Expert Witness Profiler

Tag: Patient

  • Emergency Medical Services Expert Was Allowed to Opine on Scene Safety

    Emergency Medical Services Expert Was Allowed to Opine on Scene Safety

    This litigation stems from the death of Charles Lamar Vanlandingham in September of 2019. Plaintiff alleged that Vanlandingham suffered a medical episode with seizure activity in the early morning hours of September 15, 2019, and Vanlandingham’s girlfriend called 911. According to Plaintiff, Vanlandingham started to improve in the time it took EMS to arrive. Following the seizure activity, Vanlandingham had apparently transitioned to a “postictal state” that can cause confusion.

    Although Vanlandingham was initially compliant with EMS upon their arrival, Plaintiff alleged that “EMS providers tried to force Vanlandingham onto their medical cot,” and when Vanlandingham did not comply, “[EMT] Tuttle ultimately tackled Vanlandingham onto the medical cot.”

    Once members of the Oklahoma City Fire Department arrived, Plaintiff alleged that the Firefighters used their body weight to pin Vanlandingham in the prone position for approximately three minutes before Oklahoma City Police Officer Brandon Lee arrived. Officer Lee then put handcuffs on Vanlandingham—still in the prone position—and placed his knee across Vanlandingham’s back.

    Plaintiff alleged that Vanlandingham was in this position, handcuffed, for approximately four minutes, during which time “no one checked Vanlandingham’s vitals or advocated for a position change despite Vanlandingham’s clear signs of respiratory distress.” “Without knowing Mr. Vanlandingham’s vitals and without performing any kind of medical assessment,” EMT Tuttle then administered midazolam (a sedative), and Vanlandingham went limp. CPR efforts were unsuccessful, and Vanlandingham died at the scene.

    Plaintiff’s claims are against Defendants City of Oklahoma City, Officer Brandon Lee, and American Medical Response Ambulance Service, Inc. (AMRAS).

    During discovery, AMRAS disclosed an expert report prepared by Jim Morrisey, EMT-Paramedic, M.A. Plaintiff contended that Morrissey’s opinions are not reliable as he has failed to provide a basis for his opinions.

    Emergency Medical Services Expert Witness

    Jim Morrisey, EMT-Paramedic, M.A is a certified and licensed paramedic in the state of California and former police officer. He holds both undergraduate and graduate degrees. His entire career has been focused on the field of emergency medicine and education including as a college level adjunct professor in emergency medicine.

    Over the last 35 years he has been involved in emergency medicine as a field practitioner, critical care paramedic, flight paramedic, backcountry wilderness paramedic and as an imbedded tactical paramedic with the San Francisco FBI SWAT team.

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

    Discussion by the Court

    I. Morrissey’s supplemental report is timely

    Morrissey supplemented his expert report on May 28, 2025. In it, Morrissey expands on four of his opinions listed in his initial report but predominately provides supplemental explanations for the purported basis of his opinions. Plaintiff contended that Morrissey’s supplemental report is untimely under Rule 26.

    Here, the parties’ deadline for final witness and exhibit lists and discovery expired before Morrissey issued his supplemental report. However, Rule 26(a)(3) also refers to the deadline to file deposition designations, which has yet to expire. Accordingly, the Court found that Morrissey’s supplemental report is timely under Rule 26(e)(2).

    II. Daubert Motion

    Plaintiff argued that Morrissey should not be permitted to testify regarding his opinions because he did not identify how his experience in the emergency medicine services field led to his specific opinions or what he relied upon in reaching his opinions. Plaintiff asserted that Morrissey’s explanation of the purported basis of his opinions is insufficient, as they are too generalized to test Morrissey’s conclusions for their reliability.

    Upon review of Morrissey’s supplemental report, the Court found that he, at times, failed to adequately identify the basis of his opinions or explain how certain standards or his experience led to his conclusions. Morrissey’s experience in emergency medical services, standing alone, is not sufficient to support his opinions.

    By referring to the protocols and textbook as a basis for his opinion, Morrissey narrowly answers the question of what standards, customs, or practices he is applying to support his opinion.

    To the extent Plaintiff takes issue with a perceived lack of information or the conclusions Morrissey derived therefrom, Plaintiff may thoroughly cross-examine him at trial.

    However, Morrissey not only references the protocols and textbooks that he relies upon to support his opinions, but also his experience in emergency medical services when dealing with “situations where scene safety or patient presentation was quickly evolving.” Therefore, Morrissey’s opinion that “changes in patient status were promptly identified, assessed, and appropriately addressed” is sufficiently supported. So too is Morrissey’s opinion that “the Code was appropriately called after 35 minutes, when the emergency crews were unable to gain return of spontaneous circulation, and only after consulting with the hospital-based emergency physician.”

    Held

    The Court granted in part and denied in part Plaintiff’s motion to exclude the opinions of Jim Morrisey.

    Key Takeaway

    Morrissey’s opinions are based on his extensive knowledge and experience in the field of emergency medical services and the data, documents, and information he was provided regarding the Vanlandingham incident. However, the Plaintiff was left with little or no way to test Morrissey’s conclusions against any of the guidelines or factors involved in a Daubert analysis or to otherwise determine their reliability.

