Cindy Ly, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0966

Cindy Ly,
Appellant,

vs.

North Memorial Medical Center,
Respondent.

Filed April 2, 2018
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CV-15-3449

Ryan W. Marth, Chris A. Messerly, Robins Kaplan LLP, Minneapolis, Minnesota; and

Michael A. Zimmer, M.A. Zimmer Law, Minneapolis, Minnesota (for appellant)

Richard J. Thomas, Chad J. Hintz, Burke & Thomas, PLLP, Arden Hills, Minnesota (for
respondent)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In an appeal from judgment in favor of respondent in a medical negligence action,
appellant challenges the district court’s exclusion of her experts’ opinions for lacking
foundational reliability. Appellant argues that the district court erred by engaging in fact
2
finding through weighing and balancing the experts’ opinions and by relying on
McDonough v. Allina Health Sys., a case which she claims appl ied an incorrect causation
standard and should be overruled. 685 N.W.2d 688 (Minn. App. 2004) . A nd appellant
contends that, even if we do not overrule McDonough, the district court erred by applying
it to a failure-to-diagnose case. We affirm.
FACTS
On July 20, 2012, appellant Cindy Ly arrived at the emergency department in
respondent North Memorial Medical Center (North Mem orial) with a rash on her hands
and bumps on her feet. She also complained of a sensation in her throat and sores around
her mouth. After a rapid strep test returned positive, an emergency room doctor diagnosed
Ly with strep pharyngitis and gave her a de ep intramuscular injection of penicillin. The
doctor discharged her and instructed her to come back if problems persisted.
Ly returned to North Memorial two days later on July 22, complaining that her rash
had spread to other areas of her body and that she had lesions in her mouth. She also
described having difficulty breathing, stating that she felt she had to gasp for air. Dr. Kelly
Milkus examined Ly, diagnosed her with hand, foot, and mouth disease , prescribed
medications, and directed her to return if her symptoms worsened.
On July 26, Ly was taken by ambulance to North Memorial’s emergency
department. She had a severe rash that covered most of her body and golf ball-sized blisters
on her wrists and the soles of her feet. She also had crusted mouth sores, including on the
bottom of her tongue, and mucous membrane involvement in her nose and mouth and on
her lips. Dr. Amy Kolar diagnosed Ly with toxic epidermal necrolysis (TEN), a rare but
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potentially life -threatening skin disease most commonl y associated with an adverse
reaction to a drug present in the individual’s system. Dr. Kolar arranged to have Ly
transferred to the burn unit at Hennepin County Medical Center (HCMC).
Upon arriving to the burn unit, Ly’s TEN continued to progress from covering 40
percent of her body to 95 percent. She remained at the burn unit for the next 41 days and
spent another several weeks recovering at a rehabilitation center. While hospitalized at
HCMC, she suffered additional conditions, such as sepsis, and n eeded to undergo
numerous procedures including blood transfusions, installation of feeding and rectal tubes,
and wound irrigation and debridement.
In March 2015, Ly sued North Memorial for medical negligence, claiming that
Dr. Milkus negligently failed to assess and treat her on July 22, 2012 for her adverse
reaction to the penicillin administered two days earlier. She alleged that Dr. Milkus failed
to satisfy the standard of care and caused her TEN prognosis to become severe and life -
threatening. Ly s ubmitted disclosures with affidavits expressing the opinions of her two
experts: Dr. Terrance Baker, an emergency room physician, and Dr. Ernest Charlesworth,
a dermatologist. Dr. Baker opined that Dr. Milkus’s treatment fell below the standard of
care by discharging Ly on July 22, and that if Dr. Milkus had provided the appropriate care,
Ly’s condition “would not have progressed from non-serious to TEN” between July 22 and
July 26. Dr. Charlesworth opined that if Dr. Milkus had provided proper care, such as
referring Ly to a dermatologist, Ly would have experienced a less severe course of events
instead of TEN with severe morbidity.
4
In March 2016, North Memorial moved to exclude Dr. Baker ’s and
Dr. Charlesworth’s opinions under the Frye-Mack standard and requested that the district
court grant summary judgment in its favor. See Frye v. United States , 293 F. 1013 (D.C.
Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn. 1980). North Memorial disclosed two
of its own experts who intended to testify that Ly did not present symptoms of TEN in her
second visit to North Memorial on July 22, 2012, and that even if Dr. Milkus had diagnosed
her with TEN on July 22, no medical treatment has been proven to prevent or reduce the
disease’s progression.
The district court denied North Memorial’s Frye-Mack motion, reasoning that the
standard does not apply if the experts are not offering “novel” scientific evidence and that
North Memorial failed to identify the new scientific methods or techniques in eithe r of
Dr. Baker’s or Dr. Charlesworth’s opinions. The district court also denied North
Memorial’s motion for summary judgment, concluding that material factual issues existed
due to the differing expert opinions regarding Ly’s diagnosis and treatment.
As the case proceeded to trial, North Memorial filed motions in limine to exclude
Dr. Baker and Dr. Charlesworth from testifying about their opinions on the basis that their
opinions failed to meet the foundational reliability requirement under Minn. R. Evid. 702.
The district court granted North Memorial’s motions in limine in March 2017, concluding
that the opinions lacked foundational reliability required to testify that the progression of
Ly’s TEN would have been eliminated or reduced by earlier hospita lization or
administration of intravenous immunoglobulins (IVIG). The district court determined that
the medical literature relied upon by Ly’s experts did not establish that additional treatment
5
would have eliminated the progression of TEN but was rather “at best, equivocal.” The
district court also concluded that Ly failed to present a plausible cause for her injuries that
could explain why North Memorial’s proffered cause ––the inability to remove the
penicillin from her system––was not the sole cause.
After the district court ordered Dr. Baker’s and Dr. Charlesworth’s testimony to be
excluded from trial, the parties stipulated that Ly could not prove the causation element to
establish her prima facie case of medical negligence against North Memorial. As a result
of the parties’ agreement, the district court entered judgme nt in favor of North Memorial.
This appeal followed.
D E C I S I O N
Ly contends that the district court erred by excluding the testimony of her experts
regarding the causation element in her prima facie case of medical negligence. She argues
that the district court (1) encroached on the role of the trier -of-fact by engaging in fact -
finding functions; (2) inappropriately relied on this court’s decision in McDonough, which
articulated the wrong causation standard ; and, alternatively, (3) incorrectly interpreted
McDonough by applying its reasoning to a failure-to-diagnose case.
Appellate courts “review a district court’s evidentiary rulings, including rulings on
foundational reliability, for an abuse of discretion.” Doe v. Archdiocese of St. Paul , 817
N.W.2d 150, 164 (Minn. 2012). And if the district court considered the relevant factors
regarding foundational reliability, we will not reverse the district court’s evidentiary
decision absent an abuse of its discretion. Id. at 168.
6
All testimony must meet the basic requirements of the rules of evidence in order to
be admissible. Id. at 164. An expert’s testimony must also sa tisfy the requirements of
Minn. R. Evid. 702. Id. Rule 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise. The
opinion must have foundational reliability. In addition, if the
opinion or evidence involves novel scientific theory, the
proponent must e stablish that the underlying scientific
evidence is generally accepted in the relevant scientific
community.

