McBride v. Houston County Health Care Authority et al

Filing 292

OPINION AND ORDER that defendant Dinesh Karumanchi's 199 Motion to Exclude Dr. Robert Auerbach, Dr. Carla Rodgers, and Dr. Allan Nineberg is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 6/11/2015. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

COURTNEY McBRIDE,

)
)
Plaintiff,
)
)
v.
)
)
HOUSTON COUNTY HEALTH CARE )
AUTHORITY d/b/a Southeast )
Alabama Medical Center,
)
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
1:12cv1047-MHT
(WO)

OPINION AND ORDER
Plaintiff Courtney McBride developed a rare skin
disease after receiving treatment at a county hospital
followed by her subsequent discharge to a local jail.
She

brings

this

civil

action

against

the

following

defendants: Houston County Health Care Authority; Drs.
Dinesh Karumanchi and Rajendra Paladugu; the City of
Dothan;

and

Dothan

City

Jail

Correctional

Mamie McCory and Stephanie Johnson.

Officers

She asserts that

the

Health

Care

Authority

and

the

doctors

committed

medical malpractice in violation of Alabama law, and
she further claims that the City of Dothan and its
correctional officers were deliberately indifferent to
her medical needs in violation of the United States
Constitution and were negligent in violation of Alabama
law.

The court has jurisdiction pursuant to 28 U.S.C.

§ 1343(a)(3) (civil rights) and § 1367 (supplemental).
The

case

is

before

the

court

on

defendant

Karumanchi’s motion to exclude the expert opinions of
Dr. Robert Auerbach, Dr. Carla Rodgers, and Dr. Allan
Nineberg.

The motion will be denied.

Relying on Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), Karumanchi challenges Drs. Nineberg
and Auerbach’s qualifications and methodology; he also
challenges

Dr.

Rodgers’s

qualifications

under Alabama medical-malpractice law.
the

court

notes

that

the

magistrate

to

testify

At the outset,
judge

already

issued an opinion denying Karumanchi’s earlier motion
2

to exclude the expert opinions of Auerbach, Rodgers,
and

Nineberg,

in

which

he

discussed

each

experts’

qualifications as well as Auerbach’s methodology for
determining causation.

See McBride v. Houston Cnty.

Health Care Auth., 2014 WL 4373187 (M.D. Ala. 2014)
(Moorer, M.J.).

Because Karumanchi did not object to

the

judge’s

magistrate

opinion,

the

decision

is

binding, as “a party may not assign as error a defect
in the order not timely objected to.”
72(a).

Fed. R. Civ. P.

Because his motion therefore is not properly

before this court, it is due to be denied.

Indeed, if

Karumanchi could bring successive Daubert motions, he
would lack an incentive to complete his due diligence
before

filing

and

to

make

timely

objections

to

the

magistrate judge.
Nevertheless, the court will address Karumanchi’s
arguments on the merits below, as an alternative basis
for denying his motion.

Because the court agrees with

the magistrate judge’s opinion, it will not rehash what
3

has

already

been

covered

but

rather

will

focus

on

Karumanchi’s arguments based on the new information not
available

at

the

time

of

the

magistrate

judge’s

opinion.

I. DAUBERT CHALLENGES TO
DOCTORS NINEBERG AND AUERBACH
The court first will lay out the legal standard for
evaluating expert testimony.
general

arguments

made

It will then address two

against

Drs.

Nineberg

and

Auerbach and last will move to specific criticisms of
each expert’s opinion.

A. Legal Standard
The

Federal

admissibility
U.S. at 587.

of

Rules
expert

of

Evidence

testimony.

See

govern

the

Daubert,

509

Rule 702 provides:

“A witness who is qualified as an
expert
by
knowledge,
skill,
experience, training, or education may
testify in the form of an opinion or
otherwise if:
4

a. The
expert’s
scientific,
technical,
or
other
specialized
knowledge will help the trier of fact
to understand the evidence or to
determine a fact in issue;
b. The
testimony
is
sufficient facts or data;

based

on

c. The testimony is the product of
reliable principles and methods; and
d. The expert has reliably
the principles and methods
facts of this case.”

applied
to the

Fed. R. Evid. 702. The trial court must serve as a
gatekeeper for expert-witness testimony.
U.S. at 597.
a

Daubert, 509

Doing so requires the court to make both

“relevance”

and

a

“reliability”

determination,

disallowing expert testimony that is either unreliable
or unhelpful to the trier of fact.