    Case Details:

    Case Caption: Vanlandingham V. City of Oklahoma City
    Docket Number: 5:22cv209
    Court Name: United States District Court, Oklahoma Western
    Order Date: March 18, 2026
  • Pharmacology Expert’s Testimony About the Purpose and Effect of Illegal Marketing Tactics Excluded

    Pharmacology Expert’s Testimony About the Purpose and Effect of Illegal Marketing Tactics Excluded

    Plaintiff State of Washington alleged that Novo Nordisk Inc. (“NNI”) caused physicians to prescribe its drug, NovoSeven®, to Washington hemophilia patients by: (1) promoting it “off-label” for prophylaxis and “high dose” use; (2) paying kickbacks to physicians; and (3) paying bribes to patients, all of which rendered claims to Medicare and Washington Medicaid false.

    The State of Washington has been investigating this case for almost fifteen years, hoping to find evidence of unlawful conduct that allowed its Medicaid program to recoup money it paid for a medically necessary, life-saving drug.

    Jamie Siegel and Washington State’s expert witness, Dr. Adriane J. Fugh-Berman, opined broadly that NNI’s promotional methods and practices caused physicians and patients to use more NovoSeven, including off-label. NNI filed a Daubert motion to exclude the testimony of Fugh-Berman.

    Pharmacology Expert Witness

    Dr. Adriane J. Fugh-Berman, MD is a Professor of Pharmacology and Physiology with a joint appointment in the Department of Family Medicine at Georgetown University Medical Center.

    She has spent her 35-year academic career researching how pharmaceutical companies market to the medical community, and how that marketing affects the prescription practices of that community.

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

    Discussion by the Court

    To begin with, NNI did not directly challenge Fugh-Berman’s credentials, and it did not argue that she is not an expert in her field. It did emphasize that she self-identifies as an “activist” advocating for “rational prescribing and promoting public health,” and that her opinions have been excluded as irrelevant in other cases.

    NNI sought to exclude Fugh-Berman’s opinions, arguing that she failed to set out sufficient facts and data to support her unreliable analytical methodologies, and failed to reliably apply her principles and methods.

    Discourse Analysis

    NNI specifically challenged Fugh-Berman’s reliance on “discourse analysis” to support her conclusion that NNI’s promotional activities improperly affected prescribing physicians’ judgment when selecting a pharmaceutical to treat a hemophilia patient. Moreover, NNI argued persuasively that discourse analysis was not even mentioned in her Report. The Court therefore precluded any opinion testimony about applying “discourse analysis” unless raised by the defense.

    Patient A’s Use of NovoSeven

    Fugh-Berman has general knowledge from experience and known studies and is qualified to testify generally about physician behavior in prescribing pharmaceuticals, and what can influence that behavior. However, she will not be permitted to testify that NNI’s promotional methods were responsible for “specific increases in the prescribing behavior” of Patient A’s primary physician, Dr. Ronald Louie, or about the effects of the promotions on Patient A. NNI persuasively argued that Fugh-Berman did not review specific “claims data” and “medical records” associated with Patient A’s use of NovoSeven. Fugh-Berman may summarize what benefits the record demonstrates were provided to Louie and Patient A that may have influenced Louie in the way that studies have shown that these types of benefits influence prescription choices. She will not be permitted to testify that these benefits caused Louie to use NovoSeven. This is an ultimate legal conclusion for the jury.

    NNI also objected to Fugh-Berman’s proposed “factual narrative” testimony. It argued that it would be improper for her to offer a speculative editorial about the alleged nefarious global effects of [NNI’s] marketing practices” and its “sway over the medical community” because it is “neither relevant nor reliable.” The Court agreed.

    Fugh-Berman’s report concluded with two paragraphs opining about the purpose and effect of NNI’s allegedly illegal marketing tactics, and specifically about the consequences of the benefits it provided to Louie, Patient A, and his mother. These ultimate conclusions of law are for the jury, and she will not be permitted to so opine. In other words, she cannot characterize the high dosage or prophylaxis use of NovoSeven as “unproven.” She can testify that, generally, based on her experience, scholarship, and training, promotional campaigns have been shown to affect such behavior.

    Held

    The Court granted in part and denied in part NNI’s Daubert motion to exclude Adriane Fugh-Berman’s testimony.

    Key Takeaway:

    No expert shall testify in a form of an advocate editorializing, or present a conclusory narrative akin to attorney argument, rather than as an expert witness.

    Please refer to the blogs previously published about this case:

    Law & Legal Expert Helps Jury Understand Medicaid’s Complex Regulatory Framework

    Hematology Expert’s Opinion on NovoSeven’s Medical Appropriateness Admitted

    Case Details:

    Case Caption: United States ex rel. Siegel V. Novo Nordisk Inc.
    Docket Number: 3:23cv5459
    Court Name: United States District Court, Washington Western
    Order Date: July 16, 2025
  • Hematology Expert’s Opinion on NovoSeven’s Medical Appropriateness Admitted

    Hematology Expert’s Opinion on NovoSeven’s Medical Appropriateness Admitted

    Plaintiff State of Washington alleged that Novo Nordisk Inc. (“NNI”) caused physicians to prescribe its drug, NovoSeven®, to Washington hemophilia patients by: (1) promoting it “off-label” for prophylaxis and “high dose” use; (2) paying kickbacks to physicians; and (3) paying bribes to patients, all of which rendered claims to Medicare and Washington Medicaid false.

    The State of Washington has been investigating this case for almost fifteen years, hoping to find evidence of unlawful conduct that allowed its Medicaid program to recoup money it paid for a medically necessary, life-saving drug.

    The Plaintiffs Jamie Siegel and the State of Washington filed a motion to exclude the testimony of Defendant Novo Nordisk’s expert witness, Dr. Marilyn J. Manco-Johnson.

