U.S. Court of Appeals Affirms Summary Judgment in Causation Expert Qualifications for an Injury Suffered Because of Inhaled Chlorine Gas

Kent Higgins inhaled chlorine gas at the Holiday World Amusement Park when the ride he was on malfunctioned. Higgins suffered chronic asthma and reactive airways dysfunction syndrome, or RADS, as a result of the alleged negligence of the defendant, Koch Development, the owner of Holiday World Amusement Park.

Higgins, the plaintiff, hired a causation expert physician, but the doctor was barred. The issue was whether this expert could be substituted with his treating pulmonologist to act as his expert under the guidelines of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The trial judge barred Higgins’s causation expert. He then offered up his treating pulmonologist to act as his expert on causation. The district court judge found that the treating physician was unqualified to opine on the effect chlorine gas has on the human pulmonary system. The basis of the barring was under the Daubert criteria and methodology, which was found to be too uncertain to determine its reliability.

Because Higgins lacked a causation expert, the court granted summary judgment for Koch Development Corp.

In the opinion written by Judge Joel M. Flaum, the 7th Circuit affirmed, holding that Dr. Haacke, the treating pulmonologist, who never treated another chlorine gas patient, was not qualified to opine on the etiology of RADS or the potential causes of Higgins’s RADS.

Because Indiana law controlled in this case, the occurrence took place in Indiana, causation requires proof of both general and specific causation:

“General causation refers to ‘whether the substance at issue had the capacity to cause the harm alleged, while ‘individual causation’ refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance.”

The court stated that Higgins needed an expert on causation. “[A] typical lay person does not possess the requisite knowledge to draw a causative line, without the assistance of a medical expert, between a brief encounter with chorine gas and the onset of either RADS (a disease with which, we are confident, most lay people have no familiarity) or asthma.” Judge Flaum indicated that the amount of chlorine gas inhaled by Higgins was not known, the hospital records stated his exposure was “mild” and Higgins was obese, which affected run volume. Hence, there is too much uncertainty without expert assistance.

In addition, Dr. Haacke was never identified as an expert witness nor was a written report provided in accordance with Federal Rule of Civil Procedure 26(a)(2)(A)-(B). In addition, the subject matter of Dr. Haacke’s opinion was not disclosed and a summary of expected testimony was not provided. Because Higgins had not provided the subject matter on which this witness was expected to present evidence under Federal Rule 702, 703 or 705 and there was no summary of the facts and opinions to which the witness was expected to testify, the court said that summary judgment on that ground alone would have been proper.

Under Federal Rule of Evidence 702, a witness who is qualified as an expert by knowledge, skill, experience, training or education to give testimony only if (a) the expert’s scientific, technical or other specialized knowledge will help the trier affect to understand the evidence or determine a fact an issue. Further, Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable. Zelinski v. Columbia 300, Inc., 335 F.3d 633, 640, (7th Cir. 2003).

Higgins argued that Dr. Haacke was qualified to opine on chlorine and RADS because she was a pulmonologist with knowledge superior to lay persons. She had 20 years’ experience as a board certified pulmonologist. The court however differentiated diagnosing illness from determining etiology. There was no evidence that Dr. Haacke had ever treated another patient for chlorine, gas exposure or had any training in toxicology. There was no proof that Dr. Haacke employed a reliable methodology in forming her causation and opinion. Expert opinion testimony must be reliable, reasoned and founded on data “ruling in” and “ruling out” potential causes and Dr. Haacke’s opinion failed to do so. The court of appeals therefore affirmed the summary judgment entered by the defendant dismissing this case.

In conclusion, Judge Flaum stated:

“But the record is silent on whether Dr. Haacke considered other possible causes of Higgins’ ailments and, if so, how and why she ruled them out. That is problematic, because Higgins told the district court that Dr. Haacke had assessed the cause of his ailments by employing ‘differential diagnoses’.

‘Differential diagnosis’ actually refers to a method of diagnosing an ailment, not determining its cause. ‘Differential etiology’, on the other hand, is a causation-determining methodology. But, to be validly conducted, an expert must systematically bring rule in’ and ‘rule out’ potential causes in arriving at ultimate conclusion. Higgins made no showing that this was done.”

Higgins v. Koch Development Corp., No. 14-2207, 2015WL4394895 (7th Cir., July 20, 2015).

Kreisman Law Offices has been handling medical malpractice cases, birth injury cases and nursing home abuse cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 38 years, in and around Chicago, Cook County and its surrounding areas including Blue Island, Joliet, Naperville, Hinsdale, Hoffman Estates, Rosemont, River Grove, Waukegan, Lake Bluff, LaGrange, Palatine and Crystal Lake, Ill.

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