REVISED October 15, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 04-60962 October 14, 2009
Charles R. Fulbruge III
Clerk
BARBARA HUSS; RODNEY HUSS
Plaintiffs - Appellees
v.
JOHN OVERTON GAYDEN, M.D.; MEMPHIS OBSTETRICS AND
GYNECOLOGICAL ASSOCIATION PC
Defendants - Appellants
Appeal from the United States District Court
for the Northern District of Mississippi
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 6/10/09, 5 Cir., 571 F.3d 442)
Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:
The Petition for Panel Rehearing is DENIED. Judge Higginbotham
dissents from the panel’s denial of rehearing.
The court was polled at the request of one of the members of the court. A
majority of the judges who are in regular active service and not disqualified not
No. 04-60962
having voted in favor of rehearing en banc (FED. R. APP. P. 35 and 5TH CIR. R.
35), the Petition for Rehearing En Banc is likewise DENIED. Judge
Higginbotham and Judge Elrod have authored dissenting opinions, which are
attached. Upon the filing of this order, the clerk shall issue the mandate
forthwith. See FED. R. APP. P. 41(b).
2
No. 04-60962
PRISCILLA RICHMAN OWEN, Circuit Judge, concurring:
I write as a member of the panel to address the dissenting opinions. Each
of the opinions proceeds on the incorrect premise that the panel majority has
held that the magistrate judge erred in excluding expert testimony regarding
specific, as distinguished from general, causation. The dissenting opinions do
not take issue with the panel majority’s conclusion that Dr. Reddix was qualified
to offer testimony regarding general causation. The points on which the dissents
and the panel majority differ boil down to this: (1) did the panel majority hold
that the magistrate judge erred in excluding the testimony of Dr. Reddix as to
general, rather than specific, causation, and (2) does the record support the
dissents’ assertion that Dr. Reddix’s testimony was excluded because it was
addressed to specific, rather than general, causation. An examination of the
panel majority’s opinion and the record resolves these questions. They reflect
that “the crux” of Dr. Reddix’s testimony pertained to general causation,1 and his
testimony was excluded because the magistrate judge concluded he was not
qualified to testify regarding even general causation.2
I
I respectfully submit that the panel majority’s opinion is clear that the
exclusion of Dr. Reddix’s testimony was error because it addressed general
causation and that Dr. Reddix was qualified to offer general causation
testimony. The following quotations are from the panel majority’s opinion:
• Defendants sought to elicit testimony from their expert, Dr.
Reddix, that medical literature relied upon by Dr. Carlton
[the plaintiffs’ expert] in forming his opinion does not show a
causative relationship between Terbutaline and
cardiomyopathy. The magistrate judge did not permit Dr.
1
Huss v. Gayden, 571 F.3d 442, 456 (5th Cir. 2009).
2
Id. at 449.
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No. 04-60962
Reddix to state this opinion, as this was “outside the area of
his expertise.”3
• Dr. Reddix said: “Basically, there’s no established evidence
that has been tested and published in major journals or the
[Physician’s Desk Reference] that it causes cardiomyopathy.”
Counsel then asked “what in the medical records caused you
to believe that Terbutaline is not the causative agent?” Dr.
Reddix said one could not deduce a causative relationship
because the articles relied on by the Husses’ experts had very
small sample sizes, and additionally, some articles may have
confused pulmonary edema with cardiomyopathy. By
contrast, Dr. Reddix was prepared to testify based upon a
study of 9,000 patients who took Terbutaline and did not
develop cardiomypathy. The thrust of the proffered testimony
was that Terbutaline could not be said to be the cause of
Barbara’s cardiomyopathy, and that the cause of her condition
could not be determined, i.e., the condition is idiopathic.4
• Dr. Reddix testified in part:
[M]any of the articles that they talk about
were very, very small studies. And the
possibility of chance occurrences were very
high. When you had four people out [of] 16,
where it only occurs in one in 5,000 to
10,000 patients. So a lot of times the
journals that were listed [by the Husses’
experts] also confused what was said about
pulmonary edema as a part of the problem,
which would lead to a cardiomyopathy in
any of those studies.5
• Defendants posit that this qualified Dr. Reddix to opine that
the medical literature and Barbara’s records do not allow one
to infer that Terbutaline causes cardiomyopathy, or that it
3
Id. at 449.
4
Id. at 453-54.
5
Id. at 454 n.9.
