Causation Experts Need to … Establish Cause
Causation expert witnesses need to … establish cause. Failing to do so, and as well failing to consider other causes and ruling them out, and then trying to amend the record, contradicting one's own testimony, is a Daubert failure.
In Kopplin v. Wisconsin Central Limited, 7th Circuit, Jeffery Kopplin, a train conductor, claimed that he injured his elbow when he got out to try to pull a frozen switch handle on a broken switch to correctly align the tracks at the Fond du Lac train yard. He tried to dislodge snow and ice built up in the switch with the only tool Wisconsin Central provided, a broom, but after straining for several minutes, the switch still did not budge.
While the weather was severe (20 to 30 mile-per-hour winds, below freezing temperatures), video evidence of the scene showed no immediate signs of injury and Kopplin continued physically working for two more hours before he complained of pain.
After Kopplin's physician diagnosed him with medial and lateral epicondylitis (a.k.a., tennis elbow), Kopplin took time off work and received an effective pain relief injection. Kopplin returned to work some two months later.
However, four months later, while Kopplin tried to hold his son while riding his lawnmower one-handed, the pain suddenly reemerged.
Kopplin then filed Federal Employers' Liability Act (FELA) claims against Washington Central, retaining Dr. Etienne Mejia, an orthopedic surgery expert witness, as his sole causation expert.
Dr. Mejia testified at deposition that the pain-relief injection Kopplin received often provides only temporary relief, which could explain the pain's reemergence.
While the courts found that plausible, Dr. Mejia's causation evidence was woefully lacking. His expert report discussed Kopplin's treatment history and his prognosis, but it never explained how the switch caused the disability, the district court found.
Dr. Mejia testified at his deposition that he did not know whether something other than the track switch could have caused the initial injury; he conceded he never considered whether other factors could have caused the initial injury. He continued, admitting that he knew so little about Kopplin's job that “it would be mere speculation to say throwing a switch even could cause the elbow injury.”
Mejia was asked whether “there could be other various causes of this type of condition” besides the track switch. Mejia answered “yes,” without equivocation.
Two months after the deposition, Wisconsin Central moved for summary judgement. Kopplin responded with an affidavit by Dr. Mejia in which the surgeon stated unequivocally that the train switch incident caused the disability, the nature of the injury being so clear there was no need to consider other causes.
The district court refused to consider the affidavit because it contradicted Dr. Mejia's deposition testimony. And that deposition testimony the court found unreliable under Daubert because Dr. Mejia failed both to rule in the alleged cause and failed to rule out other potential causes of the initial injury. The Seventh Circuit Court of Appeals agreed.
Depositions don't always go well for expert witnesses, and expert witness reports are not always perfect, but failing to do the basics of causation and then attempting to file an affidavit where the expert clearly contradicts his own deposition testimony — that falls on attorney and expert competence alike.
See Kopplin v. Wisconsin Central Limited, No. 17-3602 (7th Cir. 2019).