Expert Witness Profiler

Tag: standard of care

  • Neurology Expert’s Testimony on Postoperative Complications Excluded

    Neurology Expert’s Testimony on Postoperative Complications Excluded

    This medical malpractice action is brought by Gladys Torres-Correa (“Plaintiff”) against Instituto de Ojos y Piel, Inc. and Dr. Miguel Santiago García, along with several unnamed insurers. After undergoing ophthalmic surgery performed by Defendants, Plaintiff allegedly developed a series of complications. 

    Consequently, Plaintiff claimed that those complications were caused by Defendants’ negligence. To prove her claims, Plaintiff intended to introduce at trial the expert witness testimony of Dr. José A. Rodríguez Robles.

    However, Defendants requested that the Court deem Rodríguez’s proffered testimony inadmissible.

    Neurology Expert Witness

    Dr. José Antonio Rodríguez Robles is a neurologist with extensive experience in alternative medicine.

    He did his doctorate in medicine and surgery at Ponce Health Sciences University.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding José Rodríguez Robles’ expert testimony.  

    Discussion by the Court

    Defendants provided four reasons to exclude the testimony of Rodríguez. First, Defendants argued that Rodríguez is unqualified to offer expert opinions regarding the medical issues in this case, given that he is not an ophthalmologist, has no formal training in the field, and has never performed the surgeries Plaintiff received in this case. Second, Defendants asserted that Rodríguez has failed to adequately describe what he believes to be the applicable standard of care in this case. Third, Defendants contended that Rodríguez’s proffered testimony regarding causation is wholly conclusory and “outcome driven.” Finally, Defendants asserted that “Rodríguez’s report and his deposition testimony are devoid of any clinical evidence, specific findings or medical literature to support” his opinion.

    In the first report, Rodríguez listed the medical records he reviewed, described Plaintiff’s then-current symptoms, provided a diagnosis of Plaintiff’s condition, and made general reference to three scientific publications. However, the first report did not define the “adequate standard of care” or the “proper precautions” that Rodríguez believed were not observed by Defendants.

    The second report also summarized information contained in the first report, and included citations to ten legal and scientific references that Rodríguez consulted in forming his opinion, three of which were also included in the first report. At no point, however, does either report ever attempt to explain how the opinion of Rodríguez was informed by or related to any of the referenced scholarship.

    Rodríguez Fails to Identify the Applicable Standard of Care

    Rodríguez failed to provide any such evidence of a national standard of care, and Plaintiff openly conceded that fact.

    The deposition testimony of Rodríguez did not cure these deficiencies. Wherever Rodríguez was asked a direct and concrete question regarding the applicable standard of care during the deposition, he failed to articulate the relevant standard in any meaningful detail. 

    The Court held that these analytical gaps implicate the reliability of the proffered expert testimony, as Rodríguez provided no reasoned or detailed basis for the conclusions adopted in his reports. Furthermore, the absence of any reliable opinion testimony regarding the applicable standard of care also compromises the relevance of the proffered testimony.

    Rodríguez Failed to Provide Support for the Conclusion that Defendants Deviated from an Applicable Standard of Care, or that any such Deviation caused Plaintiff’s Injuries

    Even if Rodríguez had articulated an applicable standard of care, the proffered testimony still failed to provide a reasoned basis for the conclusion that Defendants breached any such applicable standard of care.

    In characterizing the opinion of Rodríguez as “outcome driven, as opposed to causation driven,” Defendants argued that Rodríguez improperly relied on the mere fact that Plaintiff sustained an injury to reach the conclusion that Defendants were negligent. The Court agreed. The opinion proffered by Rodríguez is entirely conclusory, as he failed to provide any substantive explanation of the “proper procedures” or the preferred surgical “technique” that allegedly went unheeded by Defendants. Nor did he ever explain how any such unstated acts or omissions caused Plaintiff to experience postoperative complications.

    When urged during the deposition to cite any evidence supporting the conclusion that Plaintiff’s injuries were caused by Defendants’ negligence, Rodríguez explained that his opinion was simply based on the fact that Plaintiff had sustained injuries. However, by indicating that Plaintiff’s injuries could have occurred even in the absence of any negligence, Rodríguez deposition testimony appears to undermine his own conclusory opinion that Defendants must have been negligent.

    Rodríguez Failed to Explain his Methodology or Provide Adequate Data to Support his Opinions

    In this case, the Court observed a significant analytical gap between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

    In the reports, Rodríguez made general reference to eight publications relating to matters of ophthalmology, as well as two publications regarding “legal and ethical issues in medical malpractice.”

    Yet the reports never provided any analysis whatsoever to explain the relationship between the sources cited in the reports and the conclusions drawn by Rodríguez. None of the conclusions reached by Rodríguez cite directly to any scientific literature; the sources in question are simply appended to the end of the reports without any internal citations or further explanation. The reports never quote any of the cited sources, never summarize their findings, and never describe what, if any, data was drawn from the cited scholarship. To determine whether the citations provide any support for the proffered opinion of Rodríguez would require pure speculation where, for instance, Rodríguez made general reference to a nearly 1000-page textbook without any further explanation of how he relied on that scholarship.

