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Lassalle v. McNeilus Truck & Manufacturing, Inc.

United States District Court, N.D. California

July 21, 2017

JENNIFER LASSALLE, et al., Plaintiffs,
v.
MCNEILUS TRUCK & MANUFACTURING, INC., Defendant.

          ORDER GRANTING DEFENDANT MCNEILUS TRUCK & MANUFACTURING, INC.'S MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 58

          William H. Orrick United States District Judge

         INTRODUCTION

         Jennifer Lassalle, Emily Anne Lassalle, and Madeline Elizabeth Lassalle (minor) and Grace Caroline Lassalle (minor) by and through their Guardian ad Litem (collectively “plaintiffs”), the widow and children of decedent Anthony Lassalle, contend that a vehicle manufactured by defendants McNeilus Truck and Manufacturing, Inc. (“McNeilus”), and Autocar, LLC (“Autocar”), caused Mr. Lassalle's death. They allege claims for negligence, strict liability, and failure to warn in this products liability action. Remaining defendant McNeilus now moves to exclude the testimony of two expert witnesses as well as for summary judgment on all claims.[1]For the reasons set forth below, I DENY the motion to exclude Dr. Sackrin's causation opinion and I GRANT the motion to exclude Dr. Anderson's report and testimony. But because there is no genuine issue of material fact concerning causation, I GRANT the motion for summary judgment in favor of defendant McNeilus.

         BACKGROUND

         Mr. Lassalle was an employee of Waste Management, Inc. (“WM”), where he used a rear end loader truck manufactured by defendant McNeilus to collect bulk residential curbside waste. Complaint (“Compl.”) ¶ 10. While collecting waste on September 17, 2013, he suffered a stroke and died.

         The only person at the scene, Yemane Abraham, another WM employee, heard the decedent say, “[S]omething in my arm, something in my face, ” and saw him fall to the ground. Haley Decl. Ex. 7 (Abraham Dep.), at 39:2 (Dkt. No. 66-1). Decedent was taken to Highland Hospital, where he was placed under the care of Highland Hospital emergency department physician Dr. Steven Sackrin. Haley Decl. Ex. 2 (Sackrin Dep.), at 8:20-24, 24:10-17. He passed away the next day. MSJ McNulty Decl. Ex. 14 (Decedent's Death Certificate). The certificate of death lists the cause of death as “Brain Death, Large Left Middle Anterior Cerebral Artery Stroke” and “Hypercoagulable Disorder.” Id.

         On September 16, 2015, plaintiffs brought a products liability action alleging negligence, strict liability, and failure to warn (strict liability/negligence) against McNeilus and Autocar. Compl. ¶ 1. Plaintiffs believe decedent was exposed to poison and toxins when he activated the hopper blade of the truck, that the blade crushed some boxes and cans, causing toxic material to spray and strike Decedent's face, and that decedent's death was due to the defendants' fault in designing and/or manufacturing the WM truck and failure to warn. Allman Mot. McNulty Decl. Ex. 2 (Pl. Jennifer Lassalle's Responses to Interrogatories), at 2 (Dkt. No. 56-1); Compl. ¶¶s 10-12. Yemane Abraham did not see any such spray. MSJ McNulty Decl. Ex. 4 (Abraham Dep.), at 59:15-19 (Dkt. No. 58-1).

         McNeilus moves for summary judgment, or in the alternative, partial summary judgment, for lack of genuine issue of material fact concerning causation.[2] It concurrently filed two motions in limine to exclude the causation opinion of treating physician Dr. Sackrin as well as the report and testimony of expert witness Dr. Scott T. Anderson.

