Hall v. Flannery, No. 15-2602 (7th Cir. 2016)

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Justia Opinion Summary

When Chelsea was five months old, she was dropped and suffered a skull fracture. As the fracture expanded, a cyst formed. The fracture and cyst were not a problem until, at age 17, she was hit in the head and suffered a loss of consciousness, blurred vision, and dizziness. After CT and MRI scans confirmed the extent of the fracture and the cyst, Chelsea underwent “cranioplasty” surgery. She was discharged after one day and was found dead in her bed three days later. A board‐certified forensic pathologist was unable to identify a cause of death and, based on the opinion of a neuropathologist, concluded that Chelsea had died from a seizure brought about by surgical damage. Neither doctor was aware of or had reviewed the pre‐surgery CT and MRI scans when they made their findings. Chelsea’s mother sued the hospital and doctors, arguing that anti-seizure medicine should have been prescribed. The defendants argued that no seizure had occurred and that a heart‐related ailment was the likely cause of death. A jury found in the defendants’ favor. The Seventh Circuit vacated, finding that one defense expert lacked the requisite qualifications to opine that a heart ailment was the likely cause of death and that there was a significant chance that the erroneous admission of the testimony affected the trial’s outcome.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2602 SANDRA HALL, special administrator of the estate of Chelsea Weekley, Plaintiff Appellant, v. ANN FLANNERY, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 13 CV 914 — Staci M. Yandle, Judge. ____________________ ARGUED FEBRUARY 17, 2016 — DECIDED NOVEMBER 4, 2016 ____________________ Before BAUER, FLAUM, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. Chelsea Weekley suffered a skull fracture as an infant and underwent surgery 17 years later to fix it. She died several days after the surgery, and her mother, Sandra Hall, sued the hospital and the surgeons. Hall argued that the surgery caused Weekley to suffer a seizure and die, and that the surgeons should have prescribed anti seizure 2 No. 15 2602 medication. But the defendants argued that no seizure had oc curred and that a heart related ailment was the likely cause of death. A jury trial was held and the jury found in the defend ants’ favor. On appeal, Hall argues that the district judge erroneously permitted three of the defendants’ experts to opine about Weekley’s likely cause of death. We conclude that Hall for feited her arguments as to two of these experts by making per functory and underdeveloped arguments concerning the ex perts’ testimony, qualifications, and methodology. However, we find that the third expert lacked the requisite qualifica tions to opine that Weekley’s heart ailment was the likely cause of death. Because there is a significant chance that the erroneous admission of this expert testimony affected the out come of the trial, we vacate the district court’s judgment and remand for further proceedings. I. BACKGROUND A. Weekley’s Surgery and Death When Chelsea Weekley was approximately five months old, she was dropped and suffered a skull fracture. As the fracture expanded over time, a cyst formed in the area. The fracture and cyst did not become a cause for concern until, at the age of 17, she was hit in the head and suffered a loss of consciousness, blurred vision, and dizziness. After CT and MRI scans confirmed the extent of the fracture and the cyst, Weekley underwent a “cranioplasty” surgery to repair the fracture and the area of the dura (the thick membrane sur rounding the brain) where the cyst had formed. The surgery was performed at SSM Cardinal Glennon Children’s Hospital No. 15 2602 3 (“Hospital”) by Dr. Ann Flannery, a neurosurgeon, and Dr. Raghuram Sampath, a neurosurgical resident. Weekley was discharged a day after the surgery and was found dead in her bed three days later. The coroner observed that Weekley was in a “normal resting position,” that her legs were straight and her ankles crossed, and that her right arm was bent near her head “as if using it to lay on.” The coroner also observed that her hands were “cramped up,” that her bladder was empty, and that her feet were near the headboard while her head was near the foot of the bed. Weekley’s autopsy was performed by Dr. Raj Nanduri, a board certified forensic pathologist. According to Dr. Nan duri, forensic pathology concerns the effect of sudden, acci dental, and suicidal death on the human body. After perform ing a physical, microscopic, and toxicological examination of Weekley’s body, Dr. Nanduri was unable to identify a cause of death. So she asked Dr. Mary Case, a neuropathologist, to examine Weekley’s brain. Dr. Case found that the surgery