SCCI Hospitals of America LLC v. Auto-Owners Insurance Company et al

Filing 107

OPINION AND ORDER DENYING 76 MOTION To Bar Testimony of Dr. Drayton Graham Under FRE 702. Signed by Judge Damon R Leichty on 11/17/2021. (bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SCCI HOSPITALS OF AMERICA, LLC
d/b/a KINDRED HOSPITAL NORTHERN
INDIANA,
Plaintiff,
v.

CAUSE NO. 3:18-CV-863 DRL

HOME-OWNERS INSURANCE CO. et al.,
Defendants.
OPINION & ORDER
Home-Owners Insurance Company moves to exclude opinion testimony of SCCI Hospitals
of America, LLC d/b/a Kindred Hospital Northern Indiana’s medical causation witness, Dr. Drayton
Graham, arguing the opinion is unreliable and unhelpful under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The court denies the motion.
BACKGROUND
The morning of September 25, 2017, a 35-year-old woman, identified as “the patient” in the
complaint, was driving in Michigan, talking on the phone with her husband, and telling him that she
felt dizzy. Shortly after, though it remains unclear how long, the patient was involved in a significant
car accident. She veered into oncoming traffic, off the road, and accelerated from 49 to 56 miles per
hour before crashing headfirst into a utility pole. Her vehicle’s crash computer recorded the collision
at 8:23 a.m. When paramedics arrived at 8:30 a.m., the airbags had deployed, and the patient remained
in the driver’s seat—unresponsive, without a pulse, wearing her seatbelt.
Extracting her from the vehicle, paramedics started cardiopulmonary resuscitation (CPR) at
8:31 a.m. and defibrillated her at 8:34 a.m. after noting the presence of ventricular fibrillation (VF)—
a dangerous abnormal heart rhythm when the lower heart chambers stop pumping blood to the body,

which can lead quickly to death without treatment.1 She was taken to the local emergency room and
admitted for VF cardiac arrest. She was transferred to the University of Chicago’s Neuro ICU where
her care was medically complex before being transferred to Kindred Hospital Northern Indiana for
long-term care. Treatment for damage to her brain from oxygen deprivation after the cardiac event,
as well as other complications, required her to remain at Kindred until May 29, 2018.
The patient, insured through her husband by Home-Owners, submitted a claim under her
Michigan no-fault automobile insurance policy for the costs incurred (including medical costs) from
the accident. Home-Owners investigated the claim, concluded that the patient’s cardiac event occurred
before the accident, and denied the claim for medical expenses related to cardiac arrest and anoxic
brain injury.
The patient’s insurance benefits were assigned to SCCI, who does business as Kindred
Hospital and who pursued this suit. Kindred retained Dr. Drayton Graham, a board-certified critical
care pulmonologist and internist, to review the patient’s medical records and other materials related
to the accident. Dr. Graham concluded that the patient’s cardiac event was caused by blunt force
trauma and occurred after the accident, and that Kindred’s medical care was clinically necessary.
Home-Owners challenges the reliability and helpfulness of this opinion.
STANDARD
A witness may testify in the form of an expert opinion when (1) the witness is “qualified as an
expert by knowledge, skill, expertise, training, or education;” (2) the testimony is “based on sufficient
facts or data;” (3) the testimony is “the product of reliable principles and methods;” and (4) the witness
has “reliably applied the principles and methods to the facts of the case” in such a way that the
testimony will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.

Mayo Clinic, Ventricular fibrillation, https://www.mayoclinic.org/diseases-conditions/ventricularfibrillation/symptoms-causes/syc-20364523 (last visited Nov. 10, 2021).
1

