IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 29, 2009
No. 06-20709 Charles R. Fulbruge III
Clerk
RANDALL S. YOUNG; THESSA G. YOUNG, Individually and as next friends
of Ashton Young,
Plaintiffs–Appellants,
v.
MEMORIAL HERMANN HOSPITAL SYSTEM, doing business as Memorial
Hermann Hospital; RURAL/METRO OF TEXAS LP; MEMORIAL
HERMANN HEALTHCARE SYSTEM; R/M OF TEXAS GP INC.;
RURAL/METRO OF TEXAS INC.; JOSE MEDINA, MD; KATRIN Y.
TAKENAKA, MD; STACY MACDONALD, RN; ALIE RIEDLE, RN,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:
Randall Young, his wife, and their minor child have asserted health care
liability and derivative claims and appeal the district court’s grant of summary
judgment in favor of the defendants (collectively, Memorial) on the element of
causation. We affirm.
No. 06-20709
I
Thirty-seven-year-old Randall Young, a Louisiana resident, attended a
motocross event at Reliant Stadium in Houston, and during that event
bystanders found him wandering aimlessly near a concession stand. Paramedics
responded to a call at 8:34 p.m. and transported Young to Memorial Hermann
Hospital, where he arrived at 9:20 p.m. It was later determined from a friend
who had entered Reliant stadium with Young but was not seated with him that
the last time Young was seen symptom free was about 6:30 p.m. or perhaps 6:45
p.m. We will not detail the treatment Young received at Memorial or the results
of various tests other than to note that a CT scan was initially “negative” for a
stroke, but a subsequent CT scan was performed after 2:30 a.m., and Young was
diagnosed with a stroke at 4:15 a.m.
Whether Memorial should or could have diagnosed Young’s stroke earlier
and the appropriate course of treatment are hotly disputed. One of the Young
family’s chief contentions is that Memorial should have immediately diagnosed
the stroke and should have administered an intravenous tissue plasminogen
activator, known as t-PA. In some cases t-PA can lyse or “bust” the clot that
causes a stroke. The Youngs contend that if Randall Young had received this
drug within three hours of the onset of symptoms, he would have fully or
substantially recovered. It is undisputed that Young is severely and totally
disabled as a result of his stroke.
The Youngs filed health care liability claims against Memorial Hermann
Hospital and other defendants in the United States District Court for the
Southern District of Texas, basing jurisdiction on diversity of citizenship. The
Youngs relied on opinions from three experts to support the causation aspect of
their claims. After these experts had submitted reports and were deposed, the
Memorial defendants filed motions to exclude the experts’ testimony on various
grounds and filed a motion for summary judgment on the element of causation.
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No. 06-20709
Ultimately, the district court granted Memorial’s motion for summary judgment.
The court concluded that there was insufficient evidence to raise a fact question
as to whether Young would have suffered less severe impairment if t-PA had
been administered.
The Youngs have appealed. We review the district court’s grant of
summary judgment de novo, applying the same standard that the district court
applied.1 Summary judgment is inappropriate if the record contains a genuine
issue of material fact.2
II
The parties agree that Texas substantive law governs. The Texas courts
have held that plaintiffs in a medical malpractice or health care liability suit
must show a “reasonable medical probability” that “their injuries were caused
by the negligence of one or more defendants.”3 This “mean[s] simply that it is
‘more likely than not’ that the ultimate harm or condition resulted from such
negligence.” 4 The Supreme Court of Texas, like many courts, has equated the
“more-likely-than-not” causation requirement to a more than 50% probability
that a defendant’s wrongful conduct caused the harm or injury.5
1
Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
2
Id.
3
Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399-400 (Tex. 1993).
4
Id. at 400; see also Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 328 (Tex. 2008)
(explaining, when failure to render treatment was alleged, that under the more-likely-than-not
standard, “the issue is whether [treatment] would have made [the death or injury] unlikely”).
