Miller v. Eldridge, No. 2001-SC-0628-DG.
| Decision Date | 21 October 2004 |
| Docket Number | No. 2001-SC-0628-DG. |
| Citation | 146 S.W.3d 909 |
| Parties | George E. MILLER, M.D. Appellant, v. Curtis ELDRIDGE, as Administrator of the Estate of Sandra L. Eldridge; and Barbara Jean Eldridge, as Next Friend and Limited Guardian of April Danielle Smith, an Infant Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Lynn Rikhoff Kolokowsky, Jenkins, Pisacano, Robinson & Bailey, Lexington, Gayle Arnold, David Calderhead, Arnold, Todaro & Welch, Co., L.P.A., Columbus, OH, Counsel for Appellant.
William J. Gallion, Elizabeth Rion Overton, William Gallion & Associates, PLLC, Barrister Hall, Lexington, Counsel for Appellees.
Kentucky's appellate courts review trial court rulings regarding the admissibility of expert witness testimony under an abuse of discretion standard. The Court of Appeals in this case held that the admission of the testimony of Bruce Taylor ("Taylor") had been an abuse of discretion because his testimony failed to meet the relevance and reliability requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc.1 We must determine whether the Court of Appeals properly applied the abuse of discretion standard of review. We hold that it did not because it improperly applied the abuse of discretion standard to the trial court's findings of fact instead of its decision to admit the evidence, and it substituted its own findings for those of the trial court, thus engaging in an improper de novo review. Furthermore, we find that the trial court committed no clear error or abuse of discretion. We therefore reverse.
The underlying cause of action in this case is a medical malpractice claim against Dr. George Miller ("Dr.Miller") for negligently performing a diagnostic angiography and causing the death of thirty-one year old Sandra Eldridge ("Ms.Eldridge"). The diagnostic angiography procedure required Dr. Miller to pass a guidewire through Ms. Eldridge's femoral artery and through a possibly occluded segment of her left iliac artery. Dr. Miller passed a catheter over the guidewire, removed the guidewire, and hand-injected contrast dye through the catheter three times. Dr. Miller determined that a clot had occluded the artery and then performed a bypass surgery to remedy the occlusion. Several hours after the surgery, Ms. Eldridge became unresponsive—the basilar artery in her brain had become occluded, and she had suffered a large infarction, or death of tissue, in her brain. The prognosis was hopeless, so Ms. Eldridge's family made the decision to discontinue life support. Ms. Eldridge passed away on June 6, 1997.
Curtis Eldridge, the Administrator of Ms. Eldridge's estate, and Barbara Jean Eldridge, the next friend and limited guardian of April Danielle Smith ("the Eldridges"), filed their claim against Dr. Miller based on the opinion of Dr. Clay Skinner, a vascular surgeon, who theorized that Dr. Miller had passed the guidewire through the clot itself, causing the clot to break up and then lodging pieces of the clot within the hollow tip of the catheter. Dr. Miller's subsequent injection of contrast dye through the catheter caused loose pieces of the clot, or emboli, to travel retrograde, or against the flow of blood, for a distance of over ten inches. The emboli then entered the left subclavian artery and ultimately lodged in the basilar artery in her brain, causing the occlusion that resulted in her death.
Dr. Miller retained several experts who testified at trial that Dr. Skinner's retrograde emboli theory was impossible. Dr. Miller also retained Taylor, a biomedical engineer with a Ph.D. in physiology and who specializes in the field of blood flow, specifically for the purpose of challenging Dr. Skinner's theory. Taylor initially hypothesized that Dr. Skinner's theory was impossible because it disregarded certain fundamental laws of motion. Taylor developed several computer models and two "bench top" models designed to demonstrate the flaws he alleged in Dr. Skinner's theory. Taylor then prepared a written report of his results, a copy of which was forwarded to the Eldridges.
The Eldridges filed a motion in limine to preclude Taylor from testifying unless a Daubert hearing was held. The trial court ordered the parties to proceed with Taylor's deposition and to elicit all materials necessary for a future Daubert hearing. After deposing Taylor, the Eldridges filed a second motion to preclude Taylor's testimony at trial, alleging that his proposed testimony failed to meet the Daubert standard of relevancy, or "fit," because his bench top models had not taken into account the complexities of the human body or the specifics of Ms. Eldridge's case; the motion did not explicitly attack the reliability of Taylor's methodology. The motion described much of the testimony and made repeated references to specific pages in Taylor's discovery deposition. The Eldridges did not include a copy of the deposition with their motion, but they did attach the following exhibits: the affidavit of Dr. Skinner criticizing Taylor's report and methodology, Dr. Skinner's curriculum vitae, the report of Professor Daniel Richardson criticizing Taylor's report and methodology, Richardson's biographical sketch, Taylor's written report, and Taylor's curriculum vitae.
Dr. Miller filed a response to the motion in which he argued that Dr. Skinner's theory could be discounted simply by reference to "fundamental laws of nature governing force, resistance, and flow," and that Taylor's demonstrative bench top models were scientifically valid and would assist the trier of fact. Dr. Miller also attached two exhibits — an affidavit of Taylor and four pages from Taylor's discovery deposition — to his response. A complete copy of the discovery deposition was never included in the record on appeal.
On March 8, 2000, the trial court entered an order scheduling a Daubert hearing for later that same day. No recording or transcript of this hearing was included in the record on appeal; however, the trial court entered an order on March 23, 2000, that reads in relevant part:
On March 8, 2000 the Court had a hearing regarding pending discovery issues in the above-captioned case. After hearing arguments from all counsel the Honorable Judge Stephens orders the following:
1. Dr. Taylor's bench models will not be presented to the jury by Dr. Taylor. Defendant will be permitted to proffer this evidence for the record but does not request a Daubert hearing.
The case then proceeded to trial, during which Taylor's videotaped testimony2 was presented to the jury. The jury found no fault on Dr. Miller's part, and the trial court entered a judgment to that effect on April 24, 2000. The Eldridges appealed to the Kentucky Court of Appeals, which reversed the judgment of the trial court because of the admission of Taylor's testimony. This appeal followed.
The issues in this case arise from the application of Daubert by the trial court and the Court of Appeals. Though Daubert expressly deals with expert testimony in federal courts, its standards for admissibility of expert testimony and for review of a trial court's decisions as to admissibility have been adopted in Kentucky.3 As such, before examining the merits of the case, a short review of Daubert and its progeny may prove helpful.
Under Daubert, the trial court functions as a "gatekeeper" charged with keeping out unreliable, pseudoscientific evidence:
[T]he trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.4
This procedure exists, in essence, to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."5 Thus the trial court must first assess the reliability of the expert testimony — "a factual determination for the trial judge"6 — and then evaluate its relevance.
In evaluating the reliability of expert testimony, a trial court may consider a variety of factors:
The factors set forth in Daubert and adopted in Mitchell that a trial court may apply in determining the admissibility of an expert's proffered testimony include, but are not limited to: (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community.7
Application of these "Daubert factors" is often the cornerstone of the reliability analysis.
In addition to being reliable, the proposed testimony must 8
The decisions of trial courts as to the admissibility of expert witness testimony under Daubert are generally entitled to deference on appeal because trial courts are in the best position to evaluate first hand the proposed evidence. As such, when an appellate court subsequently reviews the trial court's Daubert ruling, it must apply the "abuse of discretion standard."9 And as we have noted in the past, "[t]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."10
Unfortunately, this standard is somewhat nebulous, and its application by ...
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