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R. Evid. 702. Although analysis under Rule 702 remains at all times flexible, Daubert, 509 U.S. at 594,
the fundamental considerations of what makes expert opinion admissible are well understood, see
Constructora Mi Casita, S de R.L. de C.V. v. NIBCO, Inc., 448 F. Supp.3d 965, 970-71 (N.D. Ind. 2020).
In short, the Federal Rules of Evidence strike a balance between two competing concerns: the
apprehension for the free-for-all admission of unreliable theories that might baffle juries and a “stifling
and repressive scientific orthodoxy” that might inhibit new truths or legitimate cases. Daubert, 509 U.S.
at 596. While preserving that balance, the Daubert analysis is not a substitute for crossexamination,
contrary and compelling evidence, thoughtful jury instructions, and other methods inherent in federal
trials to challenge shaky evidence. Id.; see also Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 766 (7th Cir.
2013). The proponent of expert testimony must establish its admissibility by a preponderance of the
evidence. Varlen Corp. v. Liberty Mut. Ins. Co., 924 F.3d 456, 459 (7th Cir. 2019).
The court needn’t conduct an evidentiary hearing here. No party has requested one. The
briefing, proffered expert reports, medical records, accident report, exhibits, and deposition testimony
also permit the court to rule. See, e.g., Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998); Target
Mkt. Pub., Inc. v. ADVO, Inc., 136 F.3d 1139, 1143 n.3 (7th Cir. 1998).
DISCUSSION
This case presents largely a single question for trial next month: whether the patient’s cardiac
arrest and subsequent anoxic brain injury, precipitating then a great deal of treatment and cost,
occurred before the accident or because of the accident. Dr. Graham proposes to testify that her
injuries occurred as a result of the accident—either from direct trauma to the patient’s chest or from
the biophysical trauma of being in a significant car accident. Home-Owners says this opinion isn’t
helpful, based on sufficient facts or data, or methodologically reliable.

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A.

Dr. Graham’s Opinion Will Help the Jury Decide an Issue of Consequence.

A court should exclude testimony unless it speaks, without confusing or misleading the jury,
to a relevant issue that the jury must decide. See Fed. R. Evid. 403, 702; see, e.g., Hartman v. EBSCO
Indus., 758 F.3d 810, 819 (7th Cir. 2014). To be helpful, the opinion must aid the jury to decide an
issue of consequence. The court must determine whether an expert’s “reasoning or methodology
properly can be applied to the facts in issue,” Daubert, 509 U.S. at 593, and whether the witness’s
knowledge “will help the trier of fact to understand the evidence or to determine a fact in issue,” Fed.
R. Evid. 702(a). Opinions must be tied to case facts and issues. See Kumho Tire Co. v. Carmichael, 526
U.S. 137, 150 (1999). This is what is commonly called fit. See Daubert, 509 U.S. at 591.
An opinion must be “something more than what is obvious to the layperson,” Ancho v. Pentek
Corp., 157 F.3d 512, 519 (7th Cir. 1998) (internal quotation omitted), though an “opinion may overlap
with the jurors’ own experiences or cover matters that are within the average juror’s comprehension,
so long as the expert uses some kind of specialized knowledge to place the litigated events into
context,” Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 484 (7th Cir. 2020), cert. denied, 141 S. Ct. 2877
(2021) (internal quotations and alterations omitted). Home-Owners argues that Dr. Graham’s
testimony won’t assist the jury because it is based on common sense, basic logic, and what everybody
knows already. Kindred responds that some of an expert’s testimony can be within the scope of a lay
jury’s knowledge, but that Dr. Graham used phrases such as “common sense” and “logic” in the
context of medical expertise, not in the lay sense.
Dr. Graham is a medical doctor with almost fifty years of experience. After his undergraduate
degree at Columbia College, he graduated from Harvard Medical School in 1973. He completed his
internship and residency in internal medicine at Harbor UCLA Medical Center and a separate
fellowship in pulmonary disease there. He has worked at various hospitals over decades in practice
and has held leadership positions at many. He is a board-certified pulmonologist who specializes in

