On January 4, 2023, 74-year-old Bonnie Thurston, accompanied by her grandchildren, Hailey and Roger Thurston, was riding a WMATA Metrorail train to Reagan National Airport. The train halted before reaching the station platform. Without any announcement of arrival or door opening, Thurston, observing the platform, stood up without holding onto any train supports. The train then moved forward to fully berth at the station, causing Thurston to fall and suffer injuries to her left femur and hip.
The central liability questions are: (1) whether the train operator was obligated to announce the train’s intended movement for re-berthing, thus warning passengers to secure themselves, and (2) whether such an announcement was, in fact, made.
Thurston subsequently filed a negligence lawsuit against WMATA on May 17, 2024. Following the conclusion of discovery, WMATA moved to exclude Thurston’s liability expert, Dr. Carl Berkowitz. WMATA contends that Berkowitz’s testimony should be barred due to his alleged failure to establish a national standard of care and the perceived lack of factual basis for his opinions.
Transportation Engineering Expert Witness
Carl Berkowitz, PE, Ph.D., AICP, a transportation and traffic engineering expert, has been providing litigation consultation since 1997. His 49 years of experience make him a highly sought-after advisor, particularly at the outset of potential litigation. He offers impartial evaluations that can significantly influence the course of a case. By assessing the technical strengths and weaknesses, he helps clients determine the feasibility of legal action. Berkowitz’s extensive background and experience enable him to provide valuable contributions at every stage of litigation.
WMATA sought to exclude expert testimony from Berkowitz, arguing he failed to establish a national standard of care. Thurston countered, asserting that Virginia’s established standard for common carriers, not a national standard, was applicable. She further argued that, even if a national standard were relevant, Berkowitz’s testimony satisfied it.
The Court emphasized that Virginia law does not recognize a national standard of care in common carrier tort cases. Instead, Virginia mandates that common carriers exercise “the highest degree of practical care” for passenger safety. Therefore, the Court deemed Berkowitz’s ability to articulate a national standard irrelevant. His expertise was sufficient to explain to the jury what constitutes “the highest degree of practical care” under Virginia law.
Furthermore, the Court reiterated the established Virginia principle that a party cannot unilaterally define its own standard of care through internal rules. Consequently, Berkowitz was prohibited from referencing WMATA’s Standard Operating Procedures (SOPs) during his direct examination.
The Court determined that Berkowitz’s opinions are primarily grounded in his extensive experience within the transit industry. This experience includes his employment with various transit authorities, his participation in transit-related committees, and his sustained involvement in the public transportation community. He also gathers information through discussions with industry professionals and his review of transit system standard operating procedures and training manuals.
Based on this expertise, Berkowitz is qualified to testify regarding the appropriate standard of care for a train operator who must re-berth a train that has partially stopped within a station platform. However, the Court found that Berkowitz lacks sufficient foundation to testify about other areas covered in his expert report, such as falling mechanics, jerk rates, system failures, and national standards of care. Therefore, he is precluded from offering opinions on these topics.
Furthermore, Berkowitz is prohibited from presenting factual conclusions about the specific incident in question. This restriction is to avoid encroaching on the jury’s role as the fact-finder.
Held
The Court granted in part and denied in part the Defendant WMATA’s motion to exclude Plaintiff’s liability expert. Dr. Carl Berkowitz may testify only about the standard of care required of a train operator who needs to reposition or “re-berth” a train that has come to a stop partially within a station platform.
Key Takeaway:
The Court ruled that Virginia law dictates the “highest degree of practical care” rather than a national standard, and that the expert’s experience qualified him to testify on this standard specifically regarding re-berthing procedures. However, the expert was restricted from referencing WMATA’s internal procedures or testifying on other matters outside his specific expertise, ensuring he stayed within his qualified area and did not encroach on the jury’s role. Ultimately, the Court allowed the expert to testify narrowly on the standard of care for re-berthing, while excluding his testimony on other topics.