         DISCUSSION

         I. MOTION IN LIMINE NO. 1 TO EXCLUDE DR. SACKRIN'S CAUSATION

         OPINION

         Under Goodman v. Staples The Office Superstore, LLC, a treating physician who has not been retained as an expert witness and has not submitted an expert report may not testify concerning opinions formed after the course of treatment. 644 F.3d 817, 826 (9th Cir. 2011); Kauffman-Stachowiak v. Omni Hotels Mgmt. Corp., No. 15-cv-05186-WHO, 2016 WL 4269504, at *7 (N.D. Cal. Aug. 15, 2016). McNeilus moves to exclude the post-treatment opinions regarding causation of the treating physician, Dr. Sackrin. Plaintiffs oppose this motion and contend that Dr. Sackrin's opinions regarding causation were formed during the course of treatment.

         The medical records as well as Dr. Sackrin's deposition testimony are unclear concerning when he changed his opinion about causation. At his deposition, Dr. Sackrin testified that he believed the cause of death to be attributable to a “stressful event.” MSJ McNulty Decl. Ex. 10 (Sackrin Dep.), at 47:5-9. At the time of death, however, Dr. Sackrin indicated that a hypercoagulable disorder was the cause. See Sackrin Mot. McNulty Decl. Ex. 2 (Decedent's Medical Records), at 119 (“One wonders if he had a major thrombosis in the left internal carotid artery . . . . We were very concerned and suspicious the patient had a hypercoagulable disorder. . . . We will follow up on the hypercoagulable lab test studies.”) (Dkt. No. 59-1). Indeed, he listed “hypercoagulable disorder” as one of the causes of death on the death certificate. MSJ McNulty Decl. Ex. 14. But as plaintiffs and Dr. Sackrin noted, Dr. Sackrin ordered hypercoagulable lab test studies over the course of his treatment to confirm his “suspicio[n].” Sackrin Opp. at 3 (Dkt. No. 67); Sackrin Mot. McNulty Decl. Ex. 2, at 119. It is plausible that the results of these studies contradicted his suspicion, and led Dr. Sackrin to change his mind as to the cause of death upon receipt.

         On this record, McNeilus has not pointed to sufficient evidence in support of its assertion that Dr. Sackrin changed his opinion “long after the termination of his stint as treating physician.” Sackrin Mot. at 5 (Dkt. No. 59). Dr. Sackrin's opinions regarding causation could have been formed within the scope of his treatment of the decedent. I DENY McNeilus's motion to exclude Dr. Sackrin's opinions regarding causation.

         II. MOTION IN LIMINE NO. 2 TO EXCLUDE DR. ANDERSON'S REPORT AND

         TESTIMONY

         McNeilus also moves to exclude the testimony and report of Dr. Scott T. Anderson, who opines that the decedent's triggering cause of death was some type of toxic exposure. See Anderson Mot. McNulty Decl. Ex. 2 (Anderson Report), at 39-40 (Dkt. No. 60-1). Dr. Anderson is a Qualified Medical Examiner. He was asked to determine whether the decedent's death was workplace related in connection with the decedent's Workers' Compensation case. Id. He did not treat the decedent. Anderson Mot. McNulty Decl. Ex. 1 (Anderson Dep.), at 11:12-22. Although plaintiffs have not specifically designated him as an expert witness, because he was not a treating physician and therefore does not have personal knowledge of the matters to which his opinion relates, see Fed. R. Evid. 602, I will treat Dr. Anderson as an expert witness subject to Rule 702 and the Daubert standard.[3]

         Federal Rule of Evidence 702 allows a qualified expert to testify “in the form of an opinion or otherwise” where:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. To be admissible under Rule 702, expert testimony must be both relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).

         Under the reliability requirement, the expert testimony must “ha[ve] a reliable basis in the knowledge and experience of the relevant discipline. Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010). To ensure reliability, the court must “assess the [expert's] reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance.” Id. at 564. These factors are “helpful, not definitive, ” and a court has discretion to decide how to test reliability “based on the particular circumstances of the particular case.” Id. (internal quotation marks and footnotes omitted). “When evaluating specialized or technical expert opinion testimony, the relevant reliability concerns may focus upon personal knowledge or experience.” United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. ...


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