Expert Witness Profiler

Category: Pulmonary Disease Expert Witness

  • Radiology Expert Allowed to Opine on Emergency Care

    Radiology Expert Allowed to Opine on Emergency Care

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

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

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

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

    Radiology Expert Witness

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

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

    Anesthesiology Expert Witness

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

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

    Pulmonary Disease Expert Witness

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

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

    Discussion by the Court

    A. Testimony by Dr. Peter Bream

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

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

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

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

    B. Testimony by Dr. Matthew Fulton

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

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

    C. Testimony by Michael Mistretta

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

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

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

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

    Held

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

    Key Takeaway

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

    Case Details:

    Case Caption: Peyton V. Blue Ridge Radiology, P.C.
    Docket Number: 1:25cv15
    Court Name: United States District Court, Virginia Western
    Order Date: April 13, 2026
  • Pulmonary Disease Expert Witness’ Opinions on the Reliability of the DOH Investigations are Barred

    Pulmonary Disease Expert Witness’ Opinions on the Reliability of the DOH Investigations are Barred

    Plaintiff Lori LaRock filed a medical malpractice and negligence against Albany County Nursing Home (“ACNH”), the County of Albany, Larry Slatky, Debbie Gossman, Rhonda Lyga, and John and Jane Does #1-5 (collectively “Defendants”).

    Plaintiff asserted that she and her family often found Sanford unfed, unbathed, ungroomed, and covered in his own urine and vomit. On February 24, 2018, about a week prior to Sanford’s passing, LaRock noticed a change in her father: he seemed lethargic; was coughing more than usual; and his breathing sounded raspy. 

    On March 1, 2018, LaRock, after receiving a voicemail message from Gossman regarding Sanford’s condition, went to the nursing home, where she found her father “laying unattended in his room in agony,” “drenched in sweat,” “violently gasping for air,” with “an oxygen tube hanging from his nose.”

    LaRock called 911, and, according to “contemporaneous records from emergency paramedics,” Sanford was “found laying in the hospital bed unresponsive in obvious respiratory failure near respiratory arrest, was pale and sweating excessively, and was in need of immediate airway support.”

    Sanford was transferred to Albany Medical Center, where doctors assessed that he “likely aspirated on his own vomit,” and “medical care was too late.” Sanford passed away on March 3, 2018 of aspiration pneumonia.

    Plaintiff sought to exclude and/or limit the testimony of Defendants’ experts, Steven Salzman and Beth Anne Maas.

    Pulmonary Disease Expert Witness

    Steven Henry Salzman has over 35 years of experience in the fields of Pulmonary Disease and Critical Care Medicine. He is board-certified in Internal Medicine, Pulmonary Disease, Critical Care Medicine and Sleep Medicine. Salzman held the position of Chief, Pulmonary and Critical Care Medicine, NYU Winthrop Hospital in Mineola, Long Island, NY. He received his medical degree from New York University Grossman School of Medicine.

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

    Nursing Expert Witness

    Beth Anne Maas graduated from Thomas Jefferson University with a Bachelor of Science Nursing. She received a Master’s in Health Administration degree from Saint Joseph’s University. Her professional concentration has been long-term care since graduating in 1988.

    Want to know more about the challenges Beth Anne Maas has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Steven Salzman

    Parties’ Position

    Plaintiff sought to prohibit Steven Salzman from 1) offering legal conclusions, 2) testifying as to ACNH’s staff training or the Department of Health’s investigation, and 3) offering unreliable opinions.

    Defendants 1) agreed that experts may not offer legal conclusions but 2) argued that Salzman’s experience as a physician qualified him to testify as to the contested topics and 3) asserted that Salzman’s testimony is thoroughly reliable because it is based on a wider set of considerations and data than Plaintiff’s experts.

    Legal Conclusions

    First, the Court found that the Plaintiff’s cited opinions in Salzman’s expert report illustrated Salzman offering a legal conclusion, and thus, ruled that they are barred from being elicited during his testimony. In the expert report, Salzman asserted that “the staff at the Albany County Nursing Home was not deliberately indifferent to the needs of Sanford,” and that he has “seen no evidence to demonstrate there was a persistent and widespread pattern and practice of violating Sanford or any other residents’ rights.” 