5
See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 715-17 (Tex. 1997)
(concluding in a products liability case involving administration of a drug alleged to cause
birth defects that “the requirement of a more than 50% probability means that epidemiological
evidence must show [at least] that the risk of an injury or condition in the exposed population
was more than double the risk in the unexposed or control population,” citing numerous
decisions and Judge Weinstein’s seminal decision in In re “Agent Orange” Product Liability
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No. 06-20709
It is undisputed that there is reliable scientific evidence that timely
administration of t-PA is beneficial to some patients, some patients do not
benefit from t-PA therapy, and some stroke victims who do not receive t-PA
recover, with little or no lasting impairment. We know that Randall Young was
not treated with t-PA and that tragically, he did not recover significantly. Under
Texas law, the Youngs must produce reliable evidence that it is more likely than
not that Randall Young would have been among those patients who materially
benefit from the administration of t-PA rather than among those who receive the
therapy and do not benefit.6
The Youngs’ best evidence lies in Table 3 of a 1997 “subgroup analysis” of
an earlier, foundational 1995 study of t-PA’s effectiveness.7 Assuming, without
deciding, that this subgroup analysis accurately reflects the effect of t-PA in the
general population of patients, the relevant portion of this table suggests that
in Young’s age group and at his level of stroke severity, Young’s likelihood of a
very favorable outcome was approximately 42% even without t-PA treatment,
while his likelihood of success with the treatment was approximately 59%.
But as we have recognized, the law of Texas establishes the standard of
causation as “more-likely-than-not,” which means that it is more probable, i.e.
more than 50% likely, that the alleged wrongful conduct caused the injury than
not. The requirement that the wrongful conduct more likely than not caused the
injury is the foundation for the conclusion in Bendectin litigation in Texas and
Litigation, 611 F. Supp. 1223, 1262 (E.D.N.Y. 1985), in which he held that the plaintiffs were
required to offer evidence that causation was “‘more than 50 percent probable’”).
6
See Providence Health Ctr., 262 S.W.3d at 328; Havner, 953 S.W.2d at 716-17;
Kramer, 858 S.W.2d at 400.
7
See Nat’l Inst. of Neurological Disorders and Stroke rt-PA Stroke Study Group, Tissue
Plasminogen Activator for Acute Ischemic Stroke, 333 NEW ENG . J. OF MED . 1581 (1995);
NINDS t-PA Stroke Study Group, Generalized Efficacy of t-PA for Acute Stroke: Subgroup
Analysis of the NINDS t-PA Stroke Trial, 28 STROKE 2119 (1997).
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No. 06-20709
other jurisdictions that causation had not been shown.8 The issue in the
Bendectin cases was whether the ingestion of that drug by women while
pregnant caused birth defects in their children, specifically, limb reduction
defects.9 It was undisputed that limb reduction birth defects occurred when
mothers had not taken Bendectin. 10 The Supreme Court of Texas held that a
plaintiff must show that it was more likely than not that Bendectin was a cause
of the defects.11 The more than 50% likelihood causation standard under Texas
law was the basis for the Texas court’s holding that generally, epidemiological
studies must show at least a doubling of the risk.12 “[T]he requirement of a more
than 50% probability means that epidemiological evidence must show that the
risk of an injury or condition in the exposed population was more than double
the risk in the unexposed or control population.”13
In the present case, the “unexposed or control population” consists of the
patients who were treated with placebo in the NINDS study and the 1997 article
analyzing it. Table 3 of the 1997 article reflects that in the category applicable
to Randall Young, 58% treated with placebo had an unfavorable outcome, and
41% treated with t-PA had an unfavorable outcome. The failure to treat with t-
PA did not result in a more than doubling of the risk of an unfavorable outcome.
Thus even our most charitable reading of the Youngs’ evidence cannot support
a jury finding in their favor. In absence of a fact issue, we AFFIRM the
summary judgment.
8
See Havner, 953 S.W.2d at 716 (citing decisions in other jurisdictions).
9
Id. at 708.
10
Id. at 714.
11
Id. at 715.
12
Id. at 715-18.
13
Id. at 716.
5