     Case: 10-50561 Document: 00511501866 Page: 1 Date Filed: 06/08/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 8, 2011

                                       No. 10-50561                         Lyle W. Cayce
                                                                                 Clerk

GENNICA R. MATOSKY; BRIAN C. MATOSKY,

                             Plaintiffs - Appellants

v.

M.D. MARK G. MANNING,

                             Defendant - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 5:07-CV-51


Before GARWOOD, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
           The plaintiffs in this diversity case, Gennica Matosky and her husband
Brian Matosky, residents of Pennsylvania, brought suit against the
defendant, Dr. Mark Manning, a resident of Texas, for alleged medical
malpractice, under Texas law. The Matoskys contend that Dr. Manning
negligently performed a fine needle aspiration (FNA) biopsy on Mrs.
Matosky’s left breast, puncturing her chest wall, heart, nearby blood vessels,


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-50561 Document: 00511501866 Page: 2 Date Filed: 06/08/2011



                                  No. 10-50561

or pericardium (the sac-like structure around the heart), causing her to suffer
pericardial effusion (excess fluid around the heart) and consequently cardiac
tamponade (pressure on the heart due to fluid buildup). The Matoskys appeal
two decisions made by the district court: (1) the district court’s grant of Dr.
Manning’s motion to exclude the testimony of the Matoskys’ only medical
expert witness, Dr. Michael Leitman; and (2) the district court’s grant of Dr.
Manning’s motion for summary judgment, which was based on its
determination that the testimony of Dr. Leitman was crucial to establishing
essential elements of the Matoskys’ case. We conclude that the district court
did not abuse its discretion in granting Dr. Manning’s motion to exclude the
testimony of Dr. Leitman, and that the district court did not err in granting
summary judgment in favor of Dr. Manning.
                                BACKGROUND
        On February 8, 2006, Dr. Manning performed an FNA biopsy on Mrs.
Matosky, in order to diagnose a lesion in her breast. Mrs. Matosky chose to
undergo an FNA biopsy because it was the least invasive procedure available.
An FNA biopsy involves inserting a needle, which is attached to a syringe,
into the lesion in order to obtain a sample of the tissue. The needle used in
this case was typical of needles used in FNA biopsies, and was about 1.5
inches long. Dr. Manning conducted the FNA biopsy with the assistance of
Laurie Hernandez, an ultrasound technician. Ms. Hernandez first used an
ultrasound machine to localize the lesion. Then, while Dr. Manning
performed the biopsy, Ms. Hernandez continued to operate the machine, in
order to monitor the location of the needle. Ms. Hernandez testified that the
needle only penetrated the lesion and did not go near Mrs. Matosky’s chest
wall.
        Dr. Manning took two samples from Mrs. Matosky’s breast. Although
the first insertion of the needle was uneventful, Mrs. Matosky testified that

                                        2
    Case: 10-50561 Document: 00511501866 Page: 3 Date Filed: 06/08/2011



                                 No. 10-50561

with the second insertion, she “felt a horrible, sharp-like, stabbing pain in her
breast” and “told him to stop,” but he did not. Mrs. Matosky then felt “a pop,”
and her “whole left side went numb and it hurt.” However, Ms. Hernandez
testified that she did not recall Mrs. Matosky complaining or asking Dr.
Manning to stop during the procedure.
      After he finished, Dr. Manning left the room to talk to Mr. Matosky.
Ms. Hernandez then called him back into the room, saying that Mrs. Matosky
was having trouble breathing and complaining of pain. Dr. Manning listened
to Mrs. Matosky’s heart and lungs with a stethoscope and discerned no
problems. He then ordered an x-ray, which also showed no problems with
Mrs. Matosky’s lungs, heart, or blood vessels around her heart. He also gave
her a prescription for pain medication, in case she had internal bleeding in
her breast from the biopsy, which could cause pain and pressure in her
breast. Dr. Manning did not hear again from Mrs. Matosky until he received
notice of the lawsuit.
      On February 11, 2006, three days after the FNA biopsy, Mrs. Matosky
went to the emergency room at a medical center, complaining of abdominal
pain, chest pain, dizziness, shortness of breath, diarrhea, and vomiting, which
she stated had started that day. She also complained of chest pain and
pressure on her chest, as well as severe headaches. Earlier that day, she said
that she had experienced a syncopal spell, where she lost consciousness and,
upon regaining consciousness, discovered that she was sweating profusely
and had urinated on herself.
      Mrs. Matosky was admitted to the hospital. During her stay, Mrs.
Matosky underwent several chest x-rays during this time. None of them
showed any injury to her chest wall, heart, or surrounding blood vessels.
Upon her discharge on February 18, 2006, her final diagnoses included acute
gastroenteritis, dehydration, and upper respiratory infection.