    Held

    The Court granted the Defendants’ motion to exclude the testimony of Dr. José A. Rodríguez Robles.

    Key Takeaway:

    In performing its gatekeeping function, the Court must determine whether the proffered expert opinion is “supported by an accepted methodology that is based on substantial scientific, technical, or other specialized knowledge.” The Court will not admit expert testimony that lacks “good grounds”: the admissibility of expert witness testimony is contingent upon whether the expert establishes “a valid scientific connection” between the data on which they have relied and the “pertinent inquiry” at issue in the case.

    In this case, there is a yawning “analytic gap” between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

    Case Details:

    Case Caption: Torres-Correa V. Instituto De Ojos Y Piel, Inc
    Docket Number: 3:23cv1025
    Court Name: United States District Court for the District of Puerto Rico
    Order Date: August 27, 2025
  • Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

    Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

    James Dean Bloomer, as the surviving child of decedent James Wright Bloomer; and the Estate of James Wright Bloomer, through James Dean Bloomer Jr. as Administrator of the Estate, brought this action against Defendants HMG Park Manor of Westwood, LLC and HMG Services, LLC.

    Plaintiffs alleged wrongful death and survival claims under Kansas law arising out of decedent James Wright Bloomer’s treatment at a skilled nursing facility, HMG Park Manor of Westwood, LLC d/b/a Tanglewood Nursing and Rehabilitation (“Tanglewood”), located in Topeka, Kansas.

    Plaintiffs filed a Daubert motion to exclude certain opinions of Defendants’ retained expert Jeffrey A. Kerr DO.

    Geriatrics Expert Witness

    Jeffrey A. Kerr has been a physician since 1985 in many hospital settings. He is board certified in family practice, with an added qualification in geriatrics. He is also a certified medical director for long term care. Kerr has been affiliated with several different nursing facilities during most of his tenure as a physician, and he has served as an expert witness in many cases since 2020.

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

    Discussion by the Court

    Plaintiffs asserted that certain opinions of Kerr are made without analysis and are therefore conclusory. Defendants responded that these are two of several opinions that are based on Kerr’s preceding analysis in the report of Bloomer’s medical records for the four years leading up to his death.

    Kerr began his report by listing a multitude of deposition transcripts, exhibits, pleadings, medical records, and other documents he reviewed before rendering his opinions. Also, Kerr considered Bloomer’s extensive medical history and medications, and constructed an exhaustive timeline of his treatment going back to June 16, 2018. 

    The Court found that Kerr’s review of Bloomer’s medical records, in light of his training and experience that focuses on geriatric care, was sufficient for him to offer a reliable opinion on Bloomer’s cause of death. Plaintiffs failed to identify a specific reliability issue in the records Kerr relied on in formulating his opinions.

    To the extent Plaintiffs maintained that there are other facts that Kerr failed to consider, or that the timeline is flawed or missing information, those are matters for cross-examination because they go to the weight of the testimony, not its admissibility. The Court has reviewed the report and found no “great analytical gap between the data and opinion proffered” that would render it unreliable.

    Held

    The Court denied the Daubert motion to exclude certain opinions of the Defendants’ retained expert Jeffrey A. Kerr DO.

    Key Takeaway:

    Kerr was not required to categorically exclude each and every possible alternative cause—to require otherwise would mean that few experts would ever be able to testify. Instead, he was required to provide objective reasons for eliminating alternative causes. Therefore, the Court found that Kerr has provided an objectively reliable basis for his opinion.

    Case Details:

    Case Caption: Bloomer V. HMG Park Manor Of Westwood LLC
    Docket Number: 2:24cv2059
    Court Name: United States District Court, Kansas
    Order Date: August 22, 2025
  • Law Enforcement Expert’s Testimony Regarding the Standard of Care in an Involuntary Detention Setting Admitted

    Law Enforcement Expert’s Testimony Regarding the Standard of Care in an Involuntary Detention Setting Admitted

    This case arises out of Plaintiff Gregory Palm’s claim that he received deficient medical care while incarcerated in the Jones County Jail and Baldwin County Detention Center.

    Sheriff Butch Reese, Captain Shane Moody, Lieutenant Brent Skinner, and Lieutenant Dalton Hart (hereinafter “Defendants”) disclosed Kathryn Wild and Paul Cappitelli as expert witnesses. Plaintiff Gregory Palm filed a motion to exclude the testimony of these witnesses.

    Nursing Expert Witness

    Kathryn Jean Wild has extensive experience working alongside, supervising, and training correctional officers regarding their responsibilities and duties as they relate to the provision of healthcare in a correctional facility.