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pulmonary critical care and internal medicine. He regularly treats patients with cardiac arrest, including
from trauma.
Unsurprisingly, his passing references to common sense and common knowledge are cast in
light of his significant medical experience. He is plain spoken, but his opinion is no less erudite. For
example, Dr. Graham testified that “everybody knows” that cardiac arrhythmia can be caused by chest
trauma from an automobile accident because serious heart injury can occur from even lesser forces to
the chest. “Everybody” wasn’t meaningfully intended to mean the common layperson on the street.
Though most every critical care pulmonologist or internist worth his or her salt may know this, it
proves beyond a layperson’s knowledge. What conditions, forces, or trauma may cause cardiac
arrhythmia, or what the dynamics of cardiac arrhythmia are, well exceeds a typical jury.2
Dr. Graham also testified that it was “common knowledge” that an individual almost
immediately loses consciousness upon ventricular fibrillation, thus the patient could not have been
speaking to her husband or accelerating her vehicle when this event occurred. The latter may be
understandable to a jury but only after the jury understands what ventricular fibrillation is, what effect
it has on the human body, its relationship to consciousness and motor control, and the speed by which
one precipitates the other. Despite Dr. Graham’s plain verbiage, his concept of “common knowledge”
is demonstrably common knowledge within the medical field—precisely the type of specialized
knowledge for which an expert is needed. See Fed. R. Evid. 702; Ancho, 157 F.3d at 519.
Dr. Graham readily concedes that some of the underlying assumptions to his opinion are
based on true common sense. For example, seatbelts restrain individuals and thus concentrate damage
to the belted area [ECF 77-2 at 40], and high impact accidents impose more force on an individual

An arrhythmia is any irregular heartbeat that occurs when cardiac electrical signals don’t work properly. Mayo
Clinic, Heart arrhythmia, https://www.mayoclinic.org/diseases-conditions/heart-arrhythmia/symptomscauses/syc-20350668 (last visited Nov. 10, 2021). The deposition transcript identifies this word as
“eurhythmia,” but the context of the discussion suggests that this is a transcription error—in part, suggesting
proof of the point.
2

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than low impact accidents [id. 47-48]. Though these assumptions trend more toward the obvious, an
expert opinion may touch on issues within a layperson’s knowledge while providing specialized
context for understanding how to connect the dots, to utilize that knowledge within a medical field
otherwise foreign to the jury, and to understand how these assumptions may or may not translate to
that area of expertise. See Viamedia, 951 F.3d at 484; Ancho, 157 F.3d at 519 (citing Schutt Mfg. Co. v.
Riddell, Inc., 673 F.2d 202, 205 (7th Cir. 1982)).
For instance, just because a layperson may understand that positive and negative charges
attract doesn’t mean she understands this dynamic within the context of the Large Hadron Collider.
Just because a jury member understands the general principle of gravity doesn’t mean he understands
“that it causes an object to fall at the rate of 9.8 meters/second2 (without regard to mass) or use that
to calculate the impact force of a falling object on an individual.” Smith v. Nexus RVs, 472 F. Supp.3d
470, 479 (N.D. Ind. 2020). A distinguishing feature of an expert is the ability to take the case’s facts,
synthesize them in light of the expert’s specialized knowledge or expertise, and thereby aid the jury to
reach a conclusion otherwise unreachable through its own devices, even if some of the building blocks
touch on areas within the jury’s common knowledge. See Viamedia, 951 F.3d at 484. In short, Dr.
Graham’s testimony, consistent with Rule 702 and despite his occasional plain-spoken verbiage, aids
the jury here by providing medical knowledge for the jury to decide an issue of consequence—whether
the patient’s cardiac arrest and subsequent anoxic brain injury occurred before or because of the
accident. His opinion is helpful under Daubert.
B.

Dr. Graham’s Opinion Is Based on Sufficient Facts and Data.

An opinion witness must have a sound factual basis to be declared an expert. Fed. R. Evid.
702(b), 703; Daubert, 509 U.S. at 590. Even if eminently qualified, experts cannot offer opinions based
solely on their say-so (what lawyers call ipse dixit). See Kumho Tire, 526 U.S. at 157; Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997). Expert testimony must be based on sufficient and known facts. Fed R. Evid.

