Waitek v. Dalron Shield Claimants Trust (934 F. Supp. 1068, 1996)

United States District Court for the Northern District of Iowa 1996-07-31

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S POST-TRIAL MOTIONS

BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND................................... 1074 •

II. THE TRUST’S MOTION PURSUANT TO FED.R.CIV.P. 50(b)................1076

A. Applicable Standards..................................................1076

1. Procedural requirements...........................................1076

2. Evidentiary standard..............................................1077

B. The Trust’s Grounds For Judgment As A Matter Of Law..................1078

1. Causation and Dr. Dunker’s testimony...............................1078

a. Waiver.......................................................1079

i. McKnight.................................................1080

ii. Other jurisdictions.........................................1080

iii. The Trust’s failure to timely object...........................1081

iv. Plain error................................................1083

b. Sufficiency of the evidence......................................1083

i. Standards for expert testimony..............................1084

ii. Applicability of Sorensen....................................1086

iii. Applicability of McKnight...................................1087

iv. Dr. Dunker’s opinions......................................1089

2. Adoption expenses ................................................1091

3. Past hospital and medical expenses..................................1091

III. THE TRUST’S MOTION FOR NEW TRIAL................................1092

A. Applicable Standards..................................................1092

B. The Trust’s Grounds For New Trial.....................................1093

1. Causation and Dr. Dunker’s testimony...............................1093

2. Jury instruction on proximate cause.................................1094

a. Applicable law..............-..................................1094

b. Review of Final Jury Instruction No. 18..........................1096

3. Court’s denial of the Trust’s motion for mistrial.......................1097

IV. THE TRUST’S MOTION FOR REMITTITUR ..............................1098

V. CONCLUSION..........................................................1100

A familiar adage says, “Better late than never.” However, the court observes, sometimes it is just too late. Thus, the maxim may not be enough to save a litigant who has failed to make a timely objection to the introduction of evidence.

In the post-trial motions following a jury verdict for the plaintiffs in this products liability suit, the defendant implores the court to exercise a “gatekeeping role” pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and reject the opinions and testimony of plaintiffs’ expert and thus set aside the jury verdict. Complicating defendant’s request is its admitted but no less surprising failure to contemporaneously object to the admissibility of and basis for the expert’s opinions at the time they were offered. Having neglected to raise its objections pursuant to the standards for expert testimony set forth in Federal Rule of Evidence 702 and Daubert at any time prior to trial or at the time the opinions were offered on direct examination, defendant now bases its renewed motion for judgment as a matter of law and its motion for new trial on the ground that the expert’s opinion is so fundamentally unsupported by the evidence of record on the issue of causation that it must be rejected. Plaintiffs resist defendant’s objections to their expert as untimely. In the alternative, plaintiffs assert this case primarily involved a classic battle of the experts. Despite defendant’s attempts to impeach and discredit plaintiffs’ expert, the jury, as the finder of fact, found their expert to be more credible on the issue of causation; thus, the jury’s verdict in favor of the plaintiffs should not be disturbed.

Besides its objections to the opinions of plaintiffs’ expert, defendant has raised numerous additional issues in its post-trial motions. As further grounds for its renewed motion for judgment as a matter of law, defendant contends the jury’s award of damages for the plaintiffs’ out-of-pocket expense incurred in adopting their two children is violative of Iowa public policy. In addition, defendant asserts that, under Iowa law, the plaintiffs cannot recover past hospital and medical expenses which have been covered by insurance. In addition to its assertion that Dr. Dunker’s opinion on causation is unsupported by the evidence of record and, as such, warrants a new trial, defendant also claims the court should grant a new trial based upon the court’s alleged errors in instructing the jury on proximate cause and in denying defendant’s motion for mistrial. Lastly, defendant moves for remittitur of the jury verdict, contending that the amount awarded to the plaintiffs was excessive.

I. INTRODUCTION AND BACKGROUND

This post-trial opinion follows a jury verdict for the plaintiffs, Priscilla and Marc Waitek, in which the jury found that Priscilla Waitek’s use of the Daikon Shield IUD (“Daikon Shield”) was a proximate cause of her injuries and awarded her compensatory damages in the amount of $373,534.31. In addition, the jury found that Priscilla Waitek’s use of the Daikon Shield was a proximate cause of Marc Waitek’s loss of spousal consortium and awarded him damages for past loss of consortium in the amount of $35,000.00. This five-day jury trial in June of 1996 was the culmination of a lawsuit filed by the Waiteks eleven years ago on April 5, 1985. Before discussing the resolution of the Waiteks’ claims against the defendant, the Daikon Shield Claimants Trust (“the Trust”), and the Trust’s subsequent post-trial motions, the court will briefly review the sequence of events precipitating the trial.

The Waiteks filed a petition in the Iowa District Court for Cerro Gordo County on April 5, 1985, asserting claims against defendant A.H. Robins Company (“Robins”), the manufacturer of the Daikon Shield IUD, for negligence, strict liability, breach of implied and express warranties, fraud, and infliction of emotional distress. On May 4, 1985, Robins removed the action to this court based upon diversity of jurisdiction pursuant to 28 U.S.C. § 1441. On August 21,1985, this case was stayed pursuant to 11 U.S.C. § 362(a), when Robins filed a voluntary petition, under Chapter 11 of the United States Bankruptcy Code, Title 11 U.S.C., in the United States Bankruptcy Court for the Eastern District of Virginia. The bankruptcy court confirmed a plan of reorganization on July 25, 1988, and as part of this plan, the Trust was established to administer the distribution of a fund for Daikon Shield IUD claimants. The Waiteks completed the claims process, and on July 10, 1994, they were certified by the bankruptcy court to resume their litigation in accordance with Amended Administrative Order Number 1 Governing Daikon Shield Arbitration and Litigation. On September 19, 1994, the Waiteks amended their complaint in this action to comply with the amended administrative order, substituting the Trust for Robins as the defendant in this case. In their first amended complaint, the Waiteks asserted claims for negligence, strict liability, breach of implied and express warranties, fraud, and infliction of emotional distress.

