In the Daubert case, the U.S. Supreme Court addressed the reliability of expert scientific testimony. The court held that while there is no one specific test to determine scientific validity, several factors may be used by the trial court judge in determining whether to allow testimony, including whether the theory or technique at issue can be (and has been) tested; whether the theory or technique has been subjected to peer review and publication; and whether the technique or theory is generally accepted within the relevant scientific community. In short, the objective of the Daubert requirement is to ensure the reliability and relevancy of expert testimony delivered the courtroom.
The most recent case regarding chiropractic and the Daubert standard involved Donna Kudabeck, a 44-year-old woman who suffered an accident at a Kroger supermarket in Hot Springs, Ark., on April 13, 1995. While shopping with her daughter, Mrs. Kudabeck slipped and fell to the floor, landing on the base of her spine. After falling, she noticed that the floor had been recently mopped, but there were no "wet floor" signs in the area.
One week after the fall, Mrs. Kudabeck was still experiencing pain and discomfort, so she visited Brian Reilly, DC, for care. After an initial exam, Dr. Reilly found problems in her lumbar and cervical vertebrae, but did not see any signs of infection. He also performed orthopedic tests to rule out other sources of pain, and concluded that her pain was the result of the fall.
After several months of care, Dr. Reilly failed to see much improvement in Mrs. Kudabeck's condition, so he referred her to Dr. Paul Tucker, a neurologist. In February 1996, Dr. Tucker examined her and found "surprising weakness" in all of her major muscle groups, along with possible disc herniations in the cervical spine area, problems in the lumbar spine, and a possible minimal compression fracture. Over the next several months, Drs. Reilly and Tucker treated Mrs. Kudabeck, but despite receiving a variety of therapies and medications, her condition continued to deteriorate.
After filing suit against Kroger, Mrs. Kudabeck saw Dr. Steve Cathey, a neurosurgeon. In a videotaped deposition, Dr. Cathey suggested that she suffered from advanced degenerative disc disease and that he believed she had arthritis in the spine. He explained that in his opinion, Mrs. Kudabeck's fall aggravated pre-existing conditions in her neck, middle back and lower back that "set into motion" her symptoms.
Prior to trial, Kroger filed a motion in limine, seeking to exclude Dr. Reilly's testimony. However, the court ruled his testimony was admissible, provided Mrs. Kudabeck could establish that Dr. Reilly's opinion was based on reliable principles and methods.
At trial, Mrs. Kudabeck's lawyers provided Dr. Cathey's video deposition, along with Dr. Tucker's medical records, and called Dr. Reilly as an expert witness. Kroger objected to Dr. Reilly's testimony, but the district court allowed him to testify on a limited basis. The court also instructed the jury to consider the full consent of Mrs. Kudabeck's injury, but did not include further instruction that would have precluded the jury from awarding her damages for any pain or disability she would have suffered even if the accident hadn't occurred.
After hearing one day of testimony, the jury found that Kroger acted negligently, and awarded Mrs. Kudabeck more than $260,000 in damages. Even though Kroger conceded that Dr. Reilly possessed the qualifications to testify as an expert witness in accordance with the Federal Rules of Evidence, it decided to appeal the decision, based on three counts:
- Kroger believed Dr. Reilly's testimony should be inadmissible because he failed to perform a differential diagnosis that would have excluded other factors that could have contributed to Mrs. Kudabeck's condition.
- Kroger believed Dr. Reilly's testimony was unreliable because he failed to provide published evidence supporting his conclusion.
- Kroger believed the jury was provided with incomplete instructions regarding the awarding of damages.
Using the Daubert requirement and decisions from similar cases as guidelines, the court ruled against Kroger on both counts regarding Dr. Reilly's testimony. With respect to Kroger's assertion that Dr. Reilly failed to perform a differential diagnosis, the court pointed to evidence obtained during the trial, in which Dr. Reilly testified that he "followed normal procedures for chiropractors in evaluating and treating" Mrs. Kudabeck. These procedures included conducting orthopedic tests; ruling out an infection or arthritis; and taking a medical history.
"We reject Kroger's claims that Dr. Reilly failed to perform a differential diagnosis, according the practice of a chiropractor," the court ruled. "In essence, Kroger appears to argue that Dr. Reilly did not perform a thorough diagnosis. However, Dr. Reilly performed a sufficient differential diagnosis such that he could treat Kudabeck."
With regard to reliability, the court found that while Kroger may not have agreed with the way the examination of Mrs. Kudabeck was performed, Kroger provided no evidence to show that Dr. Reilly failed to take the proper steps in the course of treatment, nor did it conduct its own tests to question or invalidate Dr. Reilly's methods:
"Kroger has failed to point out any fact that Dr. Reilly overlooked. Kroger has not performed any independent testing to demonstrate that Dr. Reilly missed an essential fact in his methodology. Simply because Dr. Reilly did not conduct his examination and treatment of Kudabeck in the manner Kroger preferred, does not render Dr. Reilly's testimony unreliable."
"... Kroger maintains that Dr. Reilly relied totally on Kudabeck's word about her medical history in formulating his causation testimony. The trial court record reveals that Dr. Reilly based his opinion on more than simply crediting Kudabeck's statements. As stated previously, Dr. Reilly performed chiropractic tests along with physical observations in diagnosing Kudabeck. ... Dr. Reilly explained that he attributed Kudabeck's present condition to her fall by comparing her 1996 and 2002 X-rays. Thus, Dr. Reilly relied on more than Kudabeck's word in forming his opinion."
With regard to Kroger's assertion that Dr. Reilly failed to cite any studies that supported his position, the court noted: "There is no requirement that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness."
"Kroger has not demonstrated that Dr. Reilly exceeded the boundaries of the general practice and methodology of chiropractors," the court continued. "In addition, the district court properly limited Dr. Reilly's testimony to matters that would be helpful to the jury and are within Dr. Reilly's area of expertise."
"In this case, the district court did not abuse its discretion in admitting Dr. Reilly's opinion as reliable. Dr. Reilly based his opinion on his education, training, and proper chiropractic methodology and reasoning in treating Kudabeck and forming an expert opinion. ... Dr. Reilly did not use any experimental techniques and did not deviate in any way from his normal practice of conducting chiropractic examinations."
The case of Kudabeck v. Kroger is a textbook example of what can happen when a practicing doctor of chiropractic utilizes the best of his or her abilities and works with other health care providers in the best interests of the patient. Although chiropractors are being called on more frequently to provide expert testimony in the legal setting, their skills may still be questioned. As the Kudabeck case illustrates, if the proper steps are taken in the diagnosis, treatment and referral of a patient, a DC can refute these questions and easily meet the criteria to testify as an expert witness. By meeting these qualifications, the DC earns the respect in court afforded other health care practitioners, and raises the status of the chiropractic profession.
Reference
- Kudabeck v. The Kroger Co. Case # 02-2627. U.S. Court of Appeals, Eighth Circuit. Available online at http://caselaw.lp.findlaw.com/data2/circs/8th/022627p.pdf.