    Hematology Expert Witness

    Marilyn J. Manco-Johnson is a board-certified hematologist with fifty (50) years of experience treating and managing patients with hemophilia, including those with inhibitors, and other rare blood disorders.

    She has treated patients, including those with the inhibitor antibodies, with NovoSeven and alternative hemophilia treatments developed by other pharmaceutical companies.

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

    Discussion by the Court

    Manco-Johnson’s report described the history, development, and standard of care applicable to hemophilia treatments. Specifically, she opined that from 2005 to 2015—the period relevant to this case—the prophylactic and high-dose usage of NovoSeven was “safe, effective, and accepted by doctors . . . for certain hemophilia patients with inhibitors.” According to her, NovoSeven was considered “clinically appropriate and an accepted method of treatment.”

    However, Washington challenged Manco-Johnson’s report as irrelevant on several grounds. First, it argued that the report did not “mention or analyze the medical necessity” of NovoSeven. Furthermore, it contended that her testimony about the standard of care was also irrelevant, asserting that this “is a case about whether illegal means were used to cause the government to pay for a product that was not medically necessary, as defined by standards particular to the Washington Medicaid program.” Finally, Washington argued that Manco-Johnson should be precluded from testifying about the use of and reference to compendia, since her report does not “mention or evaluate any compendia.”

    Analysis

    First, the Court agreed that Manco-Johnson’s report failed to mention or evaluate any compendia. Any such testimony will therefore be excluded.

    Next, the Court precluded Manco-Johnson from testifying as to whether illegal means caused the off-label use of NovoSeven. Her report does not contain any opinions on this issue.

    Finally, the Court concluded that the standard of care applicable to NovoSeven and its medical appropriateness is relevant to this case. Although she does not use the term “medical necessity,” Manco-Johnson opined that NovoSeven was considered safe, effective, and accepted by doctors. Washington raised both medical necessity and acceptance in its briefing.  While it suggests the standards for medical acceptance and necessity are distinct, this argument goes to the weight, not admissibility, of Manco-Johnson’s testimony.

    Washington has even argued that its claims rest on the alleged unlawful kickbacks, rather than on questions of medical necessity. Nevertheless, there is no dispute that, after several doctors—including Dr. Jeffrey Thompson—and the 2009 Hemophilia Working Group reviewed NovoSeven for medical necessity, Washington Medicaid approved and paid for its use during the relevant period. In fact, Washington has conceded that this payment constitutes evidence of medical necessity.

    Moreover, the Court has authorized an adverse inference instruction, allowing the jury to infer that the lost or destroyed Hospital Corporation of America (HCA) records likely showed that reviewers approved NovoSeven because it was medically necessary. Even so, the jury could still conclude that neither Manco-Johnson and Thompson nor the 2009 Hemophilia Working Group followed the regulatory hierarchy of evidence in determining medical necessity. Consequently, Manco-Johnson’s opinion regarding NovoSeven’s medical appropriateness, acceptance, and standard of care became both relevant and admissible.

    Held

    The Court granted in part and denied in part the State of Washington’s Daubert motion to exclude the testimony of Dr. Marilyn Manco-Johnson.

    Key Takeaway:

    Manco-Johnson has sufficient expertise and experience treating hemophilia patients with inhibitors with NovoSeven for on- and off-label purposes. Her knowledge, background, and testimonial opinions concerning hemophilia and the evolution of treatment modalities over decades satisfy the requirement in Rule 702 that her testimony will assist the jury in understanding the evidence and determining facts in issue. Her testimony will be largely permitted because she is a qualified expert in the medical field through education, training, experience, knowledge, and skill, her report is based on sufficient facts or data, and her opinions are the product of the reliable application of principles and methods.

    Please refer to the blog previously published about this case:

    Law & Legal Expert Helps Jury Understand Medicaid’s Complex Regulatory Framework

    Case Details:

    Case Caption: United States ex rel. Siegel V. Novo Nordisk Inc.
    Docket Number: 3:23cv5459
    Court Name: United States District Court, Washington Western
    Order Date: July 15, 2025
  • Dentistry Expert’s Testimony on Conscious Sedation Admitted

    Dentistry Expert’s Testimony on Conscious Sedation Admitted

    This case stems from allegations by the U.S. Department of Justice that Dr. Eli Jarjoura, a licensed dentist, illegally prescribed Schedule IV controlled substances without a “legitimate medical purpose . . . in the usual course of his professional practice.” 

    Jarjoura instructed the patient to take one 0.25 mg tablet of triazolam and one 0.5 mg or 1.0 mg tablet of alprazolam—both Schedule IV sedatives used in conscious sedation dentistry—one hour before the procedure, and to return any remaining tablets to Jarjoura for administration, if needed, or for disposal.

    Dr. Bruce D. Horn is DOJ’s expert witness on dentistry and sedation practice. Horn’s report, submitted pursuant to Rule 26, opines on “whether prescriptions written and issued by [Defendant] . . . were (i) issued for a legitimate medical purpose; and/or (ii) issued within the ordinary course of professional practice.” 

    Horn concluded that Defendant’s prescription practices regarding certain sedation drugs had no “legitimate medical purpose and were outside the course of usual professional practice.”

    Defendant filed a motion to exclude Horn’s opinions under Rule 702.

    Dentistry Expert Witness

    Dr. Bruce D. Horn is a dentist in a private practice setting and has been practicing since 1981. He holds an active permit with the Oklahoma Board of Dentistry for parenteral conscious sedation and has served on the Oklahoma Board of Dentistry in a variety of roles.

