Expert Testimony – Qualifications

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Civil

7^th Circuit Court of Appeals

Officials: FLAUM, MANION, and HAMILTON, Circuit Judges

Expert Testimony – Qualifications

No. 14-2207 Kent Higgins v. Koch Development Corporation

Where causation expert not entitled to opine on matters too complex for an unassisted jury due to uncertainty surrounding expert’s qualifications and methodology.

“As Judge Tinder articulated when he was a district judge in the Southern District of Indiana, although a doc‐ tor may have “experience diagnosing and treating asthma … that does not make him qualified to ‘assess its genesis.’” Cunningham v. Masterwear, Inc., 2007 WL 1164832, at *10 (S.D. Ind. Apr. 19, 2007). Higgins, however, put forth no evidence that Dr. Haacke has ever treated an‐ other patient for chlorine gas exposure or has any training in toxicology. Nor has Higgins established that Dr. Haacke employed a reliable methodology in forming her causation opinion (even assuming she is qualified to do so). The record demonstrates that Dr. Haacke essentially diagnosed Higgins after listening to his own description of his symptoms and the events at Holiday World—some fourteen months after the fact—and after looking at the results (though not the underlying data) of the pulmonary function study conducted by another doctor the year before. But the record is silent on whether Dr. Haacke considered other possible causes of Higgins’s ailments and, if so, how and why she ruled them out. That is problematic, because Higgins told the district court that Dr. Haacke had assessed the cause of his ailments by employing “differential diagnosis.” “Differential diagnosis” actually refers to a method of diagnosing an ailment, not determining its cause. See Myers, 629 F.3d at 644. “Differential etiology,” on the other hand, is a causation‐determining methodology. Id. But, to be validly conducted, an expert must systematically “rule in” and “rule out” potential causes in arriving at her ultimate conclusion. Id. Higgins made no showing that this was done”

Affirmed.

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Attorney Derek A. Hawkins is the managing attorney at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.