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702; Daubert, 509 U.S. at 590; see, e.g., Wasson v. Peabody Coal Co., 542 F.3d 1172, 1176 (7th Cir. 2008)
(evidence of one sale was an insufficient basis to calculate an average of sales over twenty years); Ervin
v. Johnson & Johnson, Inc., 492 F.3d 901, 904-05 (7th Cir. 2007) (excluding testimony because the “mere
existence of a temporal relationship” was an unreliable basis to show a causal relationship between
medication and symptoms without a physiological explanation or supporting data). “The critical
inquiry is whether there is a connection between the data employed and the opinion offered” and
whether the expert employed “those kinds of facts or data on which experts in the field would
reasonably rely.” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781 (7th Cir. 2017) (internal
quotation omitted); see also Fed. R. Evid. 703.
In part, Dr. Graham opines that the pressure from the patient’s seatbelt caused her cardiac
arrest. Home-Owners says this opinion lacks a sufficient factual basis. The insurer argues that this
opinion looks past the seatbelt the patient wore, her size, her type of car, whether she had bruises on
her chest, and any calculations of force at work during the collision. Kindred says Home-Owners is
mischaracterizing Dr. Graham’s opinion. He instead proposes to testify that the trauma of the
accident, whether through the seatbelt or the collective impact of a serious accident, caused her cardiac
arrest—an opinion based on Dr. Graham’s extensive review of her medical records, relevant medical
literature, key medical findings, and his near fifty-year experience.
Home-Owners’ concerns go to weight, not admissibility. An opinion witness must have
sufficient facts or data to support his opinion, but the “soundness of the factual underpinnings of the
expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual
matters to be determined by the trier of fact.” Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th
Cir. 2013) (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). Reliability often focuses
on the witness’s methodology, “not the quality of the data used in applying the methodology or the
conclusions produced.” Id. The data here is reliable nonetheless. The protocol for raising these

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concerns of Home-Owners is crossexamination at trial. See Daubert, 509 U.S. at 596. This isn’t a
situation in which Dr. Graham proposes an opinion without sufficient facts. See, e.g., Stollings, 725 F.3d
a 766 (“if an expert seeks to testify about an average gross sales price but is going to base the testimony
on sales to only a single customer, a court would appropriately exclude the testimony because a single
observation does not provide a sufficient basis for calculating an average”).
Dr. Graham bases his causation opinion on the patient’s medical records; clinical appeals;
physician progress notes; pharmaceutical administration records; the accident report; medical
textbook entries on sudden cardiac death, ventricular fibrillation, and chest trauma; medical articles;
consultations with other physicians; all then seen through the lens of his almost fifty years of
experience in pulmonary critical care and internal medicine. From these myriad sources, he observes
that the patient, who was obese but not otherwise at a higher risk for a spontaneous heart attack,
suffered trauma to her chest wall, as demonstrated by a partial collapsed lung, a lung contusion, six
fractured ribs, and elevated troponin levels (a specific enzyme associated with frontal cardiac damage).
Home-Owners doesn’t argue that a physician would rely on other evidence to form an opinion, or
that these telltale indicia of trauma were outside those customarily considered by doctors in Dr.
Graham’s field.
Based on his experience as a physician specializing in critical care pulmonology and internal
medicine, as well as his review of the relevant literature, Dr. Graham says trauma to the chest wall can
cause cardiac arrest and a car barreling into a utility pole at 56 miles per hour imparted enough trauma
to trigger cardiac arrest in this patient. This opinion proves well within his wheelhouse—and one built
robustly on a panoply of medical information. Dr. Graham opines that it would be “distinctly unusual
for any 35-year-old with [her medical] history, let alone a woman, to go into [ventricular fibrillation]
in the absence of trauma (or other provocation) like the [p]atient experienced during her motor vehicle
accident”—something too that rests on a sound factual basis. Indeed, despite nearly fifty years of

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practice, Dr. Graham could not recall ever treating an individual like the patient for unprovoked
cardiac arrest. His opinion—that medically the most probable cause of the patient’s cardiac arrest and
ensuing hospitalization was trauma to the heart, thorax, and lungs and the physiologic stress of the
collision—rests on sufficient data, scientific literature, and his significant medical experience. To the
extent that Home-Owners believes that a physician’s opinion of this nature requires a foray into
Newtonian physics or other principles of biomechanics, the company has crossexamination at its
disposal.
C.

