Pediatrics Expert Partly Allowed to Opine on Chance of Survival

Fourteen-year-old Kevin Greenidge died after his heart stopped on an American flight. The Fifth Circuit held that a jury could find that the flight's defibrillator malfunctioned and the malfunction was an "accident" under the Montreal Convention. But the Convention also requires proof that the "accident" caused Kevin's death.

Initially, Arzu raised two liability theories arising out of American’s response to Kevin’s sudden, in-flight heart attack: (1) American’s alleged “deficient” response delayed the administration of CPR or other intervention; and (2) once used, the plane’s on-board Automated External Defibrillator (“AED”) allegedly malfunctioned by not shocking Kevin.

Melissa Suzette Arzu, individually and as the Administrator of the Estate of Kevin Greenidge (“Arzu”), designated Dr. Corwin A. Warmink as a retained medical expert on causation. American Airlines, Inc. sought to exclude Warmink's expert testimony under Rule 702.

Pediatrics Expert Witness

Dr. Corwin Alan Warmink is board certified in pediatric emergency medicine, has practiced pediatric emergency medicine continuously since 2003, and once directed the emergency department at Cook Children's Medical Center. He estimates he has treated more than one hundred children in cardiac arrest.

Want to know more about the challenges Corwin Warmink has faced? Get the full details with our Challenge Study report.

Discussion by the Court

1. Warmink relies on the wrong measure of survival

American did not challenge, and the Court admits, Warmink's opinions on the physiology of cardiac arrest, AED and defibrillation, and the general proposition that delay reduces a patient's chance of survival.

But the studies Warmink relies upon do not support his survival opinion. That opinion appears in its fullest form in his declaration that Kevin "more likely than not would have survived his cardiac arrest on Flight 614 had the American flight crew promptly initiated CPR and effectively utilized a functional Automated External Defibrillator."

For support, Warmink points to two studies. One reports "a 71.4% survival rate to hospital admission" for children shocked by an AED. The other, he says, reports "an 86% survival rate to hospital admission." He reasoned similarly at his deposition. Children shocked by an AED had a "survival to hospital" rate of "71.4 percent," so Kevin had "way-better-than-coin-flip odds of surviving."

The problem is that those figures measure the wrong thing. Surviving to hospital admission is not surviving. The closest measure of survival these studies report is survival to discharge—i.e., making it out of the hospital alive. Those same studies upon which Warmink bases his survival opinion detail how many patients left the hospital, and in every relevant group most did not.

In the Menant Study, children shocked by an AED had a 34.3% survival-to-discharge rate. It was even lower for those, like Kevin, whose first rhythm was non-shockable but were later shocked: 23.1%. The Weisfeldt Study fares not much better: it found that only 38% of patients whom a bystander's AED delivered a shock made it out of the hospital alive. Arzu did not dispute these figures. Warmink himself distinguished survival-to-admission from survival-to-discharge.

The question is not whether Kevin would have reached a hospital alive. It is whether a shock would have made his death unlikely. Nothing here questions the studies themselves. American concedes their reliability, and they bear directly on Kevin's chance of survival. The problem is the step from what they report to what Warmink concludes. A reliable source misapplied yields an unreliable opinion.

2. Nothing bridges the gap between those studies and Warmink's conclusion

Warmink offered three reasons to place Kevin above fifty percent. None reliably applies his data to the case.

First, he said that the Menant study understates Kevin's chances because it did not exclude children whose arrests stemmed from severe trauma, heart defects, or terminal illness, none of which Kevin had. That may suggest that Kevin's odds differed from the study's. But it does not say by how much, and nothing in the record fills that gap. Nor does Warmink account for factors that point the other way. His declaration also ignores the Menant subgroup whose initial rhythm, like Kevin's, was nonshockable.

Second, he relied on his clinical experience. When asked to assign Kevin a survival ratio, he answered it "would be folly for me to claim that I could do that." His survival opinion supplies a conclusion, not a method.

Third, he says timely treatment would have made Kevin's survival "several times more likely." That is a relative measure. Without a baseline, it says nothing about Kevin's actual chance of survival. Several times a small number is still small. The Weisfeldt data show as much. Survival among patients shocked by a bystander's AED (38%) was more than five times the study's overall rate (7%). But that still doesn't get you to more-likely-than-not. Without a base rate for survival, Warmink's opinion that Kevin's survival would have been "several times more likely" cannot support his opinion that Kevin more likely than not would have survived.

In the end, the step from studies reporting survival below fifty percent to an opinion that Kevin more likely than not would have survived rests only on Warmink's say-so. The Court need not choose between experts. This analysis does not rely on the contrary opinions of American's experts or the studies American added that Warmink did not cite. The defects lie in Warmink's own sources. Because Arzu has not shown that the survival opinion rests on sufficient facts or data or reliably applies its sources to Kevin's case, the Court excluded it.

Held

The Court granted in part and denied in part the American's motion to exclude the testimony of Dr. Corwin A. Warmink.

Key Takeaway

Under the Texas law Arzu invokes, she must show that Kevin "would have been among those patients who materially benefit" from defibrillation, not among those who receive it and die anyway. A patient who reaches the hospital with a pulse and dies there has received the shock without that benefit. Survival to admission does not measure the relevant outcome, and data valid for one question may not fit another. Survival to discharge comes closest to tracking the correct measure and, if anything, overstates long-term survival, which neither study tracked.

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