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

    Discussion by the Court

    Specifically, Horn made three related contentions. First, Horn noted that Defendant prescribed abnormally high quantities of the benzodiazepines Triazolam and Alprazolam despite no “reliable, accepted publication supporting the combined use of these two sedatives in sedation dentistry.” Second, Horn contended that Defendant’s recordkeeping was deficient. In his words, “sedation dental practice . . . should be based on the individual characteristics of each patient,” and patient records should contain these details to ensure “safe dosing” but Defendant’s records lacked the requisite detail.  Third, Horn asserted that Defendant could not have effectively monitored his patients given the amount of sedation medication administered. Such levels of sedation medication, Horn argued, would have placed Defendant’s patients in physical danger.

    The Defendant argued that Horn’s expert opinion should be thrown out under Rule 702, claiming he wasn’t qualified to speak on prescription drug safety or drug interactions. Their reasoning? Horn was trained as a dentist—not a pharmacist—so he allegedly lacks the expertise required for that kind of analysis.

    Defendant further argued that certain portions of Horn’s report were either irrelevant or prejudicial. Defendant cited to portions of the report in which Horn commented on the following topics: (1) the presence of expired sedative antagonists in Defendant’s office stock; (2) Defendant’s practice of intravenously administering the benzodiazepine Midazolam; (3) the accuracy of Defendant’s medical recordkeeping; (4) appropriate dosing of prescriptions kept in Defendant’s office stock; (5) the application of the Oklahoma Board of Dentistry statutes and regulations to Defendant’s practice; and (6) the proper monitoring of patients during conscious sedation.

    Analysis

    Qualifications

    Defendant challenged Horn’s qualifications, asserting that Horn is unqualified “regarding safety of prescriptions and drug interactions” because he is not a pharmacist.

    The Court found that Horn is qualified to offer opinions regarding the safety and adverse effects of the medications at issue in this case. Horn has served as the President of the Oklahoma Board of Dentistry, has practiced dentistry for over 40 years, and has extensive experience working with various sedation techniques. His experience provides the foundational knowledge necessary to compare Defendant’s prescription practice to the professional dental practice at large.

    The fact that Horn is a dentist, and not a pharmacist, is not a barrier to admissibility.

    Reliability

    Defendant did not challenge the reliability of Horn’s methodology.

    Upon review of the expert report, the Court held that Horn’s methods were reliable. Horn’s opinions were derived from a comparison of Defendant’s practices as observed from medical records and deposition testimony with industry standards as identified by Horn and promulgated by the Oklahoma Board of Dentistry. 

    Relevance of Expert Testimony

    Defendant challenged the relevance of certain portions of Horn’s report. Specifically, Defendant argued that Horn’s comments on the following topics are irrelevant to the ultimate issue of Defendant’s prescription practices:

    1. The presence of expired sedative antagonists in Defendant’s office stock;

    2. Defendant’s intravenous application of Midazolam;

    3. The accuracy of Defendant’s medical records;

    4. The appropriate dosing of certain prescriptions kept in Defendant’s office stock;

    5. Purported violations of Oklahoma Board of Dentistry statutes and regulations; and

    6. The failure to properly monitor patients during conscious sedation.

    Defendant asserted that each of the above comments go beyond the scope of this case—whether “prescriptions written by Defendant were issued for a legitimate medical purpose or within the ordinary course of professional practice.”

     The Court had no trouble finding that each of the contested portions of Horn’s report was relevant. Item 3—medical record inaccuracies—inform how medication should be prescribed and in what quantity.  The remaining items—all of which relate to appropriate dental practice (i.e. the intravenous use of Midazolam, appropriate dosing, etc.)—are not only relevant, but central to the issue in this case. Each matter presents the fact finder with the background necessary to evaluate Defendant’s overall practice, including the appropriateness of prescription decisions.

    Thus, the challenged testimony will be helpful to the trier of fact in determining whether Defendant’s prescriptions had a legitimate medical purpose in the usual course of professional practice.

    Held

    The Court denied the Defendant’s Daubert motion to exclude certain opinions of Bruce D. Horn.

    Key Takeaway:

    Horn is qualified as an expert by knowledge, skill, experience, training, or education. Furthermore, it is more likely than not that (a) Horn’s scientific, technical, or other specialized knowledge will help the trier of fact because under Rule 401, relevant evidence is that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

    Case Details:

    Case Caption: United States Of America V. Jarjoura
    Docket Number: 5:23cv680
    Court Name: United States District Court, Oklahoma Western
    Order Date: July 11, 2025
  • Psychiatry Expert Witness’ Opinions Regarding the Clinical Sufficiency of Certain Guidelines Admitted

    Psychiatry Expert Witness’ Opinions Regarding the Clinical Sufficiency of Certain Guidelines Admitted

    Kirsten W. sought payment of benefits for her son C.W.’s treatment at Open Sky Wilderness Therapy (“Open Sky”) and Telos Residential Treatment Center (“Telos”) from Defendants California Physicians’ Service d/b/a Blue Shield of California (“BSC”). C.W. was admitted to Open Sky and Telos for treatment of his depression, anxiety, drug and alcohol use disorders, poor impulse control, and other self-destructive behaviors.

    To evaluate coverage of Residential Treatment Center (“RTC”) level of treatment for children and adolescents, BSC has relied on various different criteria that were in effect during different periods. Of particular relevance, BSC utilized the 2018 MCG 21st Edition Residential Acute Behavioral Health Level of Care Guidelines (“MCG Guidelines”) and Version 20 of The Child and Adolescent Level of Care Utilization System Guidelines (“CALOCUS”). 

