United States District Court, D. Nebraska
BRIAN CRAWFORD, as Personal Representative of the Estate of Hilary Crawford, Deceased, Plaintiff,
SAFEWAY, INC., a Delaware Corporation, Defendant.
D. Thalken, United States Magistrate Judge
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.
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. ¶¶
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
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).
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.
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.
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 ...