Case Details:
Case Caption:
Thurston V. Washington Metropolitan Area Transit Authority
Sabelita Hawkins experienced a psychotic episode in 2011, leading to hospitalization and subsequent treatment at the Puget Sound Veterans Hospital. She alleges that despite informing Dr. Daniel Doan that her prescribed medication was ineffective, no changes were made to her treatment. Later, Dr. Carl Jensen diagnosed her with PTSD but also did not modify her care. A second psychotic episode resulted in Hawkins attacking her mother and facing arrest.
The Government retained Russell Vandenbelt, M.D., a licensed psychiatrist, and Michael Kovar, M.D., a licensed family medicine physician, as experts to opine on Doan’s and Jensen’s treatment of Hawkins. Hawkins sought to exclude both Vandenbelt’s and Kovar’s testimony on the basis that their opinions are neither reliable nor relevant to Hawkins’ allegations.
Psychiatry Expert Witness
Russell Vandenbelt specializes in behavioral medicine, and has over three decades of clinical experience as a licensed psychiatrist. He is also a “certified specialist” in addiction medicine, serves as a psychiatric consultant to medical, nursing, and pharmacy boards in Washington, and previously worked as a staff physician “managing patient withdrawal syndromes from opiates, alcohol, stimulants, and sedative-hypnotics.”
Michael Kovar is a family medicine physician with clinical interests in behavioral medicine. He has served as a board-certified family medicine physician and an assistant clinical professor at the University of Washington School of Medicine.
The Government retained Vandenbelt to conduct a “review of records regarding the adequacy of mental health treatment provided to Hawkins” and to “opine on the standard of care for Hawkins’ psychiatrist, Carl Jensen.”
Hawkins contended that Vandenbelt’s report (1) did not reflect his experience and knowledge (2) did not sufficiently explain his methodology; and (3) was not supported by “sufficient facts and data” or “medical analysis.”
Reliability of Standard of Care Testimony
Vandenbelt’s testimony reflects his specialized experience in “diagnosing, assessing, and treating” patients “with medication and psychotherapy.”
The Court rejected the argument that he lacked the knowledge to discuss medication effects and interactions, given his experience in addiction medicine.
In conclusion, the Court found Vandenbelt’s testimony on the standard of care to be reliable.
Methodology
The Court determined that Vandenbelt’s report sufficiently explained his methodology because he reviewed Doan’s and Jensen’s treatment decisions, applied his understanding of standard of care principles to the facts in the records, and used this information collectively to form his opinion that “Doan and Jensen provided adequate and appropriate treatment” of Hawkins’ symptoms based on the information they had at the time of treatment.
In deciding whether to exclude Vandenbelt’s testimony before trial, the Court “is not tasked with deciding whether he is right or wrong” and may “not exclude his opinions merely because they are impeachable.”
Daubert requires only that Vandenbelt’s testimony has “a reliable basis in the knowledge and experience of his discipline.” A psychiatry expert may testify about the adequacy of treatment a patient received based on a review of that patient’s past medical records.
Relevance
Hawkins also sought to exclude Vandenbelt’s testimony on relevance grounds, asserting that his testimony has “no clear connection” to her medical malpractice allegations.
In this case, the Defendants’ adherence to the standard of care is a necessary element of Hawkins’s medical malpractice claim, and therefore has a “valid connection” to this case.
The Court found Vandenbelt’s testimony on the standard of care relevant, as it directly addressed a key element of Hawkins’ malpractice claim.
Causation
Vandenbelt’s report opines on whether Doan and Jensen “acted inappropriately or below the standard of care” in treating Hawkins. However, Vandenbelt did not provide any opinion on causation.
To the extent that the Government sought to call Vandenbelt to testify about the cause of Hawkins’ second psychotic episode, however, the Court excluded that causation testimony. The Court reinforced that an expert cannot testify to matters outside their report.
Michael Kovar
The Government intended to introduce Kovar’s testimony that Doan “met the standard of care” in treating Hawkins and that Doan’s “actions neither caused nor could have prevented” Hawkins’ subsequent attack on her mother.