On August 31, 1995, the Trust moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) on the Waiteks’ claims, and the Waiteks filed a resistance to that motion. The court denied the Trust’s motion on December 8, 1995, finding genuine issues of material fact on the issues raised by the Trust regarding the Waiteks’ claims. See Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672, 686 (N.D.Iowa 1995). On April 4, 1996, the parties filed an Agreement on Waiver of Proof and Stipulation, in which the parties agreed that the only issues upon which the Waiteks would be required to present proof and the only issues which would be submitted to the jury for resolution were as follows:

a. Have plaintiffs proven, by a preponderance of the evidence, that Mrs. Waitek’s use of the Daikon Shield was a proximate cause of her alleged injuries?

b. If so, what reasonable compensatory damages have Mr. and Mrs. Waitek sustained as a result of Mrs. Waitek’s use of the Daikon Shield?

Thus, in accordance with the parties’ agreement, this case went forward to trial solely on the issues of proximate cause and damages.

Trial by jury began on June 3, 1996, in Fort Dodge, Iowa. At the conclusion of the Waiteks’ evidence, the Trust made a motion for judgment as a matter of law pursuant to FedR.Civ.P. 50(b), and the court denied that motion. The Trust renewed its motion at the conclusion of its own evidence on June 7, 1996, and the court again denied the motion.

On June 11, 1996, the jury returned a verdict in favor of the Waiteks. Specifically, the jury found that Priscilla Waitek’s use of the Daikon Shield was a proximate cause of her injuries. In conjunction with that finding, the jury awarded Priscilla Waitek compensatory damages in the amount of $373,-534.31. In addition, the jury found that Priscilla Waitek’s use of the Daikon Shield was a proximate cause of Marc Waitek’s loss of spousal consortium and awarded $35,-000. 00 for his past loss of consortium.

On June 24, 1996, the Trust filed a renewed motion for judgment as a matter of law pursuant to FedR.Civ.P. 50(b), a motion for new trial pursuant to FedR.Civ.P. 59(a), and a motion for remittitur. The Trust’s motion for judgment as a matter of law was made on the following grounds: (1) that the jury’s finding that the Daikon Shield was a proximate cause of Priscilla Waitek’s injuries was contradicted by the evidence presented at trial; (2) that an award for adoption expenses is not recoverable under the public policy of Iowa; and (3) that the Waiteks’ claims for past hospital and medical expenses should not have been allowed under Iowa law. As grounds for its motion for new trial, the Trust asserts that (1) the testimony of plaintiffs expert, Dr. R. Bruce Dunker, was unsupported and contradictory, and the greater weight of the evidence suggests that his conclusions cannot be made to a reasonable medical certainty; (2) the court erred in instructing the jury on proximate cause; and (3) the court erred in denying the Trust’s motion for mistrial. Lastly, the Trust moved for remittitur, arguing that the jury’s verdiet was flagrantly excessive and must be reduced. Specifically, the Trust contended the court should grant remittitur in the amount of $28,109.31, which was the sum of the amount of adoption expenses awarded ($12,-275.00) and the amount of the Waiteks’ past medical expenses which had been covered by insurance ($15,834.31). On July 3, 1996, the Waiteks resisted the Trust’s renewed motion for judgment as a matter of law, its motion for new trial, and its motion for remittitur. The Trust filed a reply to the Waiteks’ resistance to its post-trial motions on July 16, 1996.

The court heard oral arguments telephonically on the Trust’s post-trial motions on July 16, 1996. The Waiteks were represented by trial counsel Richard J. Barry of Montgomery, Barry & Bovee, in Spencer, Iowa, and William E. Kunze, of Castle Rock, Colorado. Trial counsel Robert D. Houghton of Shuttle-worth & Ingersoll, P.C., in Cedar Rapids, Iowa, and Robert C. Tucker of Arter & Hadden, in Cleveland, Ohio, represented the Trust. With this extensive procedural background in mind, the court turns to consideration of the Trust’s renewed motion for judgment as a matter of law pursuant to Fed. R.Civ.P. 50(b).

1. Past medical expenses ... $ 18,334.31

2. Past lost wages...........$ 7,925.00

3. Past loss of function of the body................ $100,000.00

4. Reasonable value of future loss of function of the body.................$ 0.00

5. Past physical and mental pain and suffering .... $200,000.00

6. Reasonable value of future physical and mental pain and suffering.....$ 35,000.00

7. Adoption expense......... $ 12,275.00

TOTAL................. $373,534.31

II. THE TRUST’S MOTION PURSUANT TO FED.R.CIV.P. 50(b)

The Trust has renewed its motion for judgment as a matter of law pursuant to Fed. R.Civ.P. 50. Before proceeding to the disposition of this motion, the court will first examine the standards for disposition of a motion made pursuant to Fed.R.Civ.P. 50(b).

A. Applicable Standards

Federal Rule of Civil Procedure 50 provides for a post-trial motion for judgment as a matter of law, in relevant part, as follows:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. (b) Renewal of Motion for Judgment After Trial; Alternative Motion for New Trial. Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed by service and filing not later than 10 days after entry of judgment. A motion for a new trial under Rule 59 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative....

Fed.R.Civ.P. 50(a) & (b).