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No. 04-60962
caused Barbara’s case. . . . Defendants argue that the ruling
was prejudicial because it prevented them from challenging
the Husses’ causation testimony and Dr. Carlton’s
characterization of the medical literature.6
• Through Dr. Reddix’s testimony, the defendants sought
primarily to discredit the contention that Terbutaline is a
known cause of cardiomyopathy, and consequently, that
Terbutaline more likely than not caused Barbara’s
cardiomyopathy. Dr. Reddix did not need to be board-certified
in cardiology or toxicology to explain that the studies relied on
by the Husses do not prove a causative
relationship–especially given the very small number of
patients in those studies. Dr. Reddix’s training and
experience as a medical professional qualify him to tell the
jury why the literature does not establish a causal link.
Moreover, Dr. Reddix identified a study of over 9,000 people
which tended to undermine the Husses’ claims. In short, Dr.
Reddix’s education and knowledge allowed him to form a
reliable opinion as to whether, as a general matter,
Terbutaline causes cardiomyopathy.7
• We think that the more general nature of Dr. Reddix’s
conclusions helps to distinguish the present case from
Tanner.8 There, all experts agreed as a general matter that
birth asphyxia can cause cerebral palsy. 174 F.3d at 548.
The issue was more specific: whether the defendants’ failure
to properly treat a newborn baby’s birth asphyxia caused the
baby’s cerebral palsy, or whether the cerebral palsy was
caused by another event. See id. at 547-48. We held that it
was erroneous to admit an expert’s opinion that the
defendants’ actions led to the baby’s cerebral palsy when the
medical literature did not support this theory of causation,
the expert had not examined the baby, and the expert also
had no personal experience that would validate his theory.
Id. at 548.
6
Id. at 454.
7
Id. at 455.
8
Id. (citing Tanner v. Westbrook, 174 F.3d 542 (5th Cir. 1999)).
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No. 04-60962
In this case, the parties fought mainly over whether
Terbutaline can cause cardiomyopathy. The Husses’ expert,
Dr. Carlton (who is a toxicologist, not a cardiologist), relied on
this general premise when opining that Terbutaline caused
Barbara’s cardiomyopathy. . . . The main purpose of Dr.
Reddix’s opinion was to rebut an untenable conclusion. Dr.
Reddix’s knowledge qualified him to tell the jury that Dr.
Carlton’s inferential leap was unsupported by medical
literature, and that in his judgment, Barbara’s peripartum
cardiomyopathy was idiopathic. We do not think that Dr.
Reddix needed to be specialized in cardiology or toxicology to
act as a counterpoint to the Husses’ experts.9
• The crux of this case was whether Terbutaline causes
cardiomyopathy. The magistrate judge’s ruling prevented the
defendants from demonstrating that the Husses relied on
medical literature which was unreliable, anecdotal, and
contradicted by other studies. The Husses insist the
defendants were not prejudiced because the defendants’ other
witnesses disclaimed a causal link between the drug and
Barbara’s condition. However, none of the other witnesses
gave the level of detail that Dr. Reddix would have presented,
nor did the witnesses testify about studies showing no link
between Terbutaline and cardiomyopathy. The exclusion was
not harmless error. In a close case such as this, Dr. Reddix’s
testimony would “have added information that, if the jurors
found it credible, might have been determinative” of the
difficult causation questions. See Battle v. Mem’l Hosp. at
Gulfport, 228 F.3d 544, 553 (5th Cir.2000).10
The panel majority’s opinion should not, and I believe cannot, be read as
holding that the magistrate judge erred because testimony regarding specific
causation was excluded. While there are perhaps statements that might be
lifted out of context to support an argument that the panel majority was
addressing Dr. Reddix’s qualifications to testify regarding specific causation,
9
Id.
10
Id. at 456.
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No. 04-60962
that is not the import of the opinion. The opinion, read in its entirety regarding
the exclusion of expert testimony, makes clear that Reddix would have testified
that the plaintiffs’ experts’ opinions regarding general causation were not
scientifically reliable and that Terbutaline has not been shown to cause
cardiomyopathy. The logical inference from this testimony was that Barbara
Huss’s cardiomyopathy could not be caused by Terbutaline if there is no reliable
evidence that Terbutaline causes cardiomyopathy. But the obvious inference
regarding specific causation that is drawn from general causation testimony does
not render Dr. Reddix’s general causation testimony either “specific” causation
testimony or inadmissible because he might not be qualified to give “specific”
causation testimony.
