A lower court ruling excluded two neurologists as experts who were called on to testify on ALS being caused by a traumatic event. The court confirmed one exclusion, but overturned the other.
Facts: This case (Carol J. McClue and Dan L. McClue v. Safeco Insurance Company of Illinois – Montana Supreme Court – August 4th, 2015) will be of interest to Neurology Expert Witnesses. Carol McClue was involved in a car accident in 2009. She was diagnosed with bulbar ALS, subsequently dying from the illness in 2011. The plaintiffs filed a claim with their Safeco, their car insurance carrier for damages related to her ALS. Safeco denied the claims, saying that the accident did not cause Carol’s ALS. She then filed a lawsuit against Safeco, stating that they breached their contract by denying the benefits.
The plaintiff’s hired Drs. Jimmeh-Fletcher and John Sabow, both neurologists as expert witnesses. Dr. Jimmeh-Fletcher stated that trauma could contribute to a diagnosis of ALS, but did not opine that the plaintiff’s car accident was the cause of her ALS. Dr. Sabow testified hat the trauma of the car accident did cause tissue damage in her spine and brain which was more likely the “proximate cause” of the plaintiff’s ALS.
Safeco filed motions with the court to exclude the testimony of both neurologists and the district court granted the motions. Safeco then moved for summary judgment as, without the testimony of the experts, the plaintiff did not have evidence that the crash caused her ALS. McClue did not oppose the judgment but did appeal the exclusion of the experts to the present court.
Discussion: We first turn to Dr. Sabow’s testimony. He is a board-certified neurologist with a particular expertise in ALS. He opined that the placement of Carol’s ALS in the same area of her body where she was sustained a whiplash convinced him that her ALS was triggered by the crash. That said, he also testified that neurologists cannot provide causation of ALS because the exact cause of neurodegenerative diseases in unknown. The district court focused on these statements and excluded the testimony believing that his statements were contradictory, which moved towards credibility and competence.
Montana’s Rule of Evidence 702 requires three factor when testing an experts reliability: 1) Whether the expert field is reliable, 2) whether the expert is qualified and 3) whether the expert reliably applied the field to the facts. The third factor should be determined by a jury. The district court utilized the third factor when it determined that Dr. Sabow’s testimony was unreliable. Even so, the Montana court have emphasized in the past that these rules of evidence should be construed liberally.
Safeco then argued that Dr. Sabow is not an expert in the field and not qualified to testify. The field in this particular case, they argue, is ALS. The court disagreed with Safeco, arguing that Dr. Sabow is a neurologist with a lot of experience with ALS and his opinion as to whether the car crash caused the plaintiff’s ALS fits in this case and that Safeco can cross-examine Dr. Sabow at trial.
Turning to Dr. Jimmeh-Fletcher, Safeco moves to exclude her testimony as to causation. While Dr. Jimmeh-Fletcher opined that trauma is a risk factor that can contribute to neurodegeneration, she did mention that there has been no medical literature that has linked ALS to be caused by trauma. The district court thus excluded her testimony. The present court agreed, stating that Dr. Jimmeh-Fletcher did not testify that it was more likely that the plaintiff’s ALS was caused by the car crash.
Held: The district court’s exclusion of the testimony of Dr. Sabow is reversed and the ruling that Dr. Jimmeh-Fletcher’s causation testimony is excluded is affirmed.