Crawford v Safeway, Inc.

Filing 93

ORDER that Safeway's Daubert Motion to Exclude Proposed Expert Testimony and Report of Henry C. Nipper, Ph.D. (Filing No. 79 ) is denied. Safeway's Motion for Summary Judgment (Filing No. 89 ) is denied without prejudice. The parties shall have to on or before October 6, 2016, to file any motion for summary judgment. Ordered by Magistrate Judge Thomas D. Thalken. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN CRAWFORD,
as Personal Representative of the
Estate of Hilary Crawford, Deceased,

7:14CV5001

Plaintiff,
ORDER
vs.
SAFEWAY, INC.,
a Delaware Corporation,
Defendant.
This matter is before the court on Safeway, Inc.’s (Safeway) Daubert Motion to
Exclude Proposed Expert Testimony and Report of Henry Nipper, Ph.D. (Filing No. 79).
Safeway contends Dr. Nipper’s opinion lacks reliability. Safeway filed a brief (Filing No.
81) and an index of evidence (Filing No. 80) in support of the motion. Brian Crawford
(Crawford) filed a brief (Filing No. 82) and an index of evidence (Filing No. 83) in
opposition to Safeway’s motion. Safeway filed a brief (Filing No. 85) and an index of
evidence (Filing No. 86) in reply. For the reasons set forth below, the court denies
Safeway’s motion.
BACKGROUND
Here, Crawford seeks to recover damages for the wrongful death of his wife,
Hilary Crawford (Mrs. Crawford), on April 10, 2012.

See Filing No. 6 - Amended

Complaint ¶ 1. The amended complaint alleges the following facts. Dr. Michael L.
Matthews (Dr. Matthews) provided healthcare services to Mrs. Crawford from December
5, 2011, through April 6, 2012. Id. ¶ 8. From March 9, 2012, through April 6, 2012, Dr.
Matthews prescribed contraindicated drugs (fluconazole and methadone) to Mrs.
Crawford, and both prescriptions were filled at Safeway’s pharmacy in Sidney,
Nebraska. Id. ¶¶ 7, 10. Crawford contends Safeway’s registered pharmacists were
negligent in dispensing the fluconazole and methadone prescriptions to Mrs. Crawford,
thus, Safeway is liable for Mrs. Crawford’s death. Id. ¶¶ 7, 14.
To prove causation, Crawford has retained Dr. Henry C. Nipper (Dr. Nipper),
Ph.D., DABCC, as an expert witness on toxicology. See Filing No. 80-1 - Ex. 1 Nipper

Depo. p. 1. Dr. Nipper is a professor of Pathology at the Creighton University School of
Medicine.

Id.

He practices clinical chemistry and is an affiliated toxicologist.

Id.

Previously, Dr. Nipper ran a Forensic Toxicology lab, which conducted toxicology
analysis for 43 Nebraska and 12 Iowa counties. Id. As Crawford’s expert witness, Dr.
Nipper issued a written expert report on October 29, 2015, and Safeway deposed Dr.
Nipper on May 16, 2016. See Filing No. 81 - Brief p. 1. According to Dr. Nipper’s
expert report, he consulted seven scientific journal as sources before he rendered his
expert opinion pertaining to Mrs. Crawford’s death. See Filing No. 80-6 - Ex. 1(E)
Expert Report p. 19-21. A subpart of Dr. Nipper’s expert report states:
The autopsy revealed no respiratory depression or pleural
effusions . . . . Given that Hilary Crawford did not present
with symptoms of respiratory depression, but rather died
suddenly, it appears that she was the victim of QT interval
prolongation and torsades de pointes (TdP) that resulted
from the interaction of fluconazole and methadone.
According to Pearson and Woosley (7) “Both QT
prolongation and TdP are events that can only be reported if
captured on an ECG.” That, of course, was impossible to
attain in this case because of Ms. Crawford’s sudden
demise.
***
It is my opinion, to a reasonable scientific certainty,
that the combination of methadone and fluconazole
administered to Hilary Crawford resulted in a higher level of
methadone in her body and that the combination of drugs
and their interaction were the cause of her death.
Id. at 21 (emphasis added).
Safeway denies liability in this case and has moved to exclude Dr. Nipper’s
expert report and anticipated testimony from trial.

See Filing No. 79 - Motion ¶ 1.

