In February 2019, Jose Banda Pichardo (“Pichardo”) died by suicide while in custody at the Imperial County Sheriff’s Department Regional Adult Detention Facility (“ICRADF”). California Forensic Medical Group is a medical provider that contracted with Imperial County to provide medical and mental health care to inmates at ICRADF. Pichardo’s parents, Jose Trejo and Susana Banda, assert causes of action against CFMG for negligence and wrongful death arising from their son’s suicide.
CFMG’s expert, Kimberly Pearson, testified that “[d]espite utilizing nationally accepted standards and procedures related to suicide prevention, not every suicide (jail or otherwise) is preventable.”
Plaintiffs filed a motion to preclude Pearson from testifying that not all suicides are preventable.
Nursing Expert Witness
Kimberly Pearson has been serving in the healthcare industry both as a Registered Nurse and Manager/Administrator for over 40 years in various settings holding progressive management, leadership, and operational roles in multiple states. She recently served as the Deputy Agency Director for the Orange County Health Care Agency — Correctional Health Services division since 2010.
With an initial education as a Registered Nurse, her clinical experience includes Emergency, Trauma, Critical Care, and Flight medicine.
Her recent role as the Deputy Agency Director for Correctional Health Services included executive administrative oversight for Adult Correctional Health Services, Juvenile Health Services, and the Orange County Conditional Release program for mentally ill offenders.
Plaintiffs contended Pearson’s opinion that not all suicides are preventable is “a conclusory statement without factual basis in support” that “is nothing more than a regurgitation of someone else’s article and theories on suicide prevention.”
Whether Pichardo’s death was preventable is a central issue in the case. Plaintiffs’ expert will argue that it was, and CFMG is entitled to present evidence and argument to the contrary.
The Court recognizes that that the opinion at issue, i.e., not all suicides in jail are preventable, is a general statement not specifically tied to Pichardo. But testimony that not all suicides are preventable nevertheless has a “tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” In other words, the testimony is relevant, and any perceived weaknesses in Pearson’s opinion are the proper subject of cross-examination and closing argument.
Plaintiffs did not specifically argue that Pearson’s testimony is not reliable, but they do contend that the testimony is based on hearsay. However, “under Rule 703, an expert may rely on hearsay ‘[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.’”
Pearson bases this opinion, in part, on statistics for jail suicides, and Plaintiffs did not challenge that this statistical information is reasonably relied upon by experts in the field.
Held
The Court denied Plaintiffs’ motion to preclude Kimberly Pearson from testifying that not all suicides are preventable.
Key Takeaway:
Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion. The Court recognizes that that the opinion at issue, i.e., not all suicides in jail are preventable, is a general statement not specifically tied to Pichardo. But testimony that not all suicides are preventable nevertheless has a “tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Therefore, any perceived weaknesses in Pearson’s opinion are the proper subject of cross-examination and closing argument.
Case Details:
Case Caption:
Trejo Et Al V. County Of Imperial Et Al
Docket Number:
3:20cv1465
Court:
United States District Court for the Southern District of California
A district judge in Kansas barred an expert physician and nurse from testifying about the Defendants’ deviation from the requisite standard of care.
Facts:
On April 9, 2021, Smoky Hill admitted Arlen Dority, age 82, after a fall at his home on April 6, 2021 and a decline in his ability to care for himself. Dority resided in the COVID-19 isolation unit. On April 10, 2021, Smoky Hill completed a 48 Hour Care Plan Conference Summary and conducted a fall risk assessment for Dority, and concluded that Dority was at high risk for falls. Shortly thereafter, Dority began physical therapy and occupational therapy to improve his balance and decrease the risk for falls. Between April 9 and April 17, 2021, Dority did not have a documented fall at Smoky Hill.
On April 18, 2021, licensed nurse Andrea Stika noted that Dority was found lying on the floor against the wall, mostly on his left side. He was complaining of right hip and knee pain from his fall, and had scraped his elbow & behind his right ear. When touching the right hip, [Dority] yelled out in pain. He stated that he could not move it. Neuros were done, and no obvious injury was noted, besides the scrape behind right ear.