Dr. Graham’s Proposed Opinion is Reliable.

Expert testimony must originate from reliable principles and methods. Fed. R. Evid. 702(c).
Daubert helps “to make sure that when scientists testify in court they adhere to the same standards of
intellectual rigor that are demanded in their professional work.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316,
318 (7th Cir. 1996); accord Kumho Tire, 526 U.S. at 152. Scientific or medical testimony may be validated
if the theory or technique can be or has been tested, if it has been subjected to peer review and
publication, if it has a known or potential error rate, and if it enjoys general acceptance in the relevant
scientific community. Daubert, 509 U.S. at 593-94; Gopalratnam, 877 F.3d at 779.
In the context of medical causation testimony, a physician will often employ differential
etiology—a known and accepted methodology to determine the cause of a medical event. Robinson v.
Davol Inc., 913 F.3d 690, 696 (7th Cir. 2019) (citing Myers v. Illinois Cent. R.R. Co., 629 F.3d 639, 644
(7th Cir. 2010)). Applying “differential etiology, the doctor rules in all the potential causes of a patient’s
ailment and then by systematically ruling out causes that would not apply to the patient, the physician
arrives at what is the likely cause of the ailment.” Myers, 629 F.3d at 644. The reliability of such medical
causation opinion focuses on “which potential causes should be ‘ruled in’ and which should be ‘ruled
out.’” Id. (citing Ervin, 492 F.3d at 904).

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To apply this methodology, a physician must first establish the reliability of a potential cause
to “rule in” that cause for consideration among the candidates and then must reliably “rule out” the
candidates to arrive at his conclusion as to the most likely cause. See Robinson, 913 F.3d at 696; Ervin,
492 F.3d at 904. The court has discretion to consider whether the proposed expert has adequately
accounted for obvious or other reasonable explanations. Brown v. Burlington N. Santa Fe Ry. Co., 765
F.3d 765, 773 (7th Cir. 2014). “The expert need not exclude all alternatives with certainty” because a
physician, like other court-approved experts, will testify to a reasonable degree of certainty—the cause
that the record establishes is more likely true than not. Id.
Home-Owners argues that Dr. Graham’s methodology is unreliable because he made no effort
to determine all potential causes of the patient’s cardiac arrest and then eliminate them and he cannot
cite any medical studies to support his trauma theory. Kindred responds that Dr. Graham properly
employed differential etiology.
The court starts with the “ruling in” phase. Dr. Graham starts with the proposition that blunt
force trauma, underlying disease, various biochemical and electrolyte imbalances, hypoxemia, and
shock all can reasonably lead to ventricular fibrillation—his catalogue of candidates under the rubric
of general causation. He testified that a “vast majority” of individuals who suffer ventricular fibrillation
have an underlying disease and the proportion of individuals who experience idiopathic ventricular
fibrillation—that with no known cause—is “very small” and “primarily male dominated.”
That blunt force trauma can cause ventricular fibrillation isn’t novel. Dr. Graham cites no
specific study for this conclusion but explains that “everyone [in the medical profession] knows” it.
Though an opinion witness cannot rely merely on his say-so, even a brief survey of medical literature
demonstrates the link between chest wall injury and ventricular fibrillation (commotio cordis)—from
sporting injuries, traumatic falls, and motor vehicle accidents. In addition, Home-Owners’ proffered
expert acknowledges the existence of medical literature describing blunt force chest trauma as causing