    Wild is a registered nurse with a bachelor’s degree in health services management and a master’s in public administration. She has worked in the field of correctional healthcare for forty years and has been certified as a correctional healthcare professional since 1991.

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

    Law Enforcement Expert Witness

    Paul A. Cappitelli is a career law enforcement officer with extensive experience working in administration, patrol, custody, homicide investigation, public affairs, and gang enforcement.

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

    Discussion by the Court

    Expert Testimony of Kathryn Wild

    Palm asserted that Wild is not qualified to opine about the conduct of jail correctional officers because she is a nurse and not a correctional officer herself.

    Wild is a registered nurse who has worked in the correctional healthcare setting for nearly forty years. She worked as a nurse in five correctional facilities, then went on to serve as the health services administrator for San Bernardino County, California, and the deputy agency director for correctional health services for Orange County, California. In her supervisory roles for San Bernardino County and Orange County, she was responsible for the oversight and training of non-medical staff such as corrections officers regarding the provision of healthcare services and she developed and implemented the healthcare policies that governed correctional facility employees.

    She now operates a consulting business in which she assists in training correctional facility staff, including correctional officers, on their responsibilities relating to the provision of healthcare for inmates and detainees. 

    The Court found that Wild is qualified to opine on the conduct of correctional officers in this action. While she may not be a correctional officer, Wild is familiar with (and has even participated in the creation of) standards governing the involvement of correctional officers in the provision of healthcare to detained individuals. She has first-hand experience training such officers on how they should provide healthcare to those in their custody. Wild’s knowledge and experience concerning the standards for correctional officers’ responsibilities relating to healthcare rendered her qualified to offer expert testimony in this action. 

    Having found that Wild was qualified to provide expert testimony on the subjects explained hereinabove, the Court found unpersuasive Palm’s argument that Wild’s testimony would be unreliable and unhelpful to the trier of fact.

    Expert Testimony of Paul Cappitelli

    Palm argued that Paul Cappitelli’s testimony should be excluded because it will not help the trier of fact understand the evidence or determine a fact at issue.

    Cappitelli is a career law enforcement officer who opines that the jail staff in this action “were attentive and conscientious in their interactions with Palm” and “arranged for [Palm] to receive medical treatment” when they first noticed his need for medical attention, such that he was never denied medical care.

    He also opined that Palm was properly monitored during his incarceration in conditions that were adequate, and that there is no evidence that any policy or practice could have altered Palm’s health outcome.

    Cappitelli asserted that the jail staff were adequately trained and not responsible for medical care decisions. He based these opinions on “the standard of care prevalent in the corrections and custodial profession and facilities, and the practices of corrections personnel in this matter.”

    Cappitelli is familiar with the standard of care unique to the corrections environment because he has extensive experience “personally supervis[ing] numerous officers and professional staff support employees in a custody environment.” 

    In summary, the Court held that Cappitelli’s expert testimony regarding the standard of care in an involuntary detention setting, and whether the Defendants met that standard of care under the circumstances in this action, will assist the trier of fact.

    Held

    The Court denied Palm’s motion to exclude the testimony of Defendants’ expert witnesses, Kathryn Wild and Paul Cappitelli.

    Key Takeaway:

    Monitoring detainees or prisoners in a correctional environment is distinct from monitoring someone in the home or office in a way that average jurors may be familiar with. That unique setting carries with it a unique standard of care which the average layperson will likely need expert assistance to understand.

    Cappitelli’s testimony about the standard of care applicable to custodial officers in an involuntary detention setting goes beyond “what lawyers for the parties can argue in closing arguments.”  As long as Cappitelli connects his conclusions and opinions to the unique standard of care and special circumstances in the detention setting, they may be helpful to the jury. 

    Case Details:

    Case Caption: Palm V. Corrcare Inc Et Al
    Docket Number: 3:24cv47
    Court Name: United States District Court, Georgia Middle
    Order Date August 11, 2025
  • Occupational Medicine Expert’s Testimony About Professional Standards for Drug Testing Admitted 

    Occupational Medicine Expert’s Testimony About Professional Standards for Drug Testing Admitted 

    Plaintiff Ruben Wills, a former New York City Council member, brought claims for negligence and violation of his Fourteenth Amendment right to procedural due process against Microgenics Corporation and Sheila Woodberry, respectively.

    Plaintiff was convicted on corruption charges, although his conviction was later reversed on direct appeal. While still incarcerated, and shortly before his scheduled parole, officials from the New York State Department of Corrections and Community Supervision (“DOCCS”) selected him for random drug testing. The officials used a urinalysis test and testing protocol that was designed, manufactured, and sold by Microgenics. The test returned what Plaintiff claims was a false positive. State officials revoked Plaintiff’s eligibility for parole, and Plaintiff remained incarcerated for several additional months. He is now out of prison.

    Microgenics filed a motion to exclude the testimony of Plaintiff’s expert, Dr. Robert B. Swotinsky.

