July 8, 2014, PLLR E-newsletter
Plaintiff’s experts were improperly excluded in contaminated baby formula case
Alyssa E. Lambert
The Eighth Circuit has ruled that a trial court abused its discretion in disqualifying the plaintiff experts’ opinions, which blamed an infant’s permanent brain damage on contaminated formula. The case will now go to trial.
The Eighth Circuit has ruled that a trial court abused its discretion in disqualifying the plaintiff experts’ opinions, which blamed an infant’s permanent brain damage on contaminated formula. Experts are not required to rule out all possible causes when performing a differential diagnosis analysis, and the district court violated the liberal admission standards under Daubert and Federal Rule of Evidence (FRE) 702 when it excluded the experts before trial, the court held. The case will now go to trial. (Johnson v. Mead Johnson & Co., 2014 WL 2535324 (8th Cir. June 6, 2014).)
In May 2005, the newborn was given Enfamil, a powdered infant formula. When he began running a fever at 16 days old, hospital tests showed brain inflammation and other abnormalities. He was treated for presumed bacterial meningitis but was hospitalized twice more before an MRI revealed extensive permanent brain damage. Tests confirmed a C. sak bacterial infection.
Mead Johnson, the product’s manufacturer, had issued two nationwide recalls of its baby formula for C. sak contamination in 2002 and 2003. The family collected all its Enfamil formula cans—except for one completely used and discarded—but FDA and Centers for Disease Control and Prevention tests showed the cans were not contaminated. In 2011, Scott Johnson, the baby’s guardian ad litem, sued Mead for products liability, negligence, and failure to warn in Minnesota state court, alleging the formula was defective or unreasonably dangerous. Mead removed the case to federal court, and discovery proceeded, including extensive expert depositions.
The plaintiff’s three experts said the FDA’s testing methods do not detect all forms of C. sak, and contamination can exist in a single can without being present in other cans from the same lot. The defendant moved to exclude or substantially limit their testimony and moved for summary judgment. After an FRE 702 evidentiary hearing, the court granted both motions and dismissed the complaint. The trial court concluded that the three expert opinions were not sufficiently reliable because they did not adequately rule out other possible sources of C. sak, such as the municipal water supply, the pipes, or the home environment.
The Eighth Circuit noted that the sole issue on appeal was the propriety of the district court’s exclusion of the expert reports. It concluded that in general, differential diagnoses pass muster under Daubert, and as long as the scientific testimony relies on “good grounds, based on what is known,” it should be tested at trial. It held that the experts’ methodology—using a differential etiological method to “rule in” scientifically plausible causes and then rule out the least plausible ones—should be a question for the fact-finder.
“The district court, in the instant case, violated these liberal admission standards by resolving doubts in favor of keeping the testimony out and relying upon its own assessment of the correctness of the expert opinions. By doing so, it disallowed the adversarial process to work,” Judge Clarence Beam wrote for the three-judge panel.
“The Eighth Circuit reinforces that Daubert and FRE 702 call for the liberal admission of expert testimony,” said Minneapolis attorney Kay Nord Hunt, who argued for the plaintiff. “In this sense, the case not only benefits the plaintiff but all sides dealing with the admission of expert testimony and reinforces the rule that the jury, not the trial court, should be the one to decide among the conflicting views of experts.”
Hunt said proving specific causation at trial will be challenging. “Here, there is no dispute that Enfamil can be and has been a source of C. sak. As in any products liability case, the task is convincing the jury of the causal connection between Mead’s product and [the baby’s] C. sak infection in this case,” she said. “As the Eighth Circuit ruled, the plaintiff is entitled to present his case to the jury with his expert causation testimony.”