Smoky Hill notified Salina Emergency Medical Services (“EMS”), which arrived at Smoky Hill six minutes after the nurse found Dority, at 1:31 A.M. EMS transferred Dority to Salina Regional Medical Center, where radiographs indicated a fractured right hip. At the hospital, Dority relayed to staff, and personnel recorded, that the fall occurred while Dority was walking down the hallway at full speed. Surgeons conducted an open reduction internal fixation of the fracture.
At 4:07 P.M. on April 19, 2021, one day after his fall, Dority died. His death certificate listed hip fracture due to a fall as the primary cause of death, with congestive heart failure as a contributing cause.
Wrongful Death and Negligence
On July 9, 2022, Keyna Leonard, Dority’s surviving daughter and the administrator of his estate, sued Defendants for wrongful death and negligence.
Plaintiff claimed that Defendants negligently failed to do one or more of the following: (1) include in Dority’s Interim Care Plan fall-related interventions of a bed in the lowest position and a fall mat; (2) create a Comprehensive Care Plan, containing fall-related interventions of a bed in the lowest position and a fall mat; (3) ensure Dority’s bed was in the lowest position and a fall mat in place on the morning of April 18, 2021; (4) adequately supervise and monitor Dority on April 18, 2021; (5) ensure Dority’s safe transfer from one position to the other on April 18, 2021; and (6) ensure Defendants employed sufficient competent staff.
Defendants argued that Plaintiff has not demonstrated a genuine issue of material fact as to whether they breached any alleged duty of care and, if so, whether that breach caused Dority’s injury.
The Plaintiff retained two experts: Dr. John Kirby and Nurse Eleanore Tache. Tache opined on (1) Defendants’ deviations from the standard of care and (2) how those deviations caused Dority’s fall. John Kirby testified about all aspects of negligence and causation.
Internal Medicine Expert Witness
John Kirby is the Associate Professor of Medicine in the Department of Medicine, Cooper Medical School of Rowan University. John Kirby holds an M.D. from the University of Pennsylvania School of Medicine. Prior to that, he completed his undergraduate studies at Yale University, where he obtained a Bachelor of Science in Biology, graduating magna cum laude with distinction in biology. He previously served as a Consultant to the United States Department of Justice.
Eleanore Tache has been a registered nurse since 1979. She currently holds a certification as a Director of Nursing in Long Term Care from the National Association of Directors of Nursing Administration Long Term Care. Additionally, she holds an active Nursing Home Administrator licensure since 2007. She is a graduate of Molly College with a Bachelor’s Degree in Nursing.
To begin with, Tache’s expert report stated that she examined whether any deviations from the standard of care “were a probable cause of harm to [Dority].” She broadly concluded that “multiple deviations” occurred, and that they were a “probable cause” of harm to Dority. She criticized Defendants’ documentation practices, but she did not implicate them in Dority’s fall on April 18, 2021. Tache found fault with Defendants’ assessments because a registered nurse did not conduct them, but she likewise expressed no opinion that this shortcoming contributed to his fall.
She opined that Defendants’ care plan was not sufficiently comprehensive or implemented early enough. But Dority took no falls before the one in question, and the record contains no evidence that any such deviation from the standard of care caused Dority’s fall. She stated that Defendants had inadequate staffing on the night in question, but did not suggest how additional staff would likely have prevented the fall. Ultimately, her opinion on causation is that Defendants “failed to prevent an avoidable fall.”
The Court held that her opinion did not create a genuine issue of material fact as to whether any alleged breach of Defendants’ duty of care caused Dority’s injury.
John Kirby
John Kirby opined that (1) given Dority’s medical history, he was at a risk of falling while in Smoky Hill’s care; (2) Smoky Hill’s fall prevention interventions were “inadequate to prevent” Dority’s fall on April 18, 2021; and (3) the trauma of the fall caused a hip fracture, which together with congestive heart failure, caused his death.
Kirby’s expert report established a causal link between Dority’s fall and his death. However, it did not create a genuine issue of material fact regarding whether any alleged deviations in the standard of care were the proximate cause of Dority’s fall. Like Tache, Kirby advanced the conclusory opinion that “[f]all prevention interventions were inadequate to prevent Dority’s 4/18/21 fall.”
Once again, Kirby’s opinion did not create a genuine issue of material fact as to whether Defendants breached a duty of care which resulted in Dority’s fall. Breach of the standard of care cannot be inferred merely from lack of success or an adverse result in treatment.
