McCorvey v. Baxter Healthcare Corp.

• Citation: 298 F.3d 1253
• Decision Date: 24 July 2002
• Docket Number: No. 01-16209.,01-16209.
• Parties: Charles McCORVEY, Plaintiff-Appellant, Schenell McCorvey, Plaintiff, v. BAXTER HEALTHCARE CORP., Defendant-Cross-Claimant-Appellee, C.R. Bard, Inc., Defendant-Cross-Claimant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1253

298 F.3d 1253

Charles McCORVEY, Plaintiff-Appellant, Schenell McCorvey, Plaintiff, v. BAXTER HEALTHCARE CORP., Defendant-Cross-Claimant-Appellee, C.R. Bard, Inc., Defendant-Cross-Claimant-Appellee.

No. 01-16209.

United States Court of Appeals, Eleventh Circuit.

July 24, 2002.

COPYRIGHT MATERIAL OMITTED

Jamie H. Zidell, J. H. Zidell, P.A., Miami, FL, for Plaintiff-Appellant.

John H. Pelzer, Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, FL, for Defendants-Cross-Claimant-Appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before CARNES, HILL and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Charles McCorvey appeals the grant of summary judgment to defendants C.R. Bard, Inc. ("Bard") and Baxter Healthcare Corp. ("Baxter"), respectively the manufacturer and distributor of a catheter that erupted inside of him, on his strict product liability action. Additionally, McCorvey challenges the district court's exclusion of an affidavit he offered by an engineering expert, on the ground that it did not have the necessary indicia of reliability.

I. Background

In February 1995, McCorvey underwent a transurethral resection of his prostate, a surgical procedure, after which a 30 cc-capacity Bard-manufactured catheter was inserted in his bladder. Written instructions accompanied 30 cc Bard catheters advising that the device should be filled with no more than 36 cc's of sterile water, but McCorvey's doctor inserted 50 cc's of saline solution into the balloon portion of the catheter before insertion to test the device, then deflated the balloon. The catheter was placed inside McCorvey uninflated, and once inside him the balloon portion was again inflated with 50 cc's of saline solution. Deposition testimony by McCorvey's medical experts indicated that it was general medical practice to fill catheters to such volumes.

Six hours after insertion, the balloon portion of McCorvey's catheter spontaneously erupted and fragmented inside of him. Doctors extracted the catheter, which hospital employees discarded. McCorvey alleges that he experienced persistent symptoms of frequent urinary outflows, urgency with urination, and pain due to the catheter's eruption, even after its removal. Approximately a year and a half after McCorvey's initial operation, a doctor found an additional fragment of the balloon portion of the catheter lodged inside McCorvey's prostate. McCorvey underwent yet another procedure to remove the additional fragment, after which the hospital employees photographed and then discarded it.

McCorvey filed a Florida law product defect suit against Bard and Baxter under a theory of strict liability.¹ Bard filed a motion for summary judgment, adopted by Baxter. In an effort to defeat summary judgment, McCorvey responded by offering three expert affidavits, two medical and one engineering, all of which maintained that the subject catheter was defectively designed or manufactured, and/or was not safe for its intended purpose. Bard then moved to exclude the proffered expert engineering affidavit. The district court struck the engineer's opinions for not meeting the criterion of reliability necessitated by Federal Rule of Evidence 702 and detailed by Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). It also entered summary judgment for the defendants, finding that McCorvey was not entitled to a legal inference of product defect, referred to as a Cassisi inference under Florida law. McCorvey appeals both rulings.

II. Discussion

We first turn to the decision by the district court to exclude the affidavit offered by McCorvey's engineering expert. This court reviews rulings on the admissibility of expert testimony for abuse of discretion. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.1999); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). In addition, we note that "[t]he burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and the admissibility must be shown by a preponderance of the evidence." Allison, 184 F.3d at 1306 (citing Daubert, 509 U.S. at 592, n. 10, 113 S.Ct. 2786).

Daubert requires that trial courts act as "gatekeepers" to ensure that speculative, unreliable expert testimony does not reach the jury. Federal Rule of Evidence 702, governing the admissibility of expert evidence, provides that if "specialized knowledge will assist the trier of fact, ... a witness qualified as an expert..., may testify thereto in the form of an opinion or otherwise, if (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." Fed.R.Evid. 702. In deciding whether these requirements of Rule 702 are met, Daubert instructs courts to consider the following factors: (1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.

In concluding that the methodology of McCorvey's engineering expert was not scientifically reliable and that his causation opinion was based wholly on speculation, the district court noted that the expert: did not test alternative designs for the catheter; did not talk to medical personnel; was unable to cite scientific literature in support of his theories; and did not consider or test possibilities for failure that could have come from sources outside the product, such as the effect of improper storage conditions, contaminants, or human error.

McCorvey argues that his engineering expert's affidavit was erroneously excluded because the district court weighed the credibility of the expert's testimony, a function that is uniquely within the province of the jury and thus inappropriate for a court ruling on a motion for summary judgment. See Abel v. Dubberly, 210 F.3d 1334 (11th Cir.2000). McCorvey further contends that any critique of the expert's methodology should have been brought out in cross-examination, rather than used as a basis to exclude under Daubert. McCorvey's contentions, rather than amounting to an argument that the district court abused its discretion in applying Daubert and the requirements of Federal Rule of Evidence 702, instead seem to implicitly reject the gatekeeper function of the trial courts specifically prescribed by the Supreme Court. Rulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology.

McCorvey had the burden to show that his expert was "qualified to testify competently regarding the matters he intend[ed] to address; [] the methodology by which the expert reache[ed] his conclusions is sufficiently reliable; and [] the testimony assists the trier of fact." Maiz v. Virani, 253 F.3d 641, 664 (11th Cir.2001). Recognizing that our review of evidentiary rulings by trial courts on the admission of expert testimony is "very limited," id. at 662, we do not find reversible error in the district court's conclusion that McCorvey did not meet this burden, and that his proffered engineering expert's methodology was not sufficiently reliable under Daubert and Federal Rule of Evidence 702.

Even with the exclusion of the engineering expert's affidavit, however, McCorvey's two medical expert affidavits remained in evidence. Considering all the record evidence, the district court awarded summary judgment in favor of the defendants, reasoning that McCorvey had failed to set forth admissible evidence necessary to establish his prima facie case of product liability. We review de novo a district court's grant of summary judgment, applying the same legal standards as the district court. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir.2001). A grant of summary judgment is appropriate only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We construe the facts and draw all reasonable inferences in the light most favorable to the non-moving party. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir.1998).

Under Florida law, a strict product liability action requires the plaintiff to prove that (1) a product (2) produced by a manufacturer (3) was defective or created an unreasonably dangerous condition (4) that proximately caused (5) injury. See Edward M. Chadbourne, Inc. v. Vaughn, 491 So.2d 551, 553 (Fla.1986). In the instant case, the district court based its grant of summary judgment on its finding that McCorvey had not offered any admissible evidence of either the third element, a product defect, or the fourth element, a causal link between the alleged defect and his injuries. McCorvey counters that his expert affidavits, even excluding the one offered by the engineer, were sufficient to establish these elements; additionally, McCorvey claims that the court erred in not affording him an inference of product defect, which also would have allowed him to take his case to a jury. In Florida strict product liability actions, a legal inference is created that the subject product was defective at both the time of injury and the time of sale when that product "malfunctions during normal operation." Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st Dist.Ct.App.1981). This inference is generally referred to in Florida case law as a Cassisi inference.

We hold that McCorvey is...