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Category: Anesthesiology Expert Witness

  • Anesthesiology Expert Allowed to Opine on Effects of Hypoxia

    Anesthesiology Expert Allowed to Opine on Effects of Hypoxia

    In this method of execution case, Plaintiff Jeffery Lee challenged the
    Alabama Department of Corrections’ nitrogen hypoxia protocol. Execution by forced inhalation of nitrogen gas deprives an inmate of oxygen until he suffocates to death.

    Lee filed a motion to exclude the testimony of State’s expert, Dr. Joseph F. Antognini.

    Anesthesiology Expert Witness

    Dr. Joseph F. Antognini is a medical doctor and board-certified anesthesiologist with significant clinical experience. His subspecialty is in “neuroanesthesia,” which he described as “the practice of anesthesia applied to patients who are having neurological surgery of some sort.” He has published extensively, and his research centers “on anesthetic mechanisms, specifically related to where anesthetics produce unconsciousness, amnesia, and immobility.” He has also held multiple teaching positions over the course of his career and was a tenured professor of both anesthesiology and pain medicine as well as neurobiology, physiology, and behavior at the University of California, Davis.

    Get the full story on challenges to Joseph Antognini’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Qualification

    Lee argued that this case, which “concerns respiratory physiology” and “the effects on the body of forced inhalation of nitrogen gas,” fell outside Antognini’s expertise because he is an anesthesiologist and conceded in his deposition that the case does not involve the administration of anesthesia agents and that nitrogen is not an anesthetic gas.

    Antognini is not a pulmonologist, but he is an anesthesiologist, and he testified at length about the diverse areas of medicine that specialization requires knowledge of, including respiratory physiology. The breadth of his training is demonstrated by the fact that Antognini has more than a decade’s experience as a professor not just of anesthesiology, but also of pain medicine, neurobiology, and physiology.

    Accordingly, the Court disagreed with Lee’s position that there is a fundamental mismatch between Antognini’s training and the effects of nitrogen hypoxia generally.

    So even if Antognini’s opinions regarding the effects of oxygen deprivation were limited to his general experience as an anesthesiologist, that alone would not furnish a basis for excluding him. To the extent there is a gap between Antognini’s area of expertise and the subject matter at issue here, that gap goes to the weight of his testimony, not its admissibility.

    Reliability

    Lee also argued that Antognini’s opinions are not reliable because the data he relied on “differ in significant respects from the execution context.”

    Lee took issue with several of the studies on which Antognini relied: (1) the reports of workplace accidents, because they do not indicate whether the workers who perished “suffered in any way”; (2) the case reports of inert gas suicides, as many of the suicides had “severe underlying medical problems,” which Antognini conceded at deposition could produce “a different physiological response to hypoxia”; (3) the high-altitude “pilot studies,” since Antognini admitted that the difference in barometric pressure is material; (4) the Ernsting study, as the participants in that study, unlike condemned inmates, “were instructed to fully exhale and then hyperventilate nitrogen gas”; and (5) a fifty-year-old study on the euthanasia of dogs with nitrogen gas because it is outdated and the American Veterinary Medical Association now “recommends against the use of nitrogen as a method to euthanize dogs.”

    The Court held that these purported issues do not render Antognini’s opinions wholly unreliable. To take the industrial-accident reports as an example, although it is unclear from those reports whether the workers who succumbed to nitrogen gas suffered, the reports do represent some of the very limited data that exist regarding involuntary inert gas asphyxiations.

    To be sure, the studies on which Antognini relied are not perfect matches. However, the same is true of many of the studies on which Lee’s experts rely, which are generally taken from the clinical setting. Ultimately, the issues that Lee identified with Antognini’s studies go to the persuasiveness of his opinions, not their admissibility.

    Held

    The Court denied Lee’s motion to exclude the testimony of Dr. Joseph Antognini.

    Key Takeaway

    Expertise is not exclusively conferred by degrees or specializations in particular specialties or subspecialties. Experts may be qualified in various ways. While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status.

    Case Details:

    Case Caption: Lee V. Lovelace
    Docket Number: 2:25cv680
    Court Name: United States District Court, Alabama Middle
    Order Date: May 28, 2026

  • Radiology Expert Allowed to Opine on Emergency Care

    Radiology Expert Allowed to Opine on Emergency Care

    On September 19, 2023, Rita C. Peyton was seen at a local hospital by a physician employed by Blue Ridge Radiology, P.C. for an outpatient CT-guided biopsy of a lesion on her lung. The biopsy required that the doctor insert a biopsy needle into Mrs. Peyton’s lung to reach the lesion. But after nine unsuccessful attempts to reach the lesion, Mrs. Peyton was hemorrhaging so severely that she began coughing up blood. The physician then instructed her to sit upright, an event that is subject to dispute in the case. After her oxygen saturation dropped, she was transferred to the Emergency Department and subsequently went into cardiac arrest. Ultimately, her condition deteriorated, and she suffered a stroke. On September 21, 2023, Mrs. Peyton died.

    The Plaintiff, Larry K. Peyton (Mr. Peyton), as her executor, asserted that she died as a direct and proximate result of the physician’s negligence.

