United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3919
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Antoine Khoury, *
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Plaintiff/Appellant, *
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v. *
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Philips Medical Systems, *
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Defendant/Appellee, *
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Reliastar Life Insurance Company *
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Intervenor/Appellee. *
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Appeals from the United States
No. 09-3965 District Court for the District of
___________ Minnesota.
Antoine Khoury, *
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Plaintiff/Appellee, *
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v. *
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Philips Medical Systems, *
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Defendant/Appellee, *
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Reliastar Life Insurance Company, *
*
Intervenor/Appellant. *
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Submitted: June 15, 2010
Filed: August 10, 2010
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Before RILEY, Chief Judge, CLEVENGER1 and COLLOTON, Circuit Judges.
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RILEY, Chief Judge.
Dr. Antoine Khoury appeals the district court’s2 dismissal of his tort lawsuit
against Philips Medical Systems (Philips). Dr. Khoury argues the district court abused
its discretion in excluding the testimony of his expert witness, Dr. Robert Andres, as
unqualified and unreliable under Fed. R. Evid. 702. We affirm.
I. BACKGROUND
Dr. Khoury is an interventional cardiologist. On October 31, 2003, Dr. Khoury
was performing a coronary angiogram on a patient in Catheterization Laboratory 5
(Cath Lab 5) of the Regions Hospital in St. Paul, Minnesota. Cath Lab 5 contained
an Integris BH5000 biplane system (BH5000), which Philips designed and installed.
The BH5000 consists of a monitor bank and a radiation shield (RPS). Philips had
mounted the monitor bank and RPS to a single ceiling track. Because the monitor
bank and RPS moved along a single track, the monitor bank and RPS moved in
tandem. An articulating arm enabled the RPS to move up and down.
1
The Honorable Raymond C. Clevenger, III, United States Circuit Judge for the
Federal Circuit, sitting by designation.
2
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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At the outset of the angiogram, Dr. Khoury placed the RPS near the patient’s
legs. The monitor bank moved to the patient’s feet in tandem with the RPS. As Dr.
Khoury prepared to insert a femoral catheter into the patient, a nurse moved the
monitor bank without warning. The movement of the monitor bank caused the RPS
to move toward the patient. Because the articulating arm was locked in place, Dr.
Khoury grabbed the RPS with both hands to prevent the RPS from striking the patient.
Dr. Khoury felt pain radiate from his neck to his lower back.
In October 2007, Dr. Khoury sued Philips in Minnesota state court. Philips
removed the case to the federal district court pursuant to 28 U.S.C. §§ 1332(a), 1441,
and 1446(b). Dr. Khoury is a citizen of Minnesota, Philips is a Delaware corporation
with its principal place of business in New York, and the amount in controversy
exceeds $75,000, exclusive of interest and costs.3
In January 2008, Dr. Khoury filed an amended complaint against Philips. The
amended complaint lacked formal counts but generally alleged “the design and
assembly of the equipment, specifically the [RPS] articulating arm and monitor [bank]
arm, as attached through the overhead between the [RPS] and the monitor [bank], was
unreasonably dangerous to the user when they were used as intended or used in a way
that the manufacturer[] could reasonably have anticipated.” Dr. Khoury alleged he
was permanently impaired as a result of the injuries he suffered on October 31, 2003.
In November 2008, the district court granted ReliaStar Life Insurance
Company’s (ReliaStar) unopposed motion to intervene. Before October 31, 2003,
ReliaStar issued Dr. Khoury a long-term disability policy governed by the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA), as
amended. ReliaStar was paying Dr. Khoury ERISA covered long term disability
3
We ignore Mavig GmbH, a defendant Dr. Khoury long ago dismissed without
prejudice.
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benefits arising from his injury in Cath Lab 5. ReliaStar alleged the policy granted
ReliaStar a right of subrogation against Dr. Khoury in the event Dr. Khoury were to
recover damages from Philips.
In June 2009, Philips moved for summary judgment. Among other things,
Philips argued the testimony of Dr. Khoury’s expert witness, Dr. Andres, was
inadmissible and thus Dr. Khoury lacked sufficient evidence to prove his claim.
Philips asserted Dr. Andres was unqualified to render an expert opinion in the case
and his opinions were unreliable. Dr. Khoury resisted Philips’s motion.
In August 2009, the district court held a hearing on Philips’s summary
judgment motion. At the outset of the hearing, the district court expressed doubt as
to whether Dr. Khoury was “sure exactly what [his] claim is,” i.e., whether Dr.
Khoury was pressing a design defect claim, a negligent installation claim, or
something else. Counsel for Dr. Khoury responded, “Basically the issue is the design
of the monitor strut system.” When the district court asked whether “strict liability
is still an issue in this case” (as opposed to negligent installation), counsel answered
“[s]trict liability on the design side . . . . Yes.”
In November 2009, the district court excluded Dr. Andres’s testimony under
Fed. R. Evid. 702. The district court viewed Dr. Khoury’s amended complaint as
asserting that Philips’s single-track design for the BH5000 in Cath Lab 5 was
defective. With this understanding, the district court found that, because Dr. Andres
was an ergonomist, Dr. Andres was qualified to testify as to the amount of force and
biomechanical stress Dr. Khoury suffered when trying to block and hold the RPS.
The court found Dr. Andres was not “qualified to testify as an expert on the design of
Cath Lab 5 or the BH5000” itself because Dr. Andres was not “trained, experienced
or educated in the design of medical devices or laboratories.”
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In the alternative, the district court found, even if Dr. Andres were qualified, his
testimony was unreliable. The district court found Dr. Andres’s opinions were
“questionable” because Dr. Andres never replicated the circumstances leading to Dr.