Held
Under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Court held that expert testimony from Tache and Kirby on the issue of causation would cause confusion and delay. In short, their opinions are based on the incorrect legal premise that failure to prevent an accident is sufficient to find liability, and are tethered to specific evidence about the circumstances of the fall.
Key Takeaways:
Opinions of Eleanore Tache and John Kirby did not create a genuine issue of material fact as to whether Defendants breached a duty of care which resulted in Dority’s fall. Moreover, breach of the standard of care cannot be inferred merely from lack of success or an adverse result in treatment. If the Court were to equate breach with an adverse result, the test would become no different than strict liability; indeed, medical facilities are not responsible each time a resident or patient is injured. Consequently, with or without expert testimony on causation, mere failure to prevent a bad outcome is not sufficient to create a genuine issue of material fact as to liability.
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.
This case involved a putative class action lawsuit brought by Plaintiff Gail Parrish against Defendant Gordon Lane Healthcare, LLC (Gordon Lane), which operated a long-term skilled nursing facility where Parrish resided. Parrish, by and through his daughter and successor in interest, Monica Parrish, alleged that Gordon Lane failed to adequately staff the facility in violation of California law. Specifically, Parrish claimed that Gordon Lane gave residents an admission agreement stating it would provide adequate staffing, but concealed the fact that staffing was inadequate.
Parrish filed this action in the Superior Court of the State of California on August 17, 2022. On September 29, 2022, Gordon Lane removed the action to federal court. On November 15, 2022, Parrish filed the complaint against Gordon Lane and several other Defendants, requesting injunctive and monetary relief. Defendants moved to dismiss the Complaint. The Court dismissed the claims as to all Defendants except Gordon Lane, and it struck Parrish’s prayer for injunctive relief. The claims for monetary relief against Gordon Lane remain.
Parrish asserted two claims against Gordon Lane: (1) violation of California’s Consumer Legal Remedies Act (CLRA) by making misrepresentations in the admission agreement and concealing inadequate staffing levels; and (2) violation of California Health and Safety Code Section 1430(b) for violating residents’ rights through inadequate staffing.
Parrish moved to certify three classes under Federal Rule of Civil Procedure 23(a) and 23(b)(3) and one of the classes, alternatively, under Rule 23(b)(2), consisting of Gordon Lane residents within the three years prior to the filing of the complaint. In support, Parrish offered expert testimony from Dr. Charlene Ann Harrington on determining adequate staffing levels. Gordon Lane moved to exclude Harrington’s testimony and opposed class certification, arguing Parrish lacked Article III standing and most potential class members, including Parrish, signed arbitration agreements waiving participation in class actions.
Nursing Expert Witness
Charlene Ann Harrington is a Professor Emerita of Sociology and Nursing, Department of Social & Behavioral Sciences, School of Nursing at the University of California, San Francisco (“UCSF”). She earned her Bachelor of Science in Nursing from the University of Kansas, her Master’s degree in Community Health Nursing from the University of Washington, and her joint Ph.D. in Sociology and Higher Education from the University of California, Berkeley. She has been a Registered Nurse in California since 1970. She has held several positions relevant to nursing home care over the course of her career.
Discussions by the Court
Gordon Lane moved to exclude the expert opinion of Charlene Harrington, who proposed to analyze the adequacy of staffing levels at Gordon Lane’s facility. In her declaration, Dr. Harrington outlined her method for evaluating the sufficiency of staffing levels at the Gordon Lane facility. Her approach involved four steps: first, determining the collective acuity level of residents at the facility; second, evaluating the actual staffing levels per resident per day of the facility; third, comparing these levels with recognized staffing requirements and standards; and finally, determining the overall adequacy of facility nurse staffing levels. Dr. Harrington’s analysis relied on data from the Centers for Medicare and Medicaid Services (CMS), Gordon Lane’s staffing reports, federal and state regulations, and her extensive experience. Notably, she used “Resource Utilization Group” (RUG) scores which is a facility-wide measure of acuity, derived from data submitted using the Minimum Data Set (MDS) form to CMS. Her method involved converting Gordon Lane’s RUG scores into expected staffing hours and comparing them to actual staffing hours to ascertain if the facility met adequacy standards.