                                        3
     Case: 10-50561 Document: 00511501866 Page: 4 Date Filed: 06/08/2011



                                     No. 10-50561

       Just over a day later, on February 19, 2006, Mrs. Matosky went to
another medical center, after suffering another syncopal spell, and
complaining of symptoms including chest pain, shortness of breath,
abdominal pain, and nausea. She was diagnosed with pericardial tamponade
and pericardial effusion, and consequently received a pigtail catheter, a tube
that drained the excess fluid around her heart. When the catheter was
removed, Mrs. Matosky immediately developed, for the second time,
pericardial effusion and cardiac tamponade. She underwent exploratory
surgery on February 21, 2006. It was determined, and is undisputed, that the
second episode of pericardial effusion and cardiac tamponade was caused by
injury to a blood vessel when the catheter was either being placed or
removed. The only disputed question in this case is what caused the first
episode. In addition, the surgeon who operated on Mrs. Matosky found no
evidence of injury to her heart or chest wall. Mrs. Matosky suffered no
further complications, and was discharged on February 27, 2006.
       The Matoskys brought a diversity suit under Texas law in district court
against Dr. Manning.1 The Matoskys initially designated two expert
witnesses: Dr. Michael Leitman and Dr. Arthur Sitelman. Dr. Sitelman, a
pathologist, was subsequently re-designated as an expert for Dr. Manning.
This was because after reviewing slides of the pericardial fluid obtained from
Mrs. Matosky during her second hospital stay, he concluded that his findings
“point to a pathological event or events,” such as “autoimmune disorders . . .
viral infections, or idiopathic [unknown] [causes],” as the cause of her
symptoms. He also concluded that his findings “do not support” the theory




      1
        The Matoskys included in their suit another defendant, the doctor who provided Mrs.
Matosky’s care during her hospital stay of February 11-18, 2006. However, they settled with
him before the case reached the summary judgment stage.

                                            4
    Case: 10-50561 Document: 00511501866 Page: 5 Date Filed: 06/08/2011



                                 No. 10-50561

that trauma from the FNA biopsy caused her symptoms. Thus, only Dr.
Leitman’s testimony is at issue in this appeal.
      In contrast to Dr. Sitelman, in a ten-page letter, Dr. Leitman opined
that there was a “reasonable medical probability” that Dr. Manning’s actions
were negligent, and that he injured Mrs. Matosky’s “heart, vessels, and/or
pericardium” with the needle while conducting the biopsy. He further
explained that he thought it “medically probable” that the injury “result[ed]
in [Mrs. Matosky’s] cardiac tamponade . . . .” Dr. Leitman was also deposed
about the opinions that he expressed in the letter.
      Dr. Manning filed a motion to exclude Dr. Leitman’s testimony, as well
as a motion for summary judgment. The district court granted both motions.
First, the district court concluded that Dr. Leitman’s testimony should be
excluded as unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), because (1) Dr. Leitman simply asserted that the needle
punctured Mrs. Matosky’s chest wall, heart, pericardium, or surrounding
blood vessels, without an evidentiary basis for that assertion; and (2) he failed
to consider other causes of Mrs. Matosky’s symptoms, such as a viral
syndrome.
      In addition, the district court determined that Dr. Leitman’s testimony
was crucial to establishing elements of a medical malpractice claim: (1)
negligence (or breach of duty) on the part of Dr. Manning in puncturing Mrs.
Matosky’s chest wall, heart, or surrounding blood vessels with the biopsy
needle; and (2) causation, i.e., that the puncture caused a cardiac injury,
resulting in Mrs. Matosky’s suffering pericardial effusion and cardiac
tamponade. As a result, the district court granted Dr. Manning’s motion for
summary judgment.
      The Matoskys timely appealed, contending (1) that the district court
abused its discretion in excluding Dr. Leitman’s testimony and (2) that the

