Porter v. Whitehall Laboratories, Inc.
| Decision Date | 01 November 1993 |
| Docket Number | 92-2231,Nos. 92-1962,s. 92-1962 |
| Citation | 9 F.3d 607 |
| Parties | , 38 Fed. R. Evid. Serv. 925, Prod.Liab.Rep.(CCH)P. 13,685 Phyllis PORTER, Individually and as the Administratrix of the Estate of Manual Porter, Plaintiff-Appellant, v. WHITEHALL LABORATORIES, INC., American Home Products Corporation, and the Upjohn Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Vernon J. Petri, David E. Schalk, Indianapolis, IN, Kenneth John Chesebro (argued), Cambridge, MA, for Phyllis Porter.
Bonnie L. Gallivan, Ralph A. Cohen (argued), Angela K. Wade, Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Whitehall Laboratories, Inc., American Home Products Corp.
William P. Wooden (argued), Katherine L. Shelby, Wooden, McLaughlin & Sterner, Indianapolis, IN, for Upjohn Co.
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
Manual Porter 1 instituted this action under our diversity jurisdiction seeking recovery from the defendants on a variety of theories for injuries sustained by ingesting ibuprofen. The defendant Whitehall Laboratories is a subsidiary of American Home Products Corporation (collectively "the Whitehall defendants") and manufactures Advil, a pain reliever containing ibuprofen. The Upjohn Company makes a prescription strength drug, Motrin, which contains ibuprofen. The district court granted summary judgment in favor of the defendants. Mr. Porter appealed. The case was argued on October 29, 1992. We delayed judgment because of the pendency in the Supreme Court of the United States of Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After the Supreme Court rendered its decision in Daubert, the parties submitted, at our request, supplemental briefing. We now affirm the judgment of the district court.
On October 3, 1986, Manual Porter fractured his left great toe at work. He sought treatment first from Dr. Diane Wells, an internist, who referred Mr. Porter to Bloomington Hospital. At the hospital, Mr. Porter was treated by Dr. Jones. Dr. Jones set a surgery date of October 10, 1986 to reset Mr. Porter's toe. Dr. Jones also prescribed Tylenol # 3, a pain reliever, until the surgery.
Because of his continuing pain, Mr. Porter called Dr. Wells on October 4, 1986. Dr. Wells' nurse practitioner gave Mr. Porter samples of Motrin, a prescription form of ibuprofen, and Vicoden, an acetaminophen. Dr. Wells did not recall reviewing the message and response to Mr. Porter's call; however, she knew of no medical condition that would preclude Mr. Porter's taking ibuprofen. 2 Mr. Porter took fourteen Motrin tablets between October 13, 1986 and November 7, 1986. Mr. Porter took approximately fifteen Advil tablets between November 7 and November 18, 1986.
Other than his injured toe, Mr. Porter had no significant health problems prior to November 19, 1986. On that day, he returned to Dr. Wells' office with complaints of headache, vomiting, and blurred vision. Dr. Wells examined Mr. Porter and found that he was suffering from high blood pressure, significant papilledema (swelling of the fundi of the eyes), and puffiness of the face. Based on these symptoms, Dr. Wells had Mr. Porter transferred by ambulance to Bloomington Hospital for treatment by Dr. Richard Combs, a nephrologist. Dr. Combs conducted a series of tests which revealed that Mr. Porter was experiencing kidney failure from which he would not recover. Dr. Comb's diagnosis of Mr. Porter's condition at that time was acute tubular necrosis secondary to ibuprofen; specifically, upon Mr. Porter's discharge on December 5, Dr. Combs wrote: "The patient's ... Ibuprofen reactions have In January 1987, Mr. Porter was readmitted to Bloomington Hospital for a renal biopsy. That biopsy revealed rapidly progressive glomerulonephritis ("RPGN"). Glomerulonephritis is an inflammation and disease of the filtering unit in the kidney that causes decreased renal function. RPGN describes how rapidly the kidney function decreases when inflamed by glomerulonephritis. RPGN is a rare and serious disease which leads to end-stage renal failure in a significant number of cases without any ibuprofen or other drug use. Mr. Porter suffered from the types of RPGN known as anti-glomerular basement membrane glomerulonephritis ("anti-GBM") and membranoproliferative glomerulonephritis ("MPGN"). Ibuprofen is not known to be a cause of these or any other types of RPGN.
both an interstitial and glomerular reaction and I believe this can explain all of his problems." Loose Pleadings VI, ex. 2
Mr. Porter's biopsy also indicated that he suffered from interstitial nephritis which often occurs as a secondary result of glomerulonephritis. There is no scientific evidence that the opposite is true--that interstitial nephritis will progress to RPGN. Studies have linked the use of ibuprofen with interstitial nephritis.