Id. at 589.

The Supreme Court has provided a non-exclusive list
of

factors

to

guide

the

trial

judge’s

Rule

702

determination, including: whether a theory or technique
can

be

technique

or

has
has

been
been

tested;
subjected
5

whether
to

a

peer

theory

or

review

or

publication; whether a theory or technique has gained
widespread acceptance within the relevant community of
experts, or, rather, has been unable to garner more
than minimal support; and the known or potential rate
of error of a technique.
are

not

a

considerations

Id. at 593-94.

“definitive
that

may

These factors

checklist,”
shape

the

“flexible inquiry” under Rule 702.

but

trial

are

judge’s

Id. at 594; see

also United States v. Brown, 415 F.3d 1257, 1267-68
(11th Cir. 2005) (citing Kumho Tire Co. v. Carmichael,
526 U.S. 137, 149 (1999) and explaining that “Daubert’s
list

of

specific

factors

neither

necessarily

nor

exclusively applies to all experts or in every case”
and that “the question of whether Daubert’s specific
factors

are,

or

are

not,

reasonable

measures

of

reliability in a particular case is a matter that the
law grants the trial judge broad latitude to determine”
(internal

citations

omitted)).

Consistent

with

this

understanding, the Rule 702 advisory committee notes
6

explain

that,

while

the

Rule’s

current

iteration

endorses the Daubert conception of the trial judge as a
gatekeeper, Rule 702 was not intended to “codify” the
specific factors mentioned in Daubert.
Therefore, Rule 702 makes clear that this court is
“obliged to screen expert testimony to ensure it stems
from,

not

just

a

reliable

methodology,

but

also

a

sufficient factual basis and reliable application of
the methodology to the facts.”

Rudd v. Gen. Motors

Corp., 127 F. Supp. 2d 1330, 1337 (M.D. Ala. 2001)
(Thompson, J.) (emphasis in original).
however,

trial

First,

they

judges

must

should

avoid

In doing so,

several

not

pitfalls.

confuse

this

sufficiency-of-basis inquiry under Rule 702 with the
sufficiency-of-the-evidence inquiry in summary-judgment
analysis.
are

Id. at 1336 n.5.

“formally

mandates

a

quite

distinct

determination

of

Indeed, the two inquiries
...

that

whether

is,

the

Rule

702

expert

had

sufficient evidence (evidence which itself may or may
7

not be admissible) to support his or her testimony, not
a

determination

alone

provides

of

whether

that

sufficient

testimony

evidence

to

standing
allow

a

reasonable fact-finder to find for the plaintiff on an
issue of substantive law.”

Id.

Relatedly, in carrying

out their gate-keeper obligation under Rule 702, trial
judges must not usurp the role of the trier of fact:
“[Rule
702]
is
not
intended
to
authorize a trial court to exclude an
expert’s testimony on the ground that
the court believes one version of the
facts and not the other.... [T]he
rejection of expert testimony is the
exception
rather
than
the
rule.
Daubert did not work a seachange over
federal evidence law, and the trial
court’s role as gatekeeper is not
intended to serve as a replacement for
the
adversary
system.
Vigorous
cross-examination,
presentation
of
contrary
evidence,
and
careful
instruction on the burden of proof are
the traditional and appropriate means
of attacking shaky but admissible
evidence.”
Fed.

R.

Evid.

702,

advisory

committee

amendment (internal citations omitted).

8

notes,

2000

To meet this obligation, the Eleventh Circuit Court
of Appeals has instructed trial courts to “engage in a
rigorous three-part inquiry,” in which the trial court
considers

whether:

“(1)

the

expert

is

qualified

to

testify competently regarding the matters he intends to
address;
reaches
and

(2)
his

(3)

the

the

methodology

conclusions
testimony

is

by

which

sufficiently

assists

the

the

expert

reliable...;

trier

of

fact,

through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine

a

fact

in

issue.”