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ventricular fibrillation, albeit in the context of smaller forces [ECF 80-12 at 48-49], and HomeOwners’ medical review further echoed this conclusion [ECF 80-6 at 3 (“Vfib . . . can be caused by
blunt force trauma. . . which would have been a result of the [motor vehicle collision].”).
Perhaps recognizing this, Home-Owners focuses on the particular mechanisms of physical
trauma sufficient to trigger the patient’s cardiac event, arguing that Dr. Graham presented a novel
theory—the airbag or the seatbelt caused her ventricular fibrillation—without also providing support
in the literature or quantitatively substantiating that any component of the accident applied sufficient
force to initiate the cardiac event. But Dr. Graham’s testimony is broader than just a theory built on
trauma from a seatbelt or an airbag. Instead, it encompassed the entire biophysical trauma on the
patient’s body from the crash. This patient suffered massive trauma from driving into a pole at 56
miles per hour, resulting in bilateral rib fractures (six total), pulmonary contusions, a collapsed lung,
and biochemical signs of heart trauma. There is nothing unreliable about ruling in trauma as a
reasonable cause of ventricular fibrillation, particularly given these medical findings and the trauma
theory’s support in the medical community, peer review, and publication.
The court thus turns to the “rule out” phase. Home-Owners argues that Dr. Graham ignored
other potential causes before concluding that the patient’s cardiac arrest was caused by chest wall
trauma. The obvious alternative cause, Home-Owners says, is some undiagnosed underlying ailment
or chemical imbalance.
To apply differential etiology, Dr. Graham needed to exclude these alternative explanations
reliably by explaining why they weren’t medically probable. See Brown, 765 F.3d at 773. He looked at
the patient’s medical history and the known circumstances leading up to, and immediately after, the
accident. He noted her obesity, hypertension, and a slight swelling of her heart, though she lacked any
underlying disease known to increase her risk of heart attacks and had an otherwise normal functioning
heart. He noted that the patient had been prescribed diuretics, but there was no evidence to suggest

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she had taken them (and her husband indicated she wasn’t). Dr. Graham considered the impact of
obesity and her preexisting medical conditions on the patient’s risk for a heart attack, but concludes
that absent an underlying condition, these factors alone would not place her at higher risk. He also
examined the patient’s physiological characteristics, such as gender, age, and reported symptoms
before the crash, concluding that it was unlikely that a young woman without an underlying heart
condition or a family history of heart conditions would spontaneously fall into ventricular fibrillation.
This is a point with which Home-Owners’ proffered expert seems to concur [ECF 80-14 at 52 (noting
that it would be “very rare” for a 35-year-old woman with no underlying disease to suffer a
spontaneous cardiac arrest)].
Dr. Graham also cites to the timeline of events to bolster his medical causation opinion. He
concludes that the patient was not in ventricular fibrillation when speaking with her husband
immediately before the accident, despite noting that she felt dizzy, because ventricular fibrillation
causes unconsciousness and she did not report to her husband any other symptoms likely to occur
before a cardiac event such as pain or discomfort in her chest, arms, back, neck, jaw, or stomach,
vomiting, or shortness of breath. Dr. Graham could not “imagine a scenario whereby the Patient went
from driving, speaking and feeling dizzy directly to [VF] in the absence of the trauma suffered in that
accident” [ECF 77-3 at 4]. Again, this is a point with which Home-Owners’ proffered expert agrees
[ECF 80-14 at 87 (an individual experiencing ventricular fibrillation cannot talk)].
At his deposition, Dr. Graham testified that the amount of time between the patient’s accident
at 8:23 a.m. and when paramedics started CPR at 8:31 a.m. and defibrillated at 8:34 a.m. also counseled
against a pre-accident cardiac event. Citing to the Advanced Cardiovascular Life Support (ACLS)
manual, Dr. Graham stated that an individual cannot go without oxygen for more than four to five
minutes without experiencing brain injury [ECF 77-2 at 101-03; ECF 80-10 at 2 (brain damage from
lack of oxygen: 4-6 minutes no damage, 6-10 minutes damage likely, 10 minutes damage irreversible)].