Safeway argues Dr. Nipper’s opinion lacks foundation and certainty and it is speculative
in nature. Id. ¶¶ 2, 7. Safeway argues Dr. Nipper’s opinion is not reliable because in Dr.
Nipper’s deposition he would not answer with “certainty” when stating Mrs. Crawford
died of QT interval prolongation and TdP. Id. ¶ 7. Safeway further argues Dr. Nipper’s
opinion is based on speculation because no ECG report was available for Dr. Nipper to
make the determination Mrs. Crawford died of QT interval prolongation and TdP. Id. ¶¶
3, 7. Safeway contends Dr. Nipper’s deposition testimony reveals Dr. Nipper failed to
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recognize signs and symptoms of respiratory depression in general. Id. ¶ 5. And Dr.
Nipper misquoted a source in his expert report. See Filing No. 81 - Brief p. 15-16.
In opposing Safeway’s motion, Crawford contends, “[a] perceived weakness with
the sufficiency of an expert’s foundation does not necessarily translate into a challenge.”
See Filing No. 82 - Response p. 2 (citing Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993)). Crawford states, “Dr. Nipper performed a differential analysis on
causation [by comparing] two competing theories on the mechanism of [Mrs.
Crawford’s] death and concluded that QT prolongation was the likely mechanism.” Id.
at 8. Crawford argues Dr. Nipper’s expert opinion is sufficiently reliable as it is based
“upon good science and supported by the facts in the record,” and Dr. Nipper confirms
“his opinion was based upon a reasonable degree of scientific certainty.” Id. at 1; see
Filing No. 80-6 - Ex. 1(E) Expert Report p. 21.

ANALYSIS
Federal Rules of Evidence 702 and 703 govern the admissibility of expert
testimony. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014).
The screening requirement of Rule 702 is a three-part test:
First, evidence based on scientific, technical, or other
specialized knowledge must be useful to the finder of fact in
deciding the ultimate issue of fact. This is the basic rule of
relevancy. Second, the proposed witness must be qualified
to assist the finder of fact. Third, the proposed evidence
must be reliable or trustworthy in an evidentiary sense, so
that, if the finder of fact accepts it as true, it provides the
assistance the finder of fact requires.
Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008) (citing Fed. R. Evid. 702).
“An expert’s opinion is to be based on ‘facts and data in the case that the expert
has been made aware of or personally observed.’” Johnson, 754 F.3d at 561 (quoting
Fed. R. Evid. 703). In resolving a Daubert challenge, “[d]istrict courts must ensure that
all scientific testimony is both reliable and relevant.” Marmo v. Tyson Fresh Meats,
Inc., 457 F.3d 748, 757 (8th Cir. 2006). To satisfy the reliability requirement, “the
proponent of the expert testimony must show by a preponderance of the evidence both
that the expert is qualified to render the opinion and the methodology underlying his
conclusions is scientifically valid.”

Id.

To satisfy the relevance requirement, the
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proponent must show “the reasoning or methodology in question is applied properly to
the facts in issue.” Id. “Courts should resolve doubts regarding the usefulness of an
expert’s testimony in favor of admissibility.” Id. (citing Clark By & Through Clark v.
Heidrick, 150 F.3d 912, 915 (8th Cir. 1998)). Nevertheless, “[n]othing in either Daubert
or the Federal Rules of Evidence requires a district court to admit opinion evidence that
is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 137 (1997). Moreover, when the analytical gap between the data
and proffered opinion is too great, the opinion must be excluded. Id. The inquiry as to
the reliability and relevance of the testimony is a flexible one designed to “make certain
that an expert, whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.”

Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999)).
The court may consider several factors in determining the thoroughness of
scientific methodology including: (1) whether the theory or technique can be and has
been tested; (2) whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error and the existence and maintenance
of standards controlling the technique; and (4) whether the theory or technique has
been generally accepted in the relevant scientific community. Daubert, 509 U.S. at
593-94. Furthermore, “Daubert’s progeny provides additional factors such as: whether
the expertise was developed for litigation or naturally flowed from the expert’s research;
whether the proposed expert ruled out other alternative explanations; and whether the
proposed expert sufficiently connected the proposed testimony with the facts of the
case.” Lauzon v. Senco Prod., Inc., 270 F.3d 681, 687 (8th Cir. 2001). The Kumho
Tire Court stated, “the relevant reliability concerns may focus on personal knowledge or
experience” and the factors used to evaluate an expert’s testimony “depend[ ] upon the
particular circumstances of the particular case at issue.” Kumho Tire, 526 U.S. at 150.
Some evidence “cannot be evaluated accurately or sufficiently by the trial judge” in the
procedural environment of a ruling on a motion in limine.

