This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.
Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.
Plaintiffs sought to strike the testimony of Defendant’s expert witness, Thomas Wiswell, M.D., in its entirety because he is a neonatologist and is not qualified to render opinions regarding causation of the injuries sustained by the Minor Plaintiff nor the standard of care surrounding his delivery at birth.
Neonatology Expert Witness
Dr. Thomas E. Wiswell is a neonatologist in Honolulu, Hawaii. He graduated from the United States Military Academy at West Point, N.Y., in 1973 and subsequently attended medical school at the University of Pennsylvania in Philadelphia, graduating in 1977. Dr. Wiswell completed his pediatric residency and neonatology fellowship at Tripler Army Medical Center in Honolulu, Hawaii. He held active medical practitioner licenses from the states of Hawaii and Maryland and was certified by the American Board of Pediatrics.
Wiswell reviewed the Complaint filed in the instant action, Tripler records for Jenna and the Minor Plaintiff, various medical records from medical facilities for the Minor Plaintiff, Plaintiffs’ expert reports, the deposition transcripts for Jenna and Tyler as well as those for various individuals involved in Jenna’s labor and the delivery of the Minor Plaintiff.
Wiswell lists 17 opinions regarding the instant matter. The Court excluded about ten of his opinions because Wiswell does not present qualifications in the specific medical practice areas to render opinions regarding the standard of care for obstetrics, and labor and delivery, certain opinions are generalized and overly broad, and he did not provide any methodology or principles supporting his conclusions. For example, he opined that “none of the Tripler Army Medical Center providers breached the standard of care” and went on to state that “J.A.G.’s medical problems were not caused by negligence by any TAMC providers.”
Seven of his opinions are not excluded because Wiswell is qualified as a pediatrician and neonatologist to opine on the standard of care for newborn infants and children.
Held
The Court granted in part and denied in part Plaintiffs’ motion to strike the testimony of Thomas Wiswell.
Key Takeaway:
As a pediatrician and neonatologist, Wiswell was allowed to opine on the standard of care for newborn infants and children. However, Wiswell does not present qualifications in the specific medical practice areas to render opinions regarding the standard of care for obstetrics, and labor and delivery. To add to that, certain opinions provided by him are generalized and overly broad, and he did not provide any methodology or principles supporting his conclusions.
Please refer to the blogs previously published about this case:
This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.
Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.
In the instant motion, Defendant sought to exclude certain portions of opinions rendered by Plaintiffs’ expert witness, Dr. Adam Levy, M.D., because: his opinions regarding estimated fetal weight are unreliable; his opinions regarding Jenna’s operative delivery and using forceps resulting in excessive force are unreliable; his opinions about obtaining Jenna’s informed consent are unreliable; his opinions that Justin Pilgrim, D.O., and Asha Mada, D.O., were unqualified or incompetent are unreliable; his opinions that the medical care rendered to repair Jenna’s laceration injury are unreliable; and his opinions about the cause of the Minor Plaintiff’s injuries are unreliable and his deference on causation to a neonatologist acknowledged his lack of expertise.
Obstetrics and Gynecology Expert Witness
Dr. Adam Levy is a board-certified obstetrician gynecologist and has been a Fellow of the American College of Obstetrics and Gynecology since 1993. During his service in the Air Force he served as an OB/GYN specialist. He currently supervises and instructs residents in a high-risk pregnancy population labor and delivery.
Plaintiffs argued that Levy’s opinion that Defendant’s physicians failed to appreciate the risk for delivery complications because pre-delivery fetal growth was beyond the norm comports with accepted medical literature and therefore his opinion that the physicians who chose to deliver with forceps fell below the standard of care is reliable. As to Levy’s opinions regarding operative vaginal delivery, Plaintiffs argued that they are based on medical records and literature, and thus reliable.
