McClue v. Safeco Insurance Co., 2015 MT 222 (Aug. 4, 2015) (Baker, J.) (7-0, aff’d & rev’d)
Issue: (1) Whether the district court improperly excluded causation testimony from Dr. Sabow; and (2) whether the district court properly excluded causation testimony from Dr. Jimmeh-Fletcher.
Short Answer: (1) No, and (2) yes.
Affirmed and reversed, and remanded for further proceedings
Facts: Carol McClue was involved in a serious accident in January 2009. In 2011, Dr. Sherry Reid and Dr. Decontee Jimmeh-Fletcher diagnosed Carol with bulbar ALS, of which Carol died in 2013.
At the time of the accident, Carol had Underinsured Motorists Coverage through Safeco. After her diagnosis in 2011, she submitted claims to Safeco for damages associated with the ALS. Safeco denied the claims, arguing the accident did not cause the ALS.
In 2011 and 2013, McClue filed actions against the driver of the other vehicle – who later settled and was dismissed – and Safeco. McClue asserted Safeco breached the insurance contract by failing to provide UM benefits for Carol’s ALS.
McClue planned to introduce testimony at trial from Dr. Jimmeh-Fletcher and Dr. John Sabow, a neurologist retained by McClue for this action. Both doctors were deposed. Dr. Jimmeh-Fletcher said trauma could contribute to the development of ALS, but did not state Carol’s ALS was caused by the car accident. Dr. Sabow opined that the car accident caused damage to Carol’s spine and lower brainstem, which was more probably than not the proximate cause of Carol’s ALS.
Safeco moved in limine to exclude testimony from both Jimmeh-Fletcher and Sabow, and the district court granted the motions.
Procedural Posture & Holding: Safeco moved for summary judgment on the ground that McClue lacked expert testimony to establish causation. Reserving the right to appeal the ruling in limine, McClue did not oppose summary judgment, and the district court granted Safeco’s motion. McClue appeals the exclusion of the experts and the judgment in favor of Safeco, and the Supreme Court affirms and reverses.
Reasoning: The parties dispute the proper standard of review of evidentiary rulings that contribute to the entry of summary judgment. McClue argues it should be de novo and Safeco argues it should be abuse of discretion. The Court determines it will review the exclusion of expert testimony for an abuse of discretion, and the entry of summary judgment de novo. To the extent the evidentiary ruling is based purely on an interpretation of the rules, it will be reviewed as a question of law for correctness.
(1) Rule 702 permits a qualified expert to testify if its opinion will assist the trier of fact. An expert’s reliability must be tested against (1) whether the expert’s field is reliable, (2) whether the expert is qualified, and (3) whether the qualified expert reliably applied the reliable field to the facts. (1) and (2) are questions of law but (3) is a question of fact.
The district court determined Dr. Sabow was not qualified because he testified inconsistently that although the cause of ALS is unknown, the cause of Carol’s ALS was the accident. Daubert is not generally applicable in Montana, but applies to “novel scientific evidence.” Safeco has not argued Sabow’s testimony is based on novel scientific evidence, and Daubert should not be used to determine its admissibility. The district court misinterpreted its role and based its decision on the third 702 factor, which is an issue of fact for the jury, not a matter of law for the court. Admissible expert testimony should come in, even if “shaky,” and then be attacked through cross-examination, contrary evidence, and a careful instruction on the burden of proof.
The Court holds that Dr. Sabow is a qualified expert in his field. Safeco may cross-examine him about his admission that the exact cause of ALS is unknown, but that admission does not render his testimony inadmissible under Rule 702.
(2) The district court excluded Dr. Jimmeh-Fletcher’s testimony after determining her testimony did not offer the requisite level of certainty on causation. She did not testify implicitly or explicitly that the car crash more likely than not caused Carol’s ALS. Her testimony on causation was properly excluded. However, the district court did not exclude her testimony for all purposes, and the district court retains discretion to allow Dr. Jimmeh-Fletcher’s testimony in rebuttal, if appropriate.