    However, Blue Ridge responded that the physician did not violate the standard of care applicable to the procedure and that she would have survived had she been treated properly in the Emergency Department.

    Blue Ridge has filed motions to exclude or limit the testimony of two of the Plaintiff’s expert witnesses, Dr. Peter Bream and Dr. Matthew Fulton. Mr. Peyton has filed a motion to exclude or limit the testimony of one of Blue Ridge’s expert witnesses, Dr. Michael Mistretta.

    Radiology Expert Witness

    Dr. Peter R. Bream, Jr., M.D. is a board certified Interventional Radiologist with over 25 years experience. He has worked as Clinical Professor in Radiology at The University of North Carolina at Chapel Hill, where he served as the Diagnostic Radiology Program Director.

    Discover more cases with Peter Bream as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Anesthesiology Expert Witness

    Matthew B. Fulton, D.O. is a board-certified anesthesiologist practicing in Roanoke, Virginia. Fulton has been practicing continuously since 2006.

    Get the full story on challenges to Matthew Fulton’s expert opinions and testimony with an in-depth Challenge Study.

    Pulmonary Disease Expert Witness

    Michael A. Mistretta is board-certified in pulmonary disease and critical care medicine. He is licensed to practice in the Commonwealth of Virginia.

    Want to know more about the challenges Michael Mistretta has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Testimony by Dr. Peter Bream

    To begin with, Blue Ridge took issue with a statement in Bream’s report that the emergency care Mrs. Peyton received after the biopsy was reasonable and appropriate.

    Blue Ridge argued that because Bream is not an expert in emergency or critical care, he is not qualified to provide an opinion regarding the reasonableness or necessity of the emergency care that was provided to Peyton.

    The Plaintiff responded that Bream is not providing an opinion on the standard of care relevant to emergency and critical care. Rather, he argued that Bream was stating his opinion that it was medically necessary to transfer Mrs. Peyton to the Emergency Department for additional treatment given her condition.

    Given the Plaintiff’s stated intention to offer Bream’s opinion on emergency care to show that a radiologist would transfer someone in Mrs. Peyton’s condition to the Emergency Department, the Court found that Bream is not testifying outside his specialty.

    B. Testimony by Dr. Matthew Fulton

    Fulton is an anesthesiologist and expresses in his report that the performing physician did not undertake appropriate airway management when he instructed Mrs. Peyton to sit up after she began coughing up blood. Blue Ridge argued that because Fulton is not a radiologist and did not perform CT-guided lung biopsies, he should not be permitted to render a standard of care opinion regarding the approach to airway management.

    There is no indication that the standard of care applicable to pneumothorax, hemorrhage, or hemoptysis is different if those complications emerged after a procedure performed by an interventional radiologist, rather than a physician of another specialty. As an anesthesiologist, Fulton basically has knowledge of and experience with the relevant complications that emerge in surgical contexts. He is not disqualified because he did not perform CT-guided lung biopsies.

    C. Testimony by Michael Mistretta

    Mistretta opined that Peyton’s death was caused by the emergency treatment she received, not the procedure performed.

    Mr. Peyton therefore claimed that Mrs. Peyton’s death is an aggravation of the initial injuries the physician caused, making the alleged negligence of the Emergency Department irrelevant.

    Here, whether Mrs. Peyton’s death was an aggravation of injuries inflicted during her biopsy or a separate and distinct injury is a question best left to the jury, after proper instructions by the Court.

    According to the Court, the evidence regarding Peyton’s emergency treatment would not unfairly prejudice or confuse the jury. Rather, the jury is best positioned to consider the credibility of experts and evidence in their determinations of causation.

    Held

    • As a result, the Court denied Blue Ridge’s motions to exclude or limit the testimony of two of the Plaintiff’s expert witnesses, Dr. Peter Bream and Dr. Matthew Fulton.
    • The Court denied Peyton’s motion to exclude or limit the testimony of Blue Ridge’s expert witness, Dr. Michael Mistretta.

    Key Takeaway

    Whether the physician’s negligent acts cause a mere aggravation of the original injury or cause instead a separate and distinct injury should be left to the determination of a jury, guided by ordinary principles of proximate cause.

    Case Details:

    Case Caption: Peyton V. Blue Ridge Radiology, P.C.
    Docket Number: 1:25cv15
    Court Name: United States District Court, Virginia Western
    Order Date: April 13, 2026
  • Anesthesiology Expert’s Opinions on Life Expectancy Admitted

    Anesthesiology Expert’s Opinions on Life Expectancy Admitted

    This case arises from a motor vehicle collision between Plaintiff Marie Shante Box and Defendant William Causey in May 2023. Following the collision, Box filed suit against Causey, CTS National Corporation (Causey’s employer), and Old Republic Insurance Company (CTS’s insurer). She sought compensatory damages for her injuries, punitive damages, and attorney’s fees. To support her compensatory damages claims, Box retained Dr. Thomas Pontinen as an expert witness. Pontinen’s expert report opined that Box’s future medical and life care will cost $822,2218.55.

    The Defendants sought to exclude Pontinen’s opinions on the grounds that he is not qualified and that his methodology is not reliable.

    Anesthesiology Expert Witness

    Dr. Thomas Pontinen is a double-board certified anesthesiologist and interventional pain medicine specialist and is certified as a Life Care Planner.

    He regularly provides life care planning services through a company called LCP Pro, LLC. Pontinen has published multiple journal articles, written textbook chapters, and has presented at international conferences in the fields of surgery, anesthesiology, and pain medicine.

    Get the full story on challenges to Thomas Pontinen’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    1. Qualifications

    The Defendants sought to exclude Pontinen’s opinions because his life care plan included an estimate of Box’s life expectancy, which they argued Pontinen was not qualified to calculate.

    The Court held that Pontinen is qualified to opine on Box’s life expectancy, as one component of Box’s life care plan. As part of the life care planning calculations, Pontinen estimated that Box would live an additional forty years.

    His life expectancy estimate was based on the Center for Disease Control’s (“CDC”) 2023 National Vital Statistics Report on life expectancy for the U.S. population.

    Pontinen is a certified life care planner who provides services through a life care planning company, which regularly provides life expectancy estimates as part of its process. Other courts have found certified life care planners qualified to rely on their life expectancy calculations as part of creating a life care plan.

    And the Defendants did not point to—and the Court is not aware of—case law that requires an expert witness to be a life expectancy expert or economist in order to rely on a life expectancy estimate.

    2. Reliability

    The Defendants argued that Pontinen (1) did not collaborate with Box’s primary treating physician and (2) his pricing model relied on proprietary data.

    The Court held that Pontinen’s methodology is reliable for Daubert purposes. There is no one required methodology in the life care planning industry. Pontinen explains that his methodology (and LCP Pro’s) is based on “peer-reviewed, published methodologies and Standards of Practice within the life care planning associations,” including the American Academy of Physician Life Care Planners, International Academy of Life Care Planners, and American Association of Nurse Life Care Planners.

    Regarding the relationship between Pontinen and Box’s primary treating physician, the Court found that the lack of formal collaboration between the two is not sufficient to render Pontinen’s methodology unreliable.

    While the record in this case indicated that collaboration with physicians is recommended within the life care planning industry, the record did not support the notion that a life care planner’s failure to collaborate renders his or her methodology unreliable

    Even if the Defendants could identify some document that expressly requires collaboration with every treating physician, that would still be insufficient.

    The Court is not persuaded that LCP Pro’s database is unreliable or unverifiable within the industry nor that Pontinen’s use of a proprietary database renders his methodology unreliable for Daubert purposes. Pontinen relied on Box’s actual bills or provider estimates where possible and costing databases, such as those by the Practice Management Information Corporation and LCP Pro, where not. He provided nineteen cost estimates based on individual future needs. Three of those estimates were derived from LCP Pro’s database. LCP Pro’s database contains data from “more than 2,000 cases” and is “based on actual provider charges and actual provider estimates for injections and surgeries.”

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Thomas Pontinen.

    Key Takeaway:

    Pontinen’s methodology for employing pricing databases, including LCP Pro’s proprietary database, is consistent with standards in the life care planning industry and Daubert.

    Any further disagreement regarding the accuracy of Pontinen’s individual cost estimates speaks to the weight of the testimony rather than its admissibility, as competing expert witnesses often supply different cost estimates from one another.

    Case Details:

    Case Caption: Box V. Causey
    Docket Number: 1:24cv3766
    Court Name: United States District Court, Georgia Northern
    Order Date: December 02, 2025
  • Anesthesiology Expert’s Testimony on the Value of Promotion Admitted

    Anesthesiology Expert’s Testimony on the Value of Promotion Admitted

    Plaintiff, Dr. Sheldon Goldstein, a former physician in the Department of Anesthesiology quit his employment when in 2021, he did not receive a
    promotion to Professor on the Clinical Educator Track, the same promotion he did not attain the year prior.

    Goldstein alleged that he was subjected to discrimination and harassment because of his disability in violation of the Americans with Disabilities Act of 1990 (“ADA”), the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). He asserted these claims against Montefiore Medical Center, and Dr. Mattias Eikermann. Montefiore hired Plaintiff on September 30, 2013 as a full-time physician and Professor in the Department of Anesthesiology at Albert Einstein College of Medicine (“Einstein”) while Defendant Eikermann served as the Chairman of Anesthesiology at Montefiore and Plaintiff’s supervisor.

    Plaintiff offered Dr. Edward A. Ochroch as a medical school promotions expert. Defendants filed a motion to exclude the testimony of Ochroch, who opines on Plaintiff’s qualifications for promotion, the propriety of Plaintiff’s exclusion from the promotion process, and the relative value of a promotion to clinical professor.

    Anesthesiology Expert Witness

    Dr. Edward Andrew Ochroch, M.D. is a board-certified anesthesiologist and has worked exclusively as a faculty member at the University of Pennsylvania in the Department of Anesthesiology for the past nineteen years. In that time, Ochroch has served as chair of the Departmental Committee on Appointments and Promotions, overseeing and serving on “numerous committees on appointments and promotions.”

    Want to know more about the challenges Edward Ochroch has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    I. Background and Opinion of Ochroch

    Ochroch opined that: (1) “Plaintiff met all the requirements set forth on the Clinical Educator Checklist for promotion to Clinical Professor in 2021”; (2) Plaintiff “should have been recommended by the Departmental Committee on Appointments and Promotions if Eikermann had not interfered”; (3) “Eikermann’s interference” in the promotion process “was a violation of the Suggested Guidelines for Promotion to Senior Rank”; and (4) given the value of promotion, “by preventing [Plaintiff] from being considered for promotion . . .Eikermann diminished [Plaintiff’s] reputation, limited his employment opportunities, excluded him from consideration for administrative positions, and precluded him from receiving a significant annual increase in wages.” 

    II. Ochroch’s Qualifications

    Defendants argued that Ochroch is unqualified to serve as an expert witness because “being an anesthesiologist does not make him an expert in the promotion process at Montefiore”; that his experience with the academic promotion process is limited to his employment at the University of Pennsylvania; and that “the promotion process at the University of Pennsylvania [is not] an area of expertise.”

    The Court found that Ochroch’s experience as a member and chair of the University of Pennsylvania’s committee on appointments and promotion is reasonably closely related to the promotion process at Einstein.

    III. Reliability of Ochroch’s Opinions

    A. Assessment of Goldstein’s Qualifications for Promotion

    As to Ochroch’s opinion that Goldstein met Einstein’s requirements for a promotion to Clinical Professor in 2021, Defendants noted that, in assessing Plaintiff’s qualifications, Ochroch relied exclusively on his experience, the Clinical Educator Checklist published by Einstein, and Plaintiff’s CV and teaching portfolio. Defendants contended that this opinion is unreliable because Ochroch provided no analysis, did not ground the conclusion in facts or a reliable methodology, and impermissibly substituted his own views for those of the promotion committee.

    In light of Ochroch’s thirty years of experience, the Court found Ochroch’s opinion that Goldstein had met Einstein’s qualifications for promotion reliable.

    B. Assessment of Eikermann’s Role

    As to Ochroch’s opinion that Eikermann “contaminated the entire process” in deciding Plaintiff was not eligible for promotion in 2021, Defendants suggested that Plaintiff improperly sought to use Ochroch to present the factual narrative from Plaintiff’s perspective. 

    Here, Ochroch offered no support beyond his own speculation that Eikermann’s decision to not consider Plaintiff for promotion in 2021 reflected a purposeful effort to exclude Plaintiff.

    The Court found Ochroch’s opinion on Eikermann’s role in the failure to promote Plaintiff in 2021 unreliable.

    C. Assessment of the Value of a Promotion and Effects of Being Denied a Promotion

    As to Ochroch’s opinions on the value of a promotion to Clinical Professor and the negative consequences of not being promoted, Defendants argued that Ochroch lacked the necessary knowledge and experience to testify on these topics.

    However, Ochroch provided data on the benefits associated with a promotion to Clinical Professor: he explained that promotion to that level at the University of Pennsylvania comes with an “added six percent of salary or approximately $25,000” in addition to increased retirement benefits; and he noted that “other institutions pay as much as $30,000 annually for a promotion to Clinical Professor.”

    Ochroch also described the less easily quantified professional ramifications of promotion to Clinical Professor: more job opportunities, eligibility for “internal and external administrative positions” such as department chair, and additional opportunities to lecture and publish.

    And Ochroch discussed the “negative consequences of not being promoted,” stating a physician who fails to be promoted within ten years is presumed “inferior or incompetent or both”; Ochroch concluded that because Plaintiff was not promoted to Clinical Professor, his reputation suffered, his employment opportunities were limited, he was ineligible for administrative positions, and he did not receive significant annual wage increases. 

    The Court found Ochroch’s opinions on the value of promotion to the rank of Clinical Professor and the professional harm Plaintiff suffered due to being denied the promotion reliable.

    IV. Relevance of Ochroch’s Opinions

    With respect to Ochroch’s opinions on Goldstein’s qualifications for promotion, Defendants argued that Plaintiff has failed to show that these opinions are based on the witness’ expertise as opposed to matters that the factfinders could understand without an expert’s help.

    Ochroch recited Plaintiff’s credentials and opined that, based on Einstein’s promotion rubric, Plaintiff was qualified for promotion.

    Defendants’ argument that the factfinders could reach the same conclusion or not on their own therefore has some force. However, Plaintiff’s explanation that the factfinders would require assistance to understand “the world of academic medicine promotions” was also persuasive. The Court concluded that the factfinders would benefit from an explanation of how Goldstein’s professional accomplishments fit within Einstein’s promotion rubric and therefore that Ochroch’s opinions on this subject are relevant and admissible. 

    V. Ochroch’s Opinions and Rule 403

    The Court found that Rule 403 provided an additional basis for finding Ochroch’s opinions on Eikermann’s motivation for and role in the failure to promote Plaintiff in 2021 to be inadmissible to the extent that they are unreliable. 

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Plaintiff’s expert Edward A. Ochroch.

    Key Takeaway:

    Defendants were correct that a party may not present an expert to make “simple inferences drawn from uncomplicated facts,” which do not help the jury and serve only to buttress Plaintiff’s case.

    Ochroch, in opining on Eikermann’s role in Einstein’s decision not to consider Plaintiff for promotion, performed just that impermissible function. Jurors can rely on the additional industry context provided by Ochroch to reach their own conclusions about whether Eikermann contaminated the promotion process. Additionally, an expert may not opine on “motivation or intent” without “dispositive support.” 

    Case Details:

    Case Caption: Goldstein V. Montefiore Medical Center Et Al
    Docket Number: 1:22cv6723
    Court Name: United States District Court for the Southern District of New York
    Order Date: September 25, 2025
  • Anesthesiology Expert’s Testimony on Unprofessional Conduct Excluded

    Anesthesiology Expert’s Testimony on Unprofessional Conduct Excluded

    This is an employment discrimination case brought by a former employee of the U.S. Department of Veterans Affairs (“VA”). The Plaintiff, Dr. Elizabeth Schacht, was employed by the VA as an anesthesiologist from 2015 until August 20, 2018, when her supervisors revoked her clinical privileges and removed her from federal service. Schacht claimed the VA discriminated against her based on her sex (female and pregnancy) and national origin (Colombian), in violation of Title VII. She further alleged that the VA discriminated against her based on her disability (pregnancy-related complications) in violation of the Rehabilitation Act, and in retaliation for her statutorily protected activities.

    Schacht initially appealed her termination and the revocation of her clinical privileges to the VA Disciplinary Appeals Board (the “DAB”). In December 2019, the DAB heard Schacht’s appeal and upheld the VA’s decision. 

    Schacht appealed the DAB’s decision to the United States District Court for the District of Columbia. On August 11, 2022, after remand, the D.C. District Court found that the DAB provided a “sufficient, reasonable explanation” for its evidentiary decisions. On March 20, 2023, Schacht filed this case. Schacht asserted four claims arising out of her employment with the VA: (1) a disparate treatment claim and hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”) for discrimination based on sex, pregnancy, and national origin; (2) a retaliation claim under Title VII; (3) a disability discrimination claim under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act; and (4) a retaliation claim under the ADA and the Rehabilitation Act. 

    Schacht endorsed Mercedes Susan Mandell, a highly qualified and well-respected anesthesiologist and academician, to testify as to her expert opinion regarding pretext evidence in this case. Defendant filed a motion to exclude each and every one of Mandell’s opinions.

    Anesthesiology Expert Witness

    Mercedes Susan Mandell, M.D., Ph.D. served as the Director of the Liver Transplant Program at the University of Colorado for 30 years. She received her medical degree from University of Toronto Faculty of Medicine. She has a long history of supervising anesthesiologists.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Mercedes Susan Mandell’s expert testimony.

    Discussion by the Court

    Mandell’s report has four “objectives;” (1) “to determine if Schacht met the standard of care and if the cases supported the VA’s claims of unprofessional behavior;” (2) “if the disciplinary investigation and actions followed policy published by the VA;” (3) “the quality and reliability of the claims made against Schacht;” and (4) “if the actions taken against Schacht were consistent with the standards of clinical care and professional conduct enforced by state organizations responsible for medical licensing (Medical Board)”. 

    The Court first turned to the VA’s argument that Mandell’s report should be excluded because her opinions are barred by collateral estoppel, also known as issue preclusion. 

    The VA argued that Mandell’s opinions should be excluded on the basis of issue preclusion because “Mandell addresses an issue already decided; the DAB action has now been finally adjudicated on the merits; Plaintiff was a party in the DAB and the appeals; and she had a full and fair opportunity to litigate.” 

    The Court found that the DAB proceedings have been fully adjudicated because the D.C. District Court affirmed the DAB’s findings and the D.C. Circuit affirmed the D.C. District Court’s judgment. Furthermore, Schacht was a party to the DAB proceedings.

    Therefore, the Court will determine, for each of Mandell’s opinions, whether the issue that is the subject of her opinions was identical to the issue presented in the DAB proceedings, and whether she had a full and fair opportunity to litigate the issue in the DAB proceedings. 

    Mandell’s Report

    In a section entitled “Objective 1: Specifications,” Mandell’s report first examined the claims described in the specifications to determine whether Schacht met the standard of care and whether the cases supported the VA’s claims of unprofessional behavior.

    Subsequently, the Court found that Mandell’s opinions—that the specifications did not support the VA’s claims that Schacht engaged in unprofessional conduct—were identical to the issues already decided in the DAB proceedings.

    Furthermore, Mandell’s report attempted to resurrect these issues by opining that Schacht did not breach the standard of care and by providing additional facts that allegedly showed that Schacht’s conduct was not unprofessional.

    Finally, for each specification, Mandell’s report conducted a similar analysis that effectively relitigated the issue of whether there was substantial evidence to support the specifications and, by extension, the VA’s charge of unprofessional conduct.

    Schacht did not have a full and fair opportunity to litigate her discrimination claims

    The Court turned to Schacht’s argument that she did not have “a full and fair opportunity to litigate her discrimination claims . . . because the Board refused to admit evidence pertaining to Schacht’s discrimination case.”

    Whether Schacht had a full and fair opportunity to litigate her discrimination claims, while relevant to claim preclusion, is not relevant to the inquiry under issue preclusion. 

    To the extent that Schacht argued that she did not have a full and fair opportunity to litigate whether substantial evidence supported the specifications because she could not introduce supplemental evidence in the DAB proceedings, the Court rejected that argument. 

    The DAB explained that it excluded Schacht’s supplemental evidence because it was untimely and the evidence was not relevant.

    The Court turned to Mandell’s opinions that the evidence supporting the specifications “lacked credibility” and that “there were not enough facts to support the deficiency claims.”

     In upholding the charge of unprofessional conduct against Schacht, the DAB necessarily decided that the evidence supporting the specifications was credible. 

    Therefore, Mandell’s opinions relitigated credibility determinations that were already made by the DAB and which were upheld on review in federal court.

    The Court found that Schacht had a full and fair opportunity to litigate these issues in the DAB proceedings.

    Because Mandell’s opinions are barred by issue preclusion, the Court granted the VA’s motion to exclude the opinions in her report.

    Held

    The Court granted the Defendant’s motion to exclude the opinions of Dr. Mercedes Susan Mandell. 

    Key Takeaway:

    The consideration of a party’s prior full and fair opportunity to litigate an issue often will focus on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties.

    The Court did not find, and Schacht did not point to, any significant procedural limitations in the DAB proceedings, a lack of incentive to litigate the issue fully, or that the nature or relationship of the parties limited effective litigation. 

    Case Details:

    Case Caption: Schacht V. Collins
    Docket Number: 1:23cv709
    Court Name: United States District Court for the District of Colorado
    Order Date: September 24, 2025
  • Obstetrics Expert’s Testimony on Brain Damage Limited

    Obstetrics Expert’s Testimony on Brain Damage Limited

    Elizabeth Reyes and her minor daughter G.T. sued the United States, Bronx Lebanon Hospital Center, BronxCare Health System, and two doctors over G.T.’s permanent medical conditions, which the Plaintiffs alleged were caused by mistakes made during Reyes’ labor and delivery and G.T.’s neonatal care.

    The Bronx Lebanon Defendants filed a motion to preclude Plaintiffs’ obstetrics expert, Dr. Daryl K. Boffard; Plaintiffs’ anesthesiology expert, Dr. Alexander E. Weingarten; and Plaintiffs’ pediatric neurology expert, Dr. Louis N. Manganas. The United States filed a motion to preclude Drs. Boffard and Manganas.

    Plaintiffs opposed these motions, and for the most part, they satisfied their burden to demonstrate the admissibility of their experts’ testimony under Rule 702 and Daubert. Despite their efforts, the Plaintiffs fell short in backing a few specific opinions.

    Obstetrics and Gynecology Expert Witness

    Dr. Daryl Keith Boffard, M.D., FACOG has been practicing Obstetrics and Gynecology Medicine in the New York metropolitan area since 1981 when he received his medical degree from the University of Medicine and Dentistry in Newark, NJ.

    He was board certified by the American Board of Obstetrics and Gynecology in 1987. Following his residency, he has been the Medical Director at Jersey GYN Associates from 1987 to present date.

    Want to know more about the challenges Daryl Boffard has faced? Get the full details with our Challenge Study report. 

    Anesthesiology Expert Witness

    Dr. Alexander Eugene Weingarten, M.D., PC is a physician licensed to practice medicine and surgery in the state of New York and board certified in the medical specialty of anesthesiology.

    He became board certified by the American Board of Anesthesiology in October of 1984 and has remained board certified ever since. He limits his practice to the field of anesthesiology. He received his medical degree from S.U.N.Y. Upstate Medical Center in Syracuse.

    Get the full story on challenges to Alexander Weingarten’s expert opinions and testimony with an in-depth Challenge Study. 

    Pediatric Neurology Expert Witness

    Dr. Louis Nicholas Manganas, M.D., Ph.D. is a pediatric neurologist who specializes in treating a wide range of neurological conditions in children, including hypoxic ischemic encephalopathy, intracerebral hemorrhage, central nervous system infections, developmental delays, and epilepsy.

    After completing his clinical fellowship in Epilepsy at Yale, he joined the Department of Neurology at Stony Brook as faculty. He is currently the Chair of the Department of Neurology at the NYU Grossman Long Island School of Medicine.

    Discover more cases with Louis Manganas as an expert witness by ordering his comprehensive Expert Witness Profile report.
     

    Discussion by the Court

    Daryl Boffard

    First, Boffard opined that G.T.’s delivery process caused “cerebral palsy and hemiplegia.” The United States argued that Boffard isn’t qualified to offer an expert opinion on the causes of G.T.’s neurological conditions.

    While Plaintiffs responded that “any person has the knowledge that having an interruption of oxygen for forty-five minutes can damage the brain,” and that “[t]here is nothing unreliable about Plaintiffs’ experts’ theories . . . that the failure to deliver or resuscitate . . . was a substantial contributing factor to the brain damage,” Boffard himself admitted that he’s “not qualified to offer an opinion as it relates to pediatric neurology.”

    However, Boffard’s causation opinion goes beyond merely explaining brain damage; it focuses on specific pediatric neurological conditions that Boffard expressly stated he is not qualified to testify about. So while Boffard may testify that G.T.’s delivery caused brain damage, the Court excluded his opinion that the delivery process caused “cerebral palsy and hemiplegia and the sequelae of these conditions.”  