The Court explained that the standard for evaluating expert testimony in support of class certification under Daubert and Ninth Circuit precedent do not require the Courts to conduct a thorough analysis of admissibility. Rather, the testimony must be sufficiently reliable and relevant such that it can help in developing a sound opinion on the class certification requirements. To sum it up, Daubert stresses on the basis of what the experts have to say instead of what they actually say.
Gordon Lane insisted on a different acuity scoring system—the “Patient Driven Payment Model” or “PPDM”— which was used “for all but two weeks of the proposed class period.” Dr. Harrington, however, contended that she could convert PDPM scores to RUG scores using a “crosswalk” published by CMS, and derive the number of necessary staffing hours from there.
Gordon Lane first argued Harrington’s method of converting RUG scores into time measurements should be excluded because it was not mandated by federal or state governments to calculate required staffing levels. The Court found this unpersuasive. The CMS State Operations Manual did not consist of an objective formula for determining adequate staffing levels. The lack of a governmental mandate did not make Harrington’s methodology unreliable.
Next, Gordon Lane contended there are various methods for measuring acuity and experts sincerely disagree on the best approach. The Court stated that disagreement among experts regarding methodology does not necessitate exclusion under Daubert. The Court must analyze the basis for the expert’s opinion, not simply differing expert views.
Gordon Lane also asserted Harrington impermissibly relied on her subjective judgment and experience. However, the Court found reliance on personal knowledge and experience is permissible for specialized testimony under Ninth Circuit precedent. Harrington’s extensive, relevant experience lent reliability to her conclusions.
Ultimately, the Court was satisfied that Harrington employed a reliable methodology incorporating government data, facility records, regulations, and her expertise. Her opinion was relevant since the claims relied on Gordon Lane’s alleged understaffing. Though not applying Daubert’s admissibility requirements strictly, the Court found Harrington’s testimony sufficiently reliable and relevant to the issues at hand. Therefore, the Court denied Gordon Lane’s motion to exclude.
Held
The Court denied Gordon Lane’s motion to exclude, finding Harrington’s methodology reliable and relevant. The Court also found Parrish had Article III standing. However, the Court denied class certification because Gordon Lane correctly pointed out that proposed class definitions were impermissible because certification would require this Court to conduct an individual assessment of every potential class member to determine 1) whether they executed the arbitration agreement, and 2) whether the arbitration agreement was valid and binding as to that individual class member. Not only would such a determination defeat the superiority of proceeding as a class action, but it would also exceed the Court’s authority.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates important points about using expert witness testimony in support of a class certification motion. First, lack of a governmental mandate for an expert’s methodology need not necessarily render it unreliable as long as the expert can point to appropriate data sources, regulations, and experience reliably incorporated in the methodology. Second, disagreement among experts did not automatically warrant exclusion. The judge must evaluate the basis for the expert’s particular methodology. Third, an expert can rely on judgment and experience, especially for specialized testimony, if they have relevant background. Finally, while class certification should entail rigorous analysis, poking holes in the merits of an expert’s underlying conclusions sometimes goes beyond the appropriate level of inquiry.
On October 25, 2014, a five-week-old child, Robert Lee M., Jr. (Minor), was admitted to Regional Medical Center (“Regional”) for a high fever. Jamie Downing worked at Regional as a nurse and treated Minor during his hospital stay. Medical personnel at Regional did not initially know the cause of Minor’s fever but on the day of his admission, they started him on IV antibiotic therapy in case he had an infection.
On the morning of October 28, 2014, Downing administered an antibiotic, Ampicillin, into Minor’s IV. Shortly thereafter, Minor’s hand became swollen with a dark spot and his mother, Tekayah Hamilton, called the nurses’ station because Minor was “really crying.” The antibiotic Downing gave Minor through the IV caused a third-degree burn to his hand because it infiltrated outside of his vein. On October 30, 2014, Minor was discharged from Regional.
On October 7, 2015, Hamilton, individually and as parent and guardian ad litem for Minor, sued Regional on charges of negligence and malpractice. Regional denied any liability and wrongdoing on its part and asserted numerous affirmative defenses. Minor was awarded damages worth $300,000 at trial and Regional appealed.