Rosenfeld

v.

Oceania

Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011)
(internal citations omitted).

The burden is on the

proponent of expert testimony to establish that those
requirements have been met by a preponderance of the
evidence.

See Kilpatrick v. Breg, Inc., 613 F.3d 1329,

1335 (11th Cir. 2010).

9

B. Defendant Karumanchi’s General Arguments
Defendant

Karumanchi

presents

two

sweeping

criticisms of Drs. Nineberg’s and Auerbach’s opinions:
that they failed to show the exact mechanism of how a
higher

dosage

of

Lamictal

causes

Stevens-Johnson

Syndrome (SJS) or Toxic Epidermal Necrolysis (TEN) and
that they failed to present a double-blind scientific
study

proving

causation.

Neither

argument

comports

with the dictates of Daubert or the realities of modern
science.
First, Karumanchi emphasizes that neither Nineberg
nor

Auerbach

can

describe

the

mechanism

by

which

Lamictal or a higher dosage of Lamictal causes SJS or
TEN

and

excluded.

that

their

opinions

should

therefore

be

This argument is wrong as a matter of law.

See, e.g., In re Chantix (Varenicline) Products Liab.
Litig., 889 F. Supp. 2d 1272, 1301-02 (N.D. Ala. 2012)
(Johnson,

J.)

(“Absent

is

any

argument

that

the

plaintiff must prove the biological means of injury,
10

because

no

such

plaintiffs

requirement

must

satisfaction

prove

of

the

exists. ... Although

specific
trier

of

causation,
fact,

this

the

to

the

is

not

analogous to proving the specific bodily interaction or
mechanism

which

underlies

that

causation.”);

In

re

Traylsol Products Liab. Litig., 2010 WL 4102247, at *4
(S.D.

Fla.

2010)

(Middlebrooks,

J.)

(same);

In

re

Seroquel Products Liab. Litig., 2009 WL 3806435, at *8
(M.D. Fla. 2009) (Conway, J.) (same).

Indeed, such a

stringent standard would eliminate testimony on even
well known cause-effect relationships.

For example,

Nineberg testified: “In my field, we basically don't
know

much

of

anything

about

why

antidepressants

or

antipsychotics work. But if you look at thousands of
patients and you do these placebo-controlled studies,
there's no question that some groups get better and
some groups don't. And the mechanisms are continually
being

researched.

So

we

have

11

ideas

about

them,

but

we're not there yet.”

March 18 Daubert hearing (doc.

no. 260) at 54:4-11.1
Karumanchi next argues that, even if McBride does
not have to prove the exact mechanism, Nineberg and
Auerbach’s
confirms
opinions.

admission

causation

that

requires

no

double-blind

study

the

exclusion

their

of

Case law, again, rejects this argument.

In

Gess v. United States, 991 F. Supp. 1332, 1339-1340
(M.D. Ala. 1997) (DeMent, J.), the court confronted a
case where there was no conclusive clinical study on
the cause-and-effect mechanism of a particular drug,
and most of the articles supporting the expert’s theory
relied on animal testing.

Id.

Nevertheless, the court

noted that a conclusive clinical study was not needed
as long as the expert used a reliable methodology to
1.
In the second Daubert hearing, Auerbach
testified to several theories about the mechanism by
which Lamictal causes SJS and TEN and cited several
studies.
See April 13 Daubert hearing (doc. no. 263)
at 31:18-32:11. Because McBride does not have to show
the exact mechanism, the court does not address
Auerbach’s theory here.
12

make

conclusions

from

known

information,

because

“[s]uch a study would be unethical under the tenets of
modern
Hooper,

medicine.”
2013

WL

Id.

at

5777032,

1339;
at

see

*6

also

(N.D.

Adams

Ala.

v.

2013)

(Coogler, J.) (“[J]ust because a theory is untestable
does not necessarily make it unreliable, but it does
require the Court to be more searching in its analysis
of

reliability.”).

Nineberg

and

Auerbach

testified

that such a double-blind study would also be unethical
in

this

case,

and

Karumanchi

conclusion in his briefing.

does

not

dispute

this

Unethical human testing is

not a prerequisite under Daubert.

