U.S. Fifth Circuit Reverses Defense Verdict where District Court Had Not Conducted Daubert Hearing re Chiropractor Testimony Elicited by Defendants

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Patient who suffered severe injuries after being treated with infrared therapy device for diabetic condition of peripheral neuropathy brought products liability action against manufacturer and distributor. After denying patient’s pre-trial motion to exclude testimony of chiropractor, the jury found for the defendants.  The U.S. Fifth Circuit reversed and remanded for Daubert consideration:

“Initially, we dispose of the defendants’ contention that Dr. Durrett gave no opinion testimony whatsoever. When asked whether the ProNeuroLight could have caused Carlson’s injuries, Dr. Durrett explained there were ‘conflicting facts’ and that he could not reach a conclusion. Dr. Durrett’s ostensibly equivocal opinion in fact supported the defendants’ case by suggesting there was insufficient evidence to prove the ProNeuroLight caused Carlson’s injuries. Further, Dr. Durrett affirmatively testified that the placement of the ProNeuroLight pads couldn’t have caused Carlson’s injuries. This statement alone qualifies as a medical opinion. We thus consider whether Dr. Durrett’s expert medical testimony was properly admitted.  Dr. Durrett has been a practicing chiropractor and alternative medicine specialist for over 31 years. He graduated with honors from Texas Chiropractic College, has two certifications in acupuncture, and is board certified as a chiropractic internist and clinical nutritionist. Dr. Durrett had used devices similar to the ProNeuroLight for approximately 14 years at the time he testified. Notwithstanding his various professional achievements, Dr. Durrett is not a medical doctor, cannot prescribe medicine, did not attend medical school, and does not possess a degree from a four-year university. While he has considerable experience using the ProNeuroLight, Dr. Durrett’s only formal training with the device includes two sales seminars.  A medical degree is not a prerequisite for expert testimony relating to medicine…. In the absence of expertise in an ancillary field, however, we have held a non-physician is not qualified to give medical testimony…. While Dr. Durrett is an experienced chiropractor and alternative medicine specialist, we cannot assess on appeal whether he has relevant expertise to support his opinions about whether the ProNeuroLight could have, or did, cause Carlson’s foot injuries. Admitting this testimony without performing the requisite Daubert inquiry amounts to an abuse of discretion.”
Carlson v. Bioremedi Therapeutic Systems, No.14-20691, 2016 WL 2865256 (5th Cir. May 16, 2016).

 

 

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