damaged the dura and surface of Weekley’s brain. Based on this finding, Dr. Nanduri concluded that Weekley had died from a seizure brought about by the surgical damage. Neither Dr. Nanduri nor Dr. Case was aware of or had reviewed the pre surgery CT and MRI scans when they made their find ings. B. Pre Trial Proceedings Weekley’s mother, Sandra Hall, sued Dr. Flannery, Dr. Sampath, and the Hospital, alleging that they provided Week ley with negligent post operative care, and that this negli gence caused Weekley to suffer a seizure and die. Before trial, Hall filed two motions in limine (“MILs”) that concerned three 4 No. 15 2602 of the defendants’ expert witnesses: Dr. John Ruge, a pediatric neurologist; Dr. Douglas Miller, a neuropathologist; and Dr. Steven Rothman, a pediatric neurologist. In MIL #48, Hall sought to bar Dr. Miller from testifying that anything other than a seizure had caused Weekley’s death, on the ground that Dr. Miller had not provided such an opinion to a reasonable degree of medical certainty. The district judge granted this MIL, though only to the extent that Dr. Miller had in fact failed to disclose any such opinion. In MIL #49, Hall sought to bar the defendants and their witnesses from denying that Weekley’s death was caused by a seizure. In doing so, Hall argued that Dr. Ruge and Dr. Roth man were “not qualified through education or experience to give an opinion to a reasonable degree of medical certainty as to Weekley’s forensic cause of death.” In addition, Hall ar gued that Dr. Ruge had failed to offer any scientific explana tion for his opinion that Weekley had not died from a seizure, and that Dr. Rothman had failed to offer any cause of death opinions to a reasonable degree of medical certainty. The dis trict judge denied the MIL, noting that the defendants’ experts could provide any cause of death opinions that had been pre viously disclosed. C. Trial Proceedings At trial, the defendants elicited cause of death testimony from Dr. Ruge, Dr. Miller, and Dr. Rothman. Dr. Ruge testi fied that Weekley’s death was not brought about by a seizure, and opined that “focal interstitial chronic inflammation” of Weekley’s heart (i.e., thickening of the heart’s connective tis sue) was the likely cause of death. Hall’s attorney objected im mediately, stating, No. 15 2602 5 [T]here’s been absolutely no foundation laid, no qualifications, nothing that would suggest that this gentleman is qualified to give, nor has that been disclosed as one of the opinions as to cause of death. A sidebar ensued in which the parties and the district judge focused on whether Dr. Ruge had previously expressed these opinions with the requisite degree of medical certainty. No one mentioned Dr. Ruge’s qualifications or methodology. Af ter consulting Dr. Ruge’s expert report and deposition tran script, the district judge concluded that the opinions had been properly disclosed and did not violate her ruling on MIL #49. Dr. Miller testified next. Before he shared his cause of death opinions, Hall’s attorney objected, stating, The Court has already determined after argu ment and briefing that defendants’ expert Dr. Douglas Miller is barred from testifying, sug gesting or implying that Chelsea Weekley’s cause of death was anything other than a sei zure. In addition, this motion in limine was also granted that defendants’ opinion witnesses can not express any opinions as to cause of Chelsea Weekley’s death that has [not] previously been stated to a reasonable degree of medical cer tainty. The district judge concluded that although Dr. Miller had pre viously stipulated that he had reached his opinions with a rea sonable degree of medical probability but not medical certainty, his opinions had been adequately shared before trial and thus would not constitute a prejudicial surprise to Hall. Dr. Miller 6 No. 15 2602 then testified that “it’s overwhelmingly probable that [Week ley’s death] was not caused by a seizure.” Finally, Dr. Rothman testified that he did not believe Weekley suffered any seizures before her death. Hall did not object to any of Dr. Rothman’s cause of death opinions dur ing trial. At the end of trial, the jury returned a general verdict “find[ing] for all of the defendants and against the plaintiff.” This appeal followed. II. ANALYSIS Hall argues on appeal that the district court erred in per mitting Dr. Ruge, Dr. Miller, and Dr. Rothman to testify about the specific cause of Weekley’s death. The admissibility of ex pert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals., 509 U.S. 579 (1993). Such testimony is permitted if the witness is “an expert by knowledge, skill, experience, training, or education,” and her opinion is “the product of reliable principles and meth ods” that have been reliably applied to the facts of the case. FED. R. EVID. 702. Because we are not concerned with the wit ness’s general qualifications but instead with his “foundation for … answer[ing] a specific question[,] … we must look at each of the conclusions he draws individually to see if he has the adequate education, skill, and training to reach them.” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (citations and internal quotation marks omitted). We review de novo whether a district judge has properly followed Rule 702 and Daubert. Kunz v. DeFelice, 538 F.3d 667, 675 (7th Cir. 2008). So long as the judge applied the Rule No. 15 2602 7 702/Daubert framework, we review the judge’s decision to ad mit or exclude expert testimony for abuse of discretion. Id. If, however, the district judge failed to apply the framework, we review the judge’s decision de novo. Metavante Corp. v. Emi grant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010); see also United States v. Adame, 827 F.3d 637, 645 (7th Cir. 2016); Naeem v. McKesson Drug Co., 444 F.3d 593, 608 (7th Cir. 2006). Even if an expert’s testimony was erroneously admitted or excluded, reversal is not warranted unless the error has af fected a party’s “substantial rights.” FED. R. CIV. P. 61; see Naeem, 444 F.3d at 608–09. This occurs when the erroneous ruling has had a “substantial influence over the jury, and the result reached was inconsistent with substantial justice.” Far faras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 564 (7th Cir. 2006) (citation omitted); Jones v. Lincoln Elec. Co., 188 F.3d 709, 725 (7th Cir. 1999). “Evidentiary errors satisfy this standard only when a significant chance exists that they affected the outcome of the trial.” EEOC v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th Cir. 2012) (quoting Old Republic Ins. Co. v. Emp’rs Reinsurance Corp., 144 F.3d 1077, 1082 (7th Cir. 1998)); DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 685 (7th Cir. 1995). A. Claim Forfeited as to Dr. Miller and Dr. Rothman In her appellate brief, Hall states in conclusory fashion that Dr. Miller and Dr. Rothman should not have been al lowed to testify that seizure was not the cause of Weekley’s death. But Hall makes no effort to explain why either doctor’s cause of death testimony was improperly admitted, or to identify the specific testimony that was improperly admitted. 8 No. 15 2602 This failure is fatal, as “we are not in the business of formu lating arguments for the parties.” United States v. McClellan, 165 F.3d 535, 550 (7th Cir. 1999). Hall does cite Dr. Miller’s testimony that an epilepsy re lated cause of death finding can be made in the absence of other potential causes such as heart attack, as well as Dr. Roth man’s testimony that clenched fists can be linked not only to seizure but also to heart attack and lung disease. However, Hall failed to take the critical next step of arguing that Dr. Mil ler and Dr. Rothman lacked the requisite qualifications and/or methodology to supply this testimony. Rather, Hall merely cited this testimony to underscore her contention that Dr. Ruge had supplied “wholly unfounded and baseless cause of death testimony.” See Estate of Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005) (“The defendants’ Daubert challenge to the testimony of a different expert hardly suffices to preserve the argument against [the expert at issue].”). Indeed, Hall con ceded at oral argument that she was not arguing that Dr. Mil ler’s and Dr. Rothman’s testimony violated Rule 702 and Daubert. So Hall has forfeited her claim as to Dr. Miller and Dr. Rothman. See Otto v. Variable Annuity Life Ins. Co., 134 F.3d 841, 854 (7th Cir. 1998) (“This court has refused to consider unsupported or cursory arguments.”); United States v. Berko witz, 927 F.2d 1376, 1384 (7th Cir. 1991) (holding that “per functory and undeveloped arguments” are forfeited on ap peal). No. 15 2602 9 B. Reversible Error Involving Dr. Ruge 1. Rule 702/Daubert Framework Should Have Been Applied Hall argues that the district judge erred in permitting Dr. Ruge to testify that Weekley’s cause of death was not attribut able to seizure, and that a heart related issue was the likelier explanation. Both Hall and the defendants contend that we should review the admission of this testimony for abuse of discretion. But that overlooks the fact that the abuse of discre tion standard is available only when the district judge actu ally applied the Rule 702/Daubert framework, which did not occur here. In MIL #49, Hall argued that Dr. Ruge offered cause of death opinions without being “qualified through education or experience” and without the requisite “scientific explana tion.” With that challenge to Dr. Ruge’s credentials, the dis trict judge should have conducted a Daubert inquiry, even though Hall did not expressly reference Daubert or Rule 702 by name. And when Hall objected at trial that “there’s