* District Judge for the Western District Of Louisiana

,

sitting by designation.

** Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 9, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No.05-50030

ERIN L. McNABNEY, Individually and as Next Friend of Cami

McNabney and Ricky McNabney, Minor Children,

Plaintiff-Appellant,

versus

LABORATORY CORPORATION OF AMERICA, doing business as Labcorp San

Antonio, doing business as Labcorp Patient Service Center,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

No. 5:03-CV-509

Before JOLLY and BARKSDALE, Circuit Judges, and LITTLE, District

Judge. *

PER CURIAM: **

Erin McNabney appeals the summary judgment awarded Laboratory

Corporation of America (Lab) against her negligence a ction.

Primarily, McNabney claims the district court improperly excluded

the testimony o f one of her two expert witnesses and failed to

consider that of the other. AFFIRMED

.2 I.

McNabney maintains: on 22 April 2003, she went to Lab for a

routine blo od draw procedure, known as a venipuncture; Lab’s

employee conducted this procedure negligen t ly because she was

unable to draw blood from McNabney’s left arm and then tried again

using her right arm; McNabney suffered an intense burning pain from

the procedure; and, after consulting with a doctor, McNabney

utilized neurologist Dr. Gazda, who diagnosed her with reflex

sympathetic dystrophy (RSD) and deemed the venipuncture its cause.

Prior to the venipuncture, however, McNabney had suffered

considerable trauma to her left arm: she had undergone several

surgeries for her left wrist at age 14; she was an intravenous drug

user for at least six years; she sustained a serious fa ll during

the 1990s; and she suffered a severe injury to her left shoulder in

2001. The 2001 injury caused many of the RSD symptoms – aching,

stiffness, numbness, tingling, and coldness to the touch

– she

attributed to the venipuncture.

After McNabney sued Lab in state court for negligence, the

action was removed on the basis of diversity. In awarding summary

judgment to Lab, the district court excluded the testimony of

McNabney’s causation expert, neurologist Dr. Malkin, and apparently

did not consider expert testimony by Dr. Gazda. McNabney v. Lab.

Corp. of Am. , No. SA03CA0509OG, 2004 WL 3241969 (W.D. Tex. 9 Dec.

2004) (unpublished).3 II.

McNabney asserts: the district court erred by excluding Dr.

Malkin’s te stimony and by not considering Dr. Gazda’s; and a

material fact issue prevents summary judgment.

A.

The decision to exclude expert testimony is revi ewed for an

abuse of discretion. K umho Tire Co., Ltd. v. Carmichael

, 526 U.S.

137, 152 (1999); Tyler v. Union Oil Co. of Cal.

, 304 F.3d 379, 392

(5th Cir. 2002). Such testimony’s admissibility is governed by

Federal Rule of Evidence 702, which states that a qualified expert

may testify in order to

assist the trie r of fact to understand the

evidence or to det ermine a fact in issue ...

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.

F ED

. R. E VID

. 702. For admitting such testimony, medical causation

experts must have considered and excluded other possible causes of

injury. V iterbo v. Dow Chem. Co.

, 826 F.2d 420, 423 (5th Cir.

1987) (rejecting expert testimony where “the history [a m edical

expert witness] used lacked reliability because it was incomplete

in a critical area”, namely an awareness of the plaintiff’s

relevant medical history). This does not necessitate an exhaustive

s earch that forces an expert to “disprov[e] or discredit[] every

possible cause other than the o ne espoused by him”, i d. at 424;4

but, an expert must be aware of the plaintiff’s pertinent medical

history. Viterbo answered negatively “the question whether it is

so [merely] if an expert says it is so”, id. at 421, and excluded

the testimony of a medical expert who based his opinion on the

plaintiff patient’s oral history and was thus unaware of the

plaintiff’s relevant medi cal symptoms. (Texas case law is

consistent with this requirement. E.I. du Pont de Nemours & Co.,

Inc. v. Robinson , 923 S.W.2d 549, 559 (Tex. 1995) (“An expert who

is trying to find a cause of something should carefully consider

alternative causes. [An expert’s] failure to rule out other causes

of the damage renders his opinion little more than speculation.”

(internal citation omitted)).)

1.

McNabney’s listed causation expert, Dr. Malkin, failed to

exclude other possible causes of McNabney’s RSD, in part because he

was unaware of McNabn ey’s past medical history; he reviewed only

her dep osition testimony, which did not discuss her medical

history. His failure to consider and exclude other potential

causes of McNabney’s injury before offering an opinion renders his

testimony unreliable. F E D

. R. E VID

. 702; Viterbo

, 826 F.2d at 423.

Accordingly, the district cour t did n ot abuse its discretion in

excluding Dr. Malkin’s testimony.

2.5

Unl ike Dr. Malkin, who was retained after this action

commenced, Dr. Gazda had treated McNabney since shortly after the

venipuncture. Although n ot listed as a causation expert, McNabney

claims Dr. Gazda was available to testify regarding her treatment

of McNabney.

In awarding summary judgment, the district court stated: Dr.

Gazd a had n ot been provided McNabney’s complete medical history;

and “[d]uring [her] deposition, Dr. Gazda agreed that information

regarding [McNabney’s] prio r injury would have been important to

her diagnosis”. M cNabney

, 2004 WL 3241969, at *3 & n.5. The

district co urt, however, did n ot exclude Dr. Gazda’s expert

testimony. On the other hand, the court does not a ppear to have

considered it.

Lab maintains such testimony was not relied upon by McNabney

in opposing summary judgment. Assuming the testimony was properly

presented in opposition to summary judgment, it, like Dr. Malkin’s

testimony, was not admissible expert te stimony. Similar to Dr.

Malkin, Dr. Gazda was unaware of McNabney’s history of arm trauma

when she concluded that the venipuncture caused McNabney’s RSD; in

a p rogress report for McNabney, Dr. Gazda deemed McNabney’s past

medical hi story “[c]ompletely unremarkable” and noted n o prior

surgeries. Therefore, Dr. Gazda’s testimony was not proper expert

testimony on the same basis as Dr. Malkin’s testimony was not: her

opinion, lacking an awareness of McNabney’s medical history, fails6

to consider and exclude other possible causes of her RSD. V iterbo

,

826 F.2d at 423.

B.

Finally, we review the summary ju dgment d e novo

. E .g.

,

DIRECTV Inc. v. Robson

, 420 F.3d 532, 536 (5th Cir. 2005 ). Such

judgment is proper if there is n o material fact issue and the

movant is entitled to a judgment as a matter of law. F E D

. R. C IV

.

P. 56(c). Because the expert testimony of Drs. Malkin and Gazda

could not be considered, McNabney was unable to prove causation, an

essential element of her negligence claim. C elotex Corp. v.

Catrett

, 477 U.S. 317, 322-23 (1986). Therefore, no material fact

issue precluded summary judgment, and such judgment was proper.

III.

For the foregoing reasons, the judgment is

AFFIRMED

.