Minn. R. Evid. 702. In other words, for expert testimony to be admissible under rule 702,
the proponent of the testimony must show that: (1) the witness qualifies as an expert; (2) the
expert’s opinion has foundational reliability; and (3) the testimony i s helpful to the trier -
of-fact. Doe, 817 N.W.2d at 164.
The parties only dispute the second requirement: whether the opinions of Dr. Baker
and Dr. Charlesworth have foundational reliability. The Minnesota Supreme Court has
instructed the district court s in addressing the foundational reliability of expert testimony
to (1) “analyze the proffered testimony in light of the purpose for which it is being offered”;
(2) “consider the underlying reliability, consistency, and accuracy of the subject about
which the expert is testifying”; and (3) require the proponent of the evidence to “show that
it is reliable in that particular case.” Id. at 167–68.
7
I.
Ly first argues that the district court erred by intruding upon the trier-of-fact’s role
in evaluating the is sue of causation and by improperly weighing the experts’ proffered
testimony. She asserts that because this case involves competing expert testimony, it is the
function of the jury, not the district court, to re solve a “battle of the experts.” However,
questions regarding the admissibility of evidence, including whether there is foundation
for the evidence, are generally considered preliminary questions for the district court. See
Minn. R. Evid. 104(a); see also Johnson v. Washington Cty., 518 N.W.2d 594, 601 (Minn.
1994) (stating that evidentiary rulings concerning foundation are within district court’s
sound discretion).
Ly relies on Pfeiffer v. Allina Health Sys. , in which this court held that the district
court abused its discretion by determining tha t the appellant’s expert affidavits lacked
foundational reliability. 851 N.W.2d 626, 6 38–39 (Minn. App. 2014), review denied
(Minn. Oct. 14, 2014). In Pfeiffer, this court concluded that the district court had failed to
conduct a rule 702 analysis and that the district court “intruded upon a function customarily
reserved for the fact -finder at trial.” Id. This court reasoned that “[t]he reliability of
appellant’s expert opinion testimony with regard to causation goes to the ‘relative weight’
of that tes timony rather than to its admissibility.” Id. at 639 (citing State v. Myers , 359
N.W.2d 604, 611 (Minn. 1984)).
But this case differs from Pfeiffer because Ly’s experts do not have adequate
foundation for their opinions. The district court concluded that the opinions of Ly’s experts
lacked foundational reliability to testify that earlier hospitalization or administration of any
8
drug treatment, such as IVIG, would have eliminated or reduced Ly’s progression of TEN.
Unlike the district court in Pfeiffer, which never applied a rule 702 analysis, the district
court in this case reasoned that “[t]he medical literature does not establish that the
treatments suggested by [Ly’s] medical experts would have stopped the progression of or
eliminated entirely [Ly’s] injuries.” The district court further determined that “the medical
literature is, at best, equivocal” regarding the effectiveness of the treatm ents proposed by
Ly’s experts.
Ly repeatedly suggested at oral argument that both Dr. Charlesworth’s and Dr.
Baker’s experience provides the necessary foundation for their assertions. 1 But neither
experts’ curriculum vitae denotes any particular training or background with treating TEN
patients. Indeed, the record is unclear regarding the number of TEN patients, if any, that
Dr. Charlesworth and Dr. B aker have personally treated. The medical literature in the
record reflects an array of differing opinions regarding the use and effectiveness of specific
therapies leading us to the only possible conclusion that these therapies remain highly
controversial.2 Some of the medical articles in the record emphasized the importance of

