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Monday, July 20, 2015

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Kent Higgins v. Koch Development Corporation (SD Ind., Young), a 13-page opinion, Judge Flaum writes:

After the district court disqualified plaintiff Kent Higgins’s causation expert—enlisted to prove that Higgins developed asthma and reactive airways dysfunction syndrome as a consequence of inhaling chlorine gas at an amusement park—he argued that he did not need an expert to prove negligence at all. Alternatively, Higgins argued that his treating physician could serve as such an expert. The district court disagreed, considering the causation issue too complex for an unassisted jury, and deeming Higgins’s treating physician’s qualifications and methodology too uncertain to permit her to opine on such matters. Consequently, the district court granted summary judgment in favor of the defendant. We affirm. * * *

In this diversity action, Indiana law governs whether an expert is needed to prove causation. See Wallace v. McGlothan, 606 F.3d 410, 419–20 (7th Cir. 2010). Under Indiana law, proving negligence in a case like this one requires proof of both general and specific (or individual) causation. 7‐Eleven, Inc. v. Bowens, 857 N.E.2d 382, 389 (Ind. Ct. App. 2006). The law of the Seventh Circuit acknowledges this same dichotomy. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 641–42 (7th Cir. 2010). General causation refers to “whether the substance at issue had the capacity to cause the harm alleged, while ‘individual causation’ refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance.” 7‐Eleven, 857 N.E.2d at 389. The district court concluded that, without an appropriate expert, Higgins could not establish specific causation—that is, that the inhalation of chemical fumes caused his health conditions. Higgins, however, maintains that he does not need an expert to establish that the incident at the Bahari River sparked his ailments. * * *

For all of these reasons, we conclude that a causation expert is required in this case.

We therefore turn to an evaluation of Higgins’s contention that Dr. Haacke can serve as such an expert. * * *

Higgins also contends that because Dr. Haacke has twenty years of experience as a board certified pulmonologist, “[i]t goes without saying she understands … reactive airways dysfunction syndrome.” Again, Higgins seems to misunderstand the requirements of Daubert and Rule 702.

As Judge Tinder articulated when he was a district judge in the Southern District of Indiana, although a doctor 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 another 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. * * *

“Many times we have emphasized that expertsʹ work is admissible only to the extent it is reasoned, uses the methods of the discipline, and is founded on data.” Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000). Here, Higgins simply failed to demonstrate this to be true with respect to Dr. Haacke’s causation opinion. Accordingly, we conclude that it was well within the district court’s discretion to deem Dr. Haacke unqualified to proffer expert testimony, even setting aside Higgins’s non‐compliance with Rule 26.

III. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment.

In USA v. Keon Thomas (and Styles Taylor) (ND Ind., Moody), a 13-page opinion, Judge Posner concludes:
The facts regarding Taylor’s personal history, if true (they have not yet been submitted to full evidentiary procedure), are possible grounds for mitigation—for reducing his sentence from life to a term of years. For they suggest that external forces beyond his ability to control created cognitive and psychological impairments that greatly diminished his ability to resist engaging in serious criminal activity. When substantial grounds for mitigation are presented, the sentencing judge must explain his reasons for rejecting them, see, e.g., United States v. Morris, 775 F.3d 882, 886–88 (7th Cir. 2015), and this the judge failed to do. The government agrees that Taylor’s sentence must therefore be vacated and the case remanded for resentencing. Although Thomas’s upbringing was not as awful as Taylor’s, it was similar enough to persuade the government that he too is entitled to be resentenced. In all other respects (including rulings that we have not discussed because the defendants’ challenges to them are plainly devoid of merit) the judgments are affirmed. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Posted by Marcia Oddi on July 20, 2015 05:55 PM
Posted to Ind. (7th Cir.) Decisions