The court therefore

rejects Karumanchi’s position.2

2.
Karumanchi also argues that his expert on the
issue shows that Nineberg’s and Auerbach’s positions on
causation are “speculative and unreliable.”
Mot. to
Strike and Preclude Expert Testimony (doc. no. 138) at
9-10.
As the magistrate judge noted, however,
“[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”
McBride,
2014 WL 4373187, at *8
(quoting Daubert, 509 U.S. at
(continued...)
13

C. Dr. Nineberg
Defendant Karumanchi first argues that Dr. Nineberg
does not have the qualifications to be an expert on
causation in this case.

In particular, he argues that,

because Nineberg is not an expert on SJS or TEN and has
not been involved in any research on the subject, he
cannot be an expert on whether Lamictal causes SJS or
whether McBride’s taking Lamictal caused her SJS.

The

court disagrees.3
On the question of his qualifications, the court
starts

with

psychiatrist.

Nineberg’s

past

experience

as

a

The magistrate judge’s opinion covers

596).
Put differently, the court will not exclude
experts simply because the opposing party has experts
that come to different conclusions.
3.
Karumanchi also argues that Nineberg was not
disclosed as a causation expert or, put another way,
that his second supplemental report with a causation
opinion included was untimely. The court will address
this argument in its opinion on summary judgment.
14

Nineberg’s resume in depth, so it will not be rehashed
here.

Importantly, though, Nineberg emphasized in the

Daubert hearing that he routinely prescribes Lamictal
in his practice; his primary work at this point is in
psychopharmacology--that is, “the study of the use of
medication
member

treating

mental

the

American

of

Psychopharmacology.
(doc.

no.

March

260)

at

disorders”;
Society
18,

2015

and

he

of

is

a

Clinical

Daubert

9:12-10:14.

hearing
As

a

psychopharmacologist, he specializes in “what the body
does to medication ... [and] what medications do to the
body.”

Id.

While

Karumanchi

admits

that

this

qualifies

Nineberg to testify as to the standard of care on what
dosage

of

89:12-17,

Lamictal
he

should

argues

that

be

administered,

Nineberg

cannot

id.

at

address

causation because there is a difference between heeding
warnings and understanding causation.
the

general

principle

Karumanchi
15

The court doubts
proposes

that

an

expert

in

the

standard

of

care

necessarily

needs

additional expertise to understand causation, and, in
any event, does not believe it applies here.
First,
principle

the

court

that,

“If

agrees
you're

with
a

Nineberg’s

physician

and

general
treating

sick patients, you need to be responsible for the use
of medication, you need to understand adverse effects,
and you need to know if there are reasons to exceed a
particular

recommendation,

and

you

need

to

know

something about the risks.

It's appropriate and within

my

able

knowledge

literature.”
routinely

base

to

Id.

be

at

prescribes

to

read

90:15-22.

Lamictal

the

Because

and

has

the

medical
Nineberg
medical

background and degree to do so, he has the expertise to
read

the

literature

potential effects.

on

the

drug

and

understand

its

The question of whether he relied

on the right literature goes towards his methodology
rather than his qualifications.

16

Regardless

of

the

general

principle,

qualifies as an expert based on his work.

Nineberg

He not only

prescribes Lamictal regularly but also devotes a large
portion

of

his

psychopharmacology.
Lamictal

and

has

work
He

has

relied

to
read

on

understanding

the

the

literature

knowledge

of

on
its

potential side effects in prescribing it to patients.
The next question is whether Nineberg is qualified
to testify that McBride’s increased dosage of Lamictal
caused

the

development

of

SJS

or

TEN.

Karumanchi

points out that Nineberg is not a dermatologist and
cannot diagnose SJS or TEN.

The court agrees with this

argument, as far as it goes.
to

identify

SJS

from

admits as much.
about skin rashes.
to

the

another

emergency
doctor’s

qualified

to

Nineberg is not qualified

pictures

or

treat

it,

and

he

See id. at 90:23-25 (“I don’t know
If I see one, I’ll send a patient
room

probably.”).

diagnosis

testify

on

SJS

why
17

or

However,
TEN,

Lamictal

after

Nineberg

caused

it

is
as

opposed

to

another

drug

causes

or

because

examining

the

he

can

eliminate

other

history.