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Had ventricular fibrillation precipitated the accident, the patient would have been without oxygen for
over 9 minutes before CPR was initiated, and over 11 minutes before defibrillation was administered.
In Dr. Graham’s opinion, had the patient been without oxygen this long, she would not have survived
[ECF 77-2 at 102-03].
Finally, Dr. Graham notes that the vehicle’s black box indicated that it accelerated just before
the accident. This fact also counseled against a pre-accident cardiac event because an unconscious
person cannot press an accelerator [ECF 77-2 at 161]. Based on these considerations, he ruled out
alternative causation theories, and concluded it was “medically most probable that the trauma of the
impact to the heart, thorax and lungs of the Patient and physiologic stress of the automobile collision
were the cause of the Patient’s cardiac arrest” and the “blunt chest wall trauma [was] overwhelmingly
the likely cause of her ventricular fibrillation/cardiac arrest” [ECF 77-3 at 4-5]. Home-Owners has
not shown that these ruling out deliberations were unreliable in any way.
The insurer’s arguments go to weight, not admissibility. For instance, Home-Owners argues
that Dr. Graham does not know how long before the accident the patient was speaking with her
husband, and that she could have finished speaking, then gone into ventricular fibrillation and crashed
her car. That strikes the court as speculative in argument. On this record the company has not
demonstrated what caused the call to end, and its speculation that the conversation ended naturally
isn’t a basis to undermine the sound rationale that Dr. Graham offers to exclude a pre-accident cardiac
event. The trial might present additional facts, but that will bear on the jury’s determination of weight,
not the court’s determination of reliability.
Home-Owners also argues that Dr. Graham isn’t an expert in cars or physics such that his
assumption that an unconscious individual cannot press an accelerator is based on guesswork. This
point really goes to neither admissibility nor weight because even a jury will understand that an
unconscious individual by definition is incapable of acting intentionally. That isn’t guesswork, but

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common sense. The argument here seems no more sophisticated. For instance, Home-Owners isn’t
saying an unconscious individual could slump forward, apply greater pressure to the gas pedal, and
thus accelerate the vehicle. Even so, that point would go to crossexamination and weight.
Home-Owners also argues that Dr. Graham’s assessment is flawed because he doesn’t explain
why he ruled out a pre-collision heart attack when the evidence, according to Home-Owners, is
entirely consistent with someone who had a heart attack before hitting the utility pole. But Dr.
Graham’s opinion is based on his application of differential etiology to conclude what caused the
patient’s heart attack. He reached this opinion by examining the likely causes of ventricular fibrillation
and then systematically ruling them out based on the patient’s history and the circumstances of the
accident, ultimately rejecting Home-Owners’ theory of causation by concluding she had no underlying
predisposition to heart attacks [ECF 77-3 at 4], her only reported symptom was dizziness that could
not have been communicated to her husband while in VF [ECF 77-3 at 4-5], was likely conscious
because she pressed the accelerator [ECF 77-2 at 161], and that the time the patient would have been
without oxygen (had the cardiac incident occurred before the crash) would have been most likely fatal
(though she didn’t die) [ECF 77-2 at 102-03]. Home-Owners may not agree with his conclusion, but
the company’s disagreement does not go to admissibility.
Home-Owners notes that Dr. Graham’s opinion further lacks reliability because he bases his
opinion only on his experience with own patients; but Dr. Graham testified that in addition to his
own experience, he reviewed medical texts and literature about sudden cardiac death, ventricular
fibrillation, and chest trauma, the panoply of source data here, as well as conferred with a cardiologist,
an electrophysiologist, and another pulmonologist who concurred with his conclusions. He could
properly rely on these other physicians in peer review or in gathering additional data so long as he isn’t
a mouthpiece for their expertise. In short, Dr. Graham’s sources are hallmarks of reliability that, with
many other indicia of reliability, signal to the court to open its gate. Gopalratnam, 877 F.3d at 779-80.

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CONCLUSION
Dr. Drayton Graham’s proffered opinion on medical causation is both reliable and helpful
under Rule 702. Accordingly, the court DENIES Home-Owners’ motion to exclude his testimony
[ECF 76].
SO ORDERED.
November 17, 2021

s/ Damon R. Leichty
Judge, United States District Court

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