Fifth Circuit Remands Light Therapy Device Case for Abuse of Gatekeeping Function

Where one gate opens…the Fifth Circuit steps in and erects a backup gate.  A product defect case against the manufacturer and distributor of an infrared light therapy device used to treat neuropathy has been remanded to the Southern District of Texas following a Fifth Circuit panel’s determination that the testimony of defendants’ expert and sole testifying witness—a chiropractor—was improperly admitted at trial without any Daubert scrutiny.  Carlson v. Bioremedi Therapeutic Sys., Inc., No. 14-20691, 2016 WL 2865256 (5th Cir. May 16, 2016).

In 2010, David Carlson began to experience symptoms of the diabetic condition known as peripheral neuropathy.  He visited a “chiropractor and alternative medicine specialist,” Lance Durrett, who was promoting a new treatment for “diabetic neuropathy.”  Dr. Durrett recommended treatment using the ProNeuroLight device, which was performed on Carlson by another staff member in Dr. Durrett’s treatment facility.  Within 48 hours of receiving the treatment, Carlson discovered ulcers on the bottom of his heels.  Carlson’s diabetic podiatrist determined these ulcers were “burn eschar.”  The burns ultimately caused a bone infection, which resulted in over a year of hospitalization, a below the knee amputation on one leg, and a heel amputation on the opposite foot.  Id. at *1.

Carlson and his wife brought suit against both the manufacturer and distributor of the ProNeuroLight, asserting product liability claims for design defect, manufacturing defect, and failure to warn.  Before trial, the court denied without explanation a motion by plaintiffs to exclude Dr. Durrett’s medical testimony.  At the five-day trial, defendants called Dr. Durrett as their only witness.  Following a unanimous defense verdict, the plaintiffs appealed, challenging only the admission of Dr. Durrett’s expert testimony.  Plaintiffs argued that the district court abused its discretion by allowing Dr. Durrett, a chiropractor, to opine on medical matters related to wound care, podiatry, neurology, nephrology and diabetes medicine, as well as the temperature necessary to cause a burn, and on the ProNeuro device itself.  The Fifth Circuit agreed that the district court abused its gatekeeping function by, in essence, abandoning its post altogether.

The court found that the district court’s failure to conduct a Daubert inquiry or make a Daubert determination on the record alone constituted abuse of discretion.  Id. at *4.  Nonetheless, the court proceeded to examine, under Federal Rule of Evidence 702, whether Dr. Durrett was qualified to render certain opinions he gave at trial and concluded he was not.  Dr. Durrett’s testimony included multiple statements on the issue of whether the ProNeuroLight caused Carlson’s injuries, including that “the device was incapable of causing burns because, by design, it cannot raise surface temperature by more than two degrees Fahrenheit.”  Id. at *1.  He also testified that Carlsons injuries “looked like diabetic ulcers.”  Id.  Although not designated as an expert witness, the court found (and parties seemed to agree) that Dr. Durrett’s opinions were properly characterized as expert medical testimony.  Id. at *2.

In finding that Dr. Durrett’s qualifications did not support his challenged testimony, the court relied on precedent holding that a non-physician is not qualified to give medical testimony in the absence of expertise in an ancillary field.  Id. at *3.  Despite 31 years as a chiropractor and alternative medicine specialist, Dr. Durrett was neither a medical doctor nor did he possess an advanced degree in a field of research ancillary to the fields of medicine he testified about, such as podiatry, endocrinology, or nephrology.  Additionally, while Dr. Durrett had significant experience using the ProNeuroLight, the extent of his formal training with the device was limited to two sales seminars.  Id.  Therefore, the district court’s admission of his opinions about whether the device could have, or did, cause Carlson’s foot injuries without performing the requisite Daubert inquiry amounted to an abuse of discretion.  Id. at *5.  Because the court concluded this error was not harmless, the district court’s decision was reversed and the case remanded.  Id.

This case serves as a cautionary reminder that even where certain testimony appears to have slipped through the cracks (or, in this case, the gaping hole left by the district court’s apparent disregard of its gatekeeping role), Daubert may come back to haunt a party and severely impact the outcome of a case.  Dr. Durrett had extensive experience with the device at issue, and, judging by the unanimous defense verdict, likely made a compelling enough witness.  However, if the defendants determined they needed to present expert medical causation testimony on their case-in-chief, their exclusive reliance on a chiropractor to carry this burden was an unfortunate misstep.  If, on the other hand, they did not believe such testimony was necessary, eliciting it anyway on a fact witness, thereby subjecting him to exclusion, proved equally problematic.  Once the Fifth Circuit panel determined that the challenged testimony constituted expert medical opinions, the conclusion that Dr. Durrett did not possess the requisite qualifications to provide such testimony easily followed.