Plaintiffs argued that Levy’s opinion that Jenna was not given a meaningful choice as to the method of delivery is “consistent with the modern standards of the medical community, his own deposition testimony, and thus [is] reliable and should not be excluded.” As to Levy’s opinions regarding the standard of care provided by Pilgrim and Mada in proceeding with forceps delivery, Plaintiffs pointed to his education, work and training in the area of high-risk obstetrics in a teaching hospital as qualifying him to render his opinions and submit that qualifications go to weight and not admissibility.
As to Levy’s opinion that the repair of the perineal laceration was done incorrectly, Plaintiffs submit that he is qualified to opine on the repair based on his education, training and experience. Plaintiffs submit that Levy’s opinions “regarding the traumatic birth being the cause of injuries to J.A.G. and his mother” are based on risks identified in medical literature and thus reliable.
Levy opined that “[t]he breaches of the standard of care of [J.A.G.] has caused brain damage” and that “cesarean delivery would have prevented both the newborn birth injuries and maternal injuries in this case.”
Levy’s opinions relate to the issue of medical standard of care
Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. The Court ruled that Levy’s opinions relate to the issue of medical standard of care. If he has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff “has caused brain damage among the multitude of injuries that are currently being treated and will require further treatment far into the foreseeable future[,]” and that opinion is excluded.
As for his opinion regarding Jenna’s statements about whether she gave informed consent; the Court held the information to be factual because it did not require the assistance of an expert as required by Rule 702. The Court also excluded his opinion about Mada’s motivations. His conclusion that Jenna’s expressed desire for cesarean delivery was also ignored, was considered speculative at best.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the expert report and testimony of Dr. Adam Levy, M.D.
Key Takeaway:
Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff is the cause of brain damage.
This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.
Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.
Plaintiffs sought to exclude certain portions of opinions rendered by Defendant’s expert witness, Dwight J. Rouse, M.D., because “they are not based on sufficient facts or data and they are not the product of reliable principles and methods.”
Obstetrics and Gynecology Expert Witness
Dwight J. Rouse is board certified in Obstetrics and Gynecology, and Maternal-Fetal Medicine. He is the Professor of Obstetrics and Gynecology at the Warren Alpert Medical School of Brown University and an actively practicing maternal fetal medicine attending at Women & Infants Hospital of Rhode Island.
Plaintiffs argued that, although Rouse’s testimony is relevant and his qualifications are not in issue, Rouse got a key fact wrong and thus any opinions relying on that wrong information should be excluded.
According to Rouse, “Grenier’s contention that she requested a cesarean delivery instead of operative vaginal delivery is at variance with the contemporaneous medical records. A low forceps delivery is what was performed and it was not foreseeable that mother or infant (or both) would suffer trauma. There is nothing in the medical record or the deposition testimony of the doctors or nurses to indicate that the forceps delivery was anything but easy and straightforward, or was performed in a manner outside the standard of care.”
Plaintiffs claimed that Rouse “cherry-picked one statement” and omitted relevant facts in medical records.
The Court held that Rouse’s opinions relate to the issue of medical standard of care and not causation based on epidemiological studies. If he has relied on a non-existent fact, has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue.
Held
The Court denied the Plaintiffs’ motion to strike the testimony of expert witness Dr. Dwight J. Rouse.
Key Takeaway:
Plaintiffs argued that, although Rouse’s testimony is relevant and his qualifications are not in question, Rouse got a key fact wrong. Therefore, any opinions relying on that incorrect information should be excluded. The Court held that Rouse’s opinions pertain to the issue of medical standard of care rather than causation based on epidemiological studies. Thus, highlighting any such errors is appropriate for cross-examination rather than exclusion, given that the expert’s qualifications and the relevance of his opinions are not in dispute.
