v. Mead Johnson & Co.

• Decision Date: 11 July 2014
• Docket Number: 13–2685.,Nos. 13–1681,s. 13–1681
• Citation: 754 F.3d 557
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Scott JOHNSON, as guardian ad litem of H.T.P., a minor, Plaintiff–Appellant v. MEAD JOHNSON & COMPANY, LLC, Defendant–Appellee. Scott Johnson, as guardian ad litem of H.T.P., a minor, Plaintiff–Appellant v. Mead Johnson & Company, LLC, Defendant–Appellee.

754 F.3d 557

Scott JOHNSON, as guardian ad litem of H.T.P., a minor, Plaintiff–Appellant

v.MEAD JOHNSON & COMPANY, LLC, Defendant–Appellee.

Scott Johnson, as guardian ad litem of H.T.P., a minor, Plaintiff–Appellant

v.Mead Johnson & Company, LLC, Defendant–Appellee.

Nos. 13–1681, 13–2685.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 11, 2014.

Filed: June 6, 2014.

Rehearing and Rehearing En Banc Denied July 11, 2014.

Kay Nord Hunt, argued, Minneapolis, MN (Stephen Carl Rathke, of Minneapolis, MN, Michael A. Anderson, Chattanooga, TN, on the brief), Plaintiff–Appellant.

Anthony John Anscombe, argued, Chicago, IL (Mary E. Buckley, Chicago, IL; Frederick W. Morris, Minneapolis, MN; Jonathon T. Naples, Minneapolis, MN, on the brief), for Defendant–Appellee.

Before SMITH, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

Scott Johnson, guardian ad litem for minor H.T.P., appeals the district court's adverse grant of summary judgment in this products liability case. The district court excluded Johnson's experts' testimony and accordingly entered judgment in favor of Mead Johnson (Mead). The district court also assessed costs in the amount of $18,442 against Johnson. Because we find the district court abused its discretion in excluding the experts, we reverse and remand.

I. BACKGROUND

In this summary judgment appeal we view the facts in the light most favorable to Johnson, the non-moving party. Sappington v. Skyjack, Inc., 512 F.3d 440, 445 (8th Cir.2008). H.T.P. was born via Cesarean section on May 4, 2005. H.T.P's mother decided to feed H.T.P. infant formula. While in the hospital and for a short time upon returning home, H.T.P. was fed a sterile liquid infant formula, and then upon H.T.P.'s pediatrician's recommendation, a powdered infant formula (PIF) thereafter. Mead manufactures and sells PIF products which are not sterile, and have been occasionally found to be contaminated with a bacterium Enterobacter sakazakii, a/k/a Cronobacter sakazakii, or C. sak. Mead has issued two nationwide recalls of PIF products because of C. sak contamination, one in March 2002, and the other in January 2003. H.T.P. was fed Enfamil Lipil with Iron, a Mead PIF product, when he was a “neonate” (less than 28 days old). Because their immune and gastrointestinal systems have not yet fully developed, neonates are less able to cope with bacteria than even slightly older infants and are thus more susceptible to infection. H.T.P.'s mother always prepared the PIF in their kitchen with tap water, warmed in the microwave, anywhere from 20 to 60 seconds, and then allowed to cool to room temperature. H.T.P.'s mother was also apparently an extremely fastidious cleaner, wiping the kitchen clean with antibacterial agents over 20 times a day. She also boiled the nipples and bottles for five minutes after washing. She prepared only enough formula for one feeding at a time and discarded any unused formula after feedings. H.T.P's mother testified that the baby was not fed outside of their home prior to his illness; H.T.P. was fed primarily by her; and H.T.P was fed nothing other than liquid sterile formula and Mead PIF mixed with tap water.

On May 20, 2005, H.T.P. was taken to the St. Cloud, Minnesota, hospital emergency room because he was fussy, not eating well, and had a fever. A septic work-up was done, including a lumbar puncture, and H.T.P.'s cerebral spinal fluid was cloudy. H.T.P. was treated with antibiotics for presumed bacterial meningitis. On May 21, H.T.P. had seizures and a respiratory arrest, requiring ventilation and anti-seizure medications. Tests began to show brain inflammation and other abnormalities. He continued to be irritable and had seizures, but was sufficiently stable by May 31 to be transferred from pediatric intensive care to a medical floor. On June 6, H.T.P. was discharged and returned home. Two days later, H.T.P. returned to the St. Cloud emergency room because he was fussy, vomiting and had decreasing activity. He was admitted for intravenous hydration, and discharged home on June 10. On June 17, H.T.P. returned to the St. Cloud Hospital with hydrocephalus. He was transferred to the St. Paul Children's Hospital where a brain MRI showed extensive cerebral destruction. This is the first point at which doctors recognized possible C. sak infection. An external ventricular shunt was placed, and indeed, the spinal fluid culture subsequently grew the bacterium C. sak. On June 17, doctors discussed options with H.T.P.'s parents, including the option of withdrawing life support given H.T.P.'s brain damage, but the family desired continued treatment. H.T.P. survived the infection but sustained severe permanent brain damage.

