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KENNEDY v. COLLAGEN CORP.

June 26, 1997

CHARLOTTE KENNEDY and ROBERT KENNEDY, Plaintiffs,
v.
COLLAGEN CORPORATION, Defendant.



The opinion of the court was delivered by: LEGGE

 In 1982 plaintiff Charlotte Kennedy was treated by her doctor with defendant Collagen Corporation's Zyderm Collagen Implant. She claims to have subsequently developed atypical systemic lupus erythematosus ("atypical SLE"). She alleges causes of action for negligence, strict liability, breach of express and implied warranty, battery, and conspiracy against Collagen. Her husband, plaintiff Robert Kennedy, alleges a cause of action for loss of consortium.

 Defendant moves for summary judgment, arguing that plaintiffs have not presented any admissible evidence from which a jury can find that Zyderm caused Ms. Kennedy's atypical SLE.

 I.

 Plaintiffs' expert witness on the issue of causation is Dr. Joseph Spindler. He is the only witness who is offered by plaintiffs to testify that Zyderm caused Ms. Kennedy's condition. Dr. Spindler last examined Ms. Kennedy in 1990, and his affidavit was filed by plaintiffs in opposition to a motion for summary judgment by defendant in 1990. In his affidavit, Dr. Spindler states that:

 
Mrs. Kennedy's medical history, records and current laboratory results are consistent with a temporal relationship between her injections and her medical condition, including a severe adverse reaction to Defendant's product, with systemic immune disorders and deteriorating medical condition and clinical symptoms. . . .
 
Based on reasonable medical probability, Mrs. Kennedy suffered a definite adverse systemic immunological reaction to the bovine collagen injections, which injections triggered her systemic immunological injuries. This systemic immunological reaction has caused and was a substantial factor, if not the factor, in causing a changing immunological picture for Mrs. Kennedy; and with the temporal relationship, it appears the injections acted as a trigger in the development and progression of her evolving systemic-immune condition and disorders.

 II.

 In 1990 this court granted summary judgment for defendant, finding that Dr. Spindler's affidavit was insufficient to create a genuine issue of material fact on causation, because it identified only a "temporal relationship." "Temporal priority does not establish causal force: it is a logical fallacy to reason post hoc, ergo propter hoc." People v. Benson, 52 Cal. 3d 754, 781, 276 Cal. Rptr. 827, 802 P.2d 330 (1990); see also Hardt v. Heidweyer, 152 U.S. 547, 558, 38 L. Ed. 548, 14 S. Ct. 671 (1894) (noting that "the rule of causation implies some other sequence than that of time").

 The Ninth Circuit initially affirmed this court's grant of summary judgment, but then reversed and remanded after a petition for rehearing, holding that Dr. Spindler's affidavit created a genuine issue of material fact on causation. The Ninth Circuit rejected the contention that Spindler's opinion is based predominantly on the "temporal relationship" between Ms. Kennedy's treatment with Zyderm and her disease, stating that: "The district court was inaccurate in believing that Dr. Spindler's opinion was based primarily on the temporal relationships between the Zyderm injections and Kennedy's injuries . . . ." Kennedy v. Collagen Corp., 1992 U.S. App. LEXIS 21169, No. 91-15597, 1992 WL 217803, *3 (9th Cir. Sep. 8, 1992). The court held that Dr. Spindler's affidavit established the existence of a genuine issue of material fact regarding causation and was sufficient to preclude summary judgment. Id. at *1, *3, and *3 n.2.

 III.

 After the Ninth Circuit's decision in this case, the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993) (hereinafter "Daubert I "), which explained that Federal Rule of Evidence 702 governs the admissibility of expert scientific testimony. Under Daubert I, federal judges must make two determinations in order to find expert scientific testimony admissible: (1) that the testimony reflects "scientific knowledge," which the Court defined as "derived by the scientific method," Id. at 590; and (2) that the evidence has "a valid scientific connection to the pertinent inquiry," sometimes described as the requirement of "fit." Id. at 591-592.

 The Ninth Circuit did not analyze the admissibility of Dr. Spindler's testimony under that standard when it decided this case on appeal. Defendant again moves for summary judgment, arguing that plaintiffs have not created a genuine dispute as to any material fact on the issue of whether Zyderm caused plaintiff's injury under the Daubert I standard. Because Daubert I and Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995) (hereinafter "Daubert II "), have changed the legal standard by which federal courts should determine the admissibility of expert scientific testimony, this court re-examines the admissibility of Dr. Spindler's opinion under that standard. Dr. Spindler's opinion is still as defined in his 1990 affidavit. Dr. Spindler has offered no additional affidavit. And his deposition, taken in 1997, states no additional scientific basis under the first step of Daubert I for his opinion on causation.

 In Daubert I, the Supreme Court discussed several factors relevant to the court's inquiry into whether offered expert scientific testimony satisfies the first step under Fed.R.Evid. 702, including: whether the theory or technique employed by the expert is generally accepted in the scientific community; whether it has been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is ...


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