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Using Daubert to Defeat Causation in the Delayed Diagnosis Claim
The McDowell case discussed in the first part of this article presented the question of “whether it is so if an expert says it is so.” See Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. 1987). Daubert and its progeny answered in the negative and established that an expert may not present a bare causation conclusion to the jury when that expert has no scientific basis for that conclusion or for any of the predicate inferences leading up to it. The McDowell claim failed because a physician's personal clinical experience, sometimes called anecdotal experience, is simply not a proper scientific basis for causation opinion testimony.
The Goal of Daubert
“The goal of Daubert … has been to bring more rigorous scientific study into the expression of legal opinions offered in court by scientific and medical professionals.” Allen v. Pa. Eng'g Corp., 102 F.3d 194, 198 (5th Cir. 1996). Science, like law, requires that conclusions regarding disease causation be founded on evidence, rather than speculation or conjecture. In science, whether or not a particular act or omission caused an injury is not a matter of opinion or argument; it is a biological fact that can be ascertained with research and data. Similarly in law, whether an additional “delay in treatment” proximately caused a plaintiff's injury is not a matter for speculation or legal argument, but a matter of fact to be determined from admissible evidence by the aptly named “finder of fact.” The McDowell case illustrates that in the absence of reliable scientific opinion evidence, based on more than unwarranted inferences from isolated personal experiences, the matter must be taken from the jury and summary judgment granted to the defendant.
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