Khoury’s injury. Dr. Andres never tested a single-track design; never measured the
amount of force needed to stop the RPS; never examined the RPS or articulating arm,
apart from measuring the RPS’s width; and never considered a potential alternate
cause of Dr. Khoury’s injury, namely, the nurse’s failure to announce her intention to
move the monitor bank. Dr. Khoury admitted in his deposition it was “common
practice” for the nurse to make such an announcement.
Because Dr. Andres’s testimony was essential to Dr. Khoury’s ability to prove
his claim, the district court granted Philips’s motion for summary judgment and
dismissed Dr. Khoury’s amended complaint. The district court apparently dismissed
ReliaStar’s intervenor complaint as well, although the district court’s order granting
Philips’s motion for summary judgment and the clerk of court’s judgment omit any
reference to ReliaStar’s intervenor complaint.
Dr. Khoury appeals the exclusion of Dr. Andres’s testimony and the consequent
dismissal of his amended complaint. ReliaStar thereafter filed a “protective appeal,”
asking for reinstatement of its intervenor complaint in the event of reversal.
II. DISCUSSION
A. Standard of Review
While we review the grant of a motion for summary judgment de novo, “[a]
trial court must be given wide latitude in determining whether an expert’s testimony
is reliable.” Fireman’s Fund Ins. Co. v. Canon USA, Inc., 394 F.3d 1054, 1057 (8th
Cir. 2005). “We review the district court’s decision concerning the admission of
expert opinions for an abuse of discretion.” Id.
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B. Legal Standard
Fed. R. Evid. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the
case.
In construing Rule 702, we require the proponent of expert testimony to prove, among
other things, that the expert is qualified and his opinion is reliable. Recently we
stated:
When considering expert testimony, a district court must ensure that “all
scientific testimony is both reliable and relevant.” Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006). To satisfy the
reliability requirement, the party offering the expert testimony “must
show by a preponderance of the evidence both that the expert is qualified
to render the opinion and that the methodology underlying his
conclusions is scientifically valid.” Id.; [Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589-90 (1993)]. To satisfy the relevance
requirement, the proponent must show that the expert’s reasoning or
methodology was applied properly to the facts at issue. Marmo, 457 F.3d
at 757.
Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010).
C. Analysis
1. Dr. Khoury’s Claim
In his opening brief, Dr. Khoury presses a claim for negligent installation
instead of a claim for defective design. But that is not how Dr. Khoury characterized
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his claim to the district court, and it is not the claim upon which the district court
ruled. Any such negligence claim is, as Philips argues, waived. See, e.g., Anderson
v. Unisys Corp., 52 F.3d 764, 765 (8th Cir. 1995) (discussing waiver principles and
holding, “because the district court never passed upon this issue, we decline to
consider it here”).
In his reply brief, Dr. Khoury characterizes the claim in his amended complaint
as a “design defect claim” regarding “the manner in which the machine was installed,
using a single track system that created too much weight for a user like Dr. Khoury
to safely stop once it was placed in motion.” In Dr. Khoury’s words, “Philips got a
wrongly designed installation precisely correct. That is the problem.”
We think what Dr. Khoury means to claim—or must now say in light of his
concessions during the district court’s summary judgment hearing and the limited
scope of the district court’s order—is that Philips’s single-track system for its BH5000
system is a defective design. There is no evidence in this record to indicate the
BH5000 system did not operate as intended or the BH5000 system was installed in
Cath Lab 5 in a negligent manner. The claim at issue in this appeal is whether
Philips’s single-track design in Cath Lab 5 was unreasonably dangerous.
With this understanding of Dr. Khoury’s claim, we examine the district court’s
exclusion of Dr. Andres’s expert testimony.
2. Qualifications
The district court did not abuse its discretion in finding Dr. Andres was
unqualified to give expert testimony on the design issue. As the district court
correctly pointed out, it is undisputed Dr. Andres has no training, education, or
experience in the design of laboratories or of monitor banks and radiation shields. Dr.
Andres is an ergonomist. Ergonomics is “[t]he scientific study of the efficiency of
man in his working environment.” Oxford English Dictionary (Online ed. 2010). The
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district court did not abuse its discretion in forbidding Dr. Andres from testifying
outside of his area of expertise and opining as to the proper design of Philips’s single-
track design in Cath Lab 5. See Kennedy v. Baxter Healthcare Corp., 348 F.3d 1073,
1074-75 (8th Cir. 2003) (per curiam) (affirming the district court’s exclusion of an
expert, who was not a physician or toxicologist, from opining as to “what makes a
rubber glove safe or unsafe for allergy purposes or what level of proteins or allergens
are necessary to achieve a safe level for allergy purposes”). On the contrary, we have
reversed a district court for permitting an expert to testify outside of his field. See,
e.g., Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706,
715-16 (8th Cir. 2001) (holding a district court abused its discretion in permitting a
hydrologist to testify about safe warehousing practices, an area outside of his
expertise). Dr. Khoury does not claim, for example, that the single-track design
caused Dr. Khoury repetitive stress injuries because of an alleged ergonomic failing.
In holding the district court did not abuse its discretion in finding Dr. Andres
unqualified to render an opinion, we do not suggest Dr. Andres lacks ability or
expertise as an ergonomist. The problem for this case is Dr. Andres has no training,
education, or experience in the design of medical laboratories or of monitor banks and
radiation shields.
3. Reliability
Because the district court did not abuse its discretion in finding Dr. Andres was
unqualified to testify in this case, we need not decide whether the district court abused
its discretion in finding Dr. Andres’s proposed expert testimony was unreliable.
III. CONCLUSION
We affirm the district court’s decision to exclude Dr. Andres’s expert testimony
and to dismiss Dr. Khoury’s amended complaint. ReliaStar’s appeal is dismissed as
moot.
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