1. Procedural requirements

Under Fed.R.Civ.P. 50(b), a litigant’s post-trial motion for judgment as a matter of law on any claim may not be entertained unless the movant previously moved for judgment as a matter of law on that claim at the close of all evidence pursuant to Fed.R.Civ.P. 50(a). Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th Cir.1995) (post-trial motion for judgment as a matter of law may not advance additional grounds not raised in preverdict motion); Smith v. Ferrel, 852 F.2d 1074, 1075 (8th Cir.1988) (record disclosed that no motion for “directed verdict” had been made at the close of all evidence, “appellant therefore cannot question the sufficiency of the evidence either before the district court through a motion for judgment notwithstanding the verdict or on appeal.”); Hubbard v. White, 755 F.2d 692, 695 (8th Cir.) (motion for “directed verdict” at the close of evidence was an “essential condition precedent” to a motion for “judgment notwithstanding the verdict,” and where no such motion was made at the close of evidence, the j.n.o.v. motion was barred), cert. denied, 474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985); Myers v. Norfolk Livestock Mkt., Inc., 696 F.2d 555, 558 (8th Cir.1982); see also Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1214 (11th Cir.1991); Yohannon v. Keene Corp., 924 F.2d 1255, 1261 (3d Cir.1991). The motion for judgment as a matter of law at the close of the evidence must assert each of the grounds subsequently relied upon in the post-trial motion for judgment as a matter of law. Midamar Corp. v. National-Ben Franklin Ins. Co., 898 F.2d 1333, 1337 (8th Cir.1990); Lowe v. Conlee, 742 F.2d 1140, 1141 (8th Cir.1984); see also Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 956 (5th Cir.1993); McCann v. Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir.1993). Thus, a party who either fails to move for judgment as a matter of law on any claim at the conclusion of the evidence or fails to renew at that time a motion for judgment as a matter of law made earlier than the close of the evidence has waived a post-trial motion for judgment as a matter of law pursuant to Rule 50(b), and instead must seek relief in a motion for new trial pursuant to Fed.R.Civ.P. 59. Myers, 696 F.2d at 558; see also Purcell, 999 F.2d at 956 (failure to renew motion waives right to file a post-verdict motion for judgment); McCann, 984 F.2d at 672 (motion for judgment as a matter of law made earlier than the close of evidence, but not renewed at the close of all evidence, “cannot serve as a predicate for a motion for judgment notwithstanding the verdict.”); Yohannon, 924 F.2d at 1261 (party foreclosed from pursuing a motion for judgment notwithstanding the verdict for this reason is limited at the time of post-trial motions to a motion for new trial); Riverview Inv., Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474, 477 (6th Cir.) (“party seeking a judgment n.o.v. must, as a prerequisite, move for a directed verdict at the close of all the evidence or renew such motion if made prior to the close of all the evidence.”), cert. denied, 498 U.S. 855, 111 S.Ct. 151, 112 L.Ed.2d 117 (1990); Gutzwiller v. Fenik, 860 F.2d 1317, 1330 (6th Cir.1988) (party who fails to renew prior motion waives the original motion and is precluded from questioning the sufficiency of the evidence on appeal). The Trust made a motion for judgment as a matter of law at the conclusion of the Waiteks’ evidence and at the conclusion of its own case. Therefore, the Trust has not waived a post-trial motion for judgment as a matter of law pursuant to Rule 50(b).

2. Evidentiary standard

In determining a motion for j.n.o.v. (and in the current parlance of Federal Rule of Civil Procedure 50, a motion for “judgment as a matter of law”), the court in White v. Pence, 961 F.2d 776 (8th Cir.1992), observed that

the question is a legal one, whether there is sufficient evidence to support a jury verdict. This court must analyze the evidence in the light most favorable to the prevailing party and must not engage in a weighing or evaluation of the evidence or consider questions of credibility. See Dace v. ACF Indus., Inc., 722 F.2d 374, 375-76 (8th Cir.1983), supplemented, 728 F.2d 976 (1984). We have also stated that to sustain a motion for j.n.o.v., all the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the nonmoving party. Id. at 375; Washburn v. Kansas City Life Ins. Co., 831 F.2d 1404, 1407 (8th Cir.1987); Brown [v. Syntex Lab., Inc.], 755 F.2d [668,] 671 [(8th Cir.1985)]. These principles have no application to the consideration of a motion for new trial on the ground that the verdict is against the weight of the evidence.

Pence, 961 F.2d at 779 (footnotes omitted); see also Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir.1996); Butler v. French, 83 F.3d 942, 943 (8th Cir.1996) (citing these standards from Pence); Simmons Poultry Farms, Inc. v. Dayton Road Dev. Co., 82 F.3d 217, 220 (8th Cir.1996) (citing Pence); Sherlock v. Quality Control Equip. Co., 79 F.3d 731, 735 (8th Cir.1996); Fox v. T-H Continental Ltd. Partnership, 78 F.3d 409, 413 (8th Cir.1996) (citing Pence); Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 800 (8th Cir.1994) (citing Pence); First Dakota Nat’l Bank v. Saint Paul Fire & Marine Ins. Co., 2 F.3d 801, 808-09 (8th Cir.1993). Thus, this standard requires the district court to:

“consider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party’s evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence.”

Minneapolis Community Dev. Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir.1991) (quoting Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 989 (8th Cir.1989)); see also Stephens v. Johnson, 83 F.3d 198, 200 (8th Cir.1996) (citing Whitnack v. Douglas County, 16 F.3d 954, 956 (8th Cir.1994), in turn, quoting Hastings v. Boston Mut. Life Ins. Co., 975 F.2d 506, 509 (8th Cir.1992)); Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir.1996); Nelson, 26 F.3d at 800 (reiterating these factors, citing Pence, 961 F.2d at 779); McAnally v. Gildersleeve, 16 F.3d 1493, 1500 (8th Cir.1994) (same).

This standard for consideration of a motion for judgment as a matter of law accords the jury’s verdict substantial deference. Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 806 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995); McAnally, 16 F.3d at 1500. However, even with this deference to the jury’s verdict, the jury cannot be accorded “the benefit of unreasonable inferences, or those ‘at war with the undisputed facts,’ ” McAnally, 16 F.3d at 1500 (quoting City of Omaha Employees Betterment Ass’n v. City of Omaha, 883 F.2d 650, 651 (8th Cir.1989), in turn, quoting Marcoux v. Van Wyk, 572 F.2d 651, 653 (8th Cir.), cert. dismissed, 439 U.S. 801 (1978)); see also Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir.1996) (a mere scintilla of evidence is inadequate to support a jury verdict) (quoting City of Omaha, 883 F.2d at 651), but the court must still defer to the jury’s resolution of conflicting testimony. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2792-93, 61 L.Ed.2d 560 (1979).

With these principles in mind concerning the standards for resolving post-trial motions under Federal Rule of Civil Procedure 50, the court turns to an examination of the evidence introduced at trial concerning the Waiteks’ claims to determine whether post-trial relief from the jury’s verdict against the Trust is appropriate.

B. The Trust’s Grounds For Judgment As A Matter Of Law

As indicated in Section I of this opinion, the Trust has raised three issues upon which it argues it is entitled to judgment as a matter of law pursuant to FedR.Civ.P. 50(b). The court will address each of these grounds in the order in which the Trust has presented them in its brief in support of its motion.