The court therefore finds that Nineberg is

qualified

to

testify

by

cause

to

both

general

patient’s

and

specific

causation.
Karumanchi next challenges Nineberg’s methodology
as

unreliable.

“Accordingly

the

court

must

first

identify the basis of [Dr. Nineberg’s] testimony and
then

decide

whether

the

methods,

procedures

and

information used by [him] to reach his conclusions are
scientifically reliable.”
In
medical

forming
records

his

Gess, 991 F. Supp. at 1338.

opinion,

and

Nineberg

depositions

considered
the

in

the
his

case,

experience prescribing Lamictal in his practice, and
several articles he either read in the past or reviewed
for

this

scientific

case.
studies

He
have

admits

that

no

“conclusively

double-blind
establish[ed]”

that higher initial dosages of Lamictal cause SJS or
TEN.

However, “as the Daubert Court noted, the subject
18

of

an

expert's

testimony

need

not

be

known

certainty for that testimony to be admissible.

to

a

For Dr.

[Nineberg]'s testimony to be admissible, he must take
what is known, however large or small that body of
knowledge may be, and draw his conclusions from that
knowledge using the scientific method.”

Id. at 1339

(emphasis in original) (internal citation omitted).
What, then, did Dr. Nineberg know?

Id.

First, he

knew from the studies he read that Lamictal could cause
SJS and TEN.
study

As to the studies, he first cited the

“Factors

Influencing

the

Incidence

of

Lamotrigine-Related Skin Rash” by Ian Wong and several
others in the Annals of Pharmacotherapy (“Wong study”).
See Wong Study (doc. no. 203-14) at 36.

The Wong study

tracked 800 people using lamotrigine before and after
the recommended starting dosage was changed from 50mg
to 25mg.4

Id. at 36-37.

change,

patients

4.

12

had

It found that before the
serious

rash,

including

Lamictal is a brand name for lamotrigine.
19

two

with SJS.

Id. at 37-38.

After, the rate of serious

rash was significantly reduced.
noted

that

this

significant.

Id. at 40.

difference

was

The study

statistically

Id. at 38.

Nineberg next pointed to a study on the “Risk of
Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis
in New Users of Antiepileptics” by Dr. Maja Mockenhaupt
and

others

in

the

journal

Neurology

(“Mockenhaupt

study”), which examined a large, German health registry
to understand the incidence of SJS and TEN from several
drugs over a number of years. See Mockenhaupt Study
(doc. no. 203-14) at 30.
cases
before

of
a

SJS

and

TEN

recommended

significantly

during

According to the study, the

from
change

the

Nineberg

in

that

and

years

Id. at 32.

explained

peaked

dosage

following

increased use of Lamictal.
hearing,

Lamictal

the

in

1993

decreased

despite

an

In the Daubert
data

showed

a

decrease in SJS and TEN rates from a rate of 8 in
10,000

patients

taking

lamotrigine
20

to

1.6

in

10,000

patients.

March 18 Daubert hearing (doc. no. 260) at

30:18-25.5
Nineberg

last

cited

“The

Effect

of

Dermatologic

Precautions on the Incidence of Rash with Addition of
Lamotrigine in the Treatment of Bipolar I Disorder: A
Randomized Trial” by Dr. Terence A. Ketter and others
in the Journal of Clinical Psychiatry (“Ketter Study”),
which

also

noted

that

serious

frequently at higher dosages.

rash

occurs

more

Ketter Study (doc. no.

203-14) at 23.
Nineberg

confirmed

that

the

Ketter

study

was

published in a peer-reviewed journal and stated that he
believed the Wong and Mockenhaupt studies were also in
peer-reviewed

journals.

The

court

credits

this

5. The study does note, “While the registry data
cannot be used to test hypotheses about SJS and TEN,
this
temporal
pattern
is
consistent
with
other
observations that suggest that dosing is a risk factor
for SJS and TEN in new users of [lamotrigine].”
See
Mockenhaupt Study (doc. no. 203-14) at 33.
This
appears to be an acknowledgement that this is not a
double-blind study, a shortcoming of the available
scientific research which is addressed above.
21

testimony,

as

it

has

no

reason

to

doubt

Nineberg.

