Recently, the Fifth Circuit in Huss v. Gayden, No. 04-60962, (October 15, 2009) took it upon itself to take a way a plaintiff’s verdict in a medical malpractice case. Huss involved a pregnant woman that was provided terbutaline to prevent premature contractions and as a consequence suffered from permanent heart damage. At trial, the plaintiff’s expert testified the terbutaline was the cause of her heart problems. Importantly, there was no objection at trial to the admissibility of plaintiff’s expert testimony on causation. The defense countered with expert testimony that terbutaline could not cause heart problems. However, the trial court, after hearing legal arguments, ruled that the defendant’s expert could not testify specifically that the plaintiff’s heart injuries were not caused by the terbutaline as his qualifications to address specific causation were lacking. The jury awarded her $3.5 million.
On appeal, the 5th Circuit reversed the judgment and determined the claim was barred by the Mississippi Statute of Limitations. However, in response to a certified question, the Mississippi Supreme Court subsequently ruled that the claim was not barred by the statute of limitations. At that point, however, rather than reinstate the jury’s verdict, the 5th Circuit ruled that the trial court abused it’s discretion in limiting the defendant’s causation expert’s testimony and remanded the cause for a new trial. Previously, the 5th circuit had nearly always affirmed trial court’s discretionary decisions excluding expert testimony on behalf of plaintiff’s. Then in prolonged dicta, the 5th Circuit then even went so far as to request that the trial court upon retrial conduct a Daubert analysis of the plaintiff’s expert’s with a clear suggestion to determine his opinions were unreliable.
In a scathing dissent, Judge Higgenbotham noted that the appellate court judges were letting their own personal opinions on the right to a jury trial and health care guide their hand to reach preferred social ends through its selective application of the Daubert criteria. In the end, Judge Higgenbotham stated that the court’s ruling was leaving the litigants “at the mercy of panel roulette–the ‘law’ being the unchartered and legally indefensible view of two judges.” This opinion is an example of judicial activism and the current attack on the right to trial by jury in personal injury cases. My condolences go out to Ms. Huss and her attorneys for this result driven opinion. Hopefully, justice will prevail in any retrial. A copy of the recent opinion is attached.
Huss v. Gayden (Judge Higgenbotham dissenting opinion on denial of petition for rehearing en banc)
If you or a family member have been injured due to medical malpractice, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options. Carlson & Carlson handles product liability, personal injury, wrongful death, medical malpractice, and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville, O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.
