Weller Ex Rel. Estate of Hetherington v. United States

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 20, 2010
No. 09-16378 JOHN LEY
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-01706-CV-CLS

CATHIE WELLER,
individually and as the personal
representative of the Estate of
James Hetherington,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(May 20, 2010)

Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
 Appellant Cathie Weller filed this action in the district court, asserting

claims under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1) and §§ 2671-

2680. Both parties moved for summary judgment. Appellee United States of

America moved for summary judgment on two grounds. The first ground–that

Appellant’s claims were time-barred because she did not file a claim with the

appropriate federal agency within two years of her decedent’s death–was rejected

by the district court. However, the district court granted summary judgment in

favor of Appellee on its second asserted ground. Specifically, the district court

found that the testimony of plaintiff’s experts on the issue of causation was

unreliable and, therefore, inadmissible under Federal Rule of Evidence 702 and

Daubert v. Merell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Without the

testimony of those witnesses, there was no evidence of causation and, accordingly,

the district court concluded that summary judgment in favor of the government

was appropriate.

“We review a district court’s decision to exclude an expert’s testimony

under an abuse of discretion standard.” Rink v. Cheminova, Inc., 400 F.3d 1286,

1291 (11th Cir. 2005) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999)). “This standard of review requires that we defer to the district court’s

ruling unless it is ‘manifestly erroneous.’” Id. (quoting Quiet Tech. DC-8, Inc. v.

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Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003)). “Because the task

of evaluating the reliability of expert testimony is uniquely entrusted to the district

court under Daubert . . . we give the district court ‘considerable leeway’ in the

execution of its duty.” Id. (quoting Kumho Tire, 526 U.S. at 152) (internal

citations omitted).

Applying this standard to the facts of this case, we conclude that the district

court did not abuse its discretion in excluding the plaintiff’s proffered expert

testimony. As noted by the district court, both of the plaintiff’s experts, Dr.

Edward Taylor and Dr. Alan Moshell, claim to have utilized what is referred to as

the “differential diagnosis” methodology in reaching their opinions as to causation.

However, as is required in applying that methodology, there is no indication that

either expert compiled a “comprehensive list” of potential causes of the decedent’s

illness or explained why potential alternative causes were ruled out. Both experts

admit in their respective depositions that they failed to rule out the potential role of

other drugs that the decedent was taking in causing his fatal illness.

The district court found that, based on these failures, the experts failed to

apply the differential diagnosis methodology reliably in their respective

evaluations. The district court further found that, because of these failures, the

experts’ testimonies would not assist the trier of fact. For these reasons, the district

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court concluded that the testimony of both experts should be excluded under Rule

702 and Daubert. The district court did not abuse its discretion in so concluding.

Finally, the district court was correct that, without the testimony of these two

experts, the plaintiff had no evidence as to causation. Accordingly, summary

judgment in favor of the government was proper.

AFFIRMED.

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