1 Ly refers to an unpublished opinion to support her claim that experience alone is enough
to establish foundational reliability for an expert’s opinion. See Howard v. Svoboda, No.
A16-1232, 2017 WL 2535687 (Minn. App. Jun e 12, 2017). We note, however, that
unpublished opinions from this court lack precedential value and are not to be relied upon.
Minn. Stat. § 480A.08, subd. 3 (2016).
2 See Marnie R. Ririe et al., Intravenous Immune Globulin Therapy for Stevens -Johnson
Syndrome/Toxic Epidermal Necrolysis Complicated by Hemolysis Leading to Pigment
Nephropathy and Hemodialysis , 69 J. Am. Acad. Dermatology 221, 221 –22 (2013)
(“Although the use of IVIG in the treatment of patients with toxic epidermal necrolysis
(TEN) remains controversial, some experts consider IVIG to be the best treatment currently
available for this diagnosis.”); see also Mario Lissia et al., Toxic Epidermal Ne crolysis
(Lyell’s Disease), 36 Burns 152, 152 (2010) (“Different authors report good results in terms
9
early hospitalization and transfer to burn units by indicating that this supportive care may
decrease mortality rates through prevention of secondary infections.3 But these articles do
not support the claim that secondary care can prevent or reduce the progression of TEN.
We recognize that the rarity of this horrific disease has made it difficult for the
medical community to establish a consistent course of treatment that can both alleviate and
eliminate the symptoms of TEN. 4 The district court, in exercising its authority as the
gatekeeper for admitting evidence, must consider the reliability, consistency, and accuracy
of the subject matter and ultimately determine whether the proffered evidence is reliable.
Doe, 817 N.W.2d at 168–69. We conclude that the district court did not abuse its discretion
by determining that Ly’s experts lacked foundational reliability for their opinions, and that
the district court did not engage in improper fact-finding.
II.
Ly next contends that the district court erred by basing its decision on this court’s
reasoning in McDonough. She specifically argues that we should overrule McDonough
because it “fundamentally misapprehends” the causation standard in medical negligence