1. Causation and Dr. Dunker’s testimony

The Trust argues that under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Dr. R. Bruce Dunk-er’s medical opinion, which was the sole medical evidence on causation and who was the only medical expert who testified on behalf of the Waiteks, was insufficient to create a jury issue with regard to causal connection. The Trust contends the medical evidence of record in the case fails to show that Priscilla Waitek was suffering from pelvic infection while she was wearing the Daikon Shield or at any other relevant time; therefore, Dr. Dunker’s testimony that she had a silent pelvic infection is unsupported by the medical evidence and is insufficient to support the jury’s verdict. In addition, the Trust asserts Dr. Dunker’s opinion at trial was so contradictory to his prior opinions in both the medical records and his deposition that judgment as a matter of law should be granted on the issue of causation. As further evidence of the lack of support for Dr. Dunker’s opinion, the Trust cites the testimony of one of its own experts, Dr. Rudolph Galask, who testified that the use of IUD’s, such as the Daikon Shield, does not result in silent or asymptomatic pelvic infection.

The Waiteks assert the court properly exercised its function as required by the Federal Rules of Evidence and the United States Supreme Court opinion in Daubert and pursuant to the standard set forth in Daubert, Dr. Dunker was allowed to express his opinions. Furthermore, the Waiteks note the Trust concedes that Dr. Dunker testified at trial that Priscilla Waitek’s use of the Daikon Shield was the cause of her miscarriages in 1979 and her ectopic pregnancies in 1982 and 1984. While the Trust attempted to discredit Dr. Dunker by claiming his testimony at trial was inconsistent with his prior statements and records, the Waiteks maintain that the jury “was the proper body to determine the effect of the challenge to Dr. Dunker’s credibility.” (Waiteks’ Resistance Brief, p. 5). Thus, because the jury found Dr. Dunker’s testimony regarding causation to be credible, the Waiteks argue the Trust’s motion for judgment as a matter of law should be denied.

Having introduced the parties’ arguments regarding this issue, the court reviews the evidence presented at trial and the record as a whole to determine whether judgment as a matter of law on this ground is appropriate.

a. Waiver

In reviewing the Trust’s objection to the admissibility of Dr. Dunker’s testimony or his opinions, the court notes the record reveals that the Trust failed to object to the admissibility of Dr. Dunker’s testimony, including his testimony about his opinions on causation, on any ground, either prior to or during his testimony. Federal Rule of Evidence 103(a) provides that

[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Fed.R.Evid. 103(a). Thus, the failure to object to the admission of evidence at trial allows a court to review the admission only for plain error. See Fed.R.Evid. 103(a); McKeel v. City of Pine Bluff, 73 F.3d 207, 211 (8th Cir.1996) (when defendant offered medical records into evidence, plaintiffs failure to object limits review of the admission of those records to review for plain error); Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 973 (8th Cir.1995) (citing Owen v. Patton, 925 F.2d 1111, 1115 (8th Cir.1991)); see also Christopher v. Cutter Labs., 53 F.3d 1184, 1192 (11th Cir.1995) (where party contends that doctor’s testimony was statistically invalid, but failed to object to the challenged testimony at the time of trial, party has failed to preserve issue for appeal, and the court will review the challenged evidence only for plain error); Bannister v. Town of Noble, Okla., 812 F.2d 1265, 1271 (10th Cir.1987) (if no timely objection or motion to strike is made at the time the evidence is admitted, we will reverse only if there was plain error and a substantial right of the objecting party is affected).

i. McKnight. The Eighth Circuit Court of Appeals has held the failure to object to an expert’s testimony at trial on the basis that he or she was not qualified as an expert or that he lacked a scientific basis for his opinions precluded the court’s consideration of that issue on appeal absent plain error. See McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir.1994). In McKnight v. Johnson Controls, Inc., the defendant appealed the district court’s order denying its motion for judgment as a matter of law or new trial after a jury returned a $1.2 million verdict for the plaintiff in his product liability lawsuit against the defendant. McKnight, 36 F.3d at 1399. The defendant argued it was entitled to judgment as a matter of law because the only evidence to support the verdict should not have been admitted by the district court, including the court’s admission of testimony and test results of plaintiffs expert without requiring the proper foundation for his qualification as an expert, and the court’s admission of speculative testimony from plaintiffs expert about a key issue — the existence of a manufacturing defect. Id.

Upon reviewing the transcript of the week-long trial, see id., the court concluded that it need not reach the issue of whether the admission of the plaintiffs expert testimony was proper under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because the defendant failed to object to the expert’s testimony on the basis that he was not qualified as an expert or that he lacked a scientific basis for his opinions. McKnight, 36 F.3d at 1407. The court held that “[w]ithout an objection and a proper request for relief, the matter is waived and will receive no consideration on appeal absent plain error.” Id. (citing Owen, 925 F.2d at 1115). While the court recognized that the defendant made an objection to the lack of foundation for the expert’s testimony, the court found that the defendant’s objection “fail[ed] to raise any question about the scientific validity of the principles and methodology underlying his testimony.” Id. (citing Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). In addition, regarding the defendant’s argument in his motion for judgment as a matter of law that the court should not have admitted the “speculative testimony” of the expert on a key issue of the case, the court found that the defendant’s failure to make a contemporaneous objection precluded the court’s consideration of this issue as a ground for judgment as a matter of law. Id. The court stated that

“[t]he rule is well settled in this circuit that for an objection to be timely it must be made at the earliest possible opportunity after the ground of objection becomes apparent, or it will be considered waived.” Terrell v. Poland, 744 F.2d 637, 638-39 (8th Cir.1984). If the ground for the objection becomes apparent while the witness is testifying, a subsequent motion to strike the testimony after the witness finishes does not preserve the issue for appeal. Id. at 639. We find that the grounds asserted for objecting to [the expert’s] “speculative testimony” on direct examination were apparent at the time [the expert] provided the testimony and, thus, the motion to strike was not a timely objection, and no error can be predicated on the court’s determination of it.