Karumanchi did not bring out that any of these journals
were not peer-reviewed in the depositions, briefing, or
cross-examination in the Daubert hearing.

Given these

three articles, and the testimony of both Nineberg and
Auerbach,

the

court

concludes

that

theirs

is

not

a

niche view with minimal support but rather one with
wide support in the relevant community of experts.

See

Hendrix v. Evenflo Co., 255 F.R.D. 568, 599 (N.D. Fla.
2009)

(Rodgers,

J.)

(“[M]edical

literature

can

show

that a particular theory has gained general acceptance
in

the

relevant

medical

community,

provided

the

literature offers reliable data in support.”), aff'd
sub nom. Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d
1183 (11th Cir. 2010).
With

the

articles

providing

the

scholarly

background, Nineberg also examined the medical records
and depositions.

Taking the diagnosis of SJS and TEN

22

from

the

medical

records,

he

used

differential

diagnosis to find that Lamictal was the probable cause.
“Differential
determining

the

diagnosis
possible

is

causes

accomplished
for

the

by

patient's

symptoms and then eliminating each of these potential
causes until reaching one that cannot be ruled out or
determining which of those that cannot be excluded is
the most likely.”

Guinn v. AstraZeneca Pharm. LP, 602

F.3d 1245, 1253 (11th Cir. 2010) (internal quotation
marks omitted).

Under this method, an expert “must

provide a reasonable explanation as to why he or she
has concluded that [any alternative cause suggested by
the defense] was not the sole cause of the plaintiff's
injury.”

Id.

at

1253

(internal

quotation

marks

omitted); see also Wilson v. Taser Int'l, Inc., 303
Fed.

App'x

medical

708,

expert

714
need

(11th

Cir.

not

rule

2008)
out

(“Although

every

a

possible

alternative in order to form an opinion on causation,
expert

opinion

testimony

is
23

properly

excluded

as

unreliable if the doctor engaged in very few standard
diagnostic techniques by which doctors normally rule
out alternative causes and the doctor offered no good
explanation as to why his or her conclusion remained
reliable or if the defendants pointed to some likely
cause

of

the

defendants’
reasonable
believed

plaintiff’s

action

and

explanation
that

the

illness
[the

as

to

other

doctor]
why

defendants’

he

than

the

offered
or

actions

she

no

still

were

a

substantial factor in bringing about that illness.”).
Nineberg
diagnosis

engaged

here.

He

in

an

used

adequate
the

differential

Algorithm

of

Drug

Causality for Epidermal Necrolysis (ALDEN) to evaluate
whether Lamictal caused McBride’s SJS and TEN and found
that it did.
ALDEN

considers

While there is some question whether
idiopathic

causes

for

SJS

and

TEN,

McBride presented sufficient evidence with Nineberg’s
testimony and the “UptoDate” article, March 18 Daubert
Hearing Pl. Ex. 11 (“Stevens-Johnson Syndrome and Toxic
24

Epidermal

Necrolysis:

Manifestations,

and

Pathogenesis,

Diagnosis”),

Clinical

demonstrating

that

this method is used in the general scientific community
to diagnose the cause of SJS/TEN.
In sum, the court finds Nineberg’s qualifications
acceptable

and

his

methodology

standard of care and causation.

reliable

on

both

His testimony will not

be excluded.

D. Dr. Auerbach
Karumanchi first challenges the magistrate judge’s
conclusion that Dr. Auerbach is qualified to testify
whether a higher dosage of Lamictal caused McBride’s
SJS

and

magistrate

TEN.

