Rosen v. Ciba-Geigy Corp.
| Decision Date | 11 March 1996 |
| Docket Number | CIBA-GEIGY,No. 95-3064,95-3064 |
| Citation | 78 F.3d 316 |
| Parties | , 43 Fed. R. Evid. Serv. 836, Prod.Liab.Rep. (CCH) P 14,533 Raymond ROSEN, Plaintiff-Appellant, v.CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 94 C 4039; James H. Alesia, Judge.
Michael Resis (argued), Paul Sarauskas, Querrey & Harrow, Chicago, IL, for plaintiff-appellant.
Anne G. Kimball (argued), Kevin B. Reid, Elizabeth A. Sanders, Wildman, Harrold, Allen & Dixon, Chicago, IL, for defendant-appellee.
Before POSNER, Chief Judge, and CUMMINGS and BAUER, Circuit Judges.
The defendant, Ciba-Geigy, manufactures a nicotine patch called "Habitrol." The patch is affixed to the user's skin and delivers nicotine through the skin and into the bloodstream. The goal is to help the user break his cigarette habit by alleviating his craving for nicotine. The patch is available only by prescription. The instructions that accompany the patch warn both the physician and the patient that the patient should not smoke while wearing the patch and that a patient who has coronary artery disease should be carefully screened before the patch is prescribed for him. The plaintiff, Rosen, a heavy smoker all his adult life, had his first heart attack in 1987, followed by quadruple bypass surgery. He was told to stop smoking, but did not. He experienced chest pains and other cardiac symptoms in the following years, indicating a progression of his coronary artery disease. His previous heart attack, high blood pressure, cholesterol count, age (60 in 1992), and continued smoking placed him at high risk of having another heart attack.
In June of 1992 the cardiologist who was treating Rosen, Dr. Car, prescribed the Habitrol patch and told him not to smoke while wearing it. Rosen affixed the patch to his arm but continued smoking, as, we are told, 75 percent of patch wearers do. Upon awakening on the morning of the third day of wearing the patch, Rosen smoked two cigarettes and then took a bath. During the bath he removed the patch and immediately felt a numbing sensation in the same arm. Later that morning he experienced discomfort in his chest, went to the hospital, and was diagnosed as having had another heart attack. He later resumed smoking and has since had two more heart attacks.
This diversity suit claims that Ciba-Geigy was negligent in developing, marketing, and selling the Habitrol patch. What exactly the negligence is believed to consist in is unclear. It is also unclear why the plaintiff has pleaded negligence rather than, as is usual in a products case, strict liability--though in a case, such as this, involving an alleged defect in the conception or design rather than manufacture of a product, there may be no difference. Bammerlin v. Navistar Int'l Transportation Corp., 30 F.3d 898, 902 (7th Cir.1994); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 467 (7th Cir.1984). The suit was dismissed on summary judgment for want of an adequate showing of a causal connection between the patch and the heart attack, so the issue of the defendant's alleged breach of its duty of care was not explored. The plaintiff seems to believe either that the warnings of possible harm to people with coronary artery disease are inadequate or that the product is unreasonably dangerous, perhaps because the product is sold to addicts who can be expected to disregard any warnings. For purposes of this appeal we accept these beliefs, without of course vouching for their validity.
When an unusual event follows closely on the heels of another unusual event, the ordinary person infers a causal relation; so it was natural for Mr. Rosen to assume that the heart attack he experienced in June of 1992 was caused either by wearing or removing the patch. The inference is reinforced by the fact that nicotine is a principal ingredient of cigarette smoke, which is known to be a cause of coronary artery disease, and by the fact that the manufacturer of the patch had warned that it might have bad effects on persons who already have the disease. But lay speculations on medical causality, however plausible, are a perilous basis for inferring causality; and though Rosen refers to newspaper accounts of "an epidemic of heart attacks to patch users who smoked" while wearing the patch, we do not understand him to be quarreling with the proposition that without scientific evidence of a causal relation between the nicotine patch and his heart attack, as distinct from journalistic reports, he cannot prevail in this suit.
Rosen relied for his scientific evidence on the deposition of Dr. Harry Fozzard, a distinguished cardiologist and department head at the University of Chicago. Despite Fozzard's sterling credentials, the district judge ruled that his opinion concerning the role of the nicotine patch in Rosen's heart attack would not be admissible in evidence; and without that evidence Rosen's case was doomed. The judge also thought that Rosen could not prove causality because Fozzard said that the probability that Rosen would have had a heart attack anyway, nicotine patch or no, was 95 percent. But Fozzard did not say when that almost inevitable heart attack would have occurred; and the loss of even a small chance of averting a serious harm may be compensable under Illinois law (here applicable), as we noted recently in Murrey v. United States, 73 F.3d 1448, 1453-54 (7th Cir.1996); see also Doll v. Brown, 75 F.3d 1200, 1205-06 (7th Cir.1996).
So the district judge's decision can be sustained only if his ruling on the admissibility of Fozzard's evidence is upheld. Under the regime of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist. As Judge Kozinski has emphasized in...
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