McKnight, 36 F.3d at 1408.

ii. Other jurisdictions. The Eighth Circuit’s decision in McKnight is in accord with decisions of other jurisdictions. In Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir.1996), the Ninth Circuit held that where a defendant fails to object to the admissibility of scientific evidence at the trial court level or fails to request a ruling to pre-trial Daubert objections, the defendant waives the right to raise the admissibility issue on appeal. Babbitt, 83 F.3d at 1066. The defendant in that case raised its Daubert objections before trial; however, the district court did not rule on those objections and defendant did not request such a ruling. Id. Thus, by failing to request a ruling on the admissibility of the scientific evidence, defendant evaded the court’s decision of that issue. Id. at 1067. As a result, defendant was precluded from raising its Daubert challenges to the admissibility of the evidence. Id. The defendant, however, raised his Daubert challenge not as a challenge to the admission of the evidence, but in the context of an insuf6ciency-of-the-evidence argument. Id. at 1066. The court noted that in the defendant’s view, “whether admitted at trial or not, [the] scientific evidence of impaired breeding of marbled murrelets fails the Daubert test because it is irrelevant and unreliable, and therefore is insufficient to support the district court’s judgment.” Id. The court was not persuaded by defendant’s reasoning, holding that if the defendant was permitted to challenge on appeal the reliability of the scientific evidence under Daubert, “in the guise of an insufficiency-of-the-evidenee argument,” it would receive an unfair advantage. Id. at 1067. The defendant would be “free to gamble on a favorable judgment before the trial court, knowing that [it could] seek reversal on appeal because of its failure to obtain a ruling on [its] objections.” Id. (citing Fenton v. Freedman, 748 F.2d 1358, 1360 (9th Cir.1984)).

In addition, the Eleventh Circuit Court of Appeals addressed the necessity of a timely objection in order to preserve an issue for appeal in Christopher v. Cutter Labs., 53 F.3d 1184, 1192 (11th Cir.1995), where the defendant failed to object at trial to the admissibility of an expert’s opinion, raising the issue for the first time in its motion for judgment as a matter of law. Christopher, 53 F.3d at 1192. Upon review of the expert’s testimony, the court found that although several of his statements were statistically invalid and the district court should not have admitted them, defendant failed to raise a contemporaneous objection to the challenged testimony. Id. at 1191-92. Because defendant failed to object to the expert’s testimony, the court reviewed the challenged testimony only for plain error. Id. at 1192. In reviewing the expert’s entire testimony, along with all of the evidence, the court found the district court did not commit plain error. Id. Regarding the defendant’s failure to timely object to the expert’s testimony, the court stressed the necessity of a contemporaneous objection, stating as follows:

Entering an objection to evidence is not primarily a matter of building a record for appeal or a tactical maneuver by counsel. Its principal purpose is that counsel bring to the attention of the trial judge evidence that counsel considers inadmissible or prejudicial so that, if there is an error involved, the court has a chance to correct it on the spot. [Saunders v. Chatham County Bd. of Comm’rs, 728 F.2d 1367, 1368 (11th Cir.1984) ].

What occurred in this case provides a classic example of why contemporaneous objections need to be made. Some of [the expert’s] testimony could have been read to be inaccurate and inconsistent, but he was afforded no opportunity to clarify the apparent inconsistencies. If [defendant] believed that [the expert’s] testimony was statistically invalid, it should have objected to that testimony, giving him the chance to explain his answers. Objecting also would have provided the district court with the opportunity to make a ruling on the accuracy and admissibility of the challenged testimony but also to clarify that testimony.

Id. Having discussed the law regarding the necessity of a timely objection, the court turns to the determination of whether the Trust’s failure to timely object to the admissibility of or basis of Dr. Dunker’s opinions precludes the court’s consideration of that issue as a ground for judgment as a matter of law.

iii. The Trust’s failure to timely object. The Waiteks’ counsel asked Dr. Dunker a series of questions about his opinion on the issue of causation in this case. (Trial Transcript, pp. 641^19.). Counsel asked Dr. Dunker if he had an opinion based upon a reasonable medical certainty as to whether Priscilla Waitek would have suffered her various injuries if she had never had a Daikon Shield inserted in her uterus, asking this question repeatedly and referring individually to at least twenty-three different injuries or episodes in which medical care or treatment was administered. Counsel for the Waiteks then proceeded to ask Dr. Dunker to state his opinion and the basis for his opinion. The Waiteks then altered the query to Dr. Dunker, inquiring as to his opinion based upon a reasonable medical certainty about whether Priscilla Waitek would have suffered all of her female medical problems if she had the Daikon Shield inserted in her uterus in April 1974 and left it in place until January 14, 1977, and had never had the CU-7 IUD inserted at all. Dr. Dunker stated that he had an opinion, and counsel again followed up with an inquiry of the content and basis of his opinion. Counsel for the Waiteks then asked Dr. Dunker if he had an opinion based upon a reasonable medical certainty as to whether the Daikon Shield was a substantial factor in causing all of Priscilla Waitek’s medical problems, referring again to the twenty-three problems mentioned above. Dr. Dunker indicated that he had an opinion and then upon solicitation by counsel, gave his opinion and the basis therefor.

Counsel for the Trust failed to object to the admissibility of Dr. Dunker’s opinions at each and every opportunity. Not only did counsel for the Trust fail to contemporaneously object to the admissibility or validity of Dr. Dunker’s testimony, the Trust failed to raise any objections to Dr. Dunker’s opinions on the causation issue whatsoever, other than objecting to Dr. Dunker’s comments regarding Priscilla Waitek’s depression, which he made after giving his opinions on causation. Although counsel for the Trust addressed the lack of support for Dr. Dunk-er’s opinion in his motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), made at the close of plaintiffs’ case, the Trust failed to contemporaneously object to the admission of Dr. Dunker’s opinions regarding causation in this case. The court concludes the Trust’s failure to object “at the earliest opportunity” to the admissibility or validity of Dr. Dunker’s opinions on the ground that his medical opinions were not based upon a reasonable medical certainty or unsupported by the evidence of record precludes this court’s consideration of this issue as a ground for judgment as a matter of law, absent the existence of plain error. See Babbitt, 83 F.3d at 1067; Christopher, 53 F.3d at 1192; McKnight, 36 F.3d at 1408. As in Babbitt, the Trust attempts to raise its objections to the admissibility and basis for Dr. Dunker’s opinions “in the guise of an insufficiency-of-the-evidence argument.” See Babbitt, 83 F.3d at 1067. The court will not give the Trust the unfair advantage of omitting its objections to the admissibility of and basis for Dr. Dunker’s opinions at trial, where the district court could timely and adequately assess the admissibility and validity of Dr. Dunker’s opinions, only to use its objection to his opinion after the close of plaintiffs’ evidence as the sole argument and ground for its motion for judgment as a matter of law on causation, the only issue in the case other than damages. The grounds asserted for objecting to Dr. Dunker’s testimony were apparent both prior to trial and at the time he testified; thus, the court finds the Trust’s failure to contemporaneously object to his testimony has waived this issue on appeal, see McKnight, 36 F.3d at 1408, unless the court committed plain error in admitting the challenged testimony.