of decreasing mortality and morbidity or improving clinical conditions of the use of human
intravenous immunoglobulins (IVIGs). Regardless, the true utili ty of this treatment
remains controversial.”).
3 See, e.g., Lissia et al., supra, at 157 (“Despite a lack of specific research with control
groups, data from retrospective studies suggest that an early admission to burn unit reduces
the risk of infections and infections related mortality, and , also, the hospitali[z]ation
length.”).
4 See Gerard J. Abood et al., Treatment Strategies in Toxic Epidermal Necrolysis
Syndrome: Where Are We At ?, 29 J. Burn Care & Res . 269, 272 (2008) (“Given the low
incidence of TENS, randomized controlled trials comparing potential therapeutics are
rare.”). We note that this article, as with the rest of the medical literature cited in our
opinion, was part of the record before the district court.
10
actions. The doctrine of stare decisis directs Minnesota courts to adhere to prior decisions
in order to pro mote and maintain stability in the law. Oanes v. Allstate Ins. Co. , 617
N.W.2d 401, 406 (Minn. 2000). For instance, we are bound by precedent to follow this
court’s prior published opinions. Jackson ex. rel. Sorenson v. Options Residential , Inc.,
896 N.W.2d 549, 553 (Minn. App. 2017). And while “stare decisis is not an inflexible rule
of law,” this court will not overrule its own decisions unless presented with a compelling
reason to do so. See Oanes, 617 N.W.2d at 406 (quotation omitted).
In McDonough, the plaintiff-patient sued the defendants, alleging that she suffered
a stroke that was caused by the hospital’s negligent administration of an IVIG infusion.
685 N.W.2d at 692. One of plaintiff’s experts opined that the plaintiff’s stroke was caused
by the IVIG being administered at an unreasonable rate. Id. The defendants moved t o
exclude the expert testimony and offered contrary expert opinion that a number of other
risk-related factors could have caused the plaintiff’s stroke. Id. at 693–94. T his court
affirmed the district court’s exclusion of the plaintiff’s experts’ opinions, holding that if
the defendants “point[] to a plausible alternative cause and the [plaintiff’s expert] offers no
explanation for why he or she has concluded that was not the sole cause, that [expert’s]
methodology is unreliable.” Id. at 695 (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146,
156 (3d Cir. 1999) and citing Turner v. Iowa Fire Equip. Co. , 229 F.3d 1202, 1209 (8th
Cir. 2000)).
Here, North Memorial asserted that the primary treatment for a patient developing
TEN is to remove the offending agent. Much of the pertinent medical literature in the
record, and the experts for both parties ––as noted by the district court ––agree with this
11
assertion.5 Nonetheless, Ly’s experts maintained that Ly’s injuries could have been
avoided, or at least reduced, by prompt treatment through earlier hospitalization and
administration of IVIG. But North Memorial’s experts opined that because the penicillin
was injected into Ly’s system, and had a half -life of two to three weeks, th is offending
agent could not have been removed and that no medical treatment could have reduced the
progression of or eliminated Ly’s TEN. The district court construed this explanation as a
“plausible alter native cause” for Ly’s injuries. The district court also referenced the
testimony from the director of HCMC’s burn unit, who stated that he was unaware of any
injuries or damage Ly suffered due to any delay in transferring her to the burn unit. Thus,
the district court determined that, according to McDonough, Ly’s experts needed to show
that the inability to remove the penicillin from her system was not the cause of her injuries.
Because the district court determined that Ly’s experts, and the medical literature that they
relied upon, failed to show that North Memorial’s treatment or failure to diagnose was the
cause of her TEN and her subsequent injuries , it excluded t heir testimony for lacking
foundational reliability under rule 702.
A. The Daubert Standard
In urging us to overrule the McDonough case, Ly claims that McDonough
incorrectly relied on the Daubert standard––the federal standard used in interpreting the