Stiffler v. Fid. National

Mgmt. Servs., LLC, No. 8:14CV231, 2016 WL 2733119, at *1 (D. Neb. May 10, 2016)

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(quoting Jonasson v. Lutheran Child & Fam. Servs., 115 F.3d 436, 439 (7th Cir.
1997)).
“[A]n attack upon the probative sufficiency of evidence relates not to admissibility
but to the weight of the evidence and is a matter for the trier of fact to resolve.” United
States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996) (quoting United States v.
Page, 544 F.2d 982, 987 (8th Cir. 1976)). “Proponents of expert testimony need not
demonstrate that the assessments of their experts are correct, and trial courts are not
empowered ‘to determine which of several competing scientific theories has the best
provenance.’”

Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012) (quoting

Milward v. Acuity Specialty Prod. Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011)). “As
long as the expert’s scientific testimony rests upon ‘good grounds, based on what is
known’ it should be tested by the adversary process with competing expert testimony
and cross-examination, rather than excluded by the court at the outset.” Johnson v.
Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir. 2014) (quoting Daubert, 509
U.S. at 590).
In the motion before the court, Safeway challenges the reliability requirement.
Safeway argues Dr. Nipper’s opinion lacks foundation and certainty and it is based on
speculation; nevertheless, the court disagrees. The Daubert Court noted “it would be
unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a
certainty; arguably, there are no certainties in science . . . . [and] scientists do not
assert that they know what is immutably ‘true.’” Daubert, 509 U.S. at 590 (emphasis
added).
During Dr. Nipper’s deposition, Safeway inquired about Dr. Nipper’s expert
report. See Filing No. 80-1 - Ex. 1 Nipper Depo. p. 18. Safeway asked Dr. Nipper,
“[y]our opinion is that [Mrs. Crawford] suffered a QT event?” Id. Dr. Nipper replied,
“[m]y opinion is that it appears that she suffered [QT prolongation or TdP] because she
was not overdosed on methadone.”

Id. (emphasis added).

Safeway pressed the

question further by asking Dr. Nipper, “[c]an you say that with certainty?”

Id.

(emphasis added). Dr. Nipper replied, “[n]o, because I don’t think we have -- we are
unable, as I said in my opinion, we’re unable to find hard evidence that [Mrs. Crawford]
had QT prolongation or torsades de pointes because we don’t have an EKG.” Id.
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Safeway further asked Dr. Nipper, “Right. So how can we rely on that?” Id. Dr. Nipper
replied, “[h]ow can you rely on it? I don’t think you can. I think you have to trust me.”
Id. at 19. Deposition continued and Dr. Nipper further stated:
To be . . . as conservative as I can, in my 45 years of being
around clinical medicine, that when you don’t have absolute
proof, you have to use clinical judgment, and the clinical
judgment is that if you don’t have for sure a methadone
overdose and the patient is dead and the other alternative
are torsades de pointes and a QT prolongation, that is the
obvious solution . . . .
Id.
Based on the above testimony, Safeway argues, since Dr. Nipper failed to
answer Safeway’s question with certainty, Dr. Nipper’s expert report and anticipated
testimony should be excluded from the upcoming trial. Under the reliability requirement,
an expert’s opinion must be based on scientific methodology and reasonable reliability.
Safeway deviated from Daubert when it attempted to obtain Dr. Nipper’s expert opinion
with absolute certainty. Dr. Nipper is an affiliated toxicologist and has been practicing
pathology and toxicology for 45 years. It is evident from Dr. Nipper’s expert report and
deposition testimony Dr. Nipper used scientific methodology in assessing the cause of
Mrs. Crawford’s death.

In particular, Dr. Nipper compared two competing theories,

respiratory depression and QT prolongation, and Dr. Nipper concluded QT prolongation
was the likely mechanism. Under Daubert, Dr. Nipper is not required to provide an
opinion with an absolute certainty, thus, this court rejects Safeway’s certainty argument.
Safeway further argues Dr. Nipper’s opinion is speculative and ipse dixit. The
reliability prong requires an expert to render an opinion based on scientific methods and
analysis. Here, Dr. Nipper’s theory is Mrs. Crawford suffered QT interval prolongation
or TdP because of the interaction of two drugs, fluconazole and methadone.