iv. Plain error. Federal Rule of Evidence 103(d) provides that nothing in Rule 103, “Rulings on Evidence,” “precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.” Fed. R.Evid. 103(d). The Eighth Circuit has described its review for “plain error” as a determination of whether an error “has seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” See Jones Truck Lines, Inc. v. Full Serv. Leasing Corp., 83 F.3d 253, 257 (8th Cir.1996) (citing Rolscreen Co. v. Pella Prods, of St. Louis, Inc., 64 F.3d 1202, 1211 (8th Cir.1995) (quotation omitted)); Yannacopoulos v. General Dynamics Corp., 75 F.3d 1298, 1304 (8th Cir.1996) (plain error is error which has a serious effect on the fairness of the proceedings). The Trust does not even address the possibility of plain error concerning the admission of Dr. Dunker’s opinions on causation, much less demonstrate the existence of such error. However, in examining the record, the court observes Dr. Dunker explained in detail the basis for his medical opinion on causation in this ease, discussing his experience as Priscilla Waitek’s doctor and his medical background and knowledge of the Daikon Shield, and the Trust had ample opportunity to cross-examine Dr. Dunker about his opinions. Therefore, the court finds its admission of his medical opinions on causation, where the Trust failed to contemporaneously object, did not seriously affect the fairness or integrity of the trial and thus did not constitute plain error. See Jones Truck Lines, Inc., 83 F.3d at 257. Finding no plain error, the court concludes the Trust’s objection to the admissibility of and basis for Dr. Dunker’s opinions is waived.

b. Sufficiency of the evidence

The Trust contends the issue of the admissibility of Dr. Dunker’s opinions is separate and distinct from the issue of whether his testimony was sufficient to create a jury issue with regal’d to causal connection. Drawing that distinction, the Trust argues that regardless of the admissibility of Dr. Dunker’s opinions, his testimony was “fundamentally unsupported” by the medical evidence of record in the case, which failed to show that Priscilla Waitek ever suffered a pelvic infection at any relevant time.

The Trust cites Sorensen v. Shaklee Corp., 31 F.3d 638 (8th Cir.1994), for the proposition that where there is no admissible medical or scientific expert testimony, a plaintiff’s case is subject to summary disposition. Sorensen, 31 F.3d at 650. In addition, the Trust asserts that in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that while a scintilla of evidence can satisfy the criteria for admissibility of an expert opinion, “in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is trae, the court remains free to direct a judgment.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.

As discussed above, the court finds the Trust has waived this issue. The Trust’s attempt to assert an objection to the admissibility of and basis for Dr. Dunker’s opinions, which it failed to make contemporaneously, is the lone contention in its “insufficiency-of-the-evidence” argument for judgment as a matter of law. See Babbitt, 83 F.3d at 1067. As such, the court concluded the Trust could not circumvent the well-established rule that a timely objection is required to preserve an issue for appeal. In the alternative, however, the court will analyze whether Dr. Dunk-er’s testimony is “fundamentally unsupported” by the record, warranting the entry of judgment as a matter of law on the issue of causation in favor of the Trust. Thus, in accordance with the standard set forth in Daubert, the court must determine whether the evidence presented in support of Dr. Dunker’s position was “insufficient to allow a reasonable juror to conclude that [his] position more likely than not was true.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.

i. Standards for expert testimony. The Federal Rules of Evidence provide for testimony of experts as follows:

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.

FedR.Evid. 702. The decisions of the Eighth Circuit Court of Appeals and the United States Supreme Court have significantly amplified and clarified the meaning of this rule. The Eighth Circuit Court of Appeals has said that ‘“Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony.’ ” Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 283 (8th Cir.) (quoting Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir.1990)), cert. denied, — U.S.-, 116 S.Ct. 84, 133 L.Ed.2d 42 (1995). The court observed further that

we acknowledged in Fox that “an individual can qualify as an expert where he possesses sufficient knowledge gained from practical experience, even though he may lack academic qualifications in the particular field of expertise.” [Fox, 906 F.2d at 1256.] We also observed in Fox that “[t]he threshold question of whether a witness is competent as an expert is solely for the trial judge, and, as the text of Rule 702 suggests, the central issue is whether the expert’s testimony will assist the trier of fact.” Id. Once the trial court has determined “that a witness is competent to testify as an expert, challenges to the expert’s skill or knowledge go to the weight to be accorded the expert testimony rather than to its admissibility.” Id.; Williams v. Pro-Tec, Inc., 908 F.2d 345, 348 (8th Cir.1990); Davis v. American Jet Leasing, Inc., 864 F.2d 612, 614-15 (8th Cir.1988); Nielson v. Armstrong Rubber Co., 570 F.2d 272, 276-77 (8th Cir.1978).

Sylla-Sawdon, 47 F.3d at 283.

The Supreme Court has held that expert testimony must be both competent and such that it will assist the trier of fact in determining a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2794-95, 125 L.Ed.2d 469 (1993); see also Pioneer Hi-Bred Int’l v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1230 (8th Cir.1994) (same). In Daubert, these two considerations were described as a “reliability” prong and a “relevancy” prong to the test of admissibility of an expert’s testimony. Daubert, 509 U.S. at 580, 113 S.Ct. at 2790-91 (“[A]n expert’s testimony [must] both rest [ ] on a reliable foundation and [be] relevant to the task at hand.”); see also Sorensen, 31 F.3d at 647-48. However, courts have treated both relevance and reliability as going to the ultimate issue under Rule 702, which is whether the testimony will be “helpful” to or “will assist” the jury. Fed.R.Evid. 702; Daubert, 509 U.S. at 590-91, 113 S.Ct. at 2795-96; United States v. Johnson, 28 F.3d 1487, 1496 (8th Cir.1994) (citing Daubert), cert. denied, — U.S. —, 115 S.Ct. 768, 130 L.Ed.2d 664 (1995).