    Occupational Medicine Expert Witness

    Dr. Robert Brian Swotinsky is a board-certified physician in occupation medicine with thirty-eight years of experience. This includes five years working with buprenorphine-assisted treatment of opioid-dependent patients, which involved urine testing for buprenorphine. Swotinsky has thirty-five years of experience as a medical review officer reviewing workplace drug test results. He is also the co-author of a physician certification examination for workplace drug testing, and he consults with government agencies on workplace drug testing. He has written two textbooks on the subject.

    Want to know more about the challenges Robert B. Swotinsky has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    To begin with, Swotinsky opined that “the standard of practice for forensic urine drug testing includes complete chain of custody procedures and positive results supported by specific confirmatory tests,” and that Plaintiff’s drug test “had neither.”

    Basically, Swotinsky’s testimony explains what the relevant standard of care is, and his opinion that Microgenics deviated from it. This will be helpful to the trier of fact in determining whether Microgenics breached a duty of care owed to plaintiff, one of the elements plaintiff must prove to prevail on his negligence claim. 

    Microgenics asserted that the relevant standard of care was that “an assay-based drug test [be] at least 98 percent accurate,” and that it complied with this standard of care because its Assay was 98% accurate. The Court ruled that Swotinsky’s testimony, that conducting drug screening tests that are 98% accurate without any confirmatory testing does not satisfy the standard of care, is thus necessary to rebut Microgenics’ assertion that it followed the proper standard of care.

    Moreover, Swotinsky’s opinion that “[t]he reliable identification of a drug following a preliminary positive result requires using a second analytical method for confirmation, one based on a different and, in most cases, more specific chemical principle,” is not an inadmissible legal conclusion.

    Microgenics’ assertion that Swotinsky ignored reliable data showing that the Assay was 98% accurate misses the import of Swotinsky’s opinion. Swotinsky does not dispute that the Assay is 98% accurate. Rather, he opined that conducting drug testing with a 98% accurate Assay, without confirmatory testing, falls short of the relevant professional standards for drug testing. Swotinsky supports this opinion with literature on workplace drug testing, Microgenics’ own product insert accompanying the Assay, and Swotinsky’s own experience with drug testing.

    Held

    The Court denied the Microgenics’ motion to exclude the testimony of Plaintiff’s expert Robert B. Swotinsky.

    Key Takeaway:

    A witness may have sufficient experience to qualify him as an expert even if his experience is in a slightly different area than the one he will testify about. The fact that Swotinsky’s experience with drug testing is in the occupational setting does not mean that he lacks the qualifications to provide opinions about the forensic setting.

    Similarly, Swotinsky’s methodology is not unreliable just because he applies workplace drug testing standards to forensic drug testing standards, as Microgenics argues. In New York, the standards of care applicable to proprietary functions of a prison, such as the provision of medical care, are the same as in the private setting.

    Case Details:

    Case Caption: Wills Et Al V. Microgenics Corporation Et Al
    Docket Number: 1:20cv4432
    Court Name: United States District Court, New York Eastern
    Order Date: August 01, 2025
  • Obstetrics Expert’s Testimony on Brain Damage Limited

    Obstetrics Expert’s Testimony on Brain Damage Limited

    Elizabeth Reyes and her minor daughter G.T. sued the United States, Bronx Lebanon Hospital Center, BronxCare Health System, and two doctors over G.T.’s permanent medical conditions, which the Plaintiffs alleged were caused by mistakes made during Reyes’ labor and delivery and G.T.’s neonatal care.

    The Bronx Lebanon Defendants filed a motion to preclude Plaintiffs’ obstetrics expert, Dr. Daryl K. Boffard; Plaintiffs’ anesthesiology expert, Dr. Alexander E. Weingarten; and Plaintiffs’ pediatric neurology expert, Dr. Louis N. Manganas. The United States filed a motion to preclude Drs. Boffard and Manganas.

    Plaintiffs opposed these motions, and for the most part, they satisfied their burden to demonstrate the admissibility of their experts’ testimony under Rule 702 and Daubert. Despite their efforts, the Plaintiffs fell short in backing a few specific opinions.

    Obstetrics and Gynecology Expert Witness

    Dr. Daryl Keith Boffard, M.D., FACOG has been practicing Obstetrics and Gynecology Medicine in the New York metropolitan area since 1981 when he received his medical degree from the University of Medicine and Dentistry in Newark, NJ.

    He was board certified by the American Board of Obstetrics and Gynecology in 1987. Following his residency, he has been the Medical Director at Jersey GYN Associates from 1987 to present date.

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

    Anesthesiology Expert Witness

    Dr. Alexander Eugene Weingarten, M.D., PC is a physician licensed to practice medicine and surgery in the state of New York and board certified in the medical specialty of anesthesiology.

    He became board certified by the American Board of Anesthesiology in October of 1984 and has remained board certified ever since. He limits his practice to the field of anesthesiology. He received his medical degree from S.U.N.Y. Upstate Medical Center in Syracuse.

