In Huss v. Gayden, 571 F.3d 442 (5th Cir. 2009), a panel split 2-1 on whether the district court erred in blocking part of a defense expert's testimony in a med mal case. The trial judge ruled that the expert lacked the knowledge and experience necessary to opine that Terbutaline sulfate, which stops birth contractions, did not weaken Barbara Huss's heart. The jury awarded Ms. Huss $3.5 million against the prescribing doctor and clinic. The majority held that the exclusion of the expert's opinion on "specific causation" required a new trial.
Senior Circuit Judge Patrick E. Higginbotham dissented from the panel decision and, this week, from the full court's refusal to reconsider. He wrote:
I speak only of the objective message given by the court's handling of this case. Whatever the impulses of individual judges, about which I am silent, that message is clear. To leave this opinion on the books unsettles the law of the circuit and delivers a gross injustice. There is a large policy debate in this country over the wisdom of providing a patient a claim against his doctor for negligence. Whatever the relative merits of the contending forces, there is an abandonment of judicial roles when judges allow their private view on jury trials and the divisive issues of health care to guide their judicial hand. The appearance cast by objective recitation of the history of this case is more than judges seeing a case as an opportunity to reach preferred social ends, it is an unwitting loss of place that disserves the judicial duty of disinterest, essential to the integrity of any court. Ms. Huss had a legal right to pursue her claim and a legal right to a jury trial. Not only has this court taken that away, it has volunteered suggestions to the district court that he should exclude the testimony of the plaintiffs' experts, this after reversing him for excluding evidence offered by the defendants.
This court has drifted to a seriously flawed view of the role of an en banc court. That half of the active judges would first refuse to consider the panel ruling that the case was barred by limitation and then years later refuse to consider en banc the panel majority's present ruling exposes the court's new vision. This is a court of error. It is not the Supreme Court. It does not have "discretion" to just "decline to rule." Unlike the Supremes, it does not have the discretion to decide what it will decide, a powerful tool for implementing social poicy. This is no lonely view. It is shared by distinguished scholars. There can be no offhand dismissal such as — no great injustice here, the plaintiffs' science is weak, I think. This leaves litigants at the mercy of panel routette — the "law" being the unchartered and legally indefensible view of two judges. There is sad irony in this court's handling of the limitations question. The same judges prepared to hold that the Husses lost all their rights to sue when they did not file within two years of her diagnosis now, after nine years in federal court, hold that the case should start over, with a large suggestion that the trial judge should not let this case get to a jury again. Trials of civil cases are disappearing in federal courts. Litigation is fleeing the courts. Much is being written about this phenomenon and why it is occurring. To those students I say: read this case.
Huss v. Gayden, No. 04-60962, slip op. at 18-19 (5th Cir. Oct. 14, 2009).