Thus, courts have considered whether an expert’s specialized knowledge will help the jury understand evidence or decide a fact issue. TCBY Systems, Inc., 33 F.3d at 929; United States v. Hughes, 15 F.3d 798, 800 (8th Cir.1994); United States v. Nunn, 940 F.2d 1148, 1149 (8th Cir.), cert. denied, 502 U.S. 991, 112 S.Ct. 609, 116 L.Ed.2d 632 (1991). Therefore, expert testimony may be excluded if the jury is equally able to draw the asserted conclusion. Watkins v. Schriver, 52 F.3d 769, 772 (8th Cir.1995); United States v. French, 12 F.3d 114, 116 (8th Cir.1993) (“Expert testimony is appropriate when it relates to issues that are beyond the ken of people of ordinary intelligence,” but “ ‘[w]here the subject matter is within the knowledge or experience of laymen, expert testimony is superfluous,’ ” quoting Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir.1980)); Williams v. Pro-Tec, Inc., 908 F.2d 345, 348-49 (8th Cir.1990). Expert testimony may also be excluded if it would not relate to any issue in the case, because it is “ ‘not relevant and, ergo, nonhelpful.’” Sorensen, 31 F.3d at 647-48 (quoting Daubert, 509 U.S. at 591, 113 S.Ct. at 2796, in turn, quoting 3 Weinstein & Berger ¶ 702[02], p. 702-18).

The Eighth Circuit Court of Appeals has long been “mindful of Rule .702 and [its] own case law’s recognition of practical knowledge and experience as providing an adequate basis for expert testimony.” Garnac Grain Co., Inc. v. Blackley, 932 F.2d 1563, 1567 (8th Cir.1991). However, where the witness’s practical knowledge does not provide the requisite expertise in the area on which they are asked to offer an expert opinion, the witness’s testimony may be excluded. Id. at 1566-67.

Finally, Rule 702 “is one of admissibility rather than' exclusion.” Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir.), cert. denied, 502 U.S. 913, 112 S.Ct. 312, 116 L.Ed.2d 255 (1991); Fox, 906 F.2d at 1256; Hurst v. United States, 882 F.2d 306, 311 (8th Cir.1989). A district court’s ruling on the admissibility or exclusion of expert testimony will be reversed only for abuse of discretion. Watkins, 52 F.3d at 771; TCBY Systems, Inc., 33 F.3d at 929; Hughes, 15 F.3d at 800; Gilliam v. Roche Biomedical Labs., Inc., 989 F.2d 278, 279 (8th Cir.1993); Nunn, 940 F.2d at 1149; United States v. Cortez, 935 F.2d 135, 138 (8th Cir.1991), cert. denied, 502 U.S. 1062, 112 S.Ct. 945, 117 L.Ed.2d 114 (1992).

As the Supreme Court noted in Daubert, the touchstone of admissibility under Rule 702 is helpfulness to the trier of fact. Daubert, 509 U.S. at 591-92, 113 S.Ct. at 2795-96. Furthermore, in determining the competence of an expert witness, the trial court must first determine under Fed. R.Evid. 104(a) whether the expert’s testimony rests on a rehable foundation. McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1406 (8th Cir.1994) (citing Daubert). However, “as a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir.1995) (quoting Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir.1988)); McKnight, 36 F.3d at 1408 (citing Loudermill, 863 F.2d at 570); see also Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1518 (10th Cir.1996) (quoting Jones v. Otis Elevator Co., 861 F.2d 655, 663 (11th Cir.1988)) (“ ‘as long as a logical basis exists for an expert’s opinion ... the weaknesses in the underpinnings of the opinion [ ] go to the weight and not the admissibility of the testimony.’ ”). Only “ ‘if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury”’ must such testimony be excluded. Hose, 70 F.3d at 974 (citing Loudermill, 863 F.2d at 570); McKnight, 36 F.3d at 1408 (citing Loudermill, 863 F.2d at 570); Hughes, 15 F.3d at 800 (quoting Loudermill, 863 F.2d at 570).

ii. Applicability of Sorensen. As mentioned above, the Trust cites an Eighth Circuit Court of Appeals decision, Sorensen v. Shaklee Corp., 31 F.3d 638 (8th Cir.1994), in support of its argument that Dr. Dunker’s opinions are fundamentally unsupported by the evidence in the record. There, the court granted summary judgment finding a lack of credible medical evidence that defendant’s alfalfa tablets caused birth defects in plaintiffs’ children. Id. at 650. The lower court found that plaintiffs’ proffered expert testimony did not make a case to establish causation where the three experts’ testimony indicated the alfalfa tablets were a “possible cause” of the birth defects in plaintiffs’ children and that it would be a “reasonable conclusion” that the tablets are a cause. Id. at 645 (quoting the lower court’s holding). The district court found the plaintiffs’ experts addressed none of the considerations relating to scientific validity under Daubert. Id. at 650. Furthermore, the court noted the testimony was not derived from the application of any reliable methodology or principle. Id. Upon review of the record, the court of appeals concluded the district court properly held the testimony inadmissible, irrespective of the experts’ conclusions. Id. (finding the experts’ reasoning might “pass muster in some cases where the obvious result explains the etiology (for example, where a fractured bone accompanied by bruised outer skin and flesh demonstrate that some type of physical contact caused the injury) such reasoning cannot apply here where several possible causes could have produced one effect.”).

Here, however, Dr. Dunker did not testify that Priscilla Waitek’s use of the Daikon Shield was a “possible” cause of her injuries, nor did he state that it would be a “reasonable conclusion” that the Daikon Shield was a proximate cause of her injuries. Cf. Sorensen, 31 F.3d at 645. Dr. Dunker definitively stated that based upon a reasonable medical certainty,

[i]t is my [best medical] judgment, having dealt with the Daikon Shield and people who have had the Daikon Shield placed in them in the past, that all of these events are Daikon Shield related and related to an inflammatory process that the Daikon Shield created in the uterus that ascended into the fallopian tubes and caused damage to the endothelial lining, the skin lining of the fallopian tubes, making her prone to these ectopic pregnancies and the required surgeries that they brought about and the damage that happened to her reproductive tract as a result of all those ectopics were all related to the Daikon Shield and the damage it created within the fallopian tubes.