Case Details:
Case Caption:
Grenier Et Al V. United States Of America
Docket Number:
1:22cv396
Court:
United States District Court for the District of Hawaii
This legal scenario revolves around a dispute between newspaper carriers, Bextermueller News Distributors, Inc., and Tom Richards, and the Defendants, Lee Enterprises, Inc., Lee Enterprises Missouri, Inc., Pulitzer, Inc., St. Louis Post-Dispatch, LLC. The carriers had agreements granting them exclusive rights to deliver St. Louis Post-Dispatch newspapers in specified geographic areas. Allegedly, the Defendants breached these agreements by implementing an electronic delivery system of the Post-Dispatch, impacting the carriers’ revenue and customer relationships.
The Plaintiffs claimed damages for breach of contract and breach of implied covenant of good faith and fair dealing. They engaged Melissa Gragg, a Certified Valuation Analyst, to quantify their lost revenue due to the Defendants’ actions. Gragg’s methodology involved assessing the number of digital-only subscribers within the carriers’ assigned routes from 2017 to 2023 and calculating the lost revenue by multiplying this number with the fee that Defendants are required to pay to Plaintiffs for each newspaper they delivered.
Defendants moved to exclude Gragg’s testimony, arguing that her calculations were flawed. They contested the notion that Plaintiffs were entitled to fees for every digital subscriber within their territories, stating that not all digital subscribers would have been print subscribers for which Plaintiffs would have received fees. Defendants claimed Gragg’s calculations were based on an incorrect premise, rendering her testimony irrelevant and unreliable.
In response, the Plaintiffs argued that according to their agreements, they were entitled to fees for deliveries within their designated areas, regardless of the delivery method or subscriber type. The Plaintiff-Carriers argued that Melissa Gragg’s calculations were in accordance with Missouri contract damages law. They contended that her calculations showcased the breach committed by the Defendants, specifically emphasizing the breach of the contractual obligation to abstain from establishing an alternative delivery system.
The crux of the dispute lay in whether Gragg’s damage calculations adhered to legal principles. Defendants contested the premise that Plaintiffs could claim fees for all digital subscribers within their territories. The Court held oral arguments to resolve this issue, considering the relevance and reliability of Gragg’s testimony in light of Missouri’s contract damages law.
Valuation Expert Witness
Melissa Gragg specializes in business valuations and provides expert witness testimony for litigation purposes. Her expertise spans diverse areas such as marital dissolution, shareholder disputes, commercial litigation, business interruption claims, personal damage calculations, and lost profits assessments. In cases involving divorcing spouses, she calculates maintenance, aids in understanding tax implications and cash flow, and traces separate assets. Gragg also contributes to fraud investigations for privately-held companies, government entities, and municipalities, lending her expertise to uncover fraudulent activities in these contexts.
Discussion by the Court
The admissibility of Gragg’s damages testimony hinged on whether her opinions were founded on a mistaken legal premise. Consequently, the Court’s analysis commenced with a review of the permissible damages under Missouri law for the claims presented, namely, breach of contract and breach of the implied covenant of good faith and fair dealing.
According to Missouri law, damages for breach of contract are restricted to compensating for the loss of the contract’s benefits. The primary objective is to restore the wronged party to the position they would have occupied had the contract been fulfilled. This principle was articulated in the case of Randy Kinder Excavating, Inc. v. J.A. Manning Constr. Co., Inc., 899 F.3d 511, 520 (8th Cir. 2018).
Actual damages aimed to compensate for the direct loss or injury resulting from the wrongful act.
Consequential damages encompassed those reasonably foreseeable damages caused directly by the breach, including those that could have been contemplated by the Defendant at the time of the agreement.
Benefit-of-the-bargain damages, also known as lost profits damages, refer to the net profits the Plaintiff would have gained had the contract not been breached. These damages aimed to put the Plaintiff in the financial position they would have occupied had the contract been fulfilled as agreed upon.
The Plaintiffs contended that Melissa Gragg’s calculations represented their benefit-of-the-bargain or lost profit damages. They argued that according to the Agreements granting them exclusive distribution rights within their designated territories, every digital-only subscriber in those areas constituted lost revenue for the Plaintiffs. Their stance was irrespective of whether these digital subscribers would have ever opted for a print newspaper subscription.