    Defendants denied Kirsten’s claims for coverage, relying on statements such as “there was never a significant risk that you would harm yourself or others,”
    and “there is no active suicidal ideation with intent or plan, homicidal ideation, or overt psychosis” to support the decision to deny benefits.

    Plaintiff additionally claimed that Defendants violated the Mental Health Parity and Addiction Equity Act of 2008 (the “Parity Act” or “MHPAEA”) by applying acute requirements to subacute mental health treatment. 

    BSC disclosed Caitlin R. Costello as an expert for the purpose of providing opinions “regarding the clinical sufficiency of certain guidelines that [BSC] consulted when evaluating the medical necessity of the services allegedly provided to [C.W.].”

    Given that Defendants relied on Costello in disputing Plaintiff’s purported MHPAEA violations, the Court first considers whether her report and opinions are admissible under Federal Rule of Evidence 702.

    Psychiatry Expert Witness

    Caitlin Costello is an associate clinical professor in the Division of Child and Adolescent Psychiatry, Department of Psychiatry, at the University of California, San Francisco. She also serves as the chief of child forensic psychiatry in the Psychiatry and Law Program at the University of California, San Francisco. Additionally, she is the medical director for child and adolescent ambulatory psychiatry at UCSF-West Bay. Costello is also the Training Director of the Child and Adolescent Psychiatry Training Program at the University of California, San Francisco.

    She is licensed to practice medicine in the state of California and is certified by the American Board of Psychiatry and Neurology in General Psychiatry, Child and Adolescent Psychiatry, and Forensic Psychiatry.

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

    Discussion by the Court

    In her expert report, Costello takes no position on whether the disputed services were “medically necessary.” Instead, she opined that utilization of the MCG Guidelines was “clinically appropriate for Blue Shield to consider” in its medical necessity evaluation.

    Costello further opined that the MCG Guidelines did not focus solely, primarily, or improperly on acute symptomology, and that BSC’s reliance on the guidelines did not show any clinically improper focus on acute symptomology.

    First, Plaintiff argued that Costello’s report did not compare analogous guidelines (such as those of skilled nursing facilities with the MCG Guidelines) and was thus unhelpful to the Court’s analysis. Second, Plaintiff argued that Costello’s report was unreliable because it ignored the language of the Plan and the relevant MCG Guidelines.

    Costello’s Report did not Compare Analogous Guidelines

    Plaintiff’s parity act claim is entirely based on her reading of the terms of the MCG Guidelines as requiring acute symptoms in contrast with treatment in a skilled nursing facility, which requires there be “no acute hospital care needs.”

    Demonstration that the MCG Guidelines did not require “acute” symptoms was sufficient to defeat Plaintiff’s Parity Act argument. The Court held that Costello’s report is directly relevant to this point.

    Costello’s Report was Unreliable because it Ignored the Language of the Plan and the Relevant MCG Guidelines

    Plaintiff essentially argued that Costello’s opinion is incorrect as to whether the MCG Guidelines improperly focus on acute symptomology, based on an alleged lack of “citation to any evidence” and in light of a footnote that mentions “acute” symptoms.

    First, the Court held that Costello did cite to the record—specifically the language of the applicable guidelines she opines on. Any interpretations of these guidelines, particularly as to whether they employ acute symptomology criteria, fell under her training and experience.

    And it was not unreasonable for Costello to not specifically describe every footnote in her report that she did not believe would change her analysis, particularly when Plaintiff did not mention this footnote previously. A threshold showing of reliability did not mean the “expert’s testimony is ‘undisputably correct’ or without uncertainty.”

    Plaintiff also argues that discussion of this footnote in Costello’s supplemental declaration attached to Defendants’ Opposition to Plaintiff’s motion for summary judgment amounts to “untimely” expert testimony because the text of the footnote was available upon review of the MCG Guidelines.

    The meaning attributed to the footnote falls within “the contested issue of whether Blue Shield improperly applied guidelines that were too restrictive or otherwise inappropriate,” which Defendants disclosed Costello would testify regarding in their expert disclosures.

    There was no indication prior to the summary judgment briefing that Plaintiff intended to argue that this single footnote altered the reasonable interpretation of the MCG Guidelines. Plaintiff also chose not to submit an expert report, a rebuttal expert report, or depose Costello.

    Therefore, Costello’s declaration was appropriate to rebut Plaintiff’s new argument. Accordingly, the Court finds Costello’s report and opinions sufficiently reliable for the Court to consider regarding the language and meaning of the MCG Guidelines.

    Held

    The Court denied the Plaintiff’s motion to exclude the opinions of Dr. Caitlin Costello.

    Key Takeaway:

    A threshold showing of reliability does not mean the “expert’s testimony is ‘undisputably correct’ or without uncertainty.

    Costello’s opinion is not incorrect in light of a footnote that mentions “acute” symptoms because it was reasonable for Costello to not specifically describe every footnote in her report that she did not believe would change her analysis, particularly when Plaintiff did not mention this footnote previously. Moreover, Costello does cite to the record—specifically the language of the applicable guidelines she opines on. Any interpretations of these guidelines, particularly as to whether they employ acute symptomology criteria, falls under her training and experience.

