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Crawford v. Safeway, Inc.

United States District Court, D. Nebraska

September 22, 2016

BRIAN CRAWFORD, as Personal Representative of the Estate of Hilary Crawford, Deceased, Plaintiff,
v.
SAFEWAY, INC., a Delaware Corporation, Defendant.

          ORDER

          Thomas D. Thalken, United States Magistrate Judge

         This matter is before the court on Safeway, Inc.'s (Safeway) Daubert Motion to Exclude Proposed Expert Testimony and Report of Henry Nipper, Ph.D. (Filing No. 79). Safeway contends Dr. Nipper's opinion lacks reliability. Safeway filed a brief (Filing No. 81) and an index of evidence (Filing No. 80) in support of the motion. Brian Crawford (Crawford) filed a brief (Filing No. 82) and an index of evidence (Filing No. 83) in opposition to Safeway's motion. Safeway filed a brief (Filing No. 85) and an index of evidence (Filing No. 86) in reply. For the reasons set forth below, the court denies Safeway's motion.

         BACKGROUND

         Here, Crawford seeks to recover damages for the wrongful death of his wife, Hilary Crawford (Mrs. Crawford), on April 10, 2012. See Filing No. 6 - Amended Complaint 1. The amended complaint alleges the following facts. Dr. Michael L. Matthews (Dr. Matthews) provided healthcare services to Mrs. Crawford from December 5, 2011, through April 6, 2012. Id. 8. From March 9, 2012, through April 6, 2012, Dr. Matthews prescribed contraindicated drugs (fluconazole and methadone) to Mrs. Crawford, and both prescriptions were filled at Safeway's pharmacy in Sidney, Nebraska. Id. ¶¶ 7, 10. Crawford contends Safeway's registered pharmacists were negligent in dispensing the fluconazole and methadone prescriptions to Mrs. Crawford, thus, Safeway is liable for Mrs. Crawford's death. Id. ¶¶ 7, 14.

         To prove causation, Crawford has retained Dr. Henry C. Nipper (Dr. Nipper), Ph.D., DABCC, as an expert witness on toxicology. See Filing No. 80-1 - Ex. 1 Nipper Depo. p. 1. Dr. Nipper is a professor of Pathology at the Creighton University School of Medicine. Id. He practices clinical chemistry and is an affiliated toxicologist. Id. Previously, Dr. Nipper ran a Forensic Toxicology lab, which conducted toxicology analysis for 43 Nebraska and 12 Iowa counties. Id. As Crawford's expert witness, Dr. Nipper issued a written expert report on October 29, 2015, and Safeway deposed Dr. Nipper on May 16, 2016. See Filing No. 81 - Brief p. 1. According to Dr. Nipper's expert report, he consulted seven scientific journal as sources before he rendered his expert opinion pertaining to Mrs. Crawford's death. See Filing No. 80-6 - Ex. 1(E) Expert Report p. 19-21. A subpart of Dr. Nipper's expert report states:

The autopsy revealed no respiratory depression or pleural effusions . . . . Given that Hilary Crawford did not present with symptoms of respiratory depression, but rather died suddenly, it appears that she was the victim of QT interval prolongation and torsades de pointes (TdP) that resulted from the interaction of fluconazole and methadone. According to Pearson and Woosley (7) “Both QT prolongation and TdP are events that can only be reported if captured on an ECG.” That, of course, was impossible to attain in this case because of Ms. Crawford's sudden demise.
It is my opinion, to a reasonable scientific certainty, that the combination of methadone and fluconazole administered to Hilary Crawford resulted in a higher level of methadone in her body and that the combination of drugs and their interaction were the cause of her death.

Id. at 21 (emphasis added).

         Safeway denies liability in this case and has moved to exclude Dr. Nipper's expert report and anticipated testimony from trial. See Filing No. 79 - Motion ¶ 1. Safeway argues Dr. Nipper's opinion lacks foundation and certainty and it is speculative in nature. Id. ¶ 2, 7. Safeway argues Dr. Nipper's opinion is not reliable because in Dr. Nipper's deposition he would not answer with “certainty” when stating Mrs. Crawford died of QT interval prolongation and TdP. Id. ¶ 7. Safeway further argues Dr. Nipper's opinion is based on speculation because no ECG report was available for Dr. Nipper to make the determination Mrs. Crawford died of QT interval prolongation and TdP. Id. ¶ 3, 7. Safeway contends Dr. Nipper's deposition testimony reveals Dr. Nipper failed to recognize signs and symptoms of respiratory depression in general. Id. ¶ 5. And Dr. Nipper misquoted a source in his expert report. See Filing No. 81 - Brief p. 15-16.

         In opposing Safeway's motion, Crawford contends, “[a] perceived weakness with the sufficiency of an expert's foundation does not necessarily translate into a challenge.” See Filing No. 82 - Response p. 2 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). Crawford states, “Dr. Nipper performed a differential analysis on causation [by comparing] two competing theories on the mechanism of [Mrs. Crawford's] death and concluded that QT prolongation was the likely mechanism.” Id. at 8. Crawford argues Dr. Nipper's expert opinion is sufficiently reliable as it is based “upon good science and supported by the facts in the record, ” and Dr. Nipper confirms “his opinion was based upon a reasonable degree of scientific certainty.” Id. at 1; see Filing No. 80-6 - Ex. 1(E) Expert Report p. 21.

         ANALYSIS

         Federal Rules of Evidence 702 and 703 govern the admissibility of expert testimony. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014). The screening requirement of Rule 702 is a three-part test:

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if ...

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