II
With regard to the record, much of the testimony and the magistrate’s
ruling are contained in the panel majority’s opinion, and I will not repeat that
here. I add only that Dr. Reddix was the only defense expert designated to
discuss the medical literature on which the plaintiffs’ expert based an opinion
regarding general causation. It was apparent at trial that Dr. Reddix would
testify about general causation. Counsel for the Husses conducted a voir dire
examination of Dr. Reddix early in his testimony to attempt to lay a foundation
for excluding him as a witness on the basis that he was not qualified to opine
regarding causation. Counsel for the Husses asked Dr. Reddix, “Now, in this
case, you are being offered as an expert in the field of internal medicine and
principally as it relates to whether Terbutaline caused or can cause
cardiomyopathy. Is that your understanding?” Reddix replied, “Yes.” This
unmistakably reflects that general causation was at issue.
Judge Higginbotham’s dissenting opinion asserts that “Reddix opined at
length on general causation, before any objection. . .,” implying both that Reddix
7
No. 04-60962
had completed his testimony regarding general causation and that any error in
excluding additional testimony regarding general causation would have been
harmless. The record does not bear out this assertion. As the panel majority
opinion makes clear, Dr. Reddix was prepared to testify that articles on which
the plaintiffs’ expert relied were not scientifically reliable.11 This relates to
general, not specific, causation, as discussed above. The magistrate judge
excluded this testimony, concluding that Reddix was not qualified to testify
about causation. No other witness offered testimony regarding the medical
literature on which the plaintiffs’ expert relied.
Judge Higginbotham’s dissent lifts the questions asked of Dr. Reddix
during the proffer out of context in an effort to demonstrate that only specific
causation testimony was at issue and was excluded. But when the record is
considered as a whole, including the proffered testimony that is quoted in the
panel majority’s opinion,12 there can be little doubt that the parties and the
magistrate judge understood that Dr. Reddix was prepared to testify regarding
the scientific reliability of the articles on which the plaintiffs’ expert relied. That
was directly related to general, not specific, causation, and that testimony was
excluded.
III
Judge Higginbotham’s dissent once again excoriates the panel for referring
the statute of limitations issue to the Mississippi Supreme Court. He now
castigates other members of the court for denying rehearing on the limitations
issue. I find it exceedingly difficult to understand why a federal court should be
criticized for asking a state court, in a diversity case, to resolve what appeared
11
Id. at 449, 453-54, 455.
12
Id. 453-54.
8
No. 04-60962
to many to be an unsettled question of state law. In my view, it was precisely
because the state law appeared to conflict that this case was not taken en banc
and instead, the limitations issue was certified by the panel.
*****
I concur in the denial of rehearing en banc.
9
No. 04-60962
PATRICK E. HIGGINBOTHAM, Circuit Judge, with whom KING, DAVIS,
WIENER, BENAVIDES, STEWART, and DENNIS, Circuit Judges, join,
dissenting:
I
Over nine years ago, Barbara Huss and her husband Rodney Huss filed
this medical malpractice lawsuit, alleging that defendants negligently
administered the drug Terbutaline to Barbara during her
pregnancy—negligence that caused Barbara’s cardiomyopathy, a condition that
severely crippled her for life and shortened her life span. The Husses won a jury
trial in August 2004, and the defendants appealed to our court. A panel majority
here reversed and rendered the judgment holding that the case was barred by
limitation.1 The Husses requested rehearing en banc. In 2006, it was denied by
an equally divided vote of seven judges “for” and seven “against.” The panel
majority granted panel rehearing sua sponte, withdrawing its opinion.2 Eleven
months later, it certified, over dissent, the question to the Mississippi Supreme
1
Huss v. Gayden (Huss I), 465 F.3d 201, 208–09 (5th Cir. 2006); id. at 209
(Higginbotham, J., dissenting). The panel majority’s holding that the case was barred by
limitations was itself inexplicable. The defense here was that cardiomyopathy was
idiopathic—that science, let alone the defendant doctors, did not know its cause. They pled
limitation but offered no evidence at trial in its support. This left the “defense” available only
as a matter of law as any fact questions the defense presented were found as a matter of law
in favor of the plaintiffs’ judgment. This made practical sense as able defense counsel could
not stand before the jury and argue that his client doctor could not have known that
Terbutaline was the cause—because science did not know—but Ms. Huss, a young Mississippi
housewife, should have known when told that she suffered cardiomyopathy that it was caused
by Terbutaline. Although Mississippi has a “discovery statute,” the panel majority held that
limitations ran from the time Huss learned she had cardiomyopathy–that she should have
known then that Terbutaline was the cause–as a matter of law. The Mississippi Supreme
Court politely responded that the case was not barred.