In

addition, the Kumho Tire Court made it clear an expert’s testimony “depends upon the
particular circumstances of the particular case at issue.” Kumho Tire, 526 U.S. at 150.
The circumstances of this case show no ECG was available, nevertheless, an expert
has to determine the cause of Mrs. Crawford’s death without an ECG. That is what Dr.
Nipper did. Dr. Nipper concluded that Mrs. Crawford died because of QT Prolongation
and TdP after he read seven scientific journals and analyzed the information and files

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provided to him by Crawford’s counsel. See Filing No. 80-6 - Ex. 1(E) Expert Report
p. 19-21. And after reviewing the exhibits, this court concludes that Dr. Nipper’s opinion
is not based on speculation instead it is based on scientific analysis. Furthermore,
Safeway states Dr. Dan Hilleman, its own expert, reviewed the autopsy report,
concluding there is no evidence in the autopsy report demonstrating Mrs. Crawford died
of QT prolongation and TdP. See Filing No. 81 - Brief p. 9. A contradiction does not
necessarily mean that the information is unreliable. And it is the trier of fact’s role to
determine the credibility of experts, not the court.
Safeway contends Dr. Nipper misquoted one of the sources in his expert report.
See Filing No. 81 - Brief p. 15-16. In Dr. Nipper’s expert report, he cited a scientific
journal titled “Clinical Relevance of the Pharmacokinetic Interactions of Azole Antifungal
Drugs and Other Coadministered Agent,” written by R.J. Bruggemann et al
(Bruggemann). Id. Erroneously, Dr. Nipper analyzed the drug table from Bruggemann
for the drug voriconazole rather than the drug fluconazole. However, Bruggemann does
not discuss voriconazole exclusively, instead Bruggemann discusses multiple azole
antifungal drugs, including, but not limited to, voriconazole and fluconazole. During his
deposition, Dr. Nipper explained:
Bruggemann and Liu were more worried about voriconazole
that they were about fluconazole, but fluconazole is a
problem drug too, and the fact that we’re concentrating on
voriconazole is taking our eye off the ball here.
***
The problem is the fact that we’re looking at
fluconazole and methadone, and I may have made a
mistake in citing this information, but these are all azole
drugs. And if you look at the bigger picture, which is what
UpToDate does in looking at drug interactions, you will see –
you see that – you know, you skipped over the fact that –
that the Lexicomp UpToDate has – has a boxed warning
now for that – for that drug, and – for that drug combination,
and that’s more important to the – that’s more important to
consider the end – the end opinion that these – this
combination should be avoided.
See Filing No. 80-1 - Ex. 1 Nipper Depo p. 21-22 (emphasis added).
Not only did Dr. Nipper confirm he made a citation error during his deposition, but
he did not change his opinion in regard to the cause of Mrs. Crawford’s death. Id. Dr.
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Nipper cited seven scientific articles in his expert report, and this court concludes, Dr.
Nipper’s single citation error is insufficient to exclude Dr. Nipper’s expert report and
anticipated testimony from the upcoming trial.
Safeway further identifies additional instances of inconsistent or conflicting
testimony from others. Safeway contends Crawford’s experts (Drs. Nipper and Schilke)
have inconsistent opinions. See Filing No. 79 - Motion ¶ 6. In addition, Dr. Nipper
failed to understand the signs and symptoms of respiratory depression even though
Safeway’s witness, Heather Cowden, (Mrs. Crawford’s friend) gave a description of Mrs.
Crawford consistent with respiratory depression. See Filing No. 81 - Brief p. 13-14. It is
trier of fact’s function to determine the inconsistencies in the testimonies, not the court.
Finally, this court denies Safeway’s summary judgment motion as it appears to
be based on Daubert arguments. See Filing No. 89. However, to the extent this
opinion does not resolve the motion for summary judgment issues, the parties will have
additional time to file a narrower summary judgment motion.
CONCLUSION
The court recognizes Dr. Nipper’s expert report and deposition testimony have
flaws, but even under Daubert, these flaws should have an opportunity to pass through
“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof [and those] are . . . appropriate means of attacking shaky but
admissible evidence.”

Daubert, 509 U.S. at 596.

At trial, Safeway will have an

opportunity to attack and challenge Dr. Nipper’s expert report and anticipated testimony.
Upon consideration,

IT IS ORDERED:
1.

Safeway’s Daubert Motion to Exclude Proposed Expert Testimony and

Report of Henry C. Nipper, Ph.D. (Filing No. 79) is denied.
2.

Safeway’s Motion for Summary Judgment (Filing No. 89) is denied without

prejudice. The parties shall have to on or before October 6, 2016, to file any motion for
summary judgment.

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Dated this 22nd day of September, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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