This lawsuit arises out of medical care and treatment Courtney L. Mapes rendered to Plaintiff Bradley Medina on February 8, 2019 at Family Health Care Network. Medina brought a cause of action against Mapes for medical negligence based on the allegation that Mapes misdiagnosed him with a hamstring injury rather than an infection in his leg.
Defendant filed a motion to exclude or limit “the scope of the opinions from Plaintiff’s designated rebuttal expert, Daria Majzoubi, M.D.,” asserting Majzoubi’s “proposed testimony exceeded the permissible scope of a rebuttal expert witness.”
Family Medicine Expert Witness
Daria Majzoubi, M.D. specializes in family medicine, and has been practicing medicine for over 13 years, starting his practice in the Central Valley in 2003.
Trained at George Washington University, Majzoubi did his Residency at Northwestern University.
Defendant explained, “Plaintiffs were given leave to designate Majzoubi strictly to rebut the opinions of Defendant’s Infectious Disease expert as it relates to issues of medical causation presented in this case” however, “Majzoubi’s report testimony focuses nearly entirely on the issue of standard of care” and “goes beyond the scope of her designation as rebuttal expert in this case.”
Plaintiffs contended that Majzoubi’s expert report and causation testimony is essential to its case and precluding it would be unfair.
Majzoubi spoke to standard of care only, which is an issue Plaintiffs must prove in their case in chief. The fact that he disagreed with the defense experts does not make him a rebuttal expert. Therefore, the Court held that Majzoubi’s designation cannot properly be characterized as rebuttal testimony.
Plaintiffs also asserted that the Defendant would not suffer any prejudice or unfairness because Defendant has retained an expert. However, the Court granted Plaintiffs several extensions solely for the purpose of designating a rebuttal expert to respond to the opinions of Defendant’s retained infectious disease expert, but they did not do so. Also, Plaintiffs failed to provide the Court any explanation or argument relating to untimely/improper disclosure.
Held
The Court granted the Defendant’s motion to exclude or limit the scope of the opinions from Plaintiff’s designated rebuttal expert, Daria Majzoubi, M.D.
Key Takeaway:
If a party fails to provide information or identify a witness as required by Rule 26, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
The Court did not find the failure to timely designate Majzoubi to be “substantially justified or harmless.”
In this personal injury case, Johnathan Mudge sought to recover for injuries allegedly resulting from an automotive collision that occurred on October 5, 2021.
Mudge has sued three Defendants in this matter: Riverside Transportation, Inc., Riverside Transport, Inc., and Rena Talton, the driver of the vehicle that collided with Plaintiff’s vehicle.
Defendants collectively filed a motion to exclude testimony from one of Plaintiff’s treating physicians, Dr. Winston B. Morris, a family medicine practitioner.
Plaintiff elicited testimony from him regarding the anatomy of the spine, including the grouping of vertebrae, the nature and function of spinal discs, and the nature, causes, and symptoms of spinal disc injuries.
Family Medicine Expert Witness
Winston Barrington Morris, MD, holds a Bachelor of Arts degree in Biology from the University of South Florida, and he graduated as a Doctor of Medicine from the Medical University of South Carolina in 1997. He completed family medicine residencies in 2004, and he is certified by the American Board of Family Practice.
Morris offered some testimony based on scientific, technical, and otherwise specialized knowledge. For such testimony to be admissible in Court proceedings, Morris must be “qualified as an expert by knowledge, skill, experience, training, or education.” Morris’ medical education and significant experience as a doctor of family medicine satisfy this requirement.
Next, the Court must determine whether it is “more likely than not that the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Morris’ medical knowledge is more likely than not to assist the jury in this case with understanding medical evidence and deciding on relevant medical facts. Thus, his testimony satisfies this requirement as well.
Finally, the opinions he offers in this case must be “based on sufficient facts or data; be the product of reliable principles and methods; and must reflect a reliable application of the principles and methods to the facts of the case.” The Court ruled that Morris’ testimony about general medical facts meets the required standard. His knowledge of how the brain, spine, and nervous system work comes from his medical training. While he may not be a specialist, it’s up to the jury to decide how much weight to give his testimony.
Similarly, Morris’ testimony regarding Plaintiff’s medical condition is based on his own experience treating the Plaintiff, including his review of Plaintiff’s own statements and medical records, in keeping with Morris’ medical training. The Court deemed it sufficient for his testimony to be admissible.
Held
The Court denied the Defendants’ motion to strike the testimony of Plaintiff’s treating physician, Winston Barrington Morris.
Key Takeaway:
Plaintiff has shown that Morris is qualified as an expert, and that it is more likely than not his specialized knowledge will assist the factfinder. He has also shown that Morris’ opinions are based on sufficient data, are the product of reliable principles and methods, and reflect a reliable application of the principles and methods.
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.
Plaintiff sought to exclude or limit at trial the testimony of Defendant’s expert, Dr. Kennon Tubbs.
Family Medicine Expert Witness
Dr. Kennon Christopher Tubbs is a licensed medical doctor and board-certified family practice physician with nearly 30 years of experience as a practicing physician, including numerous years as a physician at the Utah State Prison and various jails.
Tubbs’ testimony and opinions regarding correctional standards are beyond the scope of his expert designation and are not relevant
The Defendant appointed Tubbs to evaluate and challenge the opinions of the Plaintiff and her experts concerning the medical and mental health treatment provided during her arrest and booking. However, the Court found that Tubbs’ expert report went beyond that role—it included opinions stating that the Washington County Jail’s booking and release policies, as well as the Defendant’s actions, complied with correctional standards. The Court noted that these opinions were not backed by any analysis in his report and fell outside the scope of what he was designated to testify about.
Tubbs is qualified to offer expert testimony
The Plaintiff claimed that Tubbs was not qualified to give expert testimony because his background is in general medical care, not in diagnosing trauma in women. However, the Plaintiff did not cite any legal authority to support this argument, and there is nothing in the record showing that Tubbs lacks the necessary knowledge, skills, experience, training, or education to testify about the medical and mental health treatment the Plaintiff received during her arrest and booking.
The Court also found that the Defendant had adequately shown that Tubbs is qualified to provide the expert testimony for which he was designated.
Tubbs’ anticipated testimony and opinions are reliable and admissible under Rule 702
Plaintiff argued that Tubbs’ methods and opinions are unreliable because he did not examine Plaintiff; he speculates on facts; he misinterprets the criteria for diagnosing PTSD; and he is biased against and dismissive of Plaintiff’s version of the events and of women in general.
However, the Court found that Tubbs’ report and deposition showed he had reviewed enough information to support his critiques of the Plaintiff and her experts concerning her medical and mental health treatment related to her arrest and booking. The Court also noted that Tubbs used specific criteria and relied on sufficient facts to form his opinions challenging their conclusions.
Tubbs may not offer ad hominem opinions, or testimony and opinions that invade the exclusive roles of the judge and jury
In his report and deposition, Tubbs offered opinions about the qualifications, training, and personal habits of the Plaintiff’s experts. While he is allowed to critique their opinions on the Plaintiff’s medical and mental health treatment related to her arrest and booking, the Court ruled that his comments on their qualifications crossed the line—such matters fall solely within the judge’s authority to decide.
Moreover, Tubbs’ report and deposition testimony also included commentary and opinions regarding the weight of certain evidence, as well as the motivations of Plaintiff and her experts. The Court made it clear that Tubbs is not allowed to give testimony or opinions that interfere with the jury’s job of evaluating the evidence and deciding which witnesses are believable.
However, this determination did not preclude Tubbs from offering testimony and opinions that involve certain disputed facts. Moreover, the Court decided that Tubbs may testify and opine regarding the medical effects of alcohol use and intoxication on an individual; how an individual’s alcohol use and intoxication affect or have implications in the proper diagnosis of medical and mental health conditions; and that if Plaintiff was intoxicated at the time of her arrest and booking, how her intoxication affects Plaintiff and her experts’ opinions regarding Plaintiff’s medical and mental health treatment as it relates to her arrest and booking.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of Defendant’s expert, Dr. Kennon Tubbs.
Key Takeaway:
The Court held that Tubbs is allowed to provide relevant testimony and opinions that critique the views of the Plaintiff and her experts on the medical and mental health treatment the Plaintiff received during her arrest and booking. If he lays an adequate foundation and meets the requirements of the Federal Rules of Evidence, he may also testify about the applicable medical standards of care during that time at the Washington County Jail.
However, he is not permitted to testify that the jail’s policies, procedures, or the Defendant’s actions met correctional standards. He is also barred from offering opinions about the qualifications of the Plaintiff’s experts or the reliability of their methods, as those issues fall solely within the judge’s authority.
This litigation revolves around medical care, and the alleged lack thereof, provided to Plaintiff Peter George Noe between fall 2020 and late 2022, while incarcerated at the United States Penitentiary ADMAX in Florence, Colorado.
Defendant filed a motion to exclude the testimony of Plaintiff’s retained expert, Dr. Kimberly A. Cullen, MD, arguing that Cullen does not qualify as an expert and that her testimony does not meet the reliability requirements of Federal Rule of Evidence 702.
Family Medicine Expert Witness
Kimberly Cullen is a primary care physician and board certified by the American Board of Family Medicine. She attended the University of Massachusetts Medical School and completed a three-year family medicine residency program at Swedish Family Medicine – First Hill in Seattle, Washington in 2018.
Defendant first attacked Cullen’s qualifications as an expert, highlighting her limited experience, including no experience in the correctional medical context, and non-practicing status at the time of her deposition.
The Court rejected Defendant’s argument that simply because Cullen has never worked in a correctional setting and because she may have had a brief gap in practicing as a primary care physician she does not qualify as a competent medical expert in this case.
It is true that Cullen not only had several years of experience treating patients, including as a supervising physician, but she also has seen hundreds of patients treated or tested for UTIs and diagnosed and treated patients with degenerative disc disease, which is probative to the facts of this case.
Reliability
Defendant argued that Cullen’s opinions offered in this case, related to unreasonable delays in the care Noe received, including a failure to suspect a different source for Noe’s symptoms and pain, are unreliable because she does not specifically articulate a community standard of care and is relying on her experience as a young physician.
Cullen clarified in her deposition that her opinions were based on the general standard of care and practice—the general practice of medicine.
While Cullen’s opinions may be general as to why the Federal Bureau of Prisons (“BOP”) fell below the standard of care normally followed by a primary care physician, such as herself, the Court found that her specialized knowledge as a Colorado- licensed physician who is Board certified in Family Medicine would be helpful to the Court in determining the particular issues in this case.
Held
The Court denied the Defendant’s motion to exclude the testimony of Plaintiff’s retained expert, Kimberly A. Cullen, MD.
Key Takeaway:
Cullen’s opinions are more likely than not to be helpful and reliable given her review of Noe’s extensive medical records and the application of her knowledge, training, and experience as a primary care physician to the facts of this case.
On July 22, 2022, Dr. Gregory Fox, individually and as parent of C.F., and Rita Fox, individually and as parent of C.F. (jointly, the Plaintiffs), filed a lawsuit challenging the state of Maine’s public school vaccination requirements.
Dr. Stephen B. Paulding, a board-certified family physician with over four decades of experience in primary care was presented as an expert witness by Dr. Gregory Fox. Department of Education Commissioner Pender Makin moved to exclude Paulding’s testimony comparing the risk of disease transmission by vaccinated and unvaccinated individuals pursuant to Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 702, asserting Paulding did not prepare his report, his testimony would not aid the trier of fact, and his opinions are not based on reliable methodology or support.
Initially, the Court reviewed the submitted materials and, ultimately, concluded that the expert’s opinions did not align with established federal rules, necessitating their exclusion. Notably, the Court determined that Paulding’s expert report was not prepared by him, as required by Federal Rule of Civil Procedure 26(a)(2)(B). Instead, it was found that the report was drafted by Attorney Stephen Whiting, with Paulding merely signing it, a highly unusual circumstance that led to the exclusion of the expert’s testimony.
Family Medicine Expert Witness
Dr. Stephen Paulding earned his medical degree from Boston University Medical School in 1971, following a Bachelor of Science degree from Houghton College. His postgraduate training included an internship and residency from 1971 to 1973, after which he served in the United States Air Force Medical Corps from 1973 to 1974.
From 1974 until his retirement in 2016, Dr. Paulding maintained a private family medicine practice, providing comprehensive medical care across all age groups in Cumberland and Portland, Maine. His practice included routine office visits, house calls, and nursing home care, reflecting a commitment to patient accessibility and continuity of care.
To begin with, the Court investigated Commissioner Makin’s claim that Whiting authored the report. Furthermore, a thorough review of the deposition revealed that Paulding himself admitted, under direct questioning, that Whiting had drafted the report, and he simply agreed with it. Moreover, neither the attorney nor Fox were able to elicit contradictory testimony during subsequent questioning. In addition, the deposition revealed that Whiting also provided all the medical articles appended to the report, and that Paulding had not thoroughly reviewed them. Therefore, the Court concluded that Whiting wrote the report and supplied the supporting articles, a finding compelled by Paulding’s own deposition testimony.
Legal Implications of an Attorney-Authored Expert Report
Consequently, the Court addressed the legal implications of an attorney-authored expert report. Indeed, federal district courts in other circuits have uniformly disapproved of expert testimony revealed to be the exclusive product of counsel. Thus, the Court agreed with Commissioner Makin’s assertion that the report’s preparation violated Rule 26, which explicitly requires a report “prepared and signed by the witness.” Specifically, since Paulding did not prepare the report, it did not comply with this rule. Furthermore, the Court emphasized the clear distinction between an attorney editing an expert report for form or clarity and an attorney writing the report for the expert, concluding that Whiting had crossed this line.
Additionally, the Court rejected Fox’s argument that the challenge was untimely, as the discovery period concluded on July 19, 2024, and Paulding’s deposition at which Whiting’s authorship became clear was not held until July 8, 2024, leaving Defendants very little time to raise this issue within the discovery period.
Also, the Court affirmed that challenging the report at the Daubert stage was appropriate, as it pertained to the reliability of the testimony. Finally, based on Paulding’s uncontroverted testimony and the clear violation of Rule 26, the Court granted Commissioner Makin’s motion to exclude the expert’s testimony.
Held
The Court granted Defendant Pender Makin’s motion to exclude the testimony of Dr. Stephen Paulding.
Key Takeaway:
Expert reports must be the product of the expert’s own work and analysis, not that of their attorney. Having an attorney draft the report fundamentally undermines the expert’s role and the integrity of their testimony.
A mere “signing off” on a report written by someone else is insufficient. The expert must actively participate in the report’s creation, demonstrating their understanding and endorsement of its contents.
Please refer to the blog previously published about this case:
Sabelita Hawkins experienced a psychotic episode in 2011, leading to hospitalization and subsequent treatment at the Puget Sound Veterans Hospital. She alleges that despite informing Dr. Daniel Doan that her prescribed medication was ineffective, no changes were made to her treatment. Later, Dr. Carl Jensen diagnosed her with PTSD but also did not modify her care. A second psychotic episode resulted in Hawkins attacking her mother and facing arrest.
The Government retained Russell Vandenbelt, M.D., a licensed psychiatrist, and Michael Kovar, M.D., a licensed family medicine physician, as experts to opine on Doan’s and Jensen’s treatment of Hawkins. Hawkins sought to exclude both Vandenbelt’s and Kovar’s testimony on the basis that their opinions are neither reliable nor relevant to Hawkins’ allegations.
Psychiatry Expert Witness
Russell Vandenbelt specializes in behavioral medicine, and has over three decades of clinical experience as a licensed psychiatrist. He is also a “certified specialist” in addiction medicine, serves as a psychiatric consultant to medical, nursing, and pharmacy boards in Washington, and previously worked as a staff physician “managing patient withdrawal syndromes from opiates, alcohol, stimulants, and sedative-hypnotics.”
Michael Kovar is a family medicine physician with clinical interests in behavioral medicine. He has served as a board-certified family medicine physician and an assistant clinical professor at the University of Washington School of Medicine.
The Government retained Vandenbelt to conduct a “review of records regarding the adequacy of mental health treatment provided to Hawkins” and to “opine on the standard of care for Hawkins’ psychiatrist, Carl Jensen.”
Hawkins contended that Vandenbelt’s report (1) did not reflect his experience and knowledge (2) did not sufficiently explain his methodology; and (3) was not supported by “sufficient facts and data” or “medical analysis.”
Reliability of Standard of Care Testimony
Vandenbelt’s testimony reflects his specialized experience in “diagnosing, assessing, and treating” patients “with medication and psychotherapy.”
The Court rejected the argument that he lacked the knowledge to discuss medication effects and interactions, given his experience in addiction medicine.
In conclusion, the Court found Vandenbelt’s testimony on the standard of care to be reliable.
Methodology
The Court determined that Vandenbelt’s report sufficiently explained his methodology because he reviewed Doan’s and Jensen’s treatment decisions, applied his understanding of standard of care principles to the facts in the records, and used this information collectively to form his opinion that “Doan and Jensen provided adequate and appropriate treatment” of Hawkins’ symptoms based on the information they had at the time of treatment.
In deciding whether to exclude Vandenbelt’s testimony before trial, the Court “is not tasked with deciding whether he is right or wrong” and may “not exclude his opinions merely because they are impeachable.”
Daubert requires only that Vandenbelt’s testimony has “a reliable basis in the knowledge and experience of his discipline.” A psychiatry expert may testify about the adequacy of treatment a patient received based on a review of that patient’s past medical records.
Relevance
Hawkins also sought to exclude Vandenbelt’s testimony on relevance grounds, asserting that his testimony has “no clear connection” to her medical malpractice allegations.
In this case, the Defendants’ adherence to the standard of care is a necessary element of Hawkins’s medical malpractice claim, and therefore has a “valid connection” to this case.
The Court found Vandenbelt’s testimony on the standard of care relevant, as it directly addressed a key element of Hawkins’ malpractice claim.
Causation
Vandenbelt’s report opines on whether Doan and Jensen “acted inappropriately or below the standard of care” in treating Hawkins. However, Vandenbelt did not provide any opinion on causation.
To the extent that the Government sought to call Vandenbelt to testify about the cause of Hawkins’ second psychotic episode, however, the Court excluded that causation testimony. The Court reinforced that an expert cannot testify to matters outside their report.
Michael Kovar
The Government intended to introduce Kovar’s testimony that Doan “met the standard of care” in treating Hawkins and that Doan’s “actions neither caused nor could have prevented” Hawkins’ subsequent attack on her mother.
Hawkins sought to exclude Kovar’s testimony for the same reasons she sought to exclude Vandenbelt’s testimony.
Qualifications
The government countered that Kovar has over 28 years of clinical experience as a family medicine practitioner. Kovar’s report reflects his specialized experience serving as a board-certified family medicine physician, an assistant clinical professor at the University of Washington School of Medicine, and his clinical interests in behavioral medicine.
The Court agreed, noting that Kovar’s experience allowed him to analyze whether Doan’s treatment met the standard of care for a family medicine physician.
Hawkins argued that Kovar lacked the expertise to discuss the effects of oxycodone, alcohol, and antibiotics on her mental state. But as a family medicine physician with clinical interests in behavioral medicine, Kovar has knowledge and experience treating adults with medications. Kovar is therefore qualified to testify about medication effects and interactions.
Methodology
Hawkins also argued that Kovar’s report “did not contain an explanation of the methodology” he used to develop his opinion and “provided [only] a blanket opinion without further medical analysis.”
Kovar’s report explained, however, that he reviewed Hawkins’ complaint and the “pertinent medical records available to Doan at the time of Hawkins’ ” treatment with Doan. Kovar then reviewed Doan’s treatment decisions, applied his understanding of standard of care principles to the facts in the records.
The Court determined that Kovar’s “specialized knowledge and experience can serve as the requisite ‘facts or data’ on which he renders an opinion.” While Hawkins disagrees with Kovar’s conclusions, asserting that they are based on “misstated facts,” the Court may “not exclude Kovar’s opinions merely because they are impeachable.”
Relevance
Hawkins also argued that Kovar’s testimony has “no clear connection” to her medical malpractice allegations. The Court disagreed, stating that Kovar’s opinions on the standard of care and causation were directly relevant to the necessary elements of Hawkins’ claim.
Doan’s adherence to the standard of care and the causal link between his alleged negligence and Hawkins’ injuries are necessary elements of Hawkins’ medical malpractice claim.
Hawkins may test the expert witness’ credibility by cross-examining them about their methodology, sources, and conclusions at trial.
Held
The Court denied Hawkins’ motions to exclude Russell Vandenbelt and Michael Kovar.
Key Takeaway:
Hawkins V. United States highlights the critical role of expert testimony in medical malpractice cases and the court’s rigorous application of Daubert standards. The court’s decision underscores the importance of qualified experts, reliable methodologies, and relevant testimony. This case provides valuable insights for legal professionals and anyone interested in the intersection of law and medicine.
Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) bring intentional discrimination claims under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.
Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.
The District filed objections to the qualifications of Plaintiffs’ anticipated expert witnesses—Dr. William Young, Dr. Mary Stephens, and Vanessa von Hagen—to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
Young, Stephens, and Von Hagen did not submit expert reports in this case, as Plaintiffs identified these three witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) as experts who have not been retained or specially employed to provide expert testimony.
Young has provided both in-patient and out-patient treatment for Alex’s migraines since May 2019. Stephens has been Alex’s primary care doctor since Spring 2019, and she has also interacted with Alex “through Alex’s contribution to the education of doctors concerning neurodiversity” while von Hagen served as the lead clinician on Alex’s home behavior team for six years, beginning in 2012.
Neurology Expert Witness
William Young is board-certified in neurology, psychiatry, and headache medicine, and he is the director of the Jefferson Headache Center of Jefferson University Hospitals.
Mary M. Stephens is board-certified in family medicine and is the director of Jefferson University Hospitals’ Continuing Care Program. She has “extensive experience . . . providing medical services to neurodiverse individuals in medical settings.”
Vanessa von Hagen is a board-certified behavior analyst with more than 13 years of experience implementing, planning, and developing client-specific programming and interventions based on the principles of applied behavior analysis.
Plaintiffs intended to call Young to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex” or “at a minimum,” to testify “as to why he deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of his medical treatment.”
The District argued that Young is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because he has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that Young’s alternative opinion as to why he determined Alex’s communication through Spelling to Communicate (S2C) to be sufficiently reliable for purposes of his medical treatment, which Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Aside from his interactions with Alex using the letterboard and communication partner, Young does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication (“AAC”), facilitated communication, or other facilitator-dependent communication methods used with minimally verbal or non-verbal autistic individuals like Alex. Accordingly, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Young has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Mary Stephens
Plaintiffs intended to call Stephens to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex and that his communications on it are his own” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of [her] medical treatment.”
As it argues with respect to Young, the District similarly contended that Stephens is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further argued that Stephens’ alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her medical treatment, which Plaintiffs again proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
Since Stephens does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, AAC, or facilitator-dependent communication techniques, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Stephens has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Vanessa von Hagen
Plaintiffs intended to call von Hagen to testify that “Alex’s communication with the letter board is effective, that he communicates his wants, needs, and thoughts with it, and that he could not do so without it” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of her clinical work with him.”
The District argued that, like Young and Stephens, von Hagen is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that von Hagen’s alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her clinical work, which as with Young and Stephens, Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”
The Scope of von Hagen’s Clinical Experience is Not Clear
While von Hagen does not appear to have any education or research experience in the fields of speech-language pathology, AAC, or facilitator-dependent communication techniques, the scope of von Hagen’s “clinical experience . . . concerning communication strategies for persons with autism” is not clear from Plaintiffs’ pretrial memorandum or letter brief, von Hagen’s curriculum vitae, or von Hagen’s testimony at the due process hearing.
The Court cannot yet ascertain whether von Hagen’s clinical experience is sufficient to qualify her to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Held
The Court held that Young and Stephens will not be permitted to opine on the efficacy of the letterboard and communication partner as a communication method for Alex, which includes any testimony about their determinations that Alex’s communication with a letterboard and communication partner is sufficiently reliable for purposes of their medical treatment of Alex. It reserves ruling on the District’s objection to the qualifications of von Hagen to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.
Key Takeaway:
Defendants argued that Young, Stephens and von Hagen lacked the qualifications to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.
While the scope of von Hagen’s experience was not clear, both Young and Stephens did not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication, or facilitator-dependent communication techniques.
Please refer to the blog previously published about this case:
In this fair-housing action, Intervenor Beverly Boucher sought to rent an apartment from Defendants Madison Property, L.L.C. (Madison Property) and Andrew Brenner (together, Defendants). Defendants declined to rent to Boucher after she informed them that she wished to live in the apartment with an emotional support animal (ESA), a cat.
In Count I, Plaintiff United States of America (Plaintiff) claims that Defendants refused to lease a unit to Boucher because of her disability, and in Count II, Plaintiff claims that Defendants refused to grant Boucher’s request for an accommodation to the apartment building’s no-pets policy.
Stuart W. Steichen specializes in family medicine. He has been practicing for over 20 years and is affiliated with Allina Health United Hospital. Steichen received his medical degree from the Chicago College of Osteopathic Medicine.
During the litigation, Defendants submitted a letter on Steichen’s clinic letterhead stating that Andrew Brenner had been under his care for recurrent upper respiratory infections. The letter explained that Brenner’s immune system was significantly weakened, making him highly susceptible to infections. It also pointed out that Brenner required a clean environment, free from irritants, to avoid illness. Exposure to cat dander, in particular, was identified as an allergen that could trigger respiratory issues.
Steichen testified that Brenner’s severe kidney disease contributed to his weakened immune system. However, he admitted that he had never discussed Brenner’s kidney condition with him or reviewed his medical records. Instead, Steichen learned about Brenner’s kidney health from Brenner’s sister, who is not a medical professional.
Analysis
The Court observed that Steichen’s testimony aimed to support the Defendants’ argument that denying Boucher’s accommodation request was justified because having a cat would harm Brenner’s health. However, Steichen first treated Brenner in late 2021, months after Brenner had already denied Boucher’s request in March 2021. Furthermore, Steichen’s knowledge of Brenner’s immune condition did not come from treating him. Instead, Steichen learned about Brenner’s condition through conversations with Brenner’s sister, who is not a physician. Steichen never reviewed Brenner’s medical records or discussed his kidney condition with him.
Given these facts, the Court concluded that Steichen’s opinion would not help the jury and should be excluded from the trial.
Held
The Court granted the Plaintiff’s motion to exclude Defendants’ family medicine expert witness, Stuart W. Steichen.
Key Takeaway:
The Court excluded the testimony of the Defendants’ expert Stuart Steichen because his opinions lacked a proper foundation and would not be helpful to the jury. Steichen’s testimony was meant to support the Defendants’ argument that allowing Boucher to live with her emotional support animal (ESA) would harm Brenner’s health due to his weakened immune system.
Steichen claimed Brenner’s condition made him vulnerable to issues from cat dander. However, Steichen never treated Brenner for his kidney condition, the primary cause of his weakened immune system. He learned about Brenner’s health from Brenner’s sister, who is not a medical professional and did not review Brenner’s medical records. Steichen also started treating Brenner after the ESA request was denied. The Court found his testimony would not assist the jury and excluded it.
Case Details:
Case caption:
United States v. Madison Prop., L.L.C.
Docket Number:
0:22cv2831
Court:
United States District Court for the District of Minnesota
A patient brought a health care liability action against his psychiatrist and the psychiatrist’s employer, alleging the psychiatrist engaged in improper sexualized conduct that caused him psychological injury.
Plaintiff Tray Simmons is a survivor of childhood rape which he experienced in 2010. Simmons alleged that Dr. Shahidul Islam encouraged him to read the chapter of his book Layers aloud in which he described the 2010 rape while Islam visibly touched himself, made physical contact with Simmons, and backed Simmons into the corner of the office.
Plaintiff’s expert, Sherri Studstill, gave conflicting testimony relating to the issue of damages.
In her affidavit, Studstill asserted that “[t]here is evidence that Simmons suffered monetary and mental health harm as a result from either the alleged events occurring in Islam’s office or the documented events from the recorded [phone] calls.”
However, during her deposition, Studstill said that she “didn’t go into damages” and that she only believed damages for emotional distress were “possible” based on Simmons’s allegations, the opinion said.
Family Medicine Expert Witness
Sherri Studstill is a licensed physician who has a background practicing in Family Medicine, Emergency Medicine, Occupational Medicine, Sports Medicine, and Urgent Care Medicine, and holds a Masters in Public Health Degree with a focus on Behavioral Science and Health Science.
Relying on the cancellation rule, the trial court determined a conflict existed between the Studstill’s affidavit and deposition testimony relating to the issue of damages.
The trial court concluded that Studstill’s deposition testimony triggered the cancellation rule and invalidated her earlier opinions related to Simmons’s alleged damages.
The judge cited 2019 Tennessee Supreme Court case law in TWB Architects v. Braxton , which established that when a witness makes contradictory statements, “those statements cancel each other out and are considered to be ‘no evidence’ of that fact.”
Appellate Judge Jeffrey Usman cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.
Held
The Court held that Sherri Studstill’s testimony on the issue of damages was inadmissible.
Key Takeaway:
Studstill indicated in her affidavit that as an expert she had concluded that Simmons had suffered damages as a result of Islam’s negligent professional conduct. In her deposition, however, Studstill disclaimed any such conclusion. She indicated that damages were a possibility but that she had not made any determination that Simmons had suffered any actual damages. As to the question of whether Studstill offered expert testimony as to damages, these statements are contradictory. Critically, no admissible explanation from Studstill was offered addressing the contradiction. Therefore, the appellate court cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.
This lawsuit arises from a minor automobile accident that occurred at approximately 1:30 p.m. on October 9, 2020, in Española, New Mexico. Plaintiff Charles Hartung (“Plaintiff”) was a passenger in a four-door GMC pickup operated by his friend Ralph Andrew, Sr. Plaintiff.
Gommert, a salesman employed by McLane, entered the road from an adjacent gas station and did not see the pickup as it approached. The front end of Gommert’s company car collided with the rear wheel on the passenger side of the pickup.
Plaintiff disclosed Brian M. Shelley, M.D., and Mark K. Crawford, M.D. (collectively, the “Retained Experts”), as unified, retained experts. They testified that “the treatment [Plaintiff] received was reasonable, necessary, and appropriate; and that [Plaintiff’s] current conditions related to the motor vehicle collision are closed head injury and cognitive difficulties (by report), right shoulder pain and motion deficits, low back pain with right lower extremity radiation (aggravated), SI joint injury, headaches, anxiety (aggravated) and depression (aggravated).”
Brian M. Shelley MD is board-certified in family medicine and serves as an Attending Physician at the University of New Mexico Pain Consultation and Treatment Center. Additionally, at UNM, Dr. Shelley is Professor of Family and Community Medicine and trains medical residents in chronic pain management. Moreover, Dr. Shelley has published several peer-reviewed articles about innovative approaches to chronic pain education and co-created the Advanced Diplomate credential for the American Academy of Pain Management. Also, Dr. Shelley is the Director of Albuquerque Independent Medical Services LLC and is currently certified by the American Board of Independent Medical Examiners.
Mark K. Crawford MD is a retired Fellowship Trained Orthopedic Spine Surgeon. He previously worked at UNM, Optum Health, and New Mexico Orthopaedics in Albuquerque, NM. Moreover, he is certified by the American Board of Independent Medical Examiners and has also served on many IME panels.
To begin with, among the expert testimony Defendants sought to exclude is testimony related to closed head injuries and cognitive difficulties. In his response brief, Plaintiff represented that his experts are not offering any opinions related to a head injury or cognitive difficulties. Thus, Defendants’ motion to exclude expert testimony related to head injury or cognitive difficulties is granted.
Experts were not furnished with all Plaintiff’s pre-accident medical records and imaging studies
Below is a summary of the inaccuracies Defendants contend exist in the expert reports, along with Plaintiff’s responses:
First, Defendants noted that Plaintiff told the experts he takes ibuprofen for pain and that his wife would not let him take opioid medications, and Plaintiff said he was nervous about them as well. Yet, during his deposition, Plaintiff testified under oath that he was a chronic user of hydrocodone. Plaintiff responded that he was prescribed opioid pain medications in the past. At the time of the IME, however, Plaintiff was no longer taking opioids. Accordingly, when asked about opioids at the IME, Plaintiff’s statements were accurate.
Second, Defendants argued that over a year after the subject accident, Maximo Santiago M.D. reviewed and referenced a pre-accident MRI and observed that the pre-accident and post-accident findings appear similar. The experts did not have Dr. Santiago’s report. Plaintiff responded that the experts reviewed an MRI taken approximately two months after the accident, which provided a comparison to MRIs taken prior to the accident.
Third, Defendants noted that Plaintiff reported to the experts that he had not experienced any sexual dysfunction before the accident. Yet Plaintiff received treatment for erectile disfunction and low testosterone in November 2017. Plaintiff responded that their experts are not opining on sexual dysfunction.
Finally, Defendants argued that Plaintiff told the experts that he had not suffered from lower extremity pain, numbness, or weakness before the accident. However, Plaintiff’s neurologist and pain management doctor, Dr. Kandel, whose records are absent from the experts’ chronology, documented chronic pain in Plaintiff’s legs, weakness, numbness, and difficulty sleeping in May 2019.
The primary focus of the admissibility question is on the data the expert had
Situations might arise in which an expert’s failure to consider certain information makes the expert’s opinion unreliable.
However, the primary focus of the admissibility question is on the data the expert had, not the data he did not have. Moreover, even if Defendants mounted a legally sufficient attack on the reliability of the data under Federal Rule of Evidence 702(b), the Court found that Plaintiff has shown the experts had sufficiently reliable data when forming their opinions.
Held
In conclusion, the Court granted in part Defendants’ motion to exclude the testimony of Brian M. Shelley And Mark K. Crawford. The Court denied the remainder of the Defendants’ motion.
Key Takeaway:
In short, the circumstances of this case did not present a situation where the underlying data on which experts found their opinions was so unreliable that the experts’ opinions should be excluded. Moreover, the Court held that assertions that experts failed to consider all available data or founded their opinions on unreliable data are common fodder for cross-examination.
