The Circuit Court of Appeals for the Eleventh Circuit confirmed that experts must prove causation. In Chapman v. Proctor & Gamble Distributing, LLC, 766 F.3d. 1296 (11th Cir. 2014) plaintiff claimed that her neurological symptoms were caused by her use of Fixodent denture adhesive each week for eight years. After a Daubert hearing the court excluded plaintiffs”? expert testimony and subsequently entered summary judgment for the defendant. Plaintiffs appealed and the reviewing court affirmed the summary judgment.
With respect to the proposed expert testimony the court analyzed the testimony of the proposed experts and after reviewing the testimony the court said:
“In short, taking everything together, there is enough data in the scientific literature to hypothesize causation, but not to infer it. Hypotheses are verified by testing, not by submitting them to lay juries for a vote. It may very well be that Fixadent in extremely large doses over many years can cause copper deficiency and neurological problems, but the methodology (the Chapman”?s”?) experts have used in reaching that conclusion will not reliably produce correct determinations of causation. (766 F.3d. at p.1311-12)”
A status conference the day after issuance of the Daubert order defendants”? counsel argued for the first time that they could still try to prove causation through treating physicians who they now termed as “treating experts”. The trial court judge in the summary judgment order explained that the treating physicians were not expert witnesses. The defendants did not brief on appeal their district-court argument in opposing summary judgment that the treating physicians could testify as experts at trial. Consequently the Court of Appeals concluded that that argument was abandoned and affirmed the granting of summary judgment.