Prosecution for pedicure – infectious disease expert witness testifies

nailsAn infectious disease expert witness was recently called on board in Hoff v. Steiner Transocean, Ltd. to testify about the source of infection on the Plaintiff’s feet, which, Plaintiff asserted, was caused by a pedicure he had on a cruise ship. Despite the Daubert challenges made by Defendant, the Florida district court held the expert testimony was perfectly admissible and denied all motions to exclude.

Particulars of the case

In this unique case, Plaintiff Thor Frederik Hoff alleged that he suffered a serious infection after receiving a pedicure aboard a cruise ship at a spa operated by Defendant Steiner Transocean, Ltd. Defendant moved to strike the report of Plaintiff’s infectious disease expert witness, Dr. Donald Thea and claimed summary judgment on the grounds that the opinion of the expert was “mere speculation” and provided insufficient support for Plaintiff’s contention that the infection he contracted was caused by the pedicure. The expert’s failure to rule out other possible causes of infection, such as an insect bite or athlete’s foot; and his relying solely on the timing of the disease was also contested. In other words, Defendant challenged the expert testimony of Dr. Thea on the reliability prong of the Daubert test.

What was the opinion of the expert?

In his report, Dr. Thea categorically stated that the source of entry of Plaintiff’s infection was his right foot and that the infection was caused by one of the pedicures Plaintiff received while on board the ship. In support of his opinion, Dr. Thea noted that Plaintiff had two pedicures while on the cruise, the first one of which resulted a small laceration to his right middle toe that bled for several minutes; and after the second one, Plaintiff became symptomatic, experiencing pain and general malaise. The symptoms subsequently worsened over the next two days, resulting in Plaintiff’s being hospitalized on the third day. Based on the hospital records and the nature and progression of Plaintiff’s symptoms, Dr. Thea then opined that Plaintiff suffered from right-leg cellulitis, a bacterial infection of the skin.

Explaining, he said cellulitis was caused by the entry of bacteria through breaches in skin barrier. While those breaches might be clinically unapparent, Dr. Thea stated that such abrasions resulted from a “certain degree of trauma” or “some sort of physical injury.” Because nothing else in the record indicated that Plaintiff had any other abrasions or injury on his foot, the expert deduced that the infection resulted from the significant manipulation of his toes and cuticles during the pedicure.

Additionally, the expert noted that Plaintiff suffered from lymphangitis, which occured when an infection infiltrated the body from a distal location, entered the lymphatic channel and ascended towards the body’s regional lymph node. This was consistent with Plaintiff’s reports of pain in his right groin, as it was subsequently determined that the lymph node in his groin was inflamed. The expert further gleaned that since this type of infection progressed upwards on the body, it implied the portal of entry must have been located far enough down Plaintiff’s leg to explain the infection of the foot, and concluded the location as Plaintiff’s toe.

Was the Court convinced?

After reviewing Dr. Thea’s report, the deposition transcript, and his testimony at the evidentiary hearing, the Court decided that Dr. Thea’s opinion was not based merely on the timing of the infection, but also on the basis of the progression and nature of the illness. While Dr. Thea did indeed note that the incubation period for the infection conformed with the timing of Plaintiff’s symptoms, he also relied upon his knowledge of how such infections occur and develop. Ruling out other causes of infection was also unnecessary in this context, because, other than the cut on Plaintiff’s left foot, Plaintiff had complained of no other injury to his feet, and the medical records were devoid of any reference to other abrasions. The fact that pedicures involved significant manipulation of the cuticle, coupled with Plaintiff’s prior laceration, led Dr. Thea to conclude that the pedicure was the cause of infection. This, the Court ruled, was sufficient under Daubert.

However, the Court did not make any determination on the weight that Dr. Thea’s testimony should be accorded, nor did it opine that Dr. Thea’s report was perfect in every respect. What it stressed upon was that Dr. Thea’s experience and training provided sufficient indicia of reliability for his opinions based on them to survive a Daubert inquiry. The gaps in his report, as pointed out by Defendants, were not a basis for excluding the testimony in this case, and Defendant was asked to make those same arguments at trial. Rather, since Defendant argued that “Plaintiff had a number of conditions that predisposed him to such an ailment” – the Court noted a genuine issue of material fact existed, and held summary judgment was inappropriate.

**Written for the web by the EWG Editorial Team

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