Appeal from the United States District Court for the Northern District of California Charles A. Legge, District Judge, Presiding D.C. No. CV-89-02331-CAL.
Before: Warren J. Ferguson, Stephen Reinhardt, and David R. Thompson, Circuit Judges.
The opinion of the court was delivered by: Ferguson, Circuit Judge.
Submitted November 12, 1998 Pasadena, California
Opinion by Judge Ferguson
Charlotte and Robert Kennedy brought an action in the district court in 1988 against the Collagen Corporation and its employees for alleged injuries sustained by Mrs. Kennedy following injections with Collagen's medical product, Zyderm. Zyderm is a substance made from the skin, tendons, and connective tissue of bovine animals. A doctor injects Zyderm into facial wrinkles for a smoother appearance. Mrs. Kennedy claims that she developed atypical systemic lupus erythematosus (SLE), a debilitating and incurable autoimmune disease, as a result of the Zyderm injections. Plaintiffs' litigation pleads common law causes of action for negligence, strict liability, breach of express and implied warranty, battery, and conspiracy.
This is the third time this case has been before us after a grant of summary judgment for the defendant. Most recently, we reversed the district court's determination that federal law preempted the state common law causes of action. Kennedy v. Collagen Corp., 67 F.3d 1453 (9th Cir. 1995). In 1992, we also reversed the district court's grant of summary judgment for the defendant and remanded the case. Kennedy v. Collagen Corp., 974 F.2d 1342 (table), 1992 WL 217803 (9th Cir. 1992). The district court had concluded that the affidavit of Dr. Joseph Spindler, who is plaintiffs' expert witness, was insufficient to create a genuine issue of material fact as to whether Zyderm caused Mrs. Kennedy's injuries. The district court determined that the Spindler affidavit raised only a temporal relationship between the injections of Zyderm and Mrs. Kennedy's injuries, that is, that the injuries occurred soon after the injections. This court initially affirmed the grant of summary judgment by the district court. After due consideration of a petition for rehearing, however, we determined that Dr. Spindler based his opinion on other factors in addition to the temporal relationship, and, accordingly, we granted the petition for rehearing, reversed the grant of summary judgment and remanded.
In the meantime, the Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which held that the Frye standard of "general acceptance within the scientific community," under which we had reviewed Dr. Spindler's affidavit, was superseded by Federal Rule of Evidence 702. In April of 1997, Collagen Corporation filed their third motion for summary judgment, alleging that the Kennedy's expert testimony as to causation was inadmissible under Daubert. The district court reviewed Dr. Spindler's affidavit under Daubert, found it inadmissible, and once again granted summary judgment to the defendant. This issue is now before us on appeal.
We review the district court's decision to exclude expert scientific testimony for abuse of discretion, even in the context of a summary judgment motion. See General Electric Co v. Joiner, _______ U.S. _______, 118 S.Ct. 512, 519 (1997). We conclude that the district court improperly applied the Daubert test, because it failed to consider relevant scientific evidence relied on by the plaintiffs' expert witness, Dr. Spindler, to support his Conclusion.*fn1 Thus, the court abused its discretion in excluding his testimony. We hold that, because plaintiffs adduced enough admissible evidence to create a genuine issue of material fact as to whether Zyderm caused Mrs. Kennedy's atypical SLE, the district court erred in granting summary judgment to defendant.