On June 20, Children's Hospital contacted the Minnesota Department of Health (MDH) to report the C. sak infection, and MDH then interviewed H.T.P.'s family and collected all of the unopened Mead PIF cans at H.T.P.'s house, as well as one open can H.T.P.'s mother was then using. MDH was unable to collect one can of Enfamil that H.T.P's mother had completely used and discarded. MDH gave the cans to the Food and Drug Administration (FDA) and Centers for Disease Control (CDC) for testing. Their tests did not detect any bacteriological contamination.¹ H.T.P.'s home environment was not tested, nor was the specific Mead plant where this Enfamil was manufactured tested.

On November 9, 2010, Scott Johnson was appointed H.T.P.'s guardian ad litem, and in January 2011, Johnson brought this lawsuit against Mead in Minnesota state court asserting causes of action for products liability, negligence and failure to warn-alleging that Enfamil was defective or unreasonably dangerous due to C. sak contamination. Mead successfully removed the case based upon diversity jurisdiction. The case proceeded through discovery, including extensive expert witness depositions. Subsequently, Mead moved the district court to exclude or substantially limit the testimony of Johnson's expert witnesses and also moved for summary judgment. The district court held a Federal Rule of Evidence 702 hearing, and ultimately granted Mead's motions, finding that Johnson's experts' opinions were not sufficiently reliable/helpful to the trier of fact because three of the experts—Drs. Jason, Farmer and Donnelly—did not do an adequate “differential diagnosis” in that they did not adequately “rule out” other possible sources of C. sak contamination.²

The district court took issue with the way that Johnson's experts “ruled out” other possible sources of H.T.P.'s C. sak infection such as the municipal water supply or the pipes and/or the environment in H.T.P.'s home. The district court found that Johnson's expert, Dr. Jason, had reliably “ruled in” the Enfamil as a possible source of the C. sak, but found that Dr. Jason's “ruling out” of the other sources was based upon unreliable methodology, primarily because there was no testing of the home environment and also because the water tests did not specifically test for C. sak. With regard to Johnson's other two experts, the district court found that both had neglected to properly “rule in” Enfamil as the source of the C. sak, but the district court excluded their testimony not because of the ruling in process, but instead excluded the reports on the same basis as Dr. Jason's—because of alleged deficiencies in the “ruling out” stage of the differential diagnosis. The district court, accordingly, granted summary judgment to Mead because without the foregoing expert testimony, Johnson could not establish the specific causation necessary to prevail on his products liability causes of action. Johnson appeals, arguing the district court abused its discretion in refusing to allow its experts' testimony pursuant to Rule 702.

II. DISCUSSION

We review the district court's decision to exclude expert testimony for an abuse of discretion. Kuhn v. Wyeth, 686 F.3d 618, 624 (8th Cir.2012). Although Minnesota law governs whether Johnson can ultimately prevail on the merits of this products liability action, the sole issue on appeal is the propriety of the district court's exclusion of Johnson's experts' reports. Admissibility of expert testimony is governed by Federal Rules of Evidence 702 and 703. The screening requirement of Rule 702 has been boiled down to a three-part test:

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.

Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir.2008) (quotation omitted). An expert's opinion is to be based on “facts or data in the case that the expert has been made aware of or personally observed.” Fed.R.Evid. 703.

When the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), federal courts were divided over the issue of whether the test from Frye v. United States, 293 F. 1013 (D.C.Cir.1923) or the standards set forth in the Federal Rules of Evidence (which were not in existence when Frye was decided), governed the admissibility of expert testimony. Daubert, 509 U.S. at 586–87 & n. 5, 113 S.Ct. 2786. The restrictive Frye test allowed scientific expert testimony only with regard to concepts that had “general acceptance in [a] particular field.” Frye, 293 F. at 1014. The Daubert Court held that the 1972 adoption of the Federal Rules of Evidence superseded the Frye test, finding that the admissibility of scientific evidence no longer was limited to knowledge or evidence “generally accepted” as reliable in the relevant scientific community. 509 U.S. at 588–89, 113 S.Ct. 2786. Instead, Rule...