IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20709

RANDALL S. YOUNG; THESSA G. YOUNG, Individually and as next friends

of Ashton Young,

Plaintiffs–Appellants,

v.

MEMORIAL HERMANN HOSPITAL SYSTEM, doing business as Memorial

Hermann Hospital; RURAL/METRO OF TEXAS LP; MEMORIAL

HERMANN HEALTHCARE SYSTEM; R/M OF TEXAS GP INC.;

RURAL/METRO OF TEXAS INC.; JOSE MEDINA, MD; KATRIN Y.

TAKENAKA, MD; STACY MACDONALD, RN; ALIE RIEDLE, RN,

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PER CURIAM:

Randall Young, his wife, and their minor child have asserted health care

liability and derivative claims and appeal the district court’s grant of summary

judgment in favor of the defendants (collectively, Memorial) on the element of

causation. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

June 29, 2009

Charles R. Fulbruge III

Clerk
No. 06-20709

2

I

Thirty-seven-year-old Randall Young, a Louisiana resident, attended a

motocross event at Reliant Stadium in Houston, and during that event

bystanders found him wandering aimlessly near a concession stand. Paramedics

responded to a call at 8:34 p.m. and transported Young to Memorial Hermann

Hospital, where he arrived at 9:20 p.m. It was later determined from a friend

who had entered Reliant stadium with Young but was not seated with him that

the last time Young was seen symptom free was about 6:30 p.m. or perhaps 6:45

p.m. We will not detail the treatment Young received at Memorial or the results

of various tests other than to note that a CT scan was initially “negative” for a

stroke, but a subsequent CT scan was performed after 2:30 a.m., and Young was

diagnosed with a stroke at 4:15 a.m.

Whether Memorial should or could have diagnosed Young’s stroke earlier

and the appropriate course of treatment are hotly disputed. One of the Young

family’s chief contentions is that Memorial should have immediately diagnosed

the stroke and should have administered an intravenous tissue plasminogen

activator, known as t-PA. In some cases t-PA can lyse or “bust” the clot that

causes a stroke. The Youngs contend that if Randall Young had received this

drug within three hours of the onset of symptoms, he would have fully or

substantially recovered. It is undisputed that Young is severely and totally

disabled as a result of his stroke.

The Youngs filed health care liability claims against Memorial Hermann

Hospital and other defendants in the United States District Court for the

Southern District of Texas, basing jurisdiction on diversity of citizenship. The

Youngs relied on opinions from three experts to support the causation aspect of

their claims. After these experts had submitted reports and were deposed, the

Memorial defendants filed motions to exclude the experts’ testimony on various

grounds and filed a motion for summary judgment on the element of causation.
No. 06-20709

Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). 1

Id.

2

Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399-400 (Tex. 1993). 3

Id. at 400; see also Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 328 (Tex. 2008) 4

(explaining, when failure to render treatment was alleged, that under the more-likely-than-not

standard, “the issue is whether [treatment] would have made [the death or injury] unlikely”).

See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 715-17 (Tex. 1997) 5

(concluding in a products liability case involving administration of a drug alleged to cause

birth defects that “the requirement of a more than 50% probability means that epidemiological

evidence must show [at least] that the risk of an injury or condition in the exposed population

was more than double the risk in the unexposed or control population,” citing numerous

decisions and Judge Weinstein’s seminal decision in In re “Agent Orange” Product Liability

3

Ultimately, the district court granted Memorial’s motion for summary judgment.

The court concluded that there was insufficient evidence to raise a fact question

as to whether Young would have suffered less severe impairment if t-PA had

been administered.

