Domingo ex rel. Domingo v. T.K.

276 F.3d 1083, 2002 WL 5569
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 3, 2002
DocketNos. 00-15064, 00-15137
StatusPublished
Cited by4 cases

This text of 276 F.3d 1083 (Domingo ex rel. Domingo v. T.K.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Domingo ex rel. Domingo v. T.K., 276 F.3d 1083, 2002 WL 5569 (9th Cir. 2002).

Opinion

CANBY, Circuit Judge:

Efren B. Domingo, through his representatives, (“Domingo”) brought this medical malpractice action against his physician, T.K., Orthopedic Associates of Hawaii, and The Queen’s Medical Center (“Queen’s”) following hip surgery that left him with severe brain damage. Citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the district court excluded the testimony of Domingo’s expert concerning the cause of the brain damage. The district court further held that portions of the deposition testimony of defendants’ experts, upon which Domingo sought to rely, failed to raise a triable issue of fact regarding causation. Alternatively, the court held that Daubert rendered inadmissible those portions of the testimony of defendants’ experts. Domingo appeals, challenging the decisions to exclude the experts’ testimony and the ruling that he had failed to raise a triable issue of causation.1

We conclude that the district court did not abuse its discretion in excluding the testimony of Domingo’s expert. We also conclude that the district court was correct in ruling that the remaining evidence, including that of the defendants’ experts, did not raise a triable issue of fact regarding causation. We accordingly find it unnecessary to reach the question whether the portions of the defendants’ experts’ testimony on which Domingo sought to rely were excludible under Daubert. We affirm the summary judgment in favor of all the defendants.

Domingo sued Queen’s under a theory of negligent credentialing. The district court originally granted summary judgment for Queen’s, but then granted the plaintiffs motion for reconsideration and denied the motion for summary judgment. The district court subsequently entered judgment in favor of Queen’s along with all the other defendants when it concluded that Domingo had failed to raise a triable issue of fact regarding causation. Queen’s has taken a protective appeal, arguing that it was entitled to summary judgment on the negligent credentialing claim. Because we affirm the summary judgment in favor of all the defendants on the ground that Domingo failed to present a triable issue of fact regarding causation, we dismiss Queen’s cross-appeal as moot.

Facts and Procedural Background

In August 1994, T.K. performed a total hip arthroplasty on Domingo. This was a “revision,” the second surgery on Domingo’s right hip, after his first artificial hip had been dislodged in a fall. There are two main types of hip replacement surgery — cemented and uncemented. In each type, the surgeon reams the femur and places a prosthesis into the hollowed-out bone. In a cemented hip replacement, the surgeon then pours cement into the hollow, bonding the prosthesis into place. In uncemented hip replacement, the surgeon must carefully shape and size the hole in the bone to fit the prosthesis precisely. The prosthesis is then malleted into place, [1087]*1087affixed only by snugness of the fit. The process of malleting in the prosthesis generally takes between three and fifteen minutes.

Domingo’s surgery was of the uncement-ed type. From the record, it appears that there was nothing unusual about the procedure until the malleting began. The prosthesis became stuck, and T.K. spent approximately one hour and ten minutes intermittently trying to mallet the prosthesis into the correct position until it was finally fitted. After the surgery, Domingo suffered from fat embolism syndrome (“FES”), going into a coma and sustaining severe brain damage.

FES is a rare condition that is a known risk of hip replacement surgery. Fat em-boli (particles of fat) are released into the blood throughout the hip replacement procedure, during reaming, insertion of the prosthesis, pouring of cement in the cemented type of procedure, and malleting in the uncemented type. The blood carries the fat particles throughout the body and to the brain. In a small number of cases, the fat particles that reach the brain cause FES. FES can lead to serious brain damage or death. Although there is agreement among experts that FES is a risk of hip replacement surgery, there is no consensus on why some patients suffer from FES and others do not.

After surgery, Domingo sued T.K, Orthopedic Associates, and Queen’s for malpractice, asserting that the cause of his FES was the extreme duration of the mal-leting phase. All parties retained expert witnesses to give opinions on the cause of the FES.

Kevin Harrington, M.D., the expert hired by Domingo, formed an opinion based on his professional experience and observations, and on several studies of the topic. He testified through deposition and declaration that he had concluded to a reasonable medical probability that the cause of Domingo’s FES was the length of time T.K. spent malleting the prosthesis into place.

The experts retained by the defendants testified that the lengthy malleting was not a violation of the standard of care. They testified about their differing theories on what causes or increases the risk of FES. Although each agreed with particular aspects of Dr. Harrington’s theory, none believed that the extended malleting time could be linked to an increased risk of FES.

T.K. moved to exclude Dr. Harrington’s theory of causation under Daubert, or alternatively to appoint a special master to evaluate the testimony. The trial court appointed a technical advisor, Dr. William Hozack, a board-certified orthopedic surgeon. After hearing from both parties, reviewing their depositions, and examining the literature on the subject, Dr. Hozack issued a report stating that Dr. Harrington’s opinion was “not scientifically derived nor is it based on objectively verifiable and scientifically valid principles and methodology.” After giving each side an opportunity to respond to the report, the trial court excluded Dr. Harrington’s testimony. Domingo then sought to use statements from the defendants’ expert witnesses and T.K. himself to support the causation theory developed by Dr. Harrington. The court held that the defendants’ expert testimony did not raise a triable issue of fact regarding causation and that, in any event, the testimony was exeludible under Dau-bert. The court accordingly granted summary judgment in favor of all the defendants.

Discussion

We review de novo the district court’s grant of summary judgment. Shalit v. Coppe, 182 F.3d 1124, 1126-27 (9th Cir.1999). We review the district court’s evi-[1088]*1088dentiary rulings for abuse of discretion, Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1399 (9th Cir.1996), even when the rulings determine the outcome of a motion for summary judgment, Cabrera v. Cordis Corp., 134 F.3d 1418, 1420 (9th Cir.1998).

The exclusion of Dr. Harrington’s testimony

Expert testimony is admissible pursuant to the Federal Rules of Evidence, primarily Rule 702. Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Under

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276 F.3d 1083, 2002 WL 5569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domingo-ex-rel-domingo-v-tk-ca9-2002.