Emphasizing that the Agreements made no exception for digital deliveries, the Plaintiffs asserted their entitlement to a fee for all deliveries within their exclusive territories. They highlighted Gragg’s assumption in her report that deliveries to subscribers within these territories warranted fees for the Plaintiffs, as stipulated in their agreements.
The Plaintiffs’ argument emphasized that the interest of digital customers in the printed version was immaterial to their claim for fees. They maintained that the Agreements explicitly entitled them to compensation for deliveries occurring within their exclusive territories, regardless of the customers’ preferences for print or digital versions.
The Court considered the Plaintiffs’ argument that, according to their interpretation, the Agreements mandated the Defendants to pay a fee for every delivery within their designated territories, regardless of the method or deliverer. In this scenario, if the Defendants commenced digital deliveries within these territories, the Plaintiffs could claim that the Agreements required compensation for all deliveries, including digital ones made by the Defendants.
Under this interpretation, if the Defendants refused payment for these digital deliveries, the number of digital subscriptions multiplied by the applicable delivery fee could represent the lost profits the Plaintiffs would have gained if the contract hadn’t been breached. Awarding damages equivalent to these fees would align with the objective of placing the Plaintiffs in the position they would have been in if the contract had been fulfilled.
However, the Court noted that the Plaintiffs hadn’t directed attention to any specific provision in the Agreements explicitly entitling them to fees for every delivery in their territories, irrespective of the deliverer or method. The Agreements stated the Defendants were required to pay the Plaintiff-carriers a fee “for each… copy of the St. Louis Post-Dispatch… delivered to home delivery subscribers by the Carrier.” This language didn’t encompass digital deliveries, and the breach alleged by the Plaintiffs wasn’t centered on the Defendants’ failure to pay for deliveries within the territories as stipulated in the Agreements.
The Court highlighted that Gragg’s opinion, seemingly based on the presumption that the Agreements entitled Plaintiffs to fees for every digital delivery, lacked support from the Agreements’ language. As a result, the opinion was fundamentally unsupported and couldn’t provide assistance to the jury.
The Defendants contended that Melissa Gragg’s approach to damages contradicted the legal principle governing breach of contract damages, which aims to restore the wronged party to the position they would have held if the contract had been fulfilled. Specifically, in cases seeking lost profits as damages, the goal is to quantify the net profits the wronged party would have gained had the contract not been breached.
The Court agreed with this legal principle and found Gragg’s damages calculations inconsistent with it. The Court highlighted a significant flaw in Gragg’s approach: she didn’t attempt to ascertain how many digital subscribers represented revenue that the Plaintiffs would have acquired in the absence of a digital-only delivery system. Gragg acknowledged during her deposition, a fact seemingly undisputed by the Plaintiffs, that some digital-only subscribers might have had no inclination toward a print newspaper and would never have become print subscribers even without a digital-only option. Consequently, the revenue that the Plaintiffs would have gained from these subscribers in the absence of the breach was effectively $0.
The Court noted that Gragg’s calculations failed to address or account for these subscribers who would not have contributed any revenue if the breach hadn’t occurred. Despite the potential inclusion of such subscribers in her calculations, Gragg didn’t make an effort to differentiate or adjust for these cases where revenue wouldn’t have materialized. Instead, she incorporated them into her calculations without distinction.
The Defendants argued that Melissa Gragg’s approach to calculating damages contradicted the legal principle dictating that a Plaintiff could only seek damages resulting directly from the alleged breach of contract. The Court agreed with this argument, emphasizing that under Missouri law, the purpose of breach of contract damages is to restore the wronged party to the position they would have held if the contract had been fulfilled. In cases seeking lost profits damages, the focus is on the net profits the wronged party would have gained had the breach not occurred.