5 See, e.g. , Frederick A. Pereira et al., Toxic Epidermal Necrolysis , 56 J. Am. Acad.
Dermatology 181, 192 (2007) (“The first and most important element of treatment consists
of discontinuation of the offending drug. The faster the causative drug is eliminated, the
better the prognosis. Unfortunately, this appears to be less true if the drug has a long half-
life.”).
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application of Fed. R. Evid. 702 for admitting expert scientific testimony but rejected by
the Minnesota Supreme Court ––by noting its citation to Heller and Turner, two federal
appellate court cases that applied the Daubert standard. See Daubert v. Merrel l Dow
Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). McDonough cites Heller and Turner
for the proposition that if a defendant proposes an alternative cause for a plaintiff’s injuries
and the plaintiff’s expert fails to explain why the defendant’s alternative cannot be the sole
cause, then the expert’s opinion is unreliable. 6 See McDonough, 685 N.W.2d at 695. But
for reasons set forth below, McDonough’s analysis of foundational reliability, and its
reference to these two circuit court cases, does no t implicate the Minnesota Supreme
Court’s rationale for rejecting the Daubert standard.
The Minnesota Supreme Court has chosen not to adopt the Daubert standard but
instead continues to adhere to the Frye-Mack standard. Goeb v. Tharaldson, 615 N.W.2d
800, 814 (Minn. 2000). The Frye-Mack standard imposes two requirements in addition to
the rule 702 requirements for “novel” scientific evidence. Doe, 817 N.W.2d at 165. One
of these requirements is that the evidence “must be shown to be generally accepted within
the relevant scientific community.” State v. Roman Nose , 649 N.W.2d 815, 818 (Minn.
2002). The supreme court has suggested that the Daubert standard may be less rigorous