                                        5
     Case: 10-50561 Document: 00511501866 Page: 6 Date Filed: 06/08/2011



                                       No. 10-50561

district court erred in granting Dr. Manning’s motion for summary
judgment.2
                              STANDARD OF REVIEW
       Courts of appeals “review[] a district court’s admission or exclusion of
expert testimony. . . . for an abuse of discretion.” Moore v. Ashland Chem.
Co., 151 F.3d 269, 274 (5th Cir. 1998) (en banc) (citing General Electric Co. v.
Joiner, 522 U.S. 136 (1997)). “Because a district court has broad discretion in
deciding the admissibility vel non of expert testimony, we will not find error
unless the ruling is manifestly erroneous.” Guy v. Crown Equip. Corp., 394
F.3d 320, 325 (5th Cir. 2004) (citing Joiner, 522 U.S. at 141-42). A “[m]anifest
error” is an error “that is plain and indisputable, and that amounts to a
complete disregard of the controlling law.” Id. (quoting Venegas-Hernandez v.
Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) (citing Black’s Law
Dictionary 563 (7th Cir. ed. 1999))).
       In addition, this court reviews a district court’s grant of summary
judgment de novo. Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628
F.3d 725, 728 (5th Cir. 2010). “The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(a). “A genuine issue of material fact exists when the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Quality
InfusionCare, Inc., 628 F.3d at 728 (quoting Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008)). “[S]ubstantive law will
identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S.



       2
         The Matoskys also challenge the district court’s questioning of Dr. Leitman’s
qualifications. We need not address this issue, as the district court indicated that it struck
Dr. Leitman’s testimony because it determined that his testimony was unreliable, not because
Dr. Leitman was unqualified.

                                              6
    Case: 10-50561 Document: 00511501866 Page: 7 Date Filed: 06/08/2011



                                  No. 10-50561

242, 248 (1986). “When, as here, jurisdiction is based on diversity, we apply
the substantive law of the forum state.” Holt v. State Farm Fire & Cas. Co.,
627 F.3d 188, 191 (5th Cir. 2010) (citing Erie R. v. Tompkins, 304 U.S. 64
(1938)). Thus, in this case, we use Texas law to determine which facts are
material.
                                 DISCUSSION
                                       A.
      Federal Rule of Evidence 702, which was amended in 2000, post-
Daubert, states that an expert witness “may testify . . . in the form of an
opinion or otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of
the case.” Rule 702 encompasses the Daubert inquiry, and also gives district
courts flexibility in determining whether an expert’s testimony is reliable.
See Fed. R. Evid. 702 advisory committee’s note (2000 Amendments)
(explaining that “[t]he amendment . . . provides some general standards that
the trial court must use to assess the reliability and helpfulness of proffered
expert testimony,” and includes but is not limited to the Daubert factors); see
also Guy, 394 F.3d at 325 (“Amended Rule 702 reflects the Supreme Court’s
decisions in Daubert and its progeny emphasizing the district courts’ broad
latitude in weighing the reliability of expert testimony for admissibility.”).
      The Matoskys contend that Dr. Leitman used a reliable methodology to
arrive at his conclusions: he reviewed the medical records and testimony of
Mrs. Matosky and used his medical knowledge to arrive at a conclusion about
how Mrs. Matosky developed the pericardial effusion and cardiac tamponade.
However, “[t]he expert’s assurance[] that he has utilized generally accepted
scientific methodology is insufficient” on its own to establish that his
testimony is reliable. Moore, 151 F.3d at 276.

                                        7
     Case: 10-50561 Document: 00511501866 Page: 8 Date Filed: 06/08/2011



                                       No. 10-50561

       The district court did not abuse its discretion in determining that Dr.
Leitman’s testimony was unreliable under “the Rule 702/Daubert analysis,”
Guy, 394 F.3d at 325.3 Dr. Leitman’s testimony was dependent on his
assertion that the 1.5-inch needle used by Dr. Manning penetrated through
Mrs. Matosky’s breast and caused a cardiac injury, and that assertion does
not have a sufficient factual basis. See Fed. R. Evid. 702(1). Ms. Hernandez,
the ultrasound technician who monitored the needle during the FNA biopsy,
testified that the 1.5-inch biopsy needle never went past the lesion in Mrs.
Matosky’s breast, nor did it come close to her chest wall. Likewise, none of
Mrs. Matosky’s x-rays showed a cardiac injury, and the surgeon who operated
on Mrs. Matosky found no sign of injury to her heart or her chest wall. When
asked about the use of an ultrasound machine to monitor the needle’s location
during the biopsy, Dr. Leitman acknowledged that he had not seen any of the
images taken during the procedure. However, Dr. Leitman opined that
“clearly there must have been some misinterpretation [of the ultrasound
images] for the needle to end up in the pericardium rather than simply in the
breast mass.” He also opined that Mrs. Matosky experienced a popping
sensation during the FNA biopsy because the needle had punctured either
her pericardium or her chest wall. But Dr. Leitman never explained whether
such an injury was the only circumstance in which a patient could experience
a popping sensation, or why any alternative explanations for the popping
sensation should be ruled out.
       The district court did not abuse its discretion in determining that Dr.
Leitman’s conclusory assertion that the FNA biopsy resulted in a cardiac