been absolutely no foundation laid, no qualifications, nothing that would suggest that this gentleman is qualified to give … opin ions as to cause of death,” the district judge was squarely faced with a need to determine if Dr. Ruge was qualified as an expert in this area, even if the word “Daubert” was not spo ken. But the objections did not prompt the judge to examine Dr. Ruge’s qualifications and methodology or to apply the Daub ert test. Instead, the judge focused solely on whether the chal lenged opinions had been previously disclosed. Perhaps even more curiously, neither party made any effort to clarify that 10 No. 15 2602 Hall had in fact invoked Rule 702 and Daubert, and that the district judge should therefore comment on more than whether the opinions had been previously disclosed. The par ties’ failure to do so, however, did not extinguish the need to apply the Rule 702/Daubert framework to Dr. Ruge’s opinions. Because that application never occurred, our review of the ad mission of these opinions is de novo. 2. Adequate Qualifications and Methodology for Dr. Ruge’s Seizure Opinion At trial, Dr. Ruge opined that Weekley had not suffered a seizure before she died. He noted that she had no docu mented history of seizures, and that her body and bed did not display the typical signs of seizure such as violent convul sions, tongue damage, and urinary incontinence. He also stated that seizures typically do not result from cranioplasty (the surgical procedure Weekley underwent), and that the cranioplasty here had not damaged Weekley’s brain. This opinion was not erroneously admitted. For one, Dr. Ruge possessed sufficient qualifications to opine on the oper ation performed and the possible occurrence of a seizure af terward. At the time of trial, Dr. Ruge had practiced pediatric neurosurgery for approximately 25 years and was serving as the chief of pediatric neurosurgery for the Advocate Health Care system, which encompassed two major children’s hospi tals and approximately ten other hospitals. In addition, he was certified by the American Board of Neurological Surgery, was affiliated with multiple neurological and medical socie ties, and was a former editorial board member for the publi cations Critical Reviews in Neurology and Child’s Nervous Sys tem. And perhaps most notably, he had operated on growing skulls fractures like Weekley’s, and had published articles on No. 15 2602 11 various pediatric neurosurgery topics including epilepsy, cra nial cysts, and severe head injury. In addition, Dr. Ruge’s seizure related opinions were based on sufficiently reliable methodology. Dr. Ruge arrived at his conclusions based on his review of the autopsy report; Weekley’s medical records, including the MRI and CT scans taken before surgery, Dr. Flannery’s operative report, and Dr. Flannery and Dr. Sampath’s post surgery progress notes; and deposition testimony. See Gayton, 593 F.3d at 618 (holding that district court abused its discretion in finding expert’s meth odology unreliable where expert made differential diagnosis based on decedent’s autopsy report and medical records and testimony of prison guards and other witnesses); Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000) (holding that district judge did not abuse his discretion in admitting expert testimony informed by expert’s experience and examination of medical records, despite lack of in person examination). In addition, Dr. Ruge relied on his medical experience, which as discussed above is substantial, particularly with regard to pe diatric neurosurgery. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”); Metavante Corp., 619 F.3d at 761 (“An expert’s testimony is not unreliable simply because it is founded on his experience rather than on data … .”); Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (“While exten sive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by ex perts whose knowledge is based on experience.” (citations and internal quotation marks omitted)). 12 No. 15 2602 Hall contends that Dr. Ruge lacked the requisite qualifica tions because pathology is not his area of professional focus. However, this argument ignores the fact that “[o]rdinarily, courts impose no requirement that an expert be a specialist in a given field.” Gayton, 593 F.3d at 618 (citation omitted); see also Gaydar v. Sociedad Instituto Gineco Quirurgico y Planifica cion Familiar, 345 F.3d 15, 24–25 (1st Cir. 2003) (“The proffered expert physician need not be a specialist in a particular medi cal discipline to render expert testimony relating to that disci pline. In fact, it would have been an abuse of discretion for the court to exclude [the expert]’s testimony [about plaintiff’s pregnancy] on the sole basis that his medical specialty was something other than gynecology or obstetrics.”); Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (explaining