Parah v. Lakeside Pharmacy, Inc., No. S0195-02 CnC (Norton, J., Sept. 30,
2004)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No. S0195-02 CnC



PARAH

v.

LAKESIDE PHARMACY, INC.




                                  ENTRY

       Defendant Lakeside Pharmacy seeks to bar the testimony of Dr.
Beach Conger on the grounds that his opinions and conclusions do not meet
the established standards of reliability. Plaintiff Parah opposes this motion
and argues that Dr. Conger’s opinions are based on valid medical
methodologies, and that the pharmacy’s arguments against Dr. Conger go
to impeachment and scope of testimony rather than relevance and
reliability. The court agrees with Parah.

        This wrongful death case arises from the admitted misdelivery of
clozapine to the decedent, Dorothy Free. Clozapine is a powerful anit-
psychotic medicine that Free had never been prescribed. A day after this
mistake, Free collapsed and was taken to the hospital where she contracted
a staphloccocus infection and died. The question for the jury, which Dr.
Conger opines upon, is what caused Free’s collapse. There is evidence that
she consumed some of the clozapine and that this new medicine caused her
to collapse, but the proof is circumstantial and less than absolute.
Moreover, there is evidence of other potentially intervening causes
including a pre-existing heart condition and Free’s standing prescription
and consumption of oxazepam, a sedative. Dr. Conger will offer his
opinion in the form of expert testimony that Free ingested the clozapine and
that this led to her loss of consciousness.

       Dr. Conger is a doctor of internal medicine, who deals with patients
often in an “altered state of conscisousness,” and is not an expert in
pharmacology. His opinion comes from a review of Free’s hospital
records, her prescription history, autopsy reports, and related documents.
To reach his opinion, Conger employed what is called a “differential
diagnosis” method in which he considered the competing potential causes
of Free’s collapse against her medical history, symptoms, and the time
frame between potential ingestion and collapse. From this Conger
concluded that ingestion of clozapine was the most likely cause.

       Under V.R.E. 702, a party may call a witness with specialized
knowledge to assist the triers of fact to understand the evidence or to
determine a fact in issue. The rule is fairly broad in what constitutes an
expert witness. V.R.E. 702 (expert is qualified by her “knowledge, skill,
experience, training, or education”). In this case, there is no question that
Dr. Conger is a qualified as an expert witness in internal medicine, a field
he has practiced in and taught for at least 25 years. Dr. Conger also
submits that he has had extensive experience treating patients with loss of
consciousness, many of which were the result of drug overdoses. The
defendant pharmacy argues that this experience does not allow him to
comment on causation since neither his background nor methodology are
reliable in causation.

       Under Rule 702, courts are charged with a gatekeeping function that
works to keep unreliable or junk science away from the jury. Through the
seminal Daubert case and its progeny, this function has evolved to an
evaluation of proposed testimony for reliability. See generally Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); State v. Brooks,
162 Vt. 26, 30 (1993) (adopting the holding of Daubert as a part of
Vermont law). In the present case, the Pharmacy challenges Dr. Conger’s
expert opinion on three grounds, which it argues makes the testimony
unreliable.

       The first is Dr. Conger’s lack of specific knowledge about clozapine.
The pharmacy argues that this is a fatal deficit in Conger’s knowledge
because it casts doubt on his understanding about the drug. The problem
with this argument is that it goes more towards weight than reliablity.
Admittedly, Dr. Conger is not an expert on clozapine and has not studied
the drug. He is, however, familiar with the family of drugs that clozapine
belongs to and has treated patients with the same symptoms. Moreover,
Conger’s methodology does not require a precise knowledge of clozapine
because it is more concerned with isolating the clozapine from other
potential causes. Thus, if Free’s symptoms match the potential reactions of
a clozapine overdose within the given time frame and all other causal
possibilities are eliminated, then a differential diagnosis necessarily infers
that clozapine was the cause. Zuchowicz v. United States, 140 F.3d 381,
385–87 (2d Cir. 1998) (affirming the trial court’s decision to allow a
medical expert testify about a causation based solely on differential
diagnosis). Dr. Conger’s shortcomings in his knowledge about clozapine
are, therefore, more properly taken up as impeachment material and go to
the scope or inherent weakness in his opinion.

        The second ground that the pharmacy bases its challenge is the
methodology of differential diagnosis. As a methodology differential
diagnosis is less a scientific process and more a scientific process of
elimination, that is reasoning rather than experimentation. E. Imwinkelried,
the Admissibility and Legal Sufficiency of Testimony about Differential
Diagnosis (Etiology): of Under—and Over— Estimations, 56 Baylor L.
Rev. 391, 401–02 (2004). Regardless, it is a generally accepted form of
scientific reason that a number of courts have accepted to prove causation.
See, e.g., Heller v. Shaw Indus., Inc., 167 F.3d 146, 154–55 (3d Cir. 1999);
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262–66 (4th Cir. 1999);
Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 252-53 (1st Cir.
1998); Zuchowicz, 140 F.3d at 385–387; Ambrosini v. Labarraque, 101
F.3d 129, 140–41 (D.C. Cir. 1996). Furthermore, Conger’s analysis deals
with the specific causation of Free’s collapse, as opposed to the general
concept of whether clozapine can cause a collapse; thus shortening the
inferential leaps required to substantiate his conclusions. Cf. Hall v. Baxter
Health Care, 947 F. Supp. 1387, 1413, 1414 (D. Or. 1996) (rejecting
differential diagnosis linking illness to breast implant because the analysis
requires assumptions about general causation that were not established). It
is, therefore, reasonable to accept Dr. Conger’s testimony under V.R.E. 702
as an accepted methodology of scientific reasoning. This is not to say that
Conger’s opinion is unimpeachable or conclusive to the issue of causation,
but rather it is an acceptance of differential analysis as a form of reasoning
that will help the jury sort through the evidence, assess the factual issue,
and gives support to Parah’s theory of causation.

       Finally, this second argument carries an implicit challenge as to
whether Conger performed his differential analysis properly. As Professor
Imwinkelried notes, the issue of admissibility for differential analysis is not
merely a scrutiny of “the affirmative reasons for selecting a cause” but also
of “the negative reasons for rejecting alternative causes.” Imwinkelried,
supra, at 419. Conger’s analysis in this case is carried through his
depositions and demonstrates that he considered Free’s medical history, use
of other pharmaceuticals, and physical symptoms. Thus his conclusions are
supported by medical reasoning. See Smith v. Wyeth-Ayerst Labs. Co.,
278 F. Supp. 2d 684, 692 (W.D.N.C. 2003) (“[D]ifferential diagnosis
doesn’t require plaintiff to rule out every other cause, only to offer an
explanation and take account of the other potential causes.”).

        The third and last contention raised against Conger’s testimony is
that it was prepared exclusively for trial and therefore lacks credibility.
This argument is about the weight of the testimony. Certainly bias,
motivation, and purpose behind individual testimony will impeach or
discredit certain witnesses, but it does not undermine, for the purposes of
Rule 702, a hired expert. The court would not expert Parah to put on an
expert witness that was hostile to her case, but this observation does not
mean that she “shopped” for an expert or coerced this expert into giving
certain testimony.

       Based on the foregoing, defendant’s motion in limine is denied.

       Dated at Burlington, Vermont________________, 2004.
________________________
Judge