    Such statements “track the exact language” of the legal issues at issue in this case, and thus, they “couch his opinions in terms that derive their definitions from judicial interpretations.” Salzman’s statements in the expert report also relied on “his assessment of the testimony and credibility of other witnesses” and are “not based on personal knowledge.”  Therefore, they constituted legal conclusions, rather than factual conclusions, which must be excluded. To the extent the Salzman offered further potential legal conclusions in his testimony, the Court reserved judgment.

    Qualifications

    Salzman is a pulmonary and critical care physician, a “general field” which is closely related to the subject of running an effective medical facility, including staff training and the use of SBAR strategies. Indeed, this Court is hesitant to impose “an overly narrow test of Salzman’s qualifications,” particularly where his opinion as a physician with a sub-specialty in critical care might at least provide some assistance to the jury in determining the factual issues.

    So long as Salzman “explains how his experience leads to the conclusions he reaches, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts,” the Court will not exclude his testimony on staff training or the use of SBAR strategies due to a lack of expertise.

    The Court barred certain opinions highlighted by Plaintiff in which Salzman opines on the appropriateness of the ACNH’s policies and the thoroughness or reliability of the DOH investigation.  For instance, his opinion that the “policies in place at the ACNH were appropriate” appears to rely entirely on the fact that “the DOH did not request that any policies be altered, modified or changed in any way.” 

    The Court held that such opinions are mere regurgitations of “facts that the jury is ‘fully capable of understanding” and “offer nothing more than what ‘lawyers representing [Defendants] could provide during their closing arguments’” and thus must be excluded.

    Beth Anne Maas

    Plaintiff argued that Defendants’ Nursing Expert Beth Anne Maas should be precluded from testifying on medical diagnosis or causation, DOH investigatory policies, procedures, and findings, and legal conclusions.

    The Court agrees with the parties that Maas may not offer opinions on causation or legal conclusions but reserves its decision on whether Maas’ testimony on the DOH investigation is permissible as reliant on her professional experiences.

    Legal Conclusions

    The Court precluded Maas precluded from testifying as to whether the ACNH was “deliberately indifferent” to Sanford, whether a “pattern and practice of violating Sanford or any other residents’ rights” exists, and whether staffing levels “violated New York State regulations.” The cited portions of the report explicitly state ultimate legal conclusions using language which “couches her opinions in terms that derive their definitions from judicial interpretations.”

    Causation

    The Court agreed that medical causation is outside of a nurse’s expertise, and therefore, found Maas may not testify as to the causes of Sanford’s death. Moreover, Maas may not simply restate findings which can be independently introduced by Defendants through other evidence.

    As to the testimony regarding the DOH investigation, the Court finds that in the portions of the report cited by Plaintiff, Maas is not merely referencing the record in front of her, as Defendants asserted. Instead, Maas appears to be expressing independent opinions based on the record. However, as provided in the report, such opinions heavily regurgitate “facts that the jury is ‘fully capable of understanding’” and do not explicitly state any other basis for the opinions. For this reason, they must be excluded unless Maas can adequately tie her conclusions to her personal or professional experiences. 

    The Court reserved judgment on the admissibility of Maas’ various opinions until they are presented at trial but warned that such opinions may not concern medical causation or offer legal conclusions. Additionally, to the extent Maas’ testimony involved repeating facts established by other witnesses for purposes of summary or explanation, the Court will hear objections as to whether that testimony is needlessly cumulative and should be excluded per FRE 403.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude and/or limit the testimony of Defendants’ experts, Steven Salzman and Beth Anne Maas.

    Key Takeaways:

    • Certain opinions offered by Salzman offer his own assessment of the record unmoored from any expertise. 
    • Testimony merely restating the facts which can be presented independently through other evidence will be barred and expert witnesses may not be offered as mere summarizers.

    Case Details:

    Case Caption: Larock V. Albany County Nursing Home Et Al
    Docket Number: 1:19cv604
    Court: United States District Court for the Northern District of New York
    Order Date: October 24, 2024