that a district court abuses its discretion by excluding testimony simply because “the proposed expert does not have the spe cialization that the court considers most appropriate” (cita tion omitted)). The fact that an expert may not be a specialist in the field that concerns her opinion typically goes to the weight to be placed on that opinion, not its admissibility. See, e.g., Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009); Mitchell v. United States, 141 F.3d 8, 15 (1st Cir. 1998); Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 809 (3d Cir. 1997). Here, the issue of whether a seizure occurred shortly be fore Weekley’s death did not concern knowledge that is held solely by pathologists. Dr. Nanduri, the pathologist who ex amined Weekley after her death, testified that a seizure re lated cause of death finding is made by excluding all other apparent causes, and that she arrived at her finding here based on the damage to Weekley’s dura and cortex—damage that a non pathologist could have observed. Moreover, Dr. Ruge stated that he “routinely cared for patients who … have No. 15 2602 13 seizures as part of their neurosurgical condition,” witnessed numerous seizures himself, and operated on individuals with head injuries comparable to Weekley’s. So Dr. Ruge pos sessed the requisite qualifications to testify about seizures. See Gayton, 593 F.3d at 618 (holding that general practitioner could testify about possible effects of certain medications on decedent’s heart condition because the issue did not concern “specialized knowledge held only by cardiologists”); Banister v. Burton, 636 F.3d 828, 831–32 (7th Cir. 2011) (holding that emergency room surgeon who treated shooting victim was adequately qualified to testify about victim’s ability to throw or crawl at the time of treatment, despite not being a biome chanics expert or an orthopedic surgeon). 3. Inadequate Qualifications for Dr. Ruge’s Heart Opinion While Dr. Ruge was qualified to opine on Weekley’s sur gery and the possibility of seizure, this qualification does not extend to his opinion that Weekley’s heart related issue was the likelier cause of death. See Gayton, 593 F.3d at 617 (“[W]e must look at each of the conclusions [an expert] draws indi vidually to see if he has the adequate education, skill, and training to reach them.” (citations and internal quotation marks omitted)). Neither Dr. Ruge’s trial testimony nor his expert report and curriculum vitae indicate that he possesses any special ized education, knowledge, experience, or skill concerning fo cal interstitial chronic inflammation specifically, or more broadly cardiology. Indeed, Dr. Ruge acknowledged at trial that when he read the inflammation finding in Weekley’s au topsy report, he “didn’t know what that was exactly.” So he 14 No. 15 2602 conducted a Google search and found several papers explain ing that it is “a finding in young athletes who die suddenly of cardiac arrhythmias,” even though their “hearts can look very normal.” Based on this research, he opined that focal intersti tial chronic inflammation “makes more sense [as a cause of death] based on the whole story, the whole picture.” We do not doubt that Dr. Ruge is an intelligent doctor who possesses considerable knowledge about surgery, pediatrics, and neurology. However, the record lacks sufficient evidence demonstrating that this knowledge and the related experi ences render Dr. Ruge qualified to opine about Weekley’s heart. See Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 613 (7th Cir. 2002) (remarking that a surgeon “would be com petent to testify that the cancer was too advanced for surgery, but [that] in offering the additional and critical judgment that the radiologist should have discovered the cancer sooner he would be, at best, just parroting the opinion of an expert in radiology”); Jones v. Lincoln Elec. Co., 188 F.3d 709, 723–24 (7th Cir. 1999) (holding that district court should have barred ma terial scientist from testifying about conclusions that “were rooted in medical knowledge and training which [he] did not have” and that were “derived primarily, if not completely” from a physiologist); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 839 (9th Cir. 2011) (concluding that chem ist, who had expertise in cancer immunology and medical tox icology, had no “special training or knowledge regarding metal working industries” and could not opine that power plant’s activities created dioxins); Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715–16 (8th Cir. 2001) (concluding that hydrologist was qualified to testify about flood risk management but not about safe warehousing practices). Because Dr. Ruge did not possess the requisite No. 15 2602 15 qualifications to opine about the impact of Weekley’s heart on her cause of death, we need not address his methodology. 