Specifically,

judge

relied

on

a

he

argues

book

that

chapter

the

Auerbach

published on SJS and TEN to find that Auerbach was
qualified, but that Auerbach has since stated that the
published

chapter

dermatological

text

was
and

not
that
25

the

an

authoritative

publisher

changed

Auerbach’s manuscript for the chapter without telling
him.
In

Auerbach Dep. (doc. no. 195-1) at 95:14-97:19.

other

words,

Karumanchi

argues

that,

without

the

book chapter, Auerbach is unqualified.
The court is unpersuaded.
provided

a

long

The magistrate judge

description

of

Auerbach’s

qualifications, including his 50 years in dermatology
as a private practitioner and professor as well as his
numerous publications in the field.

Auerbach also has

diagnosed and/or treated around 25 patients with SJS or
TEN during his career, which is noteworthy given the
rareness

of

the

disease.

The

fact

that

Auerbach

discounts his book chapter does not negate his long
history of diagnosis of SJS and TEN and in dermatology
in general.
Defendant
methodology

Karumanchi
in

next

concluding

challenges

that

higher

Auerbach’s
dosages

of

Lamictal cause SJS and TEN in general and in this case.
As

to

general

causation,
26

Auerbach’s

experience

in

diagnosing SJS or TEN, his citation to the Wong and
Mockenhaupt articles, and his 50 years in the field
make his testimony reliable.6

As to causation in this

case, Auerbach found that the higher dosage of Lamictal
caused McBride’s SJS.

Although he did not use the

ALDEN formula as Nineberg did, he provided a rationale
for eliminating other causes.

He rejected infection or

virus because these causes have only been known to lead
to SJS and not the more severe TEN, with which McBride
was diagnosed.

He also mentioned a February 2015 paper

debunking the link between viruses and SJS.

April 13

Daubert hearing (doc. no. 263) at 12:3-15.

Next, as

did Nineberg, he noted that “no knowledgeable set of
doctors,

no

medical

concurrence,

no

teaching

conference” would consider Flagyl as a cause where the

6.
Auerbach did not appear to cite the Wong and
Mockenhaupt articles directly in his deposition, but
instead referred to “the literature” writ large.
Later, in the Daubert hearing, Auerbach clarified this
reference to “the literature” by citing directly to the
articles.
27

patient had been taking 50mg of Lamictal consistently.
Id.

at

11:11-20;

41:2-5.

He

also

noted

that

the

published attribution of Flagyl as a cause of SJS or
TEN came in an isolated case report, which certainly
does not establish it as a probable cause of SJS or
TEN.

Id.

at

43:7-9.

Finally,

he

rejected

any

idiopathic, or unknown spontaneous, cause because he
believes these diagnoses are a result of poor medical
history and, in his 50-year career, has never observed
one.

This reasoned breakdown of the his method for

rejecting the other potential causes is far from the
situation in the unpublished case cited by defendants,
Brown v. Roche Labs., Inc., 567 Fed. App’x 860, 863
(11th Cir. 2014), in which the expert admitted during
the deposition that the defendant was exposed to two
drugs during the relevant time frame, and either could
have caused SJS or TEN.

Indeed, Auerbach has been

consistent and adamant that other explanations have no
basis in science or common sense.
28

In sum, the court finds Auerbach’s qualifications
acceptable and his methodology reliable.

His testimony

will not be excluded.

II. ALABAMA-LAW-BASED CHALLENGE TO DR. RODGERS
In addition to the Daubert challenges, Karumanchi
renews his challenge to Dr. Rodgers’s qualifications
under an Alabama law requiring that an expert be a
“similarly

situated

healthcare

provider”

defendant.

1975 Ala. Code § 6-5-548.7

to

the

He argues that

7.
Karumanchi contends that the magistrate judge
erred by analyzing this comparison under § 6-5-548(b)
rather than § 6-5-548(c). Because the court finds that
Rodgers is qualified under either standard, it will
adopt Karumanchi’s position for purpose of argument.
1975 Ala. Code § 6-5-548(c) states:
“Notwithstanding any provision of the
Alabama Rules of Evidence to the
contrary, if the health care provider
whose breach of the standard of care
is claimed to have created the cause
of
action
is
certified
by
an
appropriate
American
board
as
a
specialist, is trained and experienced
in a medical specialty, and holds
(continued...)
29

Rodgers

is

not

similarly

situated

because

her

psychiatry practice was in an outpatient setting while
Karumanchi practiced in a hospital.