2
Huss v. Gayden (Huss II), 2006 WL 5013195, at *1 (5th Cir. Dec. 27, 2006) (per
curiam).
10
No. 04-60962
Court.3 The Mississippi court found that the defendants’ limitations defense was
meritless.4
The panel moved to a judgment reversing and remanding for trial error.
The found error was in the trial judge’s refusal to allow one of the defense
experts, Dr. Reddix, to express the opinion that Terbutaline was not a cause of
Barbara Huss’s cardiomyopathy, although the witness was allowed without
objection to testify fully about general causation and that cardiomyopathy was
idiopathic; its cause was unknown to medicine and unknowable to the defendant
doctors. The error it fastened on was a refusal to allow Reddix to continue on
from his testimony about general causation and relate it to Huss; that it was a
manifest disregard of the law to do so. The opinion’s author, writing alone, also
subjected plaintiffs’ experts to a personal view of Daubert.5 This gratuitous
instruction is explained by its history. It came after an earlier failed effort of the
panel to reverse the case for insufficient evidence—this by disregarding
plaintiffs’ evidence as failing the demands of Daubert, despite the fact that there
was no objection to the admission of the testimony of plaintiffs’ experts, on any
basis, making the evidence competent as a matter of law. That treatment of
Daubert was recast as an instruction to the district court on remand.
The Husses again petitioned for rehearing en banc, a request our court
now rejects by an equally divided vote. Eight judges concluded that the case was
3
Huss v. Gayden (Huss III), 508 F.3d 240, 245–48 (5th Cir. 2007); id. at 248
(Higginbotham, J., dissenting).
4
Huss v. Gayden (Huss IV), 991 So. 2d 162, 165 (Miss. 2008).
5
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). This view should not be
confused with the panel majority’s contrasting view of Daubert deployed to sustain the
admissibility of Reddix’s expression of opinions on specific causation—that the established
distinct thresholds for general and specific causation do not apply to Reddix because he was
testifying in rebuttal to plaintiffs’ experts who testified regarding specific causation. This
discrimination favoring defendant doctors is legally indefensible, whatever its force as a matter
of “policy.”
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No. 04-60962
not “en banc worthy,” ignoring the views of eight judges who think the decision
was plainly wrong and contrary to settled precedent.
The sole question remains whether the trial court committed manifest
error in sustaining the objection to part of the testimony of Reddix. I will not
repeat my panel dissent, instead, I write to publish the panel’s refusal to apply
circuit precedent, to respect our highly deferential standard of review, and to set
the Daubert bar at the same level for plaintiffs and defendants. Our full court’s
refusal to even hear the case only solidifies the error of the panel and exposes
another—the subscription of eight members of this court to a stunningly
aggressive view of the judicial role coupled with a misguided view of the role of
the en banc court—a subscription with which I cannot join and to these eyes is
profoundly mistaken. It is telling that each judge voting against reconsideration
of the court’s present decision also voted against en banc reconsideration of the
reversal of the judgment as time barred. The only change in the voting pattern
came with three new judges, two of whom voted against en banc and one voting
for.
II
Our review of the trial court’s exclusion of Reddix’s testimony was for
abuse of discretion, here the most deferential of that genre; whether the trial
court manifestly disregarded the law. The panel majority turned this standard
upside down. It inserted “what could have happened” for what did. “Manifest
error is one that is plain and indisputable, and that amounts to a complete
disregard of the controlling law.”6 We do not have the discretion to decide afresh
6
Guy v. Crown Equip. Corp, 394 F.3d 320, 325 (5th Cir. 2004) (citing General Elec. Co.
v. Joiner, 522 U.S. 136, 141–42 (1997)); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir.
1997); Smogor v. Enke, 874 F.2d 295, 297 (5th Cir. 1989); see also James v. Harris County, No.
07-20725, 577 F.3d 612, 619 (5th Cir. 2009) (“District courts enjoy wide latitude in determining
12
No. 04-60962
preliminary facts of admissibility, that discretion belongs to the trial court. The
ultimate question of whether an expert is qualified to testify is a question of law,
but that inquiry is made in light of the lower court’s preliminary factual findings
on the matter,7 including the scope of excluded evidence. The record here is
pellucid. There is no uncertainty of what happened at trial—not with the
objection, the ruling, or defendant’s proffer. The panel majority struggled to find
uncertainty in the record, an effort to find what does not exist. This whole effort
disregards the controlling principle—that even if it succeeded in raising a
question of fact underlying the trial court ruling on admissibility or the scope of
the ruling—and it did not—the question would have to be resolved in support of
the trial court ruling. To take away the jury verdict on the ruling of the trial
judge drains all discretion from the hands of the judges who are best equipped
to decide and substitutes a de novo standard for plaintiffs’ cases. That this is
being done while waiving the Daubert flag is all the more confounding.
III
The question before the panel required application of the concepts of
general and specific causation, and the line between the two. As the panel
dissent explained, our decision in Tanner v. Westbrook binds this court on the
the admissibility of expert testimony, and the discretion of the trial judge and his or her
decision will not be disturbed on appeal unless manifestly erroneous.” (quoting Watkins, 121
F.3d at 988) (internal quotation marks omitted)).
7
21A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE
§ 5053.1 (2009) (“The qualifications of a person to render an expert opinion is a Rule 104(a)
preliminary fact to be decided by the judge. The cases and the writers all agree on this.”
(citations omitted)).
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No. 04-60962
issue and requires us to acknowledge the fundamental principle of the general-
specific dichotomy: that a witness may be competent to testify about general
causation but not specific causation.8 In Tanner, we reversed a Mississippi jury
award of damages to parents against doctors in a cerebral palsy case, concluding
that the district court committed reversible error in allowing a plaintiff’s expert
with general medical training to express an opinion on specific causation because
he was only qualified to express an opinion on general causation.9
In this case, Reddix opined at length on general causation, before any
objection, stating for example that:
An important thing about that to me is that in pregnancy we don’t
even know what causes it [cardiomyopathy]. They just put down it’s
pregnancy, peripartal. They don’t know what causes it. Because
there are 30 causes of it–there are 30 causes of it if you’re not
pregnant, and then there’s about four or five even if you are
pregnant, so–”
When defense counsel moved to matters of specific causation, however,
plaintiffs objected. The question to which the magistrate judge sustained the
objection indisputably sought an opinion on specific causation:
Doctor, do you have an opinion, based upon reasonable medical
probabilities and upon your education, training, and experience as
a physician, as well as your review of these materials I just read, as
to whether or not Terbutaline caused or contributed to the
cardiomyopathy suffered by Barbara Huss?
After the objection, and out of the presence of the jury, the magistrate
judge made it clear he was excluding only specific causation testimony. He
asked defense counsel “on what basis is this witness qualified to offer any
8
174 F.3d 542 (5th Cir. 1999).
9
Id. at 547.
14
No. 04-60962
opinion about whether administering Terbutaline did or did not cause the
cardiomyopathy here?,” before concluding “I’m not going to let him express an
opinion as to whether the administration of this drug caused or did not cause the
cardiomyopathy here.”
Defense counsel then posited each and every proffer question in specific
causation terms:
1. “We need you to state in narrative, you know, not too long,
state your basis as to why Terbutaline in your opinion was not
the cause of or contributing cause of cardiomyopathy.”
2. “Did your review of the medical records have anything to do
with your opinion as well?”
3. “Could you indicate, state what in the medical records caused
you to believe that Terbutaline is not the causative agent?”
These are inquiries into specific causation. Reddix testified before the jury
at length and without objection that science does not know what causes
cardiomyopathy, or whether Terbutaline causes it. He was not allowed to also
testify that Terbutaline was not the cause in this case. Defense asked the four
questions (one in front of the jury, and the three in proffer) in an attempt to elicit
testimony on specific causation, and it was that testimony the district court
excluded. After this exclusion, defense counsel made no attempt to relate his
questions to general causation. No ruling of the trial judge barred the defense
lawyer from eliciting general causation testimony—such as a critique of the
plaintiffs’ scientific studies—or from supplementing earlier opinions already in
evidence.
The magistrate applied the principles this court established in
Tanner—that opinions on specific causation involve the specialized skill of
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No. 04-60962
recognizing cause and effect in a particular and unique case, as opposed to rote
explanation of the relevant literature, and therefore pose a higher bar for
reliability—and ruled that Reddix lacked the experience and training to opine
on “whether or not Terbutaline caused or contributed to the cardiomyopathy
suffered by Barbara Huss,” a distinct issue of specific causation and the exact
question to which the objection was sustained.
Like the witness in Tanner, Reddix was not competent to connect general
principles to the specific patient. For one, Reddix could not evince the requisite
experience as a treating obstetrician and gynecologist who had experience in
administering Terbutaline to pregnant patients. Under Tanner, then, it would
have been reversible error to admit Reddix’s opinion that Terbutaline was not
a cause or the cause of Barbara Huss’s injuries.
Even the defendants do not seriously defend the panel’s refusal to apply
Tanner. Rather they “concede” the undisputed fact that this entire case was
about general causation, the relationship between Terbutaline and
cardiomyopathy, not specific causation, the cause of Huss’s injury—this to
escape reliance on the indefensible contention that Reddix was competent to
express an opinion on specific causation. This retreat only makes plain that
refusing to allow the witness to go further and offer an opinion on specific
causation could not be reversible error when the battle was pitched on general
causation, and Reddix was allowed to testify on general causation without
objection. The panel asserts that Reddix was competent to express his opinion
that there was no scientific basis for linking Terbutaline to cardiomyopathy and
was thus competent to rebut the testimony of Dr. Tucker who testified as to
specific causation for the plaintiffs. Of course that is exactly what Reddix
did—without objection. The ruling was a refusal to allow Reddix to go further.
Here, the opinion defies the settled law of this circuit, holding that a person
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No. 04-60962
competent to express an opinion on general causation is a fortiori competent to
express an opinion on specific causation.
IV
This case should have been taken en banc to correct a large error in federal
law. A diversity case it is but our issue of junk science is a federal issue, with
far-ranging import. There is Tanner and our en banc case of Moore v. Ashland
Chemical Inc.,10 and before that, Eymard v. Pan American World Airways,11 a
pre-Daubert rejection of expert testimony, each urging trial judges to act as
gatekeepers. The central thrust of these cases and Daubert has been to charge
the trial judge to take hold: to turn back opinion testimony of party-engaged
experts that rests on questionable competence, and to not kiss off issues of
competence as going to the weight of the evidence, leaving a jury to offer answers
that good science rejected. Our court’s unwillingness to correct the panel error
drops the gate, and belies the role of the en banc court; it will and should be read
as a rank preference of defendants in malpractice cases—a heavy thumb on the
scale in the critical area of expert testimony. Make no mistake, the use of
experts continues to work major changes in the dynamics of litigation: Consider
the law of privilege (see the proposed changes to Rule 26) and challenges to the
role of private attorneys-general.
Here, the objection at issue was to specific causation, and no plain,
indisputable, and complete disregard for the law can be shown. To the contrary,
the record is crystal clear that the only evidence excluded was evidence proffered
in support of specific causation. It was a well-tried case by competent lawyers
10
151 F.3d 269 (5th Cir. 1998) (en banc).
11
Eymard v. Pan Am. World Airways, (In re Air Crash Disaster), 795 F.2d 1230 (5th Cir.
1986).
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No. 04-60962
and a competent judge. The panel majority’s frustration with this reality, its
earlier efforts to reverse with a limitations bar followed by an effort to render on
Daubert grounds, having failed, cannot be vented by clinging to defendants’
throwaway argument addressed to the only objection made to evidence in the
trial.
I speak only of the objective message given by the court’s handling of this
case. Whatever the impulses of individual judges, about which I am silent, that
message is clear. To leave this opinion on the books unsettles the law of the
circuit and delivers a gross injustice. There is a large policy debate in this
country over the wisdom of providing a patient a claim against his doctor for
negligence. Whatever the relative merits of the contending forces, there is an
abandonment of judicial roles when judges allow their private view on jury trials
and the divisive issues of health care to guide their judicial hand. The
appearance cast by objective recitation of the history of this case is more than
judges seeing a case as an opportunity to reach preferred social ends, it is an
unwitting loss of place that disserves the judicial duty of disinterest, essential
to the integrity of any court. Ms. Huss had a legal right to pursue her claim and
a legal right to a jury trial. Not only has this court taken that away, it has
volunteered suggestions to the district court that he should exclude the
testimony of the plaintiffs’ experts, this after reversing him for excluding
evidence offered by the defendants.
This court has drifted to a seriously flawed view of the role of an en banc
court. That half of the active judges would first refuse to consider the panel
ruling that the case was barred by limitation and then years later refuse to
consider en banc the panel majority’s present ruling exposes the court’s new
vision. This is a court of error. It is not the Supreme Court. It does not have
“discretion” to just “decline to rule.” Unlike the Supremes, it does not have the
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No. 04-60962
discretion to decide what it will decide, a powerful tool for implementing social
policy.12 This is no lonely view. It is shared by distinguished scholars.13 There
can be no offhand dismissal such as—no great injustice here, the plaintiffs’
science is weak, I think. This leaves litigants at the mercy of panel roulette–the
“law” being the unchartered and legally indefensible view of two judges. There
is sad irony in this court’s handling of the limitations question. The same judges
prepared to hold that the Husses lost all their rights to sue when they did not
file within two years of her diagnosis now, after nine years in federal court, hold
that the case should start over, with a large suggestion that the trial judge
should not let this case get to a jury again. Trials of civil cases are disappearing
in federal courts. Litigation is fleeing the courts. Much is being written about
this phenomenon and why it is occurring. To those students I say: read this
case.
12
As Justice Brennan described the importance to the Supreme Court function of the
power to decide what to decide, “[it] is an indispensable and inseparable part of this entire
process, and it cannot be curtailed without grave risk of impairing the very core of the
extraordinary function of the Supreme Court.” William J. Brennan, Jr., The National Court
of Appeals: Another Dissent, 40 U. CHI. L. REV. 473, 484 (1973).
13
See generally Paul D. Carrington & Roger C. Cramton, Judicial Independence in
Excess: Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587 (2009);
Daniel J. Meador, Reining in the Superlegislature: A Response to Professors Carrington and
Cramton, 94 CORNELL L. REV. 657 (2009).
19
No. 04-60962
JENNIFER WALKER ELROD, Circuit Judge, with whom WIENER,
BENAVIDES, and PRADO, Circuit Judges, join, dissenting:
I dissent for only the substantive legal reasons stated in Judge
Higginbotham’s dissent, and write separately to emphasize my understanding
of the most compelling reasons for en banc rehearing.
Huss v. Gayden, 571 F.3d 442 (5th Cir. 2009), is no run-of-the-mill
Daubert1 case that might fade away as a precedent limited to its facts. It
deserves our en banc consideration not because this kind of reversal is a true
rarity in this circuit and every other—which it is—and not because the result did
an injustice to these litigants—which it did, see id. at 462–67 (Higginbotham, J.,
dissenting)—but because it creates an irreconcilable conflict in our Daubert
jurisprudence. What is a trial judge to do when he or she is persuaded that an
expert witness is not qualified to render a specific-causation opinion because of
the witness’s deficient explanation or lack of specific experience? Facing
comparable experts, Moore v. Ashland Chemical Inc., 151 F.3d 269 (5th Cir.
1998) (en banc), says that the trial judge may exclude, Tanner v. Westbrook, 174
F.3d 542 (5th Cir. 1999), says that the judge must exclude, and now Huss says
that the judge must not exclude.
Somewhat thankfully, the panel opinion cannot have changed our law, for
“where two previous holdings or lines of precedent conflict the earlier opinion
controls and is the binding precedent in this circuit.” Rios v. City of Del Rio,
Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006).2 Nonetheless, Huss will undoubtedly
1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
2
Moreover, “‘no panel is empowered to hold that a prior decision applies only on the
limited set of facts set forth in that opinion,’ United States v. Smith, 354 F.3d 390, 399 (5th Cir.
2003), and a prior panel’s explication of the rules of law governing its holdings may not
generally be disregarded as dictum. Gochicoa v. Johnson, 238 F.3d 278, 286 n.11 (5th Cir.
2000).” Rios, 444 F.3d at 425 n.8.
20
No. 04-60962
confound both our litigants and our trial courts, who have neither the occasion
nor the duty to resolve such contradictions in our jurisprudence. That task
belongs to our court, and today we have failed.
Accordingly, I would rehear this case to resolve the apparent conflict
between Huss and Tanner and Moore. Because the court does not, I respectfully
dissent.
21