    Case Details:

    Case Caption: Kirsten W. V. California Physicians Service Et Al
    Docket Number: 2:19cv710
    Court: United States District Court, Utah
    Order Date: February 10, 2025
  • Chiropractic Expert Witness is Not Qualified to Speak to the Correctness of an EMC Diagnosis

    Chiropractic Expert Witness is Not Qualified to Speak to the Correctness of an EMC Diagnosis

    This matter involves the Plaintiff insurers’ claim that Defendants unlawfully billed for medically unnecessary and illusory services, misrepresented the nature and extent of the services, and operated in violation of various laws specific to the healthcare and/or insurance sector.

    According to the Plaintiff, Titan Defendants agreed to refer patients to the Stein Defendants in exchange for the Stein Defendants providing the patient with a false EMC diagnosis, which enabled the Titan Defendants to provide medically unnecessary chiropractic, physical therapy, and other services to the patient and to receive reimbursement for these services in excess of the ordinary $2,500 limit.

    Plaintiffs produced an expert report from Dr. John Merritt, who found that the Titan Defendants treated patients suffering from minor injuries but routinely referred them to the Stein Defendants for medically unnecessary EMC evaluations, and the Stein Defendants would consistently diagnose the patients with an EMC that did not appear to be warranted. The Titan Defendants, in turn, produced an expert report from Dr. Todd Cielo in which he rebutted Merritt’s opinion that the patients referred from Titan Wellness to Stein, D.O., P.A. (“Stein, P.A.”) did not have an EMC, stating that he had a “serious problem” with this accusation, and challenged Merritt’s opinion that the Stein Defendants’ EMC diagnoses were not warranted. 

    Plaintiffs filed a motion to exclude Cielo’s opinions (i) purporting to rebut Merritt’s opinion with respect to whether the patients referred by the Titan Defendants to the Stein Defendants actually suffered from an EMC and, by extension, (ii) purporting to rebut Merritt’s opinion regarding the “medical necessity” of EMC referrals from Titan Wellness to Stein, P.A. Plaintiffs challenge the admissibility of these opinions on two bases.

    Chiropractic Expert Witness

    Todd Cielo is the President and Owner of Cielo Sports and Family Chiropractic Centre. As a practicing chiropractor for the past 20 years, he is a lecturer for continuing education organizations in Florida and is an accredited lecturer for the Florida Bar Association. Cielo earned his bachelor’s degree from the University of Florida and his doctor of chiropractic medicine degree from Life University.

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

    Discussion by the Court

    First, Plaintiffs argued that Cielo is not qualified to proffer an opinion regarding whether an EMC diagnosis is appropriate because Florida’s No-Fault Law does not permit chiropractors to render EMC diagnoses. Second, because Cielo himself testified that he was not qualified to comment on EMC diagnoses, Plaintiffs claimed that not only is Cielo unqualified to proffer the opinions at issue but the opinions at issue are also unhelpful and unreliable as a result.

    Florida No-Fault Law

    With respect to Plaintiffs’ first argument, the parties do not dispute that under Florida’s No-Fault Law, chiropractors are not among those medical professionals who may determine that a patient suffered from an EMC such that the insurance reimbursement limit for healthcare services rises to the higher $10,000 maximum amount. They also do not dispute that Cielo is a chiropractor. The parties’ dispute centers around the relevance of Florida’s No-Fault Law to the Daubert analysis.

    The Court held that Cielo’s status as a chiropractor does not bar him from providing an expert opinion regarding whether a patient suffers from a medical condition involving severe acute symptoms that warrant immediate medical attention, including potentially referral to another healthcare provider. Chiropractic physicians, of which Cielo is one, are qualified to “examine, analyze, and diagnose the human living body and its diseases.” Therefore, the Court permitted Cielo to proffer opinions consistent with this expertise. Cielo, however, is not qualified to speak to the correctness of an EMC diagnosis or, by extension, the medical necessity of a referral based strictly upon there being a subsequent EMC diagnosis because he is not qualified to render an EMC diagnosis under the No-Fault Law.

    The pages Plaintiffs reference from Cielo’s report include statements that appear to fall on either side of this line, and the Court declines to parse the report sentence by sentence at this stage. The Court will exclude from consideration at the summary judgment stage any improper opinions proffered by Cielo and will provide the jury with a limiting instruction at the trial stage to effectuate this decision.

    Cielo’s Testimony

    Plaintiffs’ second argument challenged the qualifications of Cielo as well as the reliability and helpfulness of his expert opinions based on Cielo testifying at various points during his deposition that he was not qualified to comment on issues pertaining to EMC diagnoses. In the examples provided by Plaintiffs, Cielo claimed that he was unqualified to comment on which factors he would take into account in determining whether a patient suffered from an EMC and that he was unable to speak on behalf of Stein or an EMC doctor because he is “not qualified for an EMC.”

    In light of the limitation described in the prior subsection, the Court found that Plaintiffs’ argument regarding Cielo’s deposition testimony is moot.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to exclude opinions of Titan Wellness Defendants’ expert Todd Cielo.

    Key Takeaway:

    Chiropractic physicians, of which Todd Cielo is one, are qualified to “examine, analyze, and diagnose the human living body and its diseases.” Cielo, however, is not qualified to speak to the correctness of an EMC diagnosis or, by extension, the medical necessity of a referral based strictly upon there being a subsequent EMC diagnosis because he is not qualified to render an EMC diagnosis under the Florida No-Fault Law.