4. Hall’s Substantial Rights Were Affected The fact that Dr. Ruge’s heart related cause of death testi mony was erroneously admitted does not automatically enti tle Hall to a new trial. Rather, she must show that this error had a “substantial influence over the jury.” Farfaras, 433 F.3d at 564. We conclude that it did. It is undisputed that Weekley’s cause of death was a criti cal issue at trial. Hall pointed to seizure—a relatively difficult fact to prove since (as both parties agree) such a finding is made only by ruling out all other possible alternatives. It is no surprise that the defendants chose not only to argue that a sei zure had not occurred, but also to offer an alternative cause— heart troubles. And Dr. Ruge played a critical role supporting this alternative cause, testifying about multiple studies he had read that linked the heart condition that Weekley had to the circumstances under which she passed away. Critically, the import of Dr. Ruge’s testimony cannot be minimized on the ground that it was merely “cumulative” of testimony provided by other experts. See Naeem, 444 F.3d at 609 (finding improperly admitted expert testimony did not affect substantial rights because certain of the expert’s objec tionable statements were “corroborated by other witnesses”); Palmquist v. Selvik, 111 F.3d 1332, 1339, 1342 (7th Cir. 1997) (finding that exclusion of evidence was harmless error be cause the proposed evidence was cumulative). To be sure, Dr. Miller and Dr. Rothman briefly referenced the effect a heart attack can have on cause of death findings generally, while 16 No. 15 2602 Dr. Nanduri and Dr. Case acknowledged that heart disturb ances can result in death for a healthy young adult. However, Dr. Ruge was the only expert to opine about the purportedly “numerous papers” that identify young athletes who died suddenly of heart related illness. We cannot ignore the dis tinct possibility that Dr. Ruge’s discussion of these publica tions played a key role in the jury’s verdict, given the thresh old nature of the cause of death inquiry. See Chapman v. May tag Corp., 297 F.3d 682, 688 (7th Cir. 2002) (remanding for new trial where precise impact of expert’s erroneously admitted testimony on comparative fault could not be determined, given the jury’s general verdict); see also Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 465–67 (9th Cir. 2014) (en banc) (remanding for new trial where district court errone ously permitted expert to testify about evidence that was “critical” to plaintiffs’ case); Wheeling Pittsburgh Steel, 254 F.3d at 715 (finding reversible error where district court permitted hydrologist to repeatedly testify beyond scope of his expertise “on ultimate issues of fact that the jury was required to an swer”). The defendants contend that reversal would be improper because “there is no basis to conclude that admission of the Defendants’ experts’ testimony influenced the jury’s verdict.” They argue that even if the jury had not heard any testimony from the defendants’ experts regarding alternative causes of death, the jury could have found for the defendants on the grounds that they did not breach their standard of care, or that any such breach did not cause Weekley’s death. In sup port, the defendants cite several Illinois state court decisions that found a new trial to be unnecessary where it was possible that the jury’s verdict rested on an issue that was not subject to appeal. See Tabe v. Ausman, 902 N.E.2d 1153, 1159 (Ill. App. No. 15 2602 17 Ct. 2009); Strino v. Premier Healthcare Assocs., P.C., 850 N.E.2d 221, 229–30 (Ill. App. Ct. 2006); Krklus v. Stanley, 833 N.E.2d 952, 959–60 (Ill. App. Ct. 2005). But state law is not applicable to this inquiry. “In this cir cuit the harmlessness standard is treated as procedural and therefore in a diversity case is governed by federal law and [Rule] 61.” Sokol Crystal Prods., Inc. v. DSC Commc’ns Corp., 15 F.3d 1427, 1435 (7th Cir. 1994) (citation and footnote omitted); see also 11 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2883 (3d ed. 2016) (“It is unsound [for a federal court to apply a state court’s harmless error standard] be cause the harmless error doctrine, explicitly stated both in Rule 61 and in an Act of Congress, is an important principle of judicial administration that goes to the proper relation be tween the trial judge and the jury and the proper relation be tween appellate courts and trial courts.”). Because the defend ants have not satisfied Rule 61’s harmless error standard, a new trial is warranted. III. CONCLUSION We REVERSE the district judge’s decision to admit Dr. Ruge’s heart related cause of death testimony, VACATE the judgment, and REMAND the case for proceedings consistent with this opinion.
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