6 In Heller, the Third Circuit stated that the failure to rule out all alternative possible causes
constituted a more stringent standard than required under Fed. R. Evid. 702 for a medical
expert’s differential-diagnosis opinion. 167 F.3d at 156. But, the Heller court concluded
that if a plausible alternative case is presented, the expert must at least explain why this
alternative cause is not the sole cause. Id. In Turner, the Eighth Circuit concluded that the
district court did not abuse its discretion by excluding an expert’s opinion because although
the medical literature could “rule in” the alleged cause of the disease, the expert’s opinion
could not “rule out” other possible causes. 229 F.3d at 1209.
13
than the Frye-Mack standard because the Daubert standard does not contain this “general
acceptance” requirement. See Goeb, 615 N.W.2d at 813–14; see also State v. Traylor, 656
N.W.2d 885, 891–93 (Minn. 2003).
In this case, the district court denied North Memorial’s Frye-Mack motion because
it failed to identify any “new science” involved in either Dr. Baker’s or Dr. Charlesworth’s
opinions. The issue on appeal does not concern whether the district court improperly
applied the Daubert standard, instead of the Frye-Mack standard, in evaluating whether the
experts’ proposed evidence was novel. Rather, the issue is whether Ly’s experts had
foundational reliability to support their opinions. Because this case centers on whether the
district court erred in its foundational reliability analysis under rule 702, not in its earlier
Frye-Mack analysis, Ly’s argument does not present a compelling reason to overrule this
court’s prior decision in McDonough.
B. The Causation Standard in Medical Negligence Cases
Ly next requests that we overrule McDonough on the basis that it misconstrues the
causation standard for medical negligence cases by imposing an unjustified burden on her
experts to disprove North Memorial’s proffered alternative cause. Minnesota caselaw has
previously establ ished that a plaintiff does not need to exclude every other possible
hypothesis as to the cause of her injuries in order to prove causation, but she may not base
the cause of her injuries on speculation or conjecture. Schulz v. Feigal , 273 Minn. 470,
476, 142 N.W.2d 84, 89 (1966); see also Bauer v. Friedland, 394 N.W.2d 549, 554 (Minn.
App. 1986) ( explaining that medical malpractice plaintiff “is not required to prove her
theory of negligence by testimony so clear as to exclude every other possible theory”). The
14
plaintiff must still prove “that it is more probable than not that his or her injury was a result
of the defendant health care provider’s negligence.” Leubner v. Sterner, 493 N.W.2d 119,
121 (Minn. 1992).
This court’s reasoning in McDonough that the failure to offer any explanation for a
plausible alternative cause of an individual’s injuries is not inherently inconsistent with
Minnesota law on causation because it further illustrates that negligence claims must not
depend on speculative causes. See Saaf v. Duluth Police Pension Relief Ass’n, 240 Minn.
60, 65, 59 N.W.2d 883, 886 (1953) (explaining that “medical testimony which does nothing
more than show a mere possibility, suspicion, or conjecture that such causal relation exists,
without any foundation for the exclusion of other admittedly possible causes , provides no
proper foundation for a finding of a causal connection” (emphasis added)).
Without foundation to support their opinions that the severity of Ly’s TEN could
have been reduced or eliminated entirely through earlier hospitalization or other therapies
and treatment, the experts’ opinions that North Memorial caused Ly’s injuries are nothing
more than speculation and conjecture. We conclude that Ly’s argument that McDonough
imports a faulty understanding of the causation standard is un persuasive and does not
provide us with a compelling reason to overrule this binding precedent.
III.
Alternatively, Ly argues that even if we do not overrule McDonough, the district
court erred by applying its reasoning to a failure -to-diagnose case. She asserts that this
case is not a differential diagnosis case, in which the parties disagree as to what treatment
caused her injuries, but is rather a failure -to-diagnose case where the absence of or delay
15
in treatment allegedly made her injuries more severe. See Leubner, 493 N.W.2d at 122
(stating that in failure-to-diagnose cases, “there is no claim the disease itself . . . was caused
by the physician, but rather that the physician’s delay resulted in harm that could have been
prevented”).
“In performing a differential diagnosis, a physician begins by ruling in all
scientifically plausible causes of the [patient’s] injury. The physician then rules out the
least plausible causes of injury until the most likely cause remains.” McDonough, 685
N.W.2d at 695 n.3 (alteration in original) (quotation omitted). As previously discussed,
the parties in McDonough disputed whether the high rate of IVIG infusion caused the
appellant’s stroke or whether it was another cause, such as the appellant’s obesity or high
blood pressure. Id. at 694. This court concluded that because the experts could not rule
out the other plausible causes, or at least explain why they were excludable, their opinions
were not sufficiently reliable for purposes of proving causation. Id. at 695.
We agree with Ly to the extent that this case does not constitute a differential
diagnosis case. But we disagree with her claim that McDonough cannot apply to a failure-
to-diagnose case. Whether a patient is misdiagnosed or experiences delayed treatment may
be contributing factors that relate to the cause of her injuries, and under Minnesota caselaw,
including McDonough, the patient must still prove that this misdiagnosis or delay in
treatment more probably than not caused her harm. See generally Dickhoff ex rel. Dickhoff
v. Green, 836 N.W.2d 321, 333–38 (Minn. 2013). The district court in this case noted that
all of the parties’ experts agreed that the primary treatment for a patient who is developing
TEN is to remove the offending agent. Because Ly is unable to explain how the penicillin
16
could be removed from her system, and because Ly has not provided any foundationally
reliable evidence that any therapy c an reduce or stop TEN from progressing while the
offending agent remains in a person’s system, we conclude that the district court did not
err by excluding the testimony of Ly’s experts for lack of foundational reliability.
Affirmed.