The Youngs have appealed. We review the district court’s grant of

summary judgment de novo, applying the same standard that the district court

applied. Summary judgment is inappropriate if the record contains a genuine 1

issue of material fact.2

II

The parties agree that Texas substantive law governs. The Texas courts

have held that plaintiffs in a medical malpractice or health care liability suit

must show a “reasonable medical probability” that “their injuries were caused

by the negligence of one or more defendants.” This “mean[s] simply that it is 3

‘more likely than not’ that the ultimate harm or condition resulted from such

negligence.” The Supreme Court of Texas, like many courts, has equated the 4

“more-likely-than-not” causation requirement to a more than 50% probability

that a defendant’s wrongful conduct caused the harm or injury.5
No. 06-20709

Litigation, 611 F. Supp. 1223, 1262 (E.D.N.Y. 1985), in which he held that the plaintiffs were

required to offer evidence that causation was “‘more than 50 percent probable’”).

See Providence Health Ctr., 262 S.W.3d at 328; Havner, 953 S.W.2d at 716-17; 6

Kramer, 858 S.W.2d at 400.

See Nat’l Inst. of Neurological Disorders and Stroke rt-PA Stroke Study Group, Tissue 7

Plasminogen Activator for Acute Ischemic Stroke, 333 NEW ENG. J. OF MED. 1581 (1995);

NINDS t-PA Stroke Study Group, Generalized Efficacy of t-PA for Acute Stroke: Subgroup

Analysis of the NINDS t-PA Stroke Trial, 28 STROKE 2119 (1997).

4

It is undisputed that there is reliable scientific evidence that timely

administration of t-PA is beneficial to some patients, some patients do not

benefit from t-PA therapy, and some stroke victims who do not receive t-PA

recover, with little or no lasting impairment. We know that Randall Young was

not treated with t-PA and that tragically, he did not recover significantly. Under

Texas law, the Youngs must produce reliable evidence that it is more likely than

not that Randall Young would have been among those patients who materially

benefit from the administration of t-PA rather than among those who receive the

therapy and do not benefit.6

The Youngs’ best evidence lies in Table 3 of a 1997 “subgroup analysis” of

an earlier, foundational 1995 study of t-PA’s effectiveness. Assuming, without 7

deciding, that this subgroup analysis accurately reflects the effect of t-PA in the

general population of patients, the relevant portion of this table suggests that

in Young’s age group and at his level of stroke severity, Young’s likelihood of a

very favorable outcome was approximately 42% even without t-PA treatment,

while his likelihood of success with the treatment was approximately 59%.

But as we have recognized, the law of Texas establishes the standard of

causation as “more-likely-than-not,” which means that it is more probable, i.e.

more than 50% likely, that the alleged wrongful conduct caused the injury than

not. The requirement that the wrongful conduct more likely than not caused the

injury is the foundation for the conclusion in Bendectin litigation in Texas and
No. 06-20709

See Havner, 953 S.W.2d at 716 (citing decisions in other jurisdictions).

8

Id. at 708.

9

Id. at 714.

10

Id. at 715. 11

Id. at 715-18.

12

Id. at 716. 13

5

other jurisdictions that causation had not been shown. The issue in the 8

Bendectin cases was whether the ingestion of that drug by women while

pregnant caused birth defects in their children, specifically, limb reduction

defects. It was undisputed that limb reduction birth defects occurred when 9

mothers had not taken Bendectin. The Supreme Court of Texas held that a 10

plaintiff must show that it was more likely than not that Bendectin was a cause

of the defects. The more than 50% likelihood causation standard under Texas 11

law was the basis for the Texas court’s holding that generally, epidemiological

studies must show at least a doubling of the risk. “[T]he requirement of a more 12

than 50% probability means that epidemiological evidence must show that the

risk of an injury or condition in the exposed population was more than double

the risk in the unexposed or control population.”13

In the present case, the “unexposed or control population” consists of the

patients who were treated with placebo in the NINDS study and the 1997 article

analyzing it. Table 3 of the 1997 article reflects that in the category applicable

to Randall Young, 58% treated with placebo had an unfavorable outcome, and

41% treated with t-PA had an unfavorable outcome. The failure to treat with tPA did not result in a more than doubling of the risk of an unfavorable outcome.

Thus even our most charitable reading of the Youngs’ evidence cannot support

a jury finding in their favor. In absence of a fact issue, we AFFIRM the

summary judgment.