(Trial Transcript, p. 645.). In addition to his own experience, as further basis for his opinion, Dr. Dunker referred to the textbook written by Dr. Richard Sweet on Infectious Disease and Obstetrics and Gynecology. Dr. Dunker testified that Sweet’s textbook and articles repeatedly address the inflammatory infectious process that is caused by intrauterine devices, specifically the Daikon Shield, how it differs from sexually transmitted diseases that cause damage to the fallopian tubes, and how the Daikon Shield IUD “stood out as an outliner far beyond all the other IUD’s as a cause of IUD-indueed pelvic inflammatory disease” because of its multifilament tail allowing bacteria to be wicked into the uterus. (Trial Transcript, p. 646.). Dr. Dunker also stated that Dr. Sweet’s volume is widely used in the medical profession by gynecologists in treating diseases of women and is “one of those gold standards of information about infectious diseases and the female reproductive tract.” (Trial Transcript, p. 647). While Dr. Dunker acknowledged that he refers to other textbooks in his practice, Dr. Sweet’s textbook was the guideline to which he most often referred. (Trial Transcript, p. 647). Contrary to the experts’s testimony in Sorensen, Dr. Dunker testified that “the Daikon Shield undeniably, unquestionably caused Priscilla Waitek’s reproductive problems from the time it was put in in 1974 until she finally lost her ability to have children in 1984 and beyond.” (Trial Transcript, pp. 648-49).

Hi. Applicability of McKnight. Perhaps more analogous to this case than Sorensen is the Eighth Circuit’s decision in McKnight v. Johnson Controls, Inc., 36 F.3d 1396 (8th Cir.1994). The court has already discussed this decision in analyzing the waiver issue regarding expert testimony. As mentioned above, the court found that the grounds asserted for objecting to plaintiffs’ “speculative” testimony on the key issue in the ease “were apparent at the time the expert provided the testimony, and, thus, the motion to strike was not a timely objection, and no error can be predicated on the court’s determination of it.” McKnight, 36 F.3d at 1408. However, the court added, that even if it assumed, arguendo, that the defendant had preserved this error for review, it would find the trial court committed no error in admitting the testimony. Id. Citing its decision in Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir.1988), the court noted it had previously addressed the argument in Loudermill that “expert testimony should not have been admitted because it was based on speculation and conjecture, by noting that the factual basis of an expert’s testimony generally goes to the credibility of the testimony, not admissibility, and that the party opposing the testimony can attack the factual basis on cross-examination.” Id. (citing Loudermill, 863 F.2d at 570); see also Hose, 70 F.3d at 974. The court further commented that the expert’s opinion should be excluded as too speculative only where it is “so fundamentally unsupported that it can offer no assistance to the jury.” Id. (citing Loudermill, 863 F.2d at 570).

iv. Dr. Dunker’s opinions. Dr. Dunker stated the basis of his opinion was derived from his own experiences as a gynecologist who had treated women who were Daikon Shield users, experiences of other women throughout the country who had used the Daikon Shield, and medical literature, including Dr. Sweet’s textbook, which was considered to be one of the “gold standards” of the gynecological and obstetrics professions. (Trial Transcript, pp. 645-47.). Dr. Dunker testified that based upon these factors, he concluded that Priscilla Waitek’s use of the Daikon Shield caused her injuries. While it is true the medical records did not indicate that Priscilla Waitek showed any visible signs of a pelvic infection, it was Dr. Dunk-er’s opinion, based upon his experience, the experience of others, and the medical literature he reviewed, that Priscilla Waitek had a silent pelvic infection caused by her use of the Daikon Shield which resulted in her miscarriages in 1979, her ectopic pregnancies, and her various other injuries. By definition, a silent or asymptomatic infection is unique in that it would not necessarily be supported by visible medical evidence; however, Dr. Dunker opined that the medical literature he reviewed in analyzing the causation aspect of this case indicated that these types of silent pelvic infections are caused by the Dalkon Shield. Considering the unique nature of Priscilla Waitek’s condition and the basis and explanation Dr. Dunker provided for his opinions, his opinion rested on a “reliable foundation” and was “relevant to the task at hand.” Daubert, 509 U.S. at 580, 113 S.Ct. at 2790-91. Dr. Dunker gave a competent, plausible opinion about whether Priscilla Waitek had a silent pelvic infection and whether her injuries were caused by her use of the Daikon Shield based upon his experience and his review of records and literature.

In Daubert, the Supreme Court addressed concerns raised by the respondent that the abandonment of “general acceptance” as the exclusive requirement for admission would “result in a ‘free-for-all’ in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions.” Daubert, 509 U.S. at 595-96, 113 S.Ct. at 2798. Noting the pessimism of counsel about the capabilities of the jury and of the adversary system generally, the Court found that “[vigorous cross-examination, presentation of contrary evidence, and careful instruction of the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. (citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 2714, 97 L.Ed.2d 37 (1987)); see also Hose, 70 F.3d at 975 (in finding the district court committed no abuse of discretion in overruling objection to expert’s testimony, the court noted that the defendant had a thorough opportunity to cross-examine the expert about physical symptoms observed in the patient). The court added that “[tjhese conventional devices, rather than wholesale exclusion under an uncompromising “general acceptance” test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.

The Trust argues that the inconsistencies between Dr. Dunker’s testimony at trial and his medical records, his letter to the Waiteks in 1990, and his deposition testimony as evidence that his opinion should be discredited. However, the Trust questioned Dr. Dunker about these alleged inconsistencies, and Dr. Dunker explained that he could not formulate an opinion based upon a reasonable medical certainty in his letter to the Waiteks or at the time of his deposition on the causation issue until he received additional information. Specifically, Dr. Dunker testified that at the time of his deposition, he had not yet seen or reviewed the sexual history of either Priscilla or Marc Waitek, and he had not had the opportunity to review even a good portion of the medical literature regarding this issue. (Trial Transcript, p. 810.). In addition, he did not have all the medical records on Priscilla Waitek at the time of his deposition. (Trial Transcript, p. 810.). Thus, without this information, Dr. Dunker could not give his opinion based upon a reasonable medical certainty on the is