For support, he

relies on Holcomb v. Carraway, 945 So. 2d 1009 (Ala.
2006).

This reliance is misplaced.

Holcomb involved a plaintiff suing her surgeon for
“negligently fail[ing] to perform a biopsy ... at the
proper

time,”

and

her

radiologists

for

misreading

himself
or
herself
out
as
a
specialist,
a
‘similarly
situated
health care provider’ is one who meets
all of the following requirements:
(1) Is licensed by the appropriate
regulatory board or agency of this or
some other state.
(2) Is trained and experienced in the
same specialty.
(3) Is certified by an appropriate
American board in the same specialty.
(4) Has practiced in this specialty
during the year preceding the date
that
the
alleged
breach
of
the
standard of care occurred.”

30

mammograms.

Id. at 1011, 1014.

The plaintiff offered

two expert witnesses: one for the surgeon and one for
the

radiologists.

surgeon

was

a

The

doctor

expert
who

testifying

was

about

the

board-certified

in

internal medicine, hematology, and medical oncology but
was not certified in surgery and had never performed a
biopsy.

Id. at 1014-15.

The expert was excluded under

Alabama law because he was not certified in the same
specialty as the defendant surgeon.
radiology

expert

was

different reason.

also

The plaintiff’s

disqualified,

but

for

a

He was a certified radiologist, but

he had not performed mammograms in several years and
was disqualified under federal law from interpreting
mammograms during the time frame of the alleged breach
by

the

Although

defendant
this

radiologists.

expert

met

the

Id.

at

1015-16.

requirements

in

§ 6-5-548(c), the trial court could still exclude him
because “the legislature did not intend ... to abrogate

31

the trial court’s discretion in matters of admitting
expert testimony.”

Id. at 1020.

Rodgers is not analogous to either excluded expert
in Holcomb.
Rodgers

First, unlike the surgeon expert, both

and

Karumanchi

psychiatry and neurology.
there

is

a

different

are

board-certified

in

Karumanchi does not suggest
certification

in

hospital

psychiatry and Rodgers testified that she could easily
step back into a hospital after learning the hospital’s
routine.

March 18 Daubert hearing (doc. no. 260) at

119:8-21.

A

hospital

practice

and

an

outpatient

practice are not different specialties under Alabama
law.
That

leaves

discretion,

as

Karumanchi
the

radiologist expert.
(doc.

no.

analysis
witness

199)
because

may

at
it

satisfy

to

Holcomb

rely

on

court

the

did

court’s
for

the

See Karumanchi’s Mot. to Exclude
21

(“Holcomb

establishes
the

is

that

technical
32

central
even

to

this

where

requirement

a

under

Ala.

Code

§ 6-5-548(c),

discretion....”).

the

trial

court

retains

But, Karumanchi could not identify

any good reason why the court should disregard Rodgers.
When

asked

material

in

the

Daubert

difference

hearing

between

a

why

there

psychiatrist

is
in

a
a

hospital-based practice prescribing Lamictal as opposed
to

a

psychiatrist

in

an

outpatient

practice,

Karumanchi’s counsel had no response except the bare
conclusion that the practices are different.

That is

not enough for the court to check its common sense at
the

door.

Consider,

for

example,

a

case

where

a

doctor is charged with malpractice for giving aspirin
to

a

hospital

patient

who

is

allergic

to

it.

The

hospital setting would be immaterial to whether that
prescription
from

outside

constituted
of

the

malpractice,

hospital

who

and
also

an

expert

prescribes

aspirin could testify that one should not give aspirin
to people who are allergic to it.

Likewise, finding no

reason why a hospital setting is different for whether
33

and

in

what

Lamictal,

the

dosage
court

a

psychiatrist

holds

that

should

Rodgers

is

prescribe
similarly

situated to Karumanchi in this case.

***
For

the

defendant
Robert

foregoing

Dinesh

Auerbach,

reasons,

Karumanchi’s
Dr.

Carla

it

motion
Rodgers,

is

ORDERED

to
and

that

exclude
Dr.

Dr.

Allan

Nineberg (doc. no. 199) is denied.
DONE, this the 11th day of June, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE