Plaintiff Emilee Bradley sued Defendants BSL Express Trucking, Inc. and Fatkhuddin Kurbonov in Jefferson Circuit Court, alleging various claims arising from an automobile accident involving Bradley and Fatkhuddin Kurbonov. Intervening Plaintiff Shawna Broyles (hereinafter “Broyles”) was a passenger of Plaintiff Bradley’s vehicle.
Defendants filed a motion to exclude the opinion of Broyles’ proffered expert, Dr. Jules J. Barefoot.
Defendants asserted that Barefoot’s expert report “is devoid of any meaningful analysis or reasoning” and therefore would not aid the jury with its deliberation of any issues in the case. Additionally, Defendants argued that Barefoot is not qualified to opine regarding Broyles’ dental injuries, scarring, or alleged concussion.
Emergency Medicine Expert Witness
Julius Jackson Barefoot is a medical doctor certified in emergency and preventative medicine. In addition, Barefoot is a certified independent medical examiner and has extensive experience evaluating injuries in the litigation context.
Broyles intended to introduce Barefoot to testify that she suffered injuries from the accident and that “all of the medical care and medical bills [she] incurred . . . were reasonable, necessary, and appropriate for the injuries sustained.”
The Court agreed with Defendants that Barefoot’s proposed testimony must be excluded. Because Barefoot’s report did not outline his reasoning or methodology, the Court is left to speculate as to whether Barefoot’s opinion “is the product of reliable principles and methods” or whether he has reliably applied those “principles and methods to the facts of the case.” Indeed, Barefoot provided no explanation for his conclusion that Broyles’ medical treatment was appropriate.
The Court is also not convinced that Barefoot’s testimony would aid the jury. Barefoot’s report largely consisted of a summarization of Broyles’ medical records. And because Barefoot offered only a conclusory statement that Broyles’ treatment was necessary and appropriate, his proposed testimony did nothing to meaningfully “contextualize, analyze, and interpret” this historical information.
Finally, the Court noted that Barefoot’s report repeatedly stated that he has not evaluated Broyles and that he is unaware of the full extent of her injuries and treatment. Barefoot’s admitted lack of knowledge regarding the full extent of Broyles’ injuries and treatment therefore made it impossible for him to reliably testify in the manner Broyles intended.
Held
The Court granted the Defendants’ motion to exclude the opinion of Plaintiffs’ expert Dr. Jules Barefoot.
Key Takeaway:
Information presented without any expert analysis or other application of the expert’s expertise generally should come to the jury directly from the sources rather than through the mouth of the expert. In this case, Broyles’ medical history “should come to the jury directly from the sources rather than through the mouth of” Barefoot.
Plaintiff, Ashley Huddleston was born with a genetic condition called muscular dystrophy, which required her to be in a wheelchair and utilize a tracheostomy since age 11.
On December, 2021, at around 2:36 p.m., Plaintiff presented to the Tristar Northcrest Medical Center ED with low oxygen, shortness of breath, and a history of muscular dystrophy requiring tracheostomy. Approximately an hour later, Plaintiff had a chest x-ray taken, which was normal.
At some point, Plaintiff complained of low back pain. A physician’s assistant in the emergency room, Defendant Samantha Stephens, ordered and administered 0.5 milligrams of Dilaudid to Plaintiff for her back pain. Five minutes later, Plaintiff was in cardiac arrest and CPR was initiated. Emergency room physician and supervising physician of Stephens, Defendant James Nell, ordered Narcan, and Plaintiff was alert soon thereafter.
Chest x-rays taken after Plaintiff received CPR showed a pneumothorax (collapsed lung). Plaintiff had a chest tube inserted and was flown by helicopter to St. Thomas Hospital, where she stayed until January 22, 2022. She was transferred to a different hospital, where she stayed until March 3, 2022, after which she received treatment at home until April 4, 2022.
Plaintiff brought this case against Defendants Samantha Stephens, P.A., and James Nell, M.D. for their alleged negligence in providing her medical care on December 25, 2021.
Specifically, Plaintiff claimed Defendants negligently ordered and administered Dilaudid, which proximately caused her respiratory arrest, cardiac arrest and subsequent pneumothorax, pain/suffering, and long-term hospitalization.
Defendants sought to exclude Dr. David Wiggins for failure to comply with the “locality requirement” of subsection (a)(1) of Tennessee Code Annotated Section 29-26-115.
Emergency Medicine Expert Witness
David Wiggins is a residency trained, board certified emergency physician with over 31 years of continuous full-time emergency medicine experience.
To satisfy this “locality requirement,” an expert witness may show either that they are “familiar” with the relevant medical community or that they are familiar with a “similar” medical community:
“A claimant is required to prove the “[t]he recognized standard of acceptable professional practice … in the community in which the defendant practices or in a similar community.” The medical expert or experts used by the claimant to satisfy this requirement must demonstrate some familiarity with the medical community in which the defendant practices, or a similar community, in order for the expert’s testimony to be admissible under Rules 702 and 703.
Generally, a competent expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has had discussions with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the Defendant practices, will be sufficient to establish the expert’s testimony as admissible.”
Thus, a competent expert may demonstrate familiarity with the medical community in which the Defendant practices – here Springfield, Tennessee – or a similar community by:
1. testifying that they have reviewed and become familiar with pertinent information, such as the size of Springfield’s community and hospital, the number and type of medical facilities in Springfield, and the medical services available in the Springfield area;
2. testifying that they have had discussions regarding the applicable standard of care relevant to the issues presented with other medical providers in the Springfield community or a neighboring community; or
3. testifying that they have visited Springfield, Tennessee or the Hospital.
Analysis
Wiggins has: (1) reviewed and become familiar with the size of Springfield’s community and the medical services available there; and (2) had discussions regarding the applicable standard of care relevant to the issues in this case with another medical provider in a neighboring community who also frequently visits the Hospital and Springfield, Tennessee.
He testified that, in 2021, the Hospital was similar in bed-size and services offered to other medical facilities he had worked in and that he was aware that the Hospital was a 109-bed hospital that offered services such as 24-hour emergency room, cardiac, and orthopedic care.
Wiggins has also testified that his home practice is in Thomasville, North Carolina, a community with a population of approximately 27,000 people, which is similar in size to Springfield, Tennessee. Additionally, Wiggins has provided sworn testimony that he has had discussions regarding the Springfield, Tennessee medical community and local standard of care with Dr. George Thomas, a medical provider in Bowling Green, Kentucky who has visited the Hospital and is familiar with the Springfield community.
The Court found that Wiggins has demonstrated familiarity with the medical community of Springfield, Tennessee and a similar community, such that he satisfies the “locality requirement” of subsection (a) of Section 29-26-115.
Moreover, Wiggins has not provided contradictory testimony as to his professional experience or the information he has learned about the Springfield, Tennessee medical community and population size. Plaintiff disclosed Dr. Wiggins as an expert who would be offering his opinions on the standard of care, which necessarily includes his opinions on the locality rule under Tennessee law. Thus, this is not a situation where Defendants can claim surprise that Wiggins would be offering such opinions.
Held
The Court denied the Defendants’ motion to exclude testimony of Plaintiff’s expert David Wiggins, M.D. As only standard of care opinions are subject to the locality rule, the Court held that the Defendants’ motion will be denied to the extent they seek to exclude causation opinions based on a failure to comply with subsection (a)(1).
Key Takeaway:
Because Wiggins has shown familiarity with the Springfield, Tennessee medical community and a similar one, he fulfills the locality requirement under Section 29-26-115(a). His testimony about his professional background and knowledge of Springfield’s medical environment and demographics has been consistent.
Case Details:
Case Caption:
Huddleston V. Tristar Northcrest Medical Center Et Al
The present case stems from incidents occurring around 2:00 a.m. on December 18, 2020, when Angela Cleveland arrived at the Emergency Department (ED) entrance of Bienville Medical Center (BMC) with her 29-year-old son, Kedeldric Dontrez Brown. The Plaintiff has brought claims under the Emergency Medical Treatment and Labor Act (EMTALA), asserting that Brown’s death resulted from BMC’s failure or refusal to provide a necessary medical screening or treatment to assess whether he had an emergency medical condition.
In response, the Defendant has designated Dr. Rebecca Hutchings, a physician specializing in emergency medicine, as an expert witness regarding the allegations in this case and has presented her expert report, which includes analysis of the EMTALA claims. Plaintiff Brianna Babers filed a motion contesting the admissibility of Hutchings’ expert opinion on whether BMC’s treatment of Brown on December 18, 2020, constituted a violation of EMTALA.
Emergency Medicine Expert Witness
Rebecca Hutchings is board certified in both emergency medicine and pediatrics. She has served as the director of medical education for the division of emergency medicine at Children’s Hospital New Orleans.
Hutchings is also an Associate Adjunct Clinical Professor of Pediatrics at the Tulane University School of Medicine. She attended medical school at New York University followed by an Emergency Medicine residency at Louisiana State University, New Orleans.
Babers’ motion argued that Hutchings should not have been allowed to testify about legal conclusions, specifically whether BMC’s actions violated EMTALA. Babers maintained that determining an EMTALA violation was a legal question for the Court, not an expert. Therefore, Babers contended that any testimony from Hutchings interpreting EMTALA or offering legal conclusions should have been excluded under Federal Rule of Evidence 702 and the Daubert standard. In response, BMC agreed that experts could not offer legal conclusions but argued that Hutchings was qualified to provide expert testimony on emergency medicine, which was relevant to the EMTALA claims. BMC asserted that Hutchings’ extensive emergency medicine experience allowed her to testify on the medical aspects of the case, even without stating whether EMTALA was violated. BMC urged the Court to allow Hutchings to testify within her area of expertise.
Because the parties agreed that experts could not offer legal conclusions, the Court granted Babers’ motion to the extent that it sought to exclude Hutchings’ testimony offering legal conclusions on EMTALA violations. Such testimony was inadmissible and would be excluded. However, Hutchings remained qualified to testify as an emergency medicine expert and could offer opinions within her expertise that did not constitute impermissible legal conclusions.
Held
The Court granted the Plaintiff’s Daubert motion/motion in limine to limit/exclude the testimony of Defendants’ expert witness, Dr. Rebecca Hutchings. Hutchings cannot provide legal opinions on EMTALA violations but may testify as an emergency medicine expert.
Key Takeaway:
The case centers on a lawsuit alleging Bienville Medical Center (BMC) violated EMTALA in its treatment of Kedeldric Dontrez Brown, who later died after presenting to the emergency department. The Plaintiff challenged the admissibility of the Defendant’s emergency medicine expert, Dr. Rebecca Hutchings, arguing she should not offer legal conclusions on whether BMC violated EMTALA. The Court agreed that experts cannot provide legal conclusions and thus excluded any of Hutchings’s testimony that offered such conclusions. However, Hutchings remained qualified to testify as an emergency medicine expert and could offer opinions within her medical expertise, as long as they did not constitute impermissible legal conclusions
Plaintiff, Mikhaila Lenoir filed this healthcare liability action on March 15, 2023, regarding care that occurred at Regional One Health from October 8, 2021 through January 21, 2022. Plaintiff alleged that Regional One Health and its nurses, nurses’ assistants, and other employees allegedly breached the applicable standards of care by:
. . . failing to properly turn Plaintiff in her bed, failing to restrain and attend to plaintiff while sitting in a chair, failing to properly clean and treat Plaintiff’s bed/pressure sores, failing to place Plaintiff’s call device, performing medical procedures on Plaintiff without her informed consent and in blatant disregard for her clearly expressed non-consent, and by severely limiting Plaintiff’s family visitation.
Plaintiff designated Dr. Richisa Salazar as her expert witness. She was responsible for establishing the relevant standard of care. Defendant Shelby County Health Care Corporation filed a motion to exclude the opinions of Plaintiff’s medical expert witness Salazar.
Emergency Medicine Expert Witness
Richisa Salazar is a licensed physician in Mississippi, Texas, Florida and Georgia. She is currently practicing as an emergency room physician with multiple hospitals including several in the Atlanta, Georgia area.
Defendant argued that Salazar’s testimony should be excluded because she (1) is not licensed in a profession or specialty that would make her testimony relevant; (2) does not satisfy Tennessee’s locality rule; and (3) improperly relies on a national standard of care.
A. Whether Salazar is Licensed in a Profession or Specialty that Would Make Her Testimony Relevant
Defendant contended that Salazar’s license in emergency medicine does not amount to a license in a practice or specialty that makes her testimony relevant. Apparently, the issue is that Salazar is not a “wound care specialist.” Defendant insists that Salazar’s experience in the emergency room is irrelevant because the complaint’s allegations pertain to events that occurred while Plaintiff was under continuous care. As they see it, “the issue in this case is the prevention, development and appropriate treatment of pressure injuries.”
The Court finds that Salazar is licensed in a profession or specialty that would make her testimony relevant. The Tennessee Supreme Court has made clear that Tenn. Code. Ann. § 29-26-115 does not require that an expert witness practice the same specialty as the Defendant. Instead, courts must “look carefully at the particular issues presented in the case to determine if an expert practices a profession or specialty that would make the expert’s testimony relevant to those issues.”
The Court finds there to be little reason to require that any medical expert witness in this case be licensed as a wound-care specialist; this case turns on whether Defendant’s medical personnel failed to follow basic patient-care protocols as opposed to wound care specialist-specific standards. To that end, Salazar’s license in emergency medicine, her training in Geriatrics, and her experience with pressure ulcers all demonstrate that she is licensed to practice in a profession or specialty that makes her testimony relevant.
B. Whether Salazar Satisfies the Locality Rule
Defendant contended that Salazar failed to establish that she is familiar with the Memphis medical community, or that she practices medicine in a medical community similar to Memphis, and she has not testified as to the Memphis medical community’s standard of care.
i. Whether Salazar’s Deposition Testimony Satisfies the Locality Rule
It is given that Salazar does not practice medicine in Memphis. Defendant argued that the only basis Salazar gave for her conclusion that she practiced medicine in a similar community was her statement that she was familiar with the standard of care in Memphis because it seemed very similar to Jackson, Mississippi where she grew up.
Defendant, however, noted that Salazar never practiced medicine in Jackson, Mississippi. Specifically, Plaintiff acknowledged that Salazar did not know the specific population of the Memphis area, its demographic or socioeconomic makeup, or the exact number of hospitals.
Plaintiff insisted that Salazar’s testimony reflects that she did know that the University of Tennessee Medical School was in the Memphis area and that Regional One Health was Level 1 trauma center which offered a wide range of specialties.
Based on a review of the deposition transcript, the Court held that it would be quite charitable to conclude that Salazar knew either of these facts. Nowhere in this response did Salazar affirm that she “knows” that there are medical schools in Memphis. To the contrary, her response reflects that she is uncertain. Moreover, all of Salazar’s purported knowledge regarding Regional One Health appears to have been derived from a string of assumptions she made because the hospital was treating Plaintiff.
The Court held that Salazar’s deposition testimony does not establish that she is familiar with the Memphis medical community or its standard of care.
ii. Whether Salazar Satisfies the Locality Rule with the Addition of her Affidavit
Plaintiff included a supplemental affidavit, in seeming acknowledgment of the inadequacy of Salazar’s testimony on this matter. Here, Salazar’s familiarity with the Memphis medical community and its standard of care turns on two facts: (1) that she earned her Master’s Degree in Public Health with a concentration in Health services and Doctorate of Medicine from Meharry Medical College in Nashville, and (2) that Memphis is very similar to Atlanta—where she has practiced medicine since 2018—with respect to size, population, medical facilities, and access to medical information.
Concerning (1), Salazar appears to be suggesting that she became familiar with the Memphis standard of care via her “Tennessee medical education.” She also mentions that she frequently visits her family in Memphis. Defendant argued that Plaintiff’s attempt to connect Salazar’s time in medical school in Nashville, Tennessee still fails to satisfy the locality rule because Salazar was in medical school 13 years before the time that the events in this case took place, and her history in Nashville still does not establish her familiarity with Memphis’s medical community.
The Court is not persuaded that Salazar satisfies the locality rule even with the additional information from her affidavit. She fails to explain how her Nashville education provided her with any insight into the Memphis medical community and provides a hazy rationale on why she believes that Atlanta’s medical community is similar to Memphis’s. She also conceded that she was applying a national standard of care when she was testifying.
Held
The Court granted the Defendant’s motion to exclude the opinions of Plaintiff’s medical expert witness Richisa Salazar, M.D.
Key Takeaway:
Given Plaintiff’s concession that Salazar did not know the specific population of the Memphis area, its demographic or socioeconomic makeup, or the exact number of hospitals and the Court’s finding that Salazar has failed to make a strong enough affirmative showing that she has any familiarity with the Memphis medical community and standard of care, the Court concluded that Salazar did not satisfy the locality rule.
Plaintiff Shane Goff filed a religious discrimination lawsuit against his former employer, PeaceHealth (Defendant), alleging that PeaceHealth failed to reasonably accommodate his religious opposition to receiving a COVID-19 vaccine. PeaceHealth defended its actions, asserting that it had provided reasonable accommodations and that continuing to employ Goff without vaccination would have created an undue hardship on its operations.
The Defendant also sought to exclude the opinions and report of Goff’s expert, Dr. Richard Scott French, arguing that the evidence failed to meet the standards outlined in Rule 702 and Daubert.
Emergency Medicine Expert Witness
Richard Scott French, MD, is a board-certified emergency medicine physician and an active and experienced clinician who managed emergency departments, clinics, and at-risk populations during the pandemic and was able to successfully mitigate COVID-19 transmission without the use of a vaccine mandate. He also has professional experience teaching and presenting at medical schools on immunology, as well as viral transmission prevention, diagnosis, treatment, and management.
Defendant argued that Plaintiff’s expert, French, relied on unreliable methodologies and reasoning in his opinions and report. Dr. Seth Cohen, Clinical Associate Professor in the Division of Allergy and Infectious Diseases at the University of Washington and Medical Director of Infection Prevention at the University of Washington Medical Center, reviewed French’s report and provided a detailed rebuttal. Plaintiff did not respond to Cohen’s rebuttal.
The Court reviewed French’s report, which can be categorized into two overarching opinions: (1) the safety and efficacy of the COVID-19 vaccine are unproven, and (2) COVID-19 exposure risks can be effectively mitigated without requiring vaccination. The Court found these opinions inadmissible under Rule 702 and Daubert, identifying three significant deficiencies.
A. Rancourt Study
First, French relied on the “Rancourt Study” to support his opinion that the COVID-19 vaccines are neither safe nor effective. He described the study as comprehensive, citing its graphs, charts, and methodological descriptions. However, the Court determined that the study’s length and visual data did not establish its scientific legitimacy, labeling it as junk science.
Plaintiff failed to rebut the compelling opinion of Defendant’s expert, Cohen, who noted that the Rancourt Study “inexplicably… ignores that excess deaths across the world correlated with spikes of confirmed COVID-19 cases rather than vaccine rollouts.” Additionally, French did not provide a valid explanation for why the Rancourt Study, and his opinion based on it, should be considered reliable, especially given that it contradicts the broad scientific consensus that COVID-19 vaccines are safe.
B. Outbreak Report
Second, French cited an outbreak report to argue that COVID-19 vaccines were ineffective in mitigating transmission. The report found that 74% of the COVID-19 cases occurred in fully vaccinated individuals. From this finding, French opined that “even as early as 2021, the literature did not demonstrate that the COVID-19 vaccines were effective in transmission mitigation of COVID-19 infection.” However, the outbreak report explained that this result reflected high vaccination rates in the geographic area studied, not vaccine inefficacy. It concluded that the data was insufficient to evaluate vaccine effectiveness against variants like Delta and emphasized that vaccination remained the most critical strategy to prevent severe illness and death.
The Court found that French’s interpretation of the outbreak report misrepresented its findings, as the report explicitly stated that vaccination was key in reducing severe illness. This misinterpretation further undermined the reliability of French’s reasoning and conclusions.
C. Cohort Study
Third, French relied on a cohort study to assert that COVID-19 vaccines increased the risk of transmission. However, the cohort study explicitly recommended “increasing population immunity via booster programmes and vaccination” and concluded that “this analysis suggests that direct protection of individuals at risk of severe outcomes, via vaccination and non-pharmacological interventions, will remain central to containing the burden of disease caused by the delta variant.” French’s opinion directly contradicted the scientific research it relied on, misrepresenting the study’s findings.
The Court concluded that French’s overarching opinions regarding vaccine safety and alternative COVID-19 mitigation strategies were based on flawed methodologies and misinterpretations of the studies he cited. Further, the Court also found that French’s opinion on this subject falls below accepted standards of reliability, as his conclusions were repeatedly shown to contradict the very scientific research he relied upon. As a result, the Court excluded his opinions and report as inadmissible evidence under Rule 702 and Daubert.
Held
The Court granted the Defendant’s motion in limine to strike Richard Scott French’s testimony.
Key Takeaway:
French’s reliance on the Rancourt Study to argue that COVID-19 vaccines are neither safe nor effective was deemed inadmissible by the Court. The Court dismissed the study as junk science, highlighting that its methodology lacked scientific credibility and failed to meet the standards of Rule 702 and Daubert.
French’s opinion that vaccines increase the risk of transmission was unsupported by reliable scientific data or consensus. In fact, he misinterpreted key studies, including the Outbreak Report and Cohort Study, which he cited to support his claims. These studies were used incorrectly to bolster his flawed argument.
Both the Outbreak Report and the Cohort Study explicitly recommended vaccination as an essential measure to prevent severe outcomes and reduce the disease burden. Contrary to French’s interpretation, the studies emphasized the importance of vaccination in controlling the spread of COVID-19 and preventing serious health risks.
Case Details:
Case Caption:
Shane Goff V. Peacehealth
Docket Number:
6:22cv1991
Court:
United States District Court for the District of Oregon
Plaintiffs, Kathian Marie López-Concepción and Lenymar López-Concepción sought to recover damages for the alleged wrongful death of their late father, Angel I. López-Diaz in this medical malpractice action.
Plaintiffs alleged in their complaint that the medical treatment and care provided by CMC, Dr. Benny Nieves Matias, Dr. Iolani Garcia Rosario, and Dr. Cristina I. Ortiz Garcia deviated from the standards of care of the medical professional community and was the cause of the death of Ángel I. López Díaz, after he received treatment and care for what turned out to be ingestion of a toxic substance.
Plaintiffs, in turn, requested the exclusion of two experts announced, respectively, by Co-Defendants Dr. Cristina Ortiz-García and Dr. Iolani García-Rosario: Drs. Wilfredo Nieves-Colomer (“Dr. Nieves”) and Alvaro Reymunde (“Dr. Reymunde”).
Emergency Medicine Expert Witnesses
Edwin Miranda-Aponte is a licensed Specialist in Emergency Medicine with over 36 years of professional experience in Direct Care, Administrative, Operations Management, Aero-Medical Transport, and Academic Medicine. From 1983 through 2019, he held an unrestricted current permanent license to Practice Medicine and Surgery issued by the Puerto Rico Board of Medical Examiners. His Curriculum Vitae shows that he worked as an emergency room physician from 1994 through 2018 at Centro Médico. For a span of 8 years, he was the emergency room director at that same institution (2001-2009). Miranda was also a Professor at the University of Puerto Rico School of Medicine during the years 1983 through 1994.
Wilfredo Nieves Colomer, MD is an emergency medicine specialist in Carolina and has over 37 years of experience in the medical field. He graduated from Ponce Health Sciences University School of Medicine in 1986.
Alvaro Reymunde, MD is a gastroenterologist in Ponce, PR and has over 40 years of experience in the medical field. He graduated from University Central Del Este in 1983. He
Defendants argued that Miranda is unqualified to render reliable testimony because he is not a toxicology expert and never treated a glyphosate poisoning while working as an emergency room physician.
Defendants’ contention that he is not qualified because his medical training is limited to the “basic medical training as a General Practitioner” with no academic background or medical experience in toxicology, misses the mark considering his ample experience as an emergency room physician and emergency room director.
The Court held that Miranda does not need to be an expert in toxicology to render an opinion regarding the treatment of López at CMC’s emergency room for ingesting a poisonous substance. Even more so when the allegations in this case all relate to treatment of López in the emergency room, as he was allegedly never admitted to the regular ward or the intensive care unit.
Even though Miranda affirmed in his deposition that he never treated a patient with glyphosate poisoning, his expertise as an emergency room physician qualifies him to testify on whether the Defendants failed to abide by the accepted standards of care in managing López’s condition at the emergency room.
The Court added that the admission of Miranda’s testimony does not prevent Defendants from presenting their own expert to refute his opinion at trial, or from confronting him through cross examination with matters that go to credibility or the weight, if any, that the jury will assign to his opinions. Moreover, Plaintiffs also challenged Miranda’s qualifications because his medical license was expired when he rendered his report. Miranda retired from the practice of medicine in 2018 and his license expired in 2022. However, Plaintiffs have not explained how the expiration of Miranda’s license undermines his credibility or makes his testimony unreliable.
Benny Nieves Matias
Nieves’ report stated that he was asked to review the medical record of López with particular attention to the care provided by Ortiz at CMC’s emergency department in February 2020.
Because there was no list of his qualifications; no mention of other cases where he has testified; and no statement of the compensation he received for the study and testimony in the case, the Court held that Nieves’ three-page report did not fulfill the requirements of Rule 26(a)(2)(B). Moreover, Nieves’ report did not reference any additional data, medical literature, or treatises that he reviewed or considered.
When Nieves stated that the intervention of Cristina Ortiz García with Angel I. López Díaz at the emergency department at Caribbean Hospital on February 27, 2020, was adequate, that Court held that Nieves’ input offered little that could not be obtained from the medical records. The report did not identify a national standard of care, nor did it state how Ortiz adhered to that standard of care. Moreover, Plaintiffs deemed Nieves’ conclusions as ipse dixit.
In conclusion, the report did not guide the Court through Nieves’ analytical process to reach the conclusion that no standard of care was breached.
Alvaro Reymunde
To begin with, Reymunde opined that the mechanism that is triggered with the poison ingestion (“oxidative stress”) was already damaging López’s organs when he was admitted to the emergency room. And that there was nothing the doctors could have done because there’s no antidote for ingesting glyphosates. In fact, he categorically stated that other treatments that could have been attempted, such as dialysis, would have been futile because “the damage was already done.”
Like Nieves’ expert report, Reymunde’s did not comply with all the requisites of Fed. R. Civ. P. 26(a)(2)(B). Also, the report was also missing any reference to medical literature and standards of care. Reymunde admittedly based his opinion on his vast experience but his report, however, does not delve into how his experience led to the conclusions he reached.
Regarding García-Rosario’s care, he states that her decisions and medical criteria did not deviate from the standards of medical practice since she was in constant contact with the in-house physicians even when she wasn’t there in person to check on the patient.
The Court held that Reymunde’s conclusory opinion that nothing could be done by the medical personnel at CMC is not supported by an explanation of the principles and methods he used to arrive at it. Likewise, the Court is left to guess how he estimated the amount of glyphosate López consumed, and the time elapsed between the ingestion of the poison and the arrival at the emergency room.
Held
In conclusion, the Court denied the Defendants’ motion to exclude the testimony of Plaintiffs’ expert witness, Dr. Edwin Miranda-Aponte but granted the motion as to the exclusion of the reports and testimonies of Benny Nieves Matias and Alvaro Reymunde.
Key Takeaways:
If Nieves was relying solely or primarily on his own experience, he was required to “explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Concerning the standards of care, Reymunde did not enunciate what that standard is or why he understands that García-Rosario’s actions or medical decisions had no bearing on the outcome of López’ health condition. The Court is left to wonder what the reasoning or the methodology are underlying his conclusions and whether they are scientifically valid and applicable to the facts in issue. An expert’s opinion “must be supported by appropriate validation” and rely on “more than subjective belief or unsupported speculation.”
Case Details:
Case Caption:
Lopez-Concepcion Et Al V. Caribe Physicians Plaza Corporation Et Al
A district judge in Washington ruled that the testimony advanced by an expert on nursing practice was relevant to the Plaintiff’s argument that Chelan County Regional Justice Center’s medical care of inmates is substandard.
Facts of the Case:
Defendant Chelan County Regional Justice Center (“CCRJC”) accepted Blair Nelson into its jail on November 21, 2020. At jail, Blair was suffering from severe alcohol withdrawal. Defendant Licensed Practical Nurse Kami Aldrich attended to her and had to hold her hand so she could get pills into her mouth because she was shaking so much. She was “found” dead in her cell several hours later.
Plaintiff brought this lawsuit on behalf of Nelson’s estate, contending that Blair’s death was preventable and would not have occurred had she received the constitutional minimum of medical care. She left behind four siblings.
Defendants brought a Motion for Summary Judgment and requested the Court to strike the testimony given by three of the Plaintiffs’ expert witnesses: Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot, prior to considering the Motion for Summary Judgment.
Emergency Medicine Expert Witness
Richard Cummins is a Washington State licensed medical doctor who is board certified in both internal medicine and emergency medicine. Cummins has been a member of the University of Washington Department of Internal Medicine and Emergency Medicine since 1981, when he became an attending physician. He was promoted to full professorship in 1985 where he remained for 28 years until retiring from clinical work in July 2020 to Professor Emeritus. During his tenure at the University of Washington Medical Center, he practiced and taught other physicians in the field of emergency medicine, as well as supervised nurses, medical students, and residents in training. Over the course of his career, Cummins has authored more than 150 articles and book chapters on emergency care, including cardiac care.
Lori Roscoe is a Certified Correctional Health Professional and a Certified Correctional Health Professional — Registered Nurse. Roscoe holds a bachelor’s degree in education, a bachelor’s degree in nursing, a master’s degree in public administration with a healthcare concentration, a master’s degree in nursing, a Doctorate Degree in Healthcare Administration, and a Doctor of Nursing Practice degree. She began work in correctional healthcare in 1995 and today is the principal of Correctional HealthCare Consultants LLC and The Correctional Nurse LLC. Roscoe holds an active registered nurse license in the states of Florida, California, Washington, and Georgia, and is licensed as a nurse practitioner in Florida, California, Virginia, Georgia, and Kentucky. Over the course of her nearly 30-year career, Roscoe has worked in a variety of correctional center settings relating to healthcare.
Catherine Fontenot is the Director of the Reception and Diagnostic Unit for VitalCore Health Strategies and was retained for her expertise in correctional practice. Fontenot has had a lengthy career in the field of corrections. She obtained her Bachelor of Science in criminal justice in 1992 and has worked in a variety of correctional settings since that time. Fontenot obtained her master’s degree in criminology from Grambling State University in 2006, and became an adjunct professor at various institutions, teaching courses covering Criminal Law, Criminalistics, Emergency Management, Criminology, Juvenile Justice, Corrections Process, Drugs and Substance Abuse, and the Death Penalty. In her current role, Fontenot was hired to streamline the inmate intake process and to implement an evidence-based health and safety classification.
Defendants took umbrage with all three witnesses’ reference to the September 7, 2021, death of Joseph A. Verville. Verville was booked into CCRJC on September 5, 2021, with noted signs of opioid withdrawal. LPN Aldrich first assessed him for withdrawal and gave detox medications at dinner the following evening, September 6. Surveillance footage showed Verville vomiting at least six times after taking the withdrawal medication, but he was not assessed again by medical staff until he was found dead at 8:50 a.m. on September 7.
After his death, LPN Aldrich was notified of potential discipline on September 27, 2021, and was given a verbal warning on November 23, 2021, after the death of Nelson. Defendants objected to the expert testimony inclusion of Verville’s death as impermissible character evidence. Plaintiff asserted that each of the expert witnesses can discuss the death of Verville because it established a notice of a pattern of conduct by CCRJC, Director Christopher Sharp, and LPN Aldrich.
Dr. Richard Cummins
Cummins is qualified to give an expert opinion on medical care
Cummins reviewed the entire case file, including medical reports, video footage, discovery related documents, and deposition transcripts. In doing so, he determined that CCRJC has a substandard training program and procedures in place which led to; failure to medically assess Nelson when she was booked into jail, failure to follow the internal alcohol withdrawal policy, and failure to provide a proper level of assessment, monitoring, and care. Cummins determined that had CCRJC rectified any of the failures in care, Nelson would not have died.
Defendants asserted that Cummins was not qualified to give expert testimony on the operations of medical procedures inside a corrections facility because his experience was with emergency departments in hospitals. Defendants also objected to Cummins statements on the basis that he is offering impermissible character evidence in his discussion of LPN Aldrich’s conformity with past negligence, which is inadmissible character evidence. Finally, Defendants argued that Cummins should not be able to opine on causation relating to the practice of jail staff and the death of Nelson.
Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, the Court found that Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department.
While Cummins is not necessarily familiar with medical practices in a correctional facility, he is familiar with the standard practice regarding medical care for individuals receiving treatment for alcohol withdrawal. As an expert witness, Cummins is permitted to testify on causation. Based on his own medical background and review of the record, the Court held that Cummins’s opinion on the ultimate issue, that Nelson’s death was caused by failure in treatment for alcohol withdrawal syndrome, is permissible.
Cummins’ testimony does not amount to impermissible character evidence
Defendants asserted that Cummins’ testimony amounts to impermissible character evidence, based on his comparison of the facts at hand with the death of Verville.
Defendants asserted that Cummins’ report drew a comparison between Nurse Aldrich’s treatment of Nelson and the treatment of Verville, improperly concluding that Nurse Aldrich had a propensity to behave in a medically negligent manner.
Plaintiff asserted that a comparison is not offered in violation of Federal Rule of Evidence 404(b), but instead is offered to show a pattern of administering lower than the established standard of care to inmates, or lack of knowledge or mistake that a particular mode of operation would result in the death of an inmate under the care of CCRJC.
While this evidence could be construed as character evidence suggesting that jail medical staff may have engaged in substandard care, the Court agrees that evidence of Verville’s death, and the circumstances surrounding it, are indicative of lack of mistake or absence of notice. Regardless, under Federal Rule of Evidence 703, a Court is vested with the discretion to allow otherwise inadmissible facts or data if the “probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”
Though not completely analogous, the inclusion of the similar circumstances surrounding Verville’s death may be indicative of absence of mistake or lack of accident via noncompliance with the internal protocol, which would result in the death of an unmonitored detoxing inmate.
Because Cummins is an expert being offered to opine on the standard of medical care provided by CCRJC and the potential cause of Nelson’s death, the Court declined to strike his expert testimony as it did not amount to impermissible character evidence.
Dr.Lori Roscoe, PhD
Roscoe determined that Nelson received substandard nursing care. As part of her finding, she determined that LPN Aldrich’s administration of 100 milligrams of Librium without consulting a provider was illegal but opines no further on this statement except to state that it deviates from the scope of practice of a licensed practical nurse. She also included Verville’s death in determining that CCRJC has a substandard practice of care based on its failure to take corrective action after Verville’s death.
Defendants asserted that Roscoe’s testimony that LPN Aldrich “illegally” administered Librium without contacting a medical provider should be disregarded pursuant to Rule 401 and 403. Further, Defendants alleged that her discussion of Verville amounted to character evidence and was therefore inadmissible.
As an expert on nursing practice, Roscoe was permitted to opine on whether the standard of care was administered from a nursing perspective. Much like Cummins, the Court found that her discussion on the treatment received by Verville was relevant to Plaintiff’s argument that CCRJC’s medical care of inmates is substandard.
As to her statement that LPN Aldrich’s administration of Librium was illegal, Plaintiff offered additional support that any nurse would understand that they are not permitted to administer the narcotic without first contacting a provider.
While potentially dangerous, against the stated internal policy, and seemingly in a general lexicon of knowledge that it should not be done, Plaintiff offered no additional information that administering Librium without first contacting a doctor was “illegal.” As such, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Roscoe’s testimony, because Plaintiff has provided no additional information to support this statement. However, the rest of her report was deemed admissible.
Catherine Fontenot
Fontenot ultimately determined that CCRJC was not proactive in rectifying standards of care that led to the death of Verville, and these gaps in care led to the death of Nelson.
Defendants’ objected to the inclusion of Fontenot’s testimony because it alleged her testimony was based on medical information, impermissible under Federal Rule of Evidence 702 based on her background. They also alleged that the language used, and the conclusions drawn ran afoul of the character evidence requirement under Federal Rule of Evidence 401 and 402.
Plaintiff contended that Fontenot’s testimony is not being offered for a medical purpose, but instead is offered to demonstrate best corrections practices against the opinion of Defendants’ expert witness.
The Court determined that no part of Fontenot’s opinion ran afoul of Rule 702. She did not make a medical diagnosis of withdrawal beyond the scope of what would have been asked of officials without a medical background working in the jail and recognized the difference between medical and non-medical staff.
Further, while the language used by Fontenot is passionate at times, it is not excludable under Federal Rule of Evidence 403.
Held
With the exception of Roscoe’s reference to the administration of Librium being “illegal,” the Court denied the Defendants’ motion to strike Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot. The Court also denied the Defendants’ motion for summary judgment.
Key Takeaways:
Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, Richard Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department. He is qualified to discuss how and when medication should be administered, and allowed to give his opinion about the initial medical intake and ongoing monitoring of inmates who are under the care of jail medical staff.
Plaintiff offered no additional information that administering Librium without first contacting a doctor is “illegal,” despite it being potentially dangerous and against the stated internal policy. As a result, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Lori Roscoe’s testimony.
As demonstrated both by Defendants’ own expert witness and additional filings, many times jail officials without a formal medical background must nevertheless be able to render rudimentary care, including identifying withdrawal symptoms, and continued monitoring of inmates. The facts of this case demonstrate that in a jail system, staff must work together to keep everyone safe, inmates and each other alike, and as such non-medical staff is asked to do initial medical intake of inmates after hours and provide ongoing monitoring to recognize withdrawal and alert medical staff. In this spirit, no part of Catherine Fontenot’s opinion ran afoul of Rule 702.