Hawkins sought to exclude Kovar’s testimony for the same reasons she sought to exclude Vandenbelt’s testimony.
Qualifications
The government countered that Kovar has over 28 years of clinical experience as a family medicine practitioner. Kovar’s report reflects his specialized experience serving as a board-certified family medicine physician, an assistant clinical professor at the University of Washington School of Medicine, and his clinical interests in behavioral medicine.
The Court agreed, noting that Kovar’s experience allowed him to analyze whether Doan’s treatment met the standard of care for a family medicine physician.
Hawkins argued that Kovar lacked the expertise to discuss the effects of oxycodone, alcohol, and antibiotics on her mental state. But as a family medicine physician with clinical interests in behavioral medicine, Kovar has knowledge and experience treating adults with medications. Kovar is therefore qualified to testify about medication effects and interactions.
Methodology
Hawkins also argued that Kovar’s report “did not contain an explanation of the methodology” he used to develop his opinion and “provided [only] a blanket opinion without further medical analysis.”
Kovar’s report explained, however, that he reviewed Hawkins’ complaint and the “pertinent medical records available to Doan at the time of Hawkins’ ” treatment with Doan. Kovar then reviewed Doan’s treatment decisions, applied his understanding of standard of care principles to the facts in the records.
The Court determined that Kovar’s “specialized knowledge and experience can serve as the requisite ‘facts or data’ on which he renders an opinion.” While Hawkins disagrees with Kovar’s conclusions, asserting that they are based on “misstated facts,” the Court may “not exclude Kovar’s opinions merely because they are impeachable.”
Relevance
Hawkins also argued that Kovar’s testimony has “no clear connection” to her medical malpractice allegations. The Court disagreed, stating that Kovar’s opinions on the standard of care and causation were directly relevant to the necessary elements of Hawkins’ claim.
Doan’s adherence to the standard of care and the causal link between his alleged negligence and Hawkins’ injuries are necessary elements of Hawkins’ medical malpractice claim.
Hawkins may test the expert witness’ credibility by cross-examining them about their methodology, sources, and conclusions at trial.
Held
The Court denied Hawkins’ motions to exclude Russell Vandenbelt and Michael Kovar.
Key Takeaway:
Hawkins V. United States highlights the critical role of expert testimony in medical malpractice cases and the court’s rigorous application of Daubert standards. The court’s decision underscores the importance of qualified experts, reliable methodologies, and relevant testimony. This case provides valuable insights for legal professionals and anyone interested in the intersection of law and medicine.
Plaintiff Ansur America Insurance Company (“Ansur”) filed this lawsuit alleging legal malpractice related to a product liability case filed in St. Clair County, Illinois after Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorous CHTD failed to properly manage the defense of the underlying case, resulting in Ansur being forced to settle for an unsupported and unprecedented amount.
Plaintiff alleged that Defendants did not meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the Underlying Plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.
Defendants disclosed Joseph Bleyer as a legal malpractice expert witness and Daryl Douglas as an insurance expert witness.
Plaintiff filed a motion to exclude the testimony of Defendant’s experts Bleyer and Douglas.
Legal Malpractice Expert Witness
Joseph A. Bleyer is managing partner in the law firm of Bleyer and Bleyer, Marion, Illinois which is a law firm practicing extensively in litigation and defense in tort/negligence claims, constitutional claims of rights and litigation and defense of municipalities in both Illinois and the United States Supreme Court. He graduated from Southern Illinois University in 1986 and is presently licensed in the State of Illinois, United States Supreme Court, United States Court of Appeals for the Seventh Circuit, United States District Court for Central Illinois, and United States District Court for the Southern District of Illinois.
Daryl Douglas spent 20 years as the senior vice president and claims manager at national primary and excess carriers and international reinsurers. During that time, Douglas managed the medical malpractice and general liability exposures for insured hospitals, physicians, and nursing homes, across the country. He counseled insurers and reinsurers on liability and coverage issues, and successfully settled hundreds of catastrophic cases, both before and after trial.