    Alexander Weingarten

    Weingarten opined that “use of spinal anesthesia . . . was a substantial contributing factor to G.T.’s injuries, including brain damage.”

    The Bronx Lebanon Defendants argued that Weingarten was not qualified to offer a causation opinion in the case. Plaintiffs’ only response was that Weingarten was qualified to opine on the standard of care, but this did not address Defendants’ concern about whether Weingarten was qualified to render an opinion about whether the use of anesthesia caused G.T.’s brain damage. Because Plaintiffs declined to meet Defendants’ critique head-on, the Court deemed this issue conceded. Therefore, the Court excluded Weingarten’s causation opinion.

    Weingarten opined that the use of anesthesia “was a deviation from good and accepted medical practice.” The Bronx Lebanon Defendants argued that this opinion was “speculative and must be excluded” because Weingarten “based his opinions on someone else’s review of the records rather than his own.” Plaintiffs did not respond to this critique in their opposition brief. Consequently, the Court excluded Weingarten’s standard-of-care opinion.

    Held

    The Court granted in part and denied in part the Defendants’ motions to exclude the testimony of Plaintiffs’ experts Daryl K. Boffard and Alexander E. Weingarten.

    Key Takeaway:

    In this case, Plaintiffs declined to meet Defendants’ critique head-on. Numerous courts have held that a Plaintiff’s failure to address an issue in its opposition amounts to a concession or waiver of the argument.

    Case Details:

    Case Caption: G.T. Et Al V. United States Of America
    Docket Number: 1:22cv10901
    Court Name: United States District Court, New York Southern
    Order Date: July 21, 2025
  • Anesthesiology Expert Barred from Testifying About Alleged Strip Search

    Anesthesiology Expert Barred from Testifying About Alleged Strip Search

    The claims against La-Norma Ramirez and Washington County stem from Plaintiff Danyale Blackmore’s booking and release at the Washington County Jail.

    Blackmore alleged that her constitutional rights were violated when she was allegedly strip-searched at the Jail.

    Defendant sought to exclude or limit at trial the testimony of Plaintiff’s expert, Dr. Scott Allen. 

    Anesthesiology Expert Witness

    Scott Allen is a licensed medical doctor with specialization in anesthesiology. He has been board certified since 2017 by the American Board of Anesthesiology.

    Allen currently practices as an anesthesiologist with Mountain West Anesthesiology and has privileges at Intermountain Health Care, specifically at St. George Regional Hospital in St. George, Utah and Intermountain Medical Center in Salt Lake City, Utah.

    Get the full story on challenges to Scott Allen’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Plaintiff received multiple ketamine treatments at Allen’s clinic, starting on October 5, 2020, and met with Allen during at least three of her visits to the clinic.

    Allen was retained to testify that the Plaintiff’s arrest and the events surrounding it were extremely traumatic for her, leading to serious psychological and emotional issues.

    Plaintiff fails to demonstrate the reliability of Allen’s testimony for some of the matters for which he was designated as an expert

    The Defendant argued that Allen’s methods and opinions are unreliable because ketamine is not widely accepted as a standard treatment within the medical community. They also noted that Allen had only a few treatment sessions with the Plaintiff and based his understanding of her condition primarily on her ketamine treatment records.

    However, in his deposition, Allen explained that ketamine is a recognized treatment for certain medical and mental health conditions. He also testified that he used specific criteria and relied on sufficient facts to conclude that the Plaintiff exhibited symptoms consistent with anxiety, depression, or PTSD.

    Despite this, Allen did not provide an adequate basis to formally diagnose the Plaintiff with any medical or mental health condition. He also lacked personal knowledge of her arrest and alleged strip search. Ultimately, Allen did not diagnose the Plaintiff and cannot reliably determine the cause of her symptoms or the source of any diagnoses she may have received.

    Allen’s anticipated testimony, as limited in scope, is relevant and admissible

    The Defendant argued that even if Allen’s testimony meets the standards of Rule 702, it is irrelevant because it would not help the jury decide whether the Plaintiff was strip searched.

    Allen will not be allowed to testify that the strip search occurred or that it caused the Plaintiff to develop PTSD or any other medical or mental health condition. He also may not vouch for the Plaintiff’s credibility or state that he believes her version of events is true. However, this does not mean that his testimony is irrelevant to the issues at trial.

    Allen is permitted to testify about his direct observations of the Plaintiff during her ketamine treatments, as well as his communications with her during those sessions. Such testimony is generally not considered hearsay. If a proper foundation is laid and the testimony otherwise meets the requirements of the Federal Rules of Evidence, the Court held that Allen may also testify about general matters such as mental health diagnoses and the Plaintiff’s potential need for future ketamine treatments.

    This testimony is highly relevant to the issue of damages and may also be used to rebut the opinions and testimony of the Defendant’s expert, provided it meets evidentiary standards.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude or limit the testimony of Dr. Scott Allen.

    Key Takeaway:

    It is important to note that Allen never diagnosed the Plaintiff with any specific medical or mental health condition. While he may speak generally about medical and mental health diagnoses, he is not permitted to testify or offer an opinion that the Plaintiff has, or is suffering from, any specific condition such as anxiety, depression, or PTSD.

    Please refer to the blogs previously published about this case:

    Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

    Corrections Expert’s Opinions on the Strip Search Excluded

    Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

    Family Medicine Expert’s Opinions on Opposing Experts’ Qualifications Excluded

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: May 27, 2025
  • Court Rejects Anesthesiology Expert’s Testimony Over Incomplete Medical Evidence

    Court Rejects Anesthesiology Expert’s Testimony Over Incomplete Medical Evidence

    In a recent case involving a police shooting in Las Cruces, the admissibility of expert testimony became a central point of contention. The Plaintiff, who sustained injuries during the incident, sought to introduce Dr. Alen Ternian as a pain management expert. However, the Defendants challenged Ternian’s testimony, raising significant concerns about the completeness and reliability of his expert report.

    Ternian was retained to provide expert opinions on the Plaintiff’s pain management as it related to the incident. However, the Defendants argued that the Plaintiff failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B), which requires a complete statement of all opinions and the basis and reasons for them. Specifically, the Defendants pointed out that Ternian’s initial report lacked crucial supporting data and facts.

    Anesthesiology Expert Witness

    Alen Ternian is a board-certified anesthesiologist, with a history of practice that necessarily deals with the treatment of patients in pain. His employment history includes a medical practice and associate professor lecturer and examiner at Ceder Sinai Medical School.

    Get the full story on challenges to Alen Ternian’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Defendant’s Objections

    The core of the Defendants’ objection centered on the Plaintiff’s alleged failure to comply with Federal Rule of Civil Procedure 26(a)(2)(B). They argued Ternian’s report lacked the underlying facts and data supporting his conclusions.

    Defendants objected to the late and disorganized production of discovery materials, including a large volume of unorganized medical records and the delayed provision of Ternian’s curriculum vitae. This hindered their deposition preparation.

    Defendants emphasized Ternian’s own statements revealed his opinion was incomplete, as he stated further medical imaging was necessary, but this was never obtained. Along with Rule 26, the Defendants also moved to exclude the opinions and testimony of Ternian, pursuant to Federal Rules of Evidence 403 and 702.

    The Defendants requested the Court to exclude late-produced records, prevent further disclosures, exclude Ternian’s testimony, and/or hold a Daubert hearing.

    Plaintiff’s Opposition:

    The Plaintiff countered that they provided relevant medical records and information, arguing the Defendants had access to necessary records prior to Ternian’s deposition.

    Plaintiff disputed discovery violation claims, asserting they were responsive to requests and did not disobey orders, arguing exclusion would be an improper sanction.

    Plaintiff argued that during the deposition, the defense questioned Ternian about his initial report and his methodology, and therefore they had a fully informed deposition.

    Court’s Observations

    The Defendants provided the Plaintiff with multiple opportunities to rectify these deficiencies. However, instead of providing the requested data, the Plaintiff produced a large volume of unorganized medical records and delayed the disclosure of Ternian’s curriculum vitae until after his deposition. This delayed disclosure severely hampered the Defendants’ ability to adequately prepare for the deposition and challenge the expert’s opinions.

    Rule 37 Sanctions and the “Harmless or Justified” Test:

    The Court found that Ternian’s report was incomplete because it relied on medical imaging (CT scans and ultrasounds) that were never performed. Ternian himself acknowledged the need for further information to provide a complete medical opinion. This failure to obtain necessary data violated Rule 26, which led the Court to consider sanctions under Rule 37(c)(1).

    Under Rule 37(c)(1), if a party fails to provide information required by Rule 26(a), they are generally prohibited from using that information or witness at trial, unless the failure was substantially justified or harmless. The Court considered factors such as prejudice to the Defendants, the ability to cure the prejudice, potential disruption of the trial, and the Plaintiff’s bad faith or willfulness.

    The Court’s Ruling:

    The Court determined that the Plaintiff’s violations of Rule 26 were not justified or harmless. The Defendants were prejudiced by the incomplete report and the late disclosure of records. The Court highlighted the Plaintiff’s failure to obtain necessary medical scans and the disorganized and delayed production of medical records. Although the Court did not find bad faith on the part of the Plaintiff, the other factors weighed heavily in favor of excluding Ternian’s testimony.

    Held

    The Court found that Plaintiff’s expert, Dr. Alen Ternian, failed to comply with Rule 26’s expert disclosure requirements which was not substantially justified or harmless. Therefore, the Court granted Defendants’ motion to exclude and Ternian was excluded from giving testimony at trial pursuant to Rule 37.

    Key Takeaways:

    • Timely and organized disclosure of expert information is essential for effective cross-examination and trial preparation.
    • Compliance with Rule 26 is crucial for the admissibility of expert testimony.
    • Failure to provide a complete and well-supported expert report can lead to exclusion of testimony under Rule 37.
    • Courts consider various factors, including prejudice and the ability to cure, when determining whether a Rule 26 violation is harmless or justified.

    Case Details:

    Case Caption: Strickland V. City Of Las Cruces Et Al
    Docket Number: 2:23cv116
    Court: United States District Court, New Mexico
    Order Date: March 06, 2025