       3
        Although the district court pointed to the Daubert factors “as very good guideposts,”
it appears that the district court also implicitly relied on the more general principle of Rule
702 that testimony is unreliable when it is based on insufficient facts, or derived from an
unreliable methodology.

                                              8
    Case: 10-50561 Document: 00511501866 Page: 9 Date Filed: 06/08/2011



                                 No. 10-50561

injury was unreliable, and thus in excluding his testimony. “[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.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 157
(1999) (quoting Joiner, 522 U.S. at 146) (quotation marks omitted).
                                      B.
      “In a medical malpractice case [brought in Texas], plaintiffs are
required to show evidence of a ‘reasonable medical probability’ or ‘reasonable
probability’ that their injuries were proximately caused by the negligence of
one or more defendants.” Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508,
511 (Tex. 1995). A plaintiff must demonstrate causation “by a preponderance
of the evidence.” Id. (quoting Kramer v. Lewisville Mem. Hosp., 858 S.W.2d
397, 400 (Tex. 1993)) (quotation marks omitted).
      Without Dr. Leitman’s testimony, the Matoskys cannot demonstrate a
genuine issue of material fact regarding causation. Aside from Dr. Leitman’s
testimony, the Matoskys cite to the fact that trauma from the biopsy was
listed in some of Mrs. Matosky’s medical notes as a possible cause, among
several others, of the pericardial effusion and cardiac tamponade. However,
the doctors who treated Mrs. Matosky testified that they included the biopsy
as a possible cause of Mrs. Matosky’s pericardial effusion simply because it
was part of the medical history that she gave them. The doctors also did not
know what kind of biopsy was involved — whether it was an FNA biopsy or a
more invasive procedure — nor were they aware of the length of the needle
used in Mrs. Matosky’s biopsy. Moreover, the district court noted that none
of the doctors involved in the case, including Dr. Leitman, pointed to a
previous case, whether their own or that of another doctor, where an FNA
biopsy caused a cardiac injury resulting in pericardial effusion and cardiac
tamponade. The record also shows that other potential causes which were

                                       9
    Case: 10-50561 Document: 00511501866 Page: 10 Date Filed: 06/08/2011



                                  No. 10-50561

also listed in Mrs. Matosky’s medical notes, such as a viral syndrome, were
not ruled out as possible causes. Thus, at most, this evidence might perhaps
support an inference that there is a possibility, not a reasonable medical
probability, that the biopsy was the cause of Mrs. Matosky’s symptoms.
      The Matoskys also cite to a case report involving an incident of cardiac
injury resulting from a “needle localized surgical breast biopsy.” We agree
with the district court that this case report is not probative. First, the
procedure described in the case report was a different, more invasive
procedure that involved a needle, a hooked wire, and the surgical removal of
breast tissue. In contrast, an FNA biopsy involves the insertion of a single
1.5-inch needle into the lesion. Second, the patient in the report was an
elderly, thin patient who had very little breast tissue, whereas the record
shows that Mrs. Matosky has “significant breast tissue and normal chest wall
tissue.”
      In sum, a reasonable factfinder could not determine that this evidence
demonstrates a “reasonable medical probability” that the 1.5-inch needle
penetrated beyond Mrs. Matosky’s lesion and caused her a cardiac injury,
resulting in pericardial effusion and cardiac tamponade. Thus, the district
court did not err in granting Dr. Manning’s motion for summary judgment.
                                CONCLUSION
      We conclude that (1) that the district court did not abuse its discretion
in granting Dr. Manning’s motion to exclude Dr. Leitman’s testimony, and (2)
that the district court did not err in granting Dr. Manning’s motion for
summary judgment. The judgment of the district court is AFFIRMED.




                                        10