The Court identified a critical flaw in Gragg’s methodology: it didn’t address the determination of how many digital subscribers would have contributed revenue to the Plaintiffs in the absence of a digital-only delivery system. Acknowledging this flaw, Gragg, as indicated in her deposition, acknowledged that some digital-only subscribers might have had no inclination toward a print newspaper and wouldn’t have subscribed in any circumstances.
The Court highlighted that Gragg’s calculations failed to account for or differentiate these subscribers who would not have generated any revenue if the breach hadn’t occurred. Despite this, Gragg included them in her calculations without accounting for the zero revenue they would have contributed, contrary to Missouri law on breach of contract damages.
During oral arguments, the Court posed a hypothetical scenario to Plaintiffs’ counsel, illustrating that under Gragg’s approach, damages would include fees from households that would never have subscribed to print deliveries, placing the carriers in a better financial position than if no breach had occurred. This approach contradicted Missouri’s contract law, which prohibits placing the wronged party in a more advantageous position than if the breach had not occurred.
Consequently, the Court concluded that Gragg’s method of calculating lost revenue lacked relevance and reliability under Missouri law. Her calculations didn’t analyze the actual revenue lost due to the alleged breach, incorporating fees that would never have been realized even without the breach. Thus, her opinion was deemed irrelevant and unreliable for assisting the jury and was consequently excluded.
The Court found that the cases cited by the Plaintiffs did not alter its conclusion. Despite Plaintiffs heavily relying on Machine Maintenance Equipment Co. v. Cooper Industries, Inc., 634 F. Supp. 367 (E.D. Mo. 1986), the Court clarified that this case reinforced the general principles it had previously relied upon. It reiterated that damages resulting from a breach of contract or breach of the duty of good faith must be those directly resulting from the breach and should aim to place the non-breaching party in the position they would have been in if the breach had not occurred. However, the cited case did not lend support to Gragg’s method of calculating lost revenue.
Furthermore, the other cases referenced by the Plaintiffs during oral arguments discussed the general principles relevant to the implied covenant of good faith and fair dealing. These cases highlighted that the implied covenant prevents a contracting party from denying the other party the expected benefits of the contract. However, in the context of the present motion, the Court established that there was no dispute regarding the deprivation of the expected benefit of the Agreements for the Plaintiffs – namely, the exclusive right to distribute the newspaper within their designated territories. Nevertheless, these cases did not offer support for the specific method used by Gragg in calculating lost revenue.
Held
The Court, after detailed consideration, concluded that the Plaintiffs failed to meet the burden of demonstrating the admissibility of Melissa Gragg’s testimony under Rule 702. Consequently, the Court granted Defendants’ motion to exclude her testimony from the case.
It’s important to note that while the Court made this decision regarding Gragg’s testimony, it hasn’t reached a final decision on the overall outcome of the case. Several other issues in this legal matter remain pending and await resolution by the Court.
Key Takeaways
The admissibility of expert testimony in breach of contract cases relies on its alignment with legal principles governing damages. Damages sought should directly result from the breach and aim to place the wronged party in the financial position they would have occupied if the contract had been fulfilled. Missouri law categorizes breach of contract damages into various types, including actual, consequential, and benefit-of-the-bargain damages. Lost profits, a subset of benefit-of-the-bargain damages, aim to represent the net profits the Plaintiff would have gained if the contract hadn’t been breached. Expert calculations should align with the actual loss caused by the breach. Flawed methodologies that include damages from sources unrelated to the breach’s impact lack reliability under the law. Expert opinions should align with explicit provisions within the contract, and claims for damages must align with contractual entitlements. If expert opinions include calculations or assumptions unrelated to breach-caused damages, they might be deemed irrelevant and unreliable, leading to exclusion. Cited cases should directly support or substantiate the methodology used by the expert in calculating damages. In cases involving the breach of the implied covenant of good faith and fair dealing, the focus should center on whether the breach deprived the party of expected contractual benefits. The burden of proof lies with the party presenting expert testimony to demonstrate its admissibility and alignment with legal principles. If expert testimony fails to meet these standards, it may be excluded from consideration in the case.