Douglas has built a national reputation handling some of the nation’s largest and most challenging mass actions and achieving highly regarded results along the way.
Plaintiff’s Motion to Exclude the Testimony of Joseph Bleyer
Bleyer is an attorney who has practiced law since 1986. He has never handled a legal malpractice case and has no particular knowledge, experience or training in the area of legal professional responsibility.
While Bleyer has a great deal of legal experience, neither his report nor deposition testimony connect the dots between his generalized legal experience and the bases for his opinions and conclusions in the “often specialized and complex matters of professional responsibility”, including the applicable standard of care.
Moreover, the Court finds that Bleyer’s conclusions and opinions do not meet the Daubert standards for reliability. While Bleyer lists thirteen opinions in his report, his first opinion accurately summarizes the remaining twelve:
“Based upon my experience and my review of the above transcripts and documents, I have formed the opinion, to a reasonable degree of professional certainty, that James Borland and Quinn, Johnston, Henderson & Pretorious Chtd. (collectively, ‘Defendants’) met the standard of care. Defendants did not breach their fiduciary duties required by Illinois attorneys in dealing with both Ansur and Signature.”
The Court held that Bleyer failed to provide a sufficient basis and support for his opinions that the Various Defendants met the standard of care. Although given several opportunities to do so in his deposition, Bleyer failed to identify a measurable standard of care or the source of what he believes the standard of care is. Instead, his opinions are based solely upon his professional judgment, to be applied on a “case-by-case” basis.
Plaintiff’s Motion to Exclude the Testimony of Daryl Douglas
Douglas is a licensed attorney who has had practiced in an insurance claims department and has had various roles in the insurance coverage and defense fields. While Douglas has a both legal and practical experience in the insurance claims industry, as Plaintiff correctly notes, “he simply opines that he would have acted differently, without offering any analysis of ‘how his experience informs his conclusions’ or sufficiently linking ‘his expertise to his opinions’ as Daubert requires.”
The Court held that Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care. For instance, when asked what the standard of care was, he said “I think the standard of care depends upon the liability and exposure and circumstances and facts of each case.” When asked, repeatedly, how he would define a “high exposure” case that would necessitate additional attention from claims managers, he finally said, “there are number of things that create exposure to the insurance company that could result in a future payout, and they are going to be different in each case.”
At bottom, Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods. Therefore, the Court finds that his testimony will not assist the jury in understanding the evidence or determining a fact in issue in this case.
Held
The Court granted the Plaintiff’s motion to exclude the testimony of Joseph Bleyer and Daryl Douglas.
Key Takeaways:
When an expert’s opinions are grounded solely on his experience, those opinions must be based on sufficient facts, data, and relevant standards, and must be the product of methodology that is generally accepted in the expert community. Bleyer’s methodology is nothing more than what he would have done under the circumstances presented. He did not cite to or attempt to apply the Rules of Professional Conduct or any other identifiable source for the applicable standard of care in his report or testimony.
Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods because Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care.
Plaintiff, Prunella Banks filed this medical negligence action against Lakeland Nursing and Rehabilitation Center, LLC (“Lakeland”) and one of its nurses, Morgan McGuire, for injuries allegedly suffered by her late mother, Queen Banks during her short residency at the nursing home from April 21, 2021, to May 3, 2021.
According to the Complaint, Nurse McGuire applied “Biofreeze gel” to Banks’ shoulders on April 30, 2021, left the gel in the room, and thereafter, a personal care assistant entered the room and “began rubbing the gel all over Queen Banks’ body including her inner thighs and private part areas.” Banks alleged her mother suffered extreme pain and irritation as a result of this event, necessitating medical treatment.
Plaintiff’s version of events has changed since filing the Complaint, and Plaintiff now claims that McGuire herself misapplied Elidel 1% Cream (not Biofreeze gel) on Banks’ vagina and rectum, resulting in damages.
Plaintiff retained a nursing expert, Lotashia Patrick, to offer opinions such as Lakeland’s staff misapplied the medication