    Please refer to the blog previously published about this case:

    Pain Management Expert Witness’ Testimony About Billing for Medical Examinations Admitted

    Case Details:

    Case Caption: Government Employees Insurance Co. Et Al V. Titan Wellness Center Of Fort Myers, L.L.C. Et Al
    Docket Number: 0:22cv61648
    Court: United States District Court for the Southern District of Florida
    Order Date: August 7, 2024
  • Pain Management Expert Witness’ Testimony About Billing for Medical Examinations Admitted

    Pain Management Expert Witness’ Testimony About Billing for Medical Examinations Admitted

    This matter involves the Plaintiff insurers’ claim that Defendants unlawfully billed for medically unnecessary and illusory services, misrepresented the nature and extent of the services, and operated in violation of various laws specific to the healthcare and/or insurance sector.

    According to the Plaintiff, Titan Defendants agreed to refer patients to the Stein Defendants in exchange for the Stein Defendants providing the patient with a false EMC diagnosis, which enabled the Titan Defendants to provide medically unnecessary chiropractic, physical therapy, and other services to the patient and to receive reimbursement for these services in excess of the ordinary $2,500 limit.

    Defendants Joel D. Stein, D.O., P.A. and Joel D. Stein, D.O. (collectively the “Stein Defendants”) procured an expert report from James Padula, which includes the following three opinions that Plaintiffs seek to exclude:

    • The billing submitted through Stein P.A. to GEICO by the Stein Defendants was “appropriate.”
    • “[T]he therapies and treatments provided [by the Stein Defendants to GEICO insureds] were supported by the examinations and the results of diagnostic testing, and therefore medically necessary . . . .”
    • Based on the subjective complaints of the insureds and the objective findings from the testing and examinations, the Stein Defendants’ EMC findings were warranted.

    Pain Management Expert Witness

    James Padula has over 25 years of experience in treatment of spine and joint pain. Padula completed his Bachelor’s Degree at Villanova University. He graduated from New York College of Osteopathic Medicine with Honors.
    He completed his internship at Maimonides Medical Center and residency at North Shore University Hospital at Glen Cove. Padula is trained in interventional Pain Management and Minimally Invasive Surgeries. He also trains physicians in the field of pain management.

    Padula is Board Certified in Pain Management.

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

    Discussion by the Court

    Plaintiffs argued that Padula’s opinions should be excluded as not based on “sufficient facts and data” under Rule 702 and, therefore, unreliable because he did not review the documents that he would have needed to review in order to render a reliable opinion on the subject topics. In particular, Plaintiffs claimed that Padula only reviewed treatment records for initial examinations, which would provide him a basis for rendering an opinion on whether the billing for initial examinations at Stein P.A. was appropriate, and nothing more.

    Padula’s export report stated the following regarding what he reviewed: “I was provided with, and reviewed, 36 [patient files], randomly selected by a blind draw [from the patient files included in the Second Amended Complaint].”

    Padula’s Expert Witness Report and Declaration are Inconsistent with Parts of his Deposition Testimony

    In his declaration, Padula stated that he reviewed 20 of the 95 claims files compiled by Plaintiffs for their expert witness Merritt’s review. These claim files contained “the medical records of all of the treating doctors and results of diagnostic testing tests, and would have contained other relevant data to this analysis such as crash reports, the results of IME exams, Peer Review Reports, [and] Explanations of Review.”

    Plaintiffs cited excerpts from Padula’s deposition testimony to argue that Padula only reviewed treatment records for initial examinations performed at Stein P.A., despite his opinions relating to a broader scope of services and billing. However, the Court held that Padula’s expert witness report and declaration describe a review process that would provide a reliable factual basis by which Padula could opine on the subject issues. Also, to the extent Padula’s expert witness report and declaration are inconsistent with parts of his deposition testimony, this goes to Padula’s credibility, not the admissibility of his opinions.

    While Padula subsequently appears to have contradicted himself in his deposition testimony with respect to certain materials, Plaintiffs are asking the Court to credit one source of evidence over another, which is typically a task reserved for the jury. Even further, for many of the materials Padula testified in his deposition to not having reviewed, Padula separately claimed to have reviewed notes summarizing these materials.

    Held

    The Court denied Plaintiffs’ motion to exclude opinions of Stein
    Defendants’ expert James Padula, D.O.

    Key Takeaway:

    Padula’s expert witness report and declaration might be inconsistent with parts of his deposition testimony but only the jury can ask the Court to credit one source of evidence over another. The Court believed that Padula’s expert witness report and declaration describe a review process that would provide a reliable factual basis by which Padula could opine on the subject issues.

    Case Details:

    Case Caption: Government Employees Insurance Co. Et Al V. Titan Wellness Center Of Fort Myers, L.L.C. Et Al
    Docket Number: 0:22cv61648
    Court: United States District Court for the Southern District of Florida
    Order Date: August 8, 2024
  • Obstetrics and Gynecology Expert Witness’ Testimony About Medical Necessity of Certain Procedures Performed Admitted

    Obstetrics and Gynecology Expert Witness’ Testimony About Medical Necessity of Certain Procedures Performed Admitted

    In this defamation lawsuit, Plaintiff Mahendra Amin (“Amin”), a doctor, alleged that Defendant Nbcuniversal Media, LLC aired several broadcast segments on MSNBC which included multiple false and defamatory statements about Amin and his medical treatment of detainees at Irwin County Detention Center (ICDC). To support his case, Amin retained Eldridge Bills to review the medical records of the Plaintiff’s patients and provided opinions on the medical necessity of various procedures Amin had performed.

    The Defendant filed a motion to exclude Eldridge Bills’ testimony as it was claimed to be unreliable and inconsistent with the Daubert Standard and Rule 702.