The experts examining Mr. Porter's records have explained Mr. Porter's kidney failure in two ways. Dr. Fred Ferris, who participated in the transplant, and Dr. William Dick, Mr. Porter's treating nephrologist at Bloomington Hospital, testified that Mr. Porter's kidney failure was caused by anti-GBM RPGN. The other experts testified that Mr. Porter's failure was caused by RPGN, but did not identify which type of RPGN disease process, anti-GBM or MPGN, caused the failure.
In their motion for summary judgment, defendants contended that the record failed to establish a genuine issue of fact that ibuprofen is capable of causing anti-GBM, MPGN, or any other type of RPGN, or that ibuprofen caused Mr. Porter's RPGN. Furthermore, they argued that the record failed to establish that a genuine issue of fact existed with regard to ibuprofen causing a change from interstitial nephritis to RPGN.
In its analysis, reported at Porter v. Whitehall Laboratories, Inc., 791 F.Supp. 1335 (S.D.Ind.1992), the district court first noted that Mr. Porter must establish a causal nexus between ibuprofen and his acute renal failure to prevail on any of his counts. There were two basic theories upon which such a showing of causality could rest. First, he could have shown that ibuprofen caused interstitial nephritis which caused renal failure. As the district court put it: Ibuprofen f Interstitial Nephritis f Renal Failure. Id. at 1341. Second, he could have shown that ibuprofen caused interstitial nephritis, which caused RPGN, which caused renal failure. In the district court's terms: Ibuprofen f Interstitial Nephritis f RPGN f Renal Failure. Id.
The district court next determined that expert testimony was necessary to assist the jury in determining causation. It concluded that "[w]hether Mr. Porter's acute renal failure was an iatrogenic reaction to ibuprofen is a fact outside the understanding of lay jurors." Id. Furthermore, because an expert opinion must be admissible to be considered in the determination of a motion for summary judgment, the district court next evaluated the admissibility of the expert testimony offered by Mr. Porter. In undertaking this task, the district court employed an analysis grounded in the Federal Rules of Evidence.
An expert must clear three independent steps (or tests) before the expert's testimony is admissible. First, the person must be "qualified as an expert by knowledge, skill, experience, training, or education." Fed.R.Evid. 702. Second, the court must find that "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. Third, the particular instant facts or data upon which an expert bases an opinion or inference must be "of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject." Fed.R.Evid. 703.
The district court focused on the second part of this test. The critical question, noted The court then turned to a description of the adjudicative facts of the instant case that might be used by the expert in reaching a conclusion. For these types of facts to be admissible, they must be
the district court, is whether the expert can shed light on a controverted fact to assist the jury in its evaluation. The expert performs this function, continued the district court, by comparing data from the case before the court with known scientific relationships and then stating a conclusion about that data based on the comparison. In assessing the admissibility of an expert's testimony, the district court proceeded, it is first necessary to evaluate the basis of the scientific knowledge that the expert intends to use as the foundation for his conclusion. In this regard, noted the court, Rule 702 governs the inquiry. "If an opinion lacks foundation and would 'not actually assist the jury in arriving at an intelligent and sound verdict,' then it is inadmissible." Id. at 1343 (quoting Loundermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir.1988)). An expert's mere guess or conjecture, continued the court, must be excluded; "an expert is a conduit of facts and not merely a subjective speculator relying on stature alone." Id.
reasonably relied upon by experts in the particular field in forming the ultimate opinion rendered by the experts in this matter.... Thus, if a nephrologist or renal pathologist would reasonably determine the fact of causation from the medical facts known about Manual Porter, then Rule 703 is satisfied.
Id. In short, the facts of the case must fit the scientific analysis to which they are being applied:
To determine whether the particular facts or data known about the instant case are of a type reasonably relied upon by experts, the Court must consider the methods reasonable medical experts in nephrology or renal pathology would use to arrive at etiological conclusions. These methods will of course...
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