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

    Pediatric Neurology Expert Witness

    Dr. Louis Nicholas Manganas, M.D., Ph.D. is a pediatric neurologist who specializes in treating a wide range of neurological conditions in children, including hypoxic ischemic encephalopathy, intracerebral hemorrhage, central nervous system infections, developmental delays, and epilepsy.

    After completing his clinical fellowship in Epilepsy at Yale, he joined the Department of Neurology at Stony Brook as faculty. He is currently the Chair of the Department of Neurology at the NYU Grossman Long Island School of Medicine.

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

    Discussion by the Court

    Daryl Boffard

    First, Boffard opined that G.T.’s delivery process caused “cerebral palsy and hemiplegia.” The United States argued that Boffard isn’t qualified to offer an expert opinion on the causes of G.T.’s neurological conditions.

    While Plaintiffs responded that “any person has the knowledge that having an interruption of oxygen for forty-five minutes can damage the brain,” and that “[t]here is nothing unreliable about Plaintiffs’ experts’ theories . . . that the failure to deliver or resuscitate . . . was a substantial contributing factor to the brain damage,” Boffard himself admitted that he’s “not qualified to offer an opinion as it relates to pediatric neurology.”

    However, Boffard’s causation opinion goes beyond merely explaining brain damage; it focuses on specific pediatric neurological conditions that Boffard expressly stated he is not qualified to testify about. So while Boffard may testify that G.T.’s delivery caused brain damage, the Court excluded his opinion that the delivery process caused “cerebral palsy and hemiplegia and the sequelae of these conditions.”  

    Alexander Weingarten

    Weingarten opined that “use of spinal anesthesia . . . was a substantial contributing factor to G.T.’s injuries, including brain damage.”

    The Bronx Lebanon Defendants argued that Weingarten was not qualified to offer a causation opinion in the case. Plaintiffs’ only response was that Weingarten was qualified to opine on the standard of care, but this did not address Defendants’ concern about whether Weingarten was qualified to render an opinion about whether the use of anesthesia caused G.T.’s brain damage. Because Plaintiffs declined to meet Defendants’ critique head-on, the Court deemed this issue conceded. Therefore, the Court excluded Weingarten’s causation opinion.

    Weingarten opined that the use of anesthesia “was a deviation from good and accepted medical practice.” The Bronx Lebanon Defendants argued that this opinion was “speculative and must be excluded” because Weingarten “based his opinions on someone else’s review of the records rather than his own.” Plaintiffs did not respond to this critique in their opposition brief. Consequently, the Court excluded Weingarten’s standard-of-care opinion.

    Held

    The Court granted in part and denied in part the Defendants’ motions to exclude the testimony of Plaintiffs’ experts Daryl K. Boffard and Alexander E. Weingarten.

    Key Takeaway:

    In this case, Plaintiffs declined to meet Defendants’ critique head-on. Numerous courts have held that a Plaintiff’s failure to address an issue in its opposition amounts to a concession or waiver of the argument.

    Case Details:

    Case Caption: G.T. Et Al V. United States Of America
    Docket Number: 1:22cv10901
    Court Name: United States District Court, New York Southern
    Order Date: July 21, 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
  • Family Medicine Expert Allowed to Testify Despite Her Lack of Experience in the Correctional Medical Context

    Family Medicine Expert Allowed to Testify Despite Her Lack of Experience in the Correctional Medical Context

    This litigation revolves around medical care, and the alleged lack thereof, provided to Plaintiff Peter George Noe between fall 2020 and late 2022, while incarcerated at the United States Penitentiary ADMAX in Florence, Colorado.

    Defendant filed a motion to exclude the testimony of Plaintiff’s retained expert, Dr. Kimberly A. Cullen, MD, arguing that Cullen does not qualify as an expert and that her testimony does not meet the reliability requirements of Federal Rule of Evidence 702.

    Family Medicine Expert Witness

    Kimberly Cullen is a primary care physician and board certified by the American Board of Family Medicine. She attended the University of Massachusetts Medical School and completed a three-year family
    medicine residency program at Swedish Family Medicine – First Hill in Seattle, Washington in 2018.

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

    Discussion by the Court

    Qualification

    Defendant first attacked Cullen’s qualifications as an expert, highlighting her limited experience, including no experience in the correctional medical context, and non-practicing status at the time of her deposition.

    The Court rejected Defendant’s argument that simply because Cullen has never worked in a correctional setting and because she may have had a brief gap in practicing as a primary care physician she does not qualify as a competent medical expert in this case.

    It is true that Cullen not only had several years of experience treating patients, including as a supervising physician, but she also has seen hundreds of patients treated or tested for UTIs and diagnosed and treated patients
    with degenerative disc disease, which is probative to the facts of this case.

    Reliability

    Defendant argued that Cullen’s opinions offered in this case, related to unreasonable delays in the care Noe received, including a failure to suspect a different source for Noe’s symptoms and pain, are unreliable because she does not specifically articulate a community standard of care and is relying on her experience as a young physician.

    Cullen clarified in her deposition that her opinions were based on the general
    standard of care and practice—the general practice of medicine.

    While Cullen’s opinions may be general as to why the Federal Bureau of Prisons (“BOP”) fell below the standard of care normally followed by a primary care physician, such as herself, the Court found that her specialized knowledge as a Colorado- licensed physician who is Board certified in Family Medicine would be helpful to the Court in determining the particular issues in this case.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Plaintiff’s retained expert, Kimberly A. Cullen, MD.

    Key Takeaway:

    Cullen’s opinions are more likely than not to be helpful and reliable given her review of Noe’s extensive medical records and the application of her knowledge, training, and experience as a primary care physician to the facts of this case.

    Case Details:

    Case Caption: Noe V. Seroski Et Al
    Docket Number: 1:21cv3340
    Court Name: United States District Court, Colorado
    Order Date: May 14, 2025
  • Physical Medicine And Rehabilitation Expert’s Report Did Not Contain Any Analysis of a Standard of Care

    Physical Medicine And Rehabilitation Expert’s Report Did Not Contain Any Analysis of a Standard of Care

    This case relates to the incarceration of Plaintiff, Nocomie Tomia Moore, in the Spokane County Jail, as well as medical care and treatment she received from Registered Nurse Tsubasa Bruce, Physician Assistant Denae Paul, and NaphCare, Inc.

    Moore brought claims for violations of Washington State’s Medical Malpractice statute. Defendants sought to exclude Plaintiff’s expert witness, Jonathan Pasma, D.O., as not meeting the required standards to offer such testimony. 

    Defendants argued that Pasma should be excluded for a number of reasons: (1) his disclosure is incomplete as he does not specifically reference any Defendant or describe in detail data or facts considered in rendering his decision; (2) his report and testimony is improperly offered as a matter of Washington law; and (3) his report and testimony do not satisfy Federal Rule of Evidence 702 or Daubert.

    Physical Medicine And Rehabilitation Expert Witness

    Jonathan Pasma received his Doctorate of Osteopathy from Pacific Northwest University of Health Sciences in 2012, and he is currently a licensed, board certified physician in Physical Medicine & Rehabilitation.

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

    Discussion by the Court

    Exclusion pursuant to Washington State Medical Malpractice Law

    In Washington, an expert must articulate what a reasonable medical professional would or would not have done, and then specify how a Defendant failed to act in that manner and show that this failure was the cause of injury.

    The Court held that Pasma’s report did not contain any sort of standard on which he based his opinion. He did not analogize the present case with any hypothetical situation, study on which he had reviewed, or real past treatment in which a patient presenting with a similar injury to Plaintiff received a different standard of care than what was provided. He offered nothing by way of his perspective in the practice of medicine that established how a specific member of the medical team at the Spokane County Jail should have reacted; he instead drew cursory conclusions.

    Exclusion based on Federal Rule of Evidence 702 and Daubert

    Defendants contended that Pasma’s report and testimony is neither reliable nor relevant, as his opinion is based on an inaccurate review of the record, he lacks the specialized knowledge of treatment of patients in a corrections setting, and he does not apply the higher degree of analysis typically found in an expert report.

    First of all, Pasma is a physiatrist and testified as his deposition that he has no experience working in an urgent care, emergency room, or corrections setting, and has not independently diagnosed a hip fracture since residency. 

    Second, the Court found Pasma’s account of the factual background of the events of this case scant and arguably incorrect.

    Basically, Pasma’s report did not contain any analysis of a standard of care and any Defendant’s specific breach. He provided a generalized conclusion that “Ms. Moore’s care, specifically timely triage, was improperly delayed 2 days, which of course implies that unnecessary pain/suffering occurred,” but offered nothing to support why this contention was true from his expert position as a physician. Moreover, he stated in his deposition that he was not asserting any violation of a standard of care by a nurse involved, nor did he want to provide a “label,” for the level of care provided by the physician’s assistant in this case.

    Held

    The Court excluded the testimony of Plaintiff’s expert witness, Jonathan Pasma.

    Key Takeaway:

    Even if the Court could look beyond the lack of reliability offered by Pasma’s report, the opinions he offers also lack the requisite relevancy such that offering them to a factfinder would be helpful. Rule 702 requires that an expert witness be vested with “scientific, technical, or other specialized knowledge” that “will assist the trier of fact” in their understanding of the evidence. If satisfied, “a witness qualified as an expert . . . may testify thereto in the form of an opinion.”

    Case Details:

    Case Caption: Nocomie Tomia Moore V. Naph Care Inc Et Al
    Docket Number: 2:22cv256
    Court Name: United States District Court, Washington Eastern
    Order Date: May 08, 2025
  • Law And Legal Expert’s Testimony on the Existence of an Attorney-Client Relationship Excluded

    Law And Legal Expert’s Testimony on the Existence of an Attorney-Client Relationship Excluded

    Plaintiff Iron Tax, Accounting & Financial Solutions, LLC (“Iron Tax”) brought this suit against Defendants Story Law Firm, PLLC and Travis W. Story (collectively, “Defendants” or “Story”) for legal malpractice. The claims here arise out of an underlying suit that resulted in a default judgment being entered against Iron Tax for failing to timely file a responsive pleading. 

    Defendants challenged the helpfulness and scope of Plaintiff’s expert Danny Crabtree‘s testimony.

    Law And Legal Expert Witness

    Danny R. Crabtree is an attorney with experience in civil litigation and legal malpractice cases.

    Crabtree began his legal career in 2004 as an associate at the Riable Law Firm and became a partner at Riable & Crabtree, Attorneys at Law in 2006. During this period, his practice included general litigation, domestic relations, debt collection, and the representation of small businesses in both transactional and litigation matters. In 2009, he established his own law office, focusing on professional negligence claims.

    He holds a Juris Doctor degree, magna cum laude, from the William H. Bowen School of Law (2003), and a B.A. in Political Science from the University of Arkansas at Little Rock (2001).

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

    Discussion by the Court

    Crabtree’s primary opinion is that Story’s failure to timely file a responsive pleading breached the standard of care for an attorney in Arkansas. However, the Court is not convinced that Crabtree’s testimony on this is necessary to the jury’s finding because it is common knowledge that failure to comply with statutorily prescribed deadlines in court cases is not in keeping with the standard of care for an attorney.

    Nevertheless, the Court permitted Crabtree to testify that an attorney acting within the standard of care would have timely filed the answer, moved for an extension, or given advance warning to a client that they do not represent them in the matter due to nonpayment.

    Furthermore, Crabtree may explain the effect of failing to answer: that a Defendant is precluded from asserting its defenses and counterclaims. The Court believes such testimony could help the jury to better understand the standard of care. Alternatively, should the parties instead wish to stipulate that failing to answer in thirty days constitutes a breach of the standard of care, they may, of course, do so.

    Additional Opinions by Crabtree

    In addition to the aforementioned opinion, Crabtree presented two additional opinions as to causation and the existence of an attorney-client relationship. Initially, in his report, Crabtree notes it is his “belief that Arkansas law does not permit an attorney-expert in a legal malpractice case to render an opinion as to causation (i.e., to testify as to the outcome of the underlying case).” Nevertheless, he states that to the extent such testimony is permitted, he believes Iron Tax “would have prevailed in the underlying case but for Attorney Story’s failure to timely file a responsive pleading” because Iron Tax had “meritorious affirmative defenses and counterclaims” against the Tripps, including a claim for violation of the noncompete.

    Similarly, in his deposition, Crabtree stated, “While I don’t believe, yet again, that a legal malpractice expert should offer testimony as to whether there is client engagement,” to the extent such testimony is allowed, he opines that Story did have an attorney-client relationship with Iron Tax that was not limited to the demand letter.

    Defendants argued that these two opinions are inadmissible as they stray from the appropriate scope of the testimony, i.e., whether Story acted within the standard of care. The Court agreed with Defendants. The Court is not persuaded by Plaintiff’s arguments that testimony as to causation in this case would help the jury understand “how different legal strategies would have altered the outcome.”

    In other words, Crabtree may testify as to the standard of care in this case
    but may not testify as to causation or the existence of an attorney-client relationship.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude and/or limit the testimony of Danny Crabtree.

    Key Takeaway:

    Crabtree’s testimony regarding causation has nothing to do with different legal strategies and is merely an assessment of whether the non-compete violation and fraudulent misrepresentation defenses/counterclaims would have succeeded. This is a determination fully within the jury’s capability. And, as to whether an attorney-client relationship existed, the jury will have to make that determination by applying the law—as supplied in the jury instructions—to the facts in this case.

    Case Details:

    Case Caption: Iron Tax, Accounting & Financial Solutions, LLC V. Story Law Firm, P.L.L.C. Et Al
    Docket Number: 5:23cv5243
    Court Name: United States District Court, Arkansas Western
    Order Date: April 08, 2025
  • Emergency Medicine Expert Allowed to Testify Because of His Familiarity with Springfield’s Medical Community

    Emergency Medicine Expert Allowed to Testify Because of His Familiarity with Springfield’s Medical Community

    Plaintiff, Ashley Huddleston was born with a genetic condition called muscular dystrophy, which required her to be in a wheelchair and utilize a tracheostomy since age 11.

    On December, 2021, at around 2:36 p.m., Plaintiff presented to the Tristar Northcrest Medical Center ED with low oxygen, shortness of breath, and a history of muscular dystrophy requiring tracheostomy. Approximately an hour later, Plaintiff had a chest x-ray taken, which was normal.

    At some point, Plaintiff complained of low back pain. A physician’s assistant in the emergency room, Defendant Samantha Stephens, ordered and administered 0.5 milligrams of Dilaudid to Plaintiff for her back pain. Five minutes later, Plaintiff was in cardiac arrest and CPR was initiated. Emergency room physician and supervising physician of Stephens, Defendant James Nell, ordered Narcan, and Plaintiff was alert soon thereafter.

    Chest x-rays taken after Plaintiff received CPR showed a pneumothorax (collapsed lung). Plaintiff had a chest tube inserted and was flown by helicopter to St. Thomas Hospital, where she stayed until January 22, 2022. She was transferred to a different hospital, where she stayed until March 3, 2022, after which she received treatment at home until April 4, 2022.

    Plaintiff brought this case against Defendants Samantha Stephens, P.A., and James Nell, M.D. for their alleged negligence in providing her medical care on December 25, 2021.

    Specifically, Plaintiff claimed Defendants negligently ordered and administered Dilaudid, which proximately caused her respiratory arrest, cardiac arrest and subsequent pneumothorax, pain/suffering, and long-term hospitalization.

    Defendants sought to exclude Dr. David Wiggins for failure to comply with the “locality requirement” of subsection (a)(1) of Tennessee Code Annotated Section 29-26-115.

    Emergency Medicine Expert Witness

    David Wiggins is a residency trained, board certified emergency physician with over 31 years of continuous full-time emergency medicine experience.

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

    Discussion by the Court

    Locality Requirement

     To satisfy this “locality requirement,” an expert witness may show either that they are “familiar” with the relevant medical community or that they are familiar with a “similar” medical community:

    “A claimant is required to prove the “[t]he recognized standard of acceptable professional practice … in the community in which the defendant practices or in a similar community.”  The medical expert or experts used by the claimant to satisfy this requirement must demonstrate some familiarity with the medical community in which the defendant practices, or a similar community, in order for the expert’s testimony to be admissible under Rules 702 and 703.

    Generally, a competent expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has had discussions with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the Defendant practices, will be sufficient to establish the expert’s testimony as admissible.”

    Thus, a competent expert may demonstrate familiarity with the medical community in which the Defendant practices – here Springfield, Tennessee – or a similar community by:

    1. testifying that they have reviewed and become familiar with pertinent information, such as the size of Springfield’s community and hospital, the number and type of medical facilities in Springfield, and the medical services available in the Springfield area;

    2. testifying that they have had discussions regarding the applicable standard of care relevant to the issues presented with other medical providers in the Springfield community or a neighboring community; or

    3. testifying that they have visited Springfield, Tennessee or the Hospital.

    Analysis

    Wiggins has: (1) reviewed and become familiar with the size of Springfield’s community and the medical services available there; and (2) had discussions regarding the applicable standard of care relevant to the issues in this case with another medical provider in a neighboring community who also frequently visits the Hospital and Springfield, Tennessee.

    He testified that, in 2021, the Hospital was similar in bed-size and services offered to other medical facilities he had worked in and that he was aware that the Hospital was a 109-bed hospital that offered services such as 24-hour emergency room, cardiac, and orthopedic care.

    Wiggins has also testified that his home practice is in Thomasville, North Carolina, a community with a population of approximately 27,000 people, which is similar in size to Springfield, Tennessee. Additionally, Wiggins has provided sworn testimony that he has had discussions regarding the Springfield, Tennessee medical community and local standard of care with Dr. George Thomas, a medical provider in Bowling Green, Kentucky who has visited the Hospital and is familiar with the Springfield community. 

    The Court found that Wiggins has demonstrated familiarity with the medical community of Springfield, Tennessee and a similar community, such that he satisfies the “locality requirement” of subsection (a) of Section 29-26-115.

    Moreover, Wiggins has not provided contradictory testimony as to his professional experience or the information he has learned about the Springfield, Tennessee medical community and population size. Plaintiff disclosed Dr. Wiggins as an expert who would be offering his opinions on the standard of care, which necessarily includes his opinions on the locality rule under Tennessee law. Thus, this is not a situation where Defendants can claim surprise that Wiggins would be offering such opinions. 

    Held

    The Court denied the Defendants’ motion to exclude testimony of Plaintiff’s expert David Wiggins, M.D. As only standard of care opinions are subject to the locality rule, the Court held that the Defendants’ motion will be denied to the extent they seek to exclude causation opinions based on a failure to comply with subsection (a)(1).

    Key Takeaway:

    Because Wiggins has shown familiarity with the Springfield, Tennessee medical community and a similar one, he fulfills the locality requirement under Section 29-26-115(a). His testimony about his professional background and knowledge of Springfield’s medical environment and demographics has been consistent.

    Case Details:

    Case Caption: Huddleston V. Tristar Northcrest Medical Center Et Al
    Docket Number: 3:22cv718
    Court: United States District Court, Tennessee Middle
    Order Date: April 3, 2025