Monica Stobbs, a nursing expert witness for the Plaintiff, testified at trial that before administering medication through an IV, a nurse must flush the IV with saline to ensure the IV is actually going into the vein and not instead into the skin. She explained saline would not harm the area and cause a burn type of injury if it went into the surrounding tissue of the vein, unlike an antibiotic which could if it did not go directly into the vein.
Stobbs further noted that Regional’s policies and procedures for IV therapy require a saline flush to be given. Stobbs testified that Minor’s medical chart indicated his IV was flushed on several occasions before the medication was administered but that on the occasion when the injury occurred, the chart did not indicate the IV was flushed. Stobbs noted Regional’s policies and procedures state that the flush should be documented on the medication record and opined that the IV was not flushed if it was not documented concluding that Regional’s conduct constituted breach of care by not documenting the saline flush and by not staying with Minor for at least five minutes after starting medication.
In her defense, Downing testified that at the time she treated Minor, she had worked as a nurse at Regional for less than three months and had been allowed to work on her own for about two weeks. Downing stated Regional’s policies and procedures “are direct instructions” and there is “not room for interpretation” of them. Downing testified that Regional’s policies require a saline flush before putting medication into an IV.
She believed the policies required flushing to be documented on the electronic medical record only when not associated with giving a medication. Downing testified she could not specifically remember administering a saline flush prior to ampicillin that morning but testified her practice was to flush prior to giving medication. Downing stated Minor’s medical records indicated a saline flush was given every four hours but Regional’s system provided no way to document giving a saline flush before an antibiotic.
Discussion by the court
Regional challenged Stobbs’ testimony contending she was lacked expertise since she had not administered IV therapy to a pediatric patient and did not review literature specifically about IV therapy for pediatric patients. Hamilton replied the administration and monitoring of an IV is the same for a pediatric patient as it is for an adult patient and that Regional’s argument went to the credibility of Monica Stobbs rather than her expertise, citing McMillan v. Durant, 312 S.C. 200 . The Court declined the Defendant, Regional Medical Center’s request to exclude the testimony of Monica Stobbs and held that Monica Stobbs was qualified to testify as a nursing care expert at trial. The Appellate Court affirmed the Trial Court’s qualification of her as an expert witness.
Regional alleged that the Trial Court erred by not admitting the testimony of Regional’s nursing expert Cindy Hurley but the Trial Court held and the Appellate Court affirmed that considering Hurley was retained to determine whether the conduct of Regional amounted to negligence or gross negligence, her testimony would have only amounted to a legal conclusion and since expert testimony on issues of law is inadmissible, it would most likely confuse the jury, citing Dawkins v. Fields, 354 S.C. 58.
Held
The Appellate Court held that it did not constitute abuse of discretion when the Trial Court admitted the testimony of Monica Stobbs regarding the standard of care, prohibited the testimony of Cindy Hurley as to whether Regional’s conduct constituted gross negligence or negligence, or admitted the photographs of the Minor’s hand. The Appellate Court affirmed the determinations of the Trial Court.
Key Takeaway
General vs. Specialized Expertise – The court found that Stobbs had extensive overall expertise in nursing care, even though she lacked specialized experience in pediatric IV therapy specifically. The rules for expert testimony do not require a witness to be a specialist in the exact area at issue. General expertise can be sufficient if it is relevant to the facts of the case
Credibility vs. Admissibility – The court determined that Stobbs’ lack of pediatric specialization went to the credibility and weight of her testimony, not its admissibility. She could not be completely excluded on this basis, though the defense was permitted to highlight the issue.
Relevance of Testimony – Stobbs’ testimony about proper nursing care for IV line flushes and documentation was relevant to the alleged negligence in this case, despite involving a pediatric patient. The standards did not necessarily differ between adult and pediatric IV administration.
Discretion of Trial Court – The decision to qualify an expert witness is within the trial court’s discretion. Appellate courts give this significant deference if the trial court has applied the proper legal standards.
Experts generally cannot offer legal opinions or conclusions, as this usurps the role of the judge and jury. The terms “negligence” and “gross negligence” have specific legal definitions that witnesses should not testify to. As a nurse, Hurley was not qualified to offer legal opinions. Her expertise was in nursing care, not application of legal standards. Asking her legal questions went beyond her area of expertise. Whether negligence occurred was an ultimate issue of fact for the jury to decide, not an expert witness. Hurley could not tell the jury what outcome to reach on this key issue.