    Obstetrics and Gynecology Expert Witness

    Elbridge Frederick Bills II, M.D., F.A.C.O.G., is an expert in obstetrics and gynecology based in Georgia. He holds medical licenses in both Florida and Georgia and was certified by the American Board of Obstetrics and Gynecology. He earned his medical degree from Emory University School of Medicine in 1989. Afterwards, he completed his residency at the University of South Florida Morsani College of Medicine in 2001. He also finished a fellowship at Emory University School of Medicine. At present, he practices in Alpharetta, Georgia.

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

    Discussion by the Court

    Bills’ Medical Knowledge and Experience Support His Opinions

    Defendant challenged Bills’ methodology, arguing it lacked reliability. They contended that Bills failed to apply his specific experience to this case or support his opinions with medical records.

    Moreover, they noted that Bills did not reference medical literature or guidelines in his report or deposition. They argued that his opinions were merely assertions without supporting evidence.

    In contrast, Plaintiff asserted that Bills’ methodology was reliable due to his 30 years of experience as an OB/GYN. His previous experience as an expert witness in five trials was also highlighted.

    To establish reliability, Bills needed to demonstrate a clear connection between his experience and his opinions. He did so by explaining how his OB/GYN background informed his analysis. His report listed his qualifications and detailed his review of 69 patient records, focusing on the medical appropriateness of procedures.

    Defendant’s objections to Bills’ methodology did not justify excluding his testimony. They argued that Bills’ opinions lacked data, methodology, or study, characterizing them as mere assertions. However, Bills utilized his OB/GYN experience and medical knowledge to review patient records and link his expertise to his opinions. He referenced relevant medical literature and studies during his deposition. The Court found that Defendant’s issues were about the weight of the testimony, not its admissibility. As such, challenges to expert testimony should be addressed through cross-examination, not exclusion. Bills’ opinions were deemed to be based on a reliable methodology.

    Bills’ Opinions Are Based on Sufficient Facts and Data

    Bills’ expert report claimed that every procedure by Amin was “medically indicated as documented by various modalities including the history and physical, preoperative ultrasound evaluation, intraoperative surgical images documentation, and final pathology.” Defendant argued that Bills did not specify which modalities he considered in his review of each of the 69 patient records. Defendant also pointed to Bills’ deposition testimony, in which he acknowledged some ultrasound images and surgical images were either low resolution or not clear enough for him to conduct an independent evaluation. 

    The Court found Bills’ opinions are based on a reliable methodology, in that they are based on sufficient data and the “modalities” he considered are sufficiently discernible. He provided sufficient detail about how he applied his experience to his medical records review and he discussed individual patient considerations and modalities throughout his deposition testimony.

    Additionally, in Bills’ supplemental chart, he lists each patient chart reviewed, relevant preoperative notes for each patient, and the corresponding treatment and procedure for each patient and notes any missing documentation for each patient chart.

    Bills Provides Sufficient Analysis to Support His Opinions

    Defendant argued Bills provided no analysis supporting his opinion every surgery Amin performed was “medically indicated” and, therefore, his methodology is unreliable. Defendant argued Bills included generalized statements about why a doctor could perform these surgeries in his expert report, but he does not explain how each patient’s medical records led him to conclude the surgery Amin performed was medically indicated. 

    The Court held that Bills reviewed a collection of patient medical records and offered a categorical opinion about all of the procedures on those patients. Bills explained how (i.e., the methodology) he formed that opinion. Defendant has failed to show anything unreliable about that methodology. Defendant, instead, contended Bills was required to explain how he assessed each and every procedure in order for Bills’ overall methodology to be deemed reliable.

    Bills’ Presumptions Do Not Warrant Exclusion

    Defendant argued that Bills’ methodology was unreliable due to several inadequately explained assumptions. Specifically, Defendant noted Bills’ presumptions about Plaintiff’s patients being high-risk and indigent, consenting to surgery, and facing possible deportation without notice. Defendant also contended that Bills presumed cysts were removed because they caused pain, despite some patients’ cysts being undocumented.

    In response, Plaintiff argued that these assumptions were reasonable given Bills’ experience and the medical records reviewed. Plaintiff asserted that reasonable inferences are acceptable in expert testimony and that Defendant could address these issues through cross-examination.

    The Court found that Bills’ assumptions were based on reasonable inferences drawn from available data and personal experience. Although the assumptions might not be entirely correct, they provided a reasonable factual basis for Bills’ opinions. Therefore, the Court concluded that Bills’ methodology was reliable and did not warrant exclusion.

    Held

    The Court denied Defendant’s motion to exclude the opinions of Plaintiff’s obstetrics and gynecology expert witness, Eldridge Bills.

    Key Takeaway:

    The Court denied Defendant’s motion to exclude Eldridge Bills’ testimony, finding it reliable under the Daubert standard. Although Defendant argued Bills’ methodology lacked specificity and relied on inadequate assumptions, the Court determined his expert opinions were supported by his extensive OB/GYN experience and medical records review.

    Bills had categorized patient cases and provided explanations in his reports and deposition, despite some generalizations. The Court viewed the Defendant’s concerns as issues of weight rather than admissibility, suitable for cross-examination rather than exclusion. Bills’ reasonable inferences and thorough analysis were deemed sufficient to support his opinions.

    Case Details:

    Case Caption: Amin V. Nbcuniversal Media, Llc
    Docket Number: 5:21cv56
    Court: United States District Court for the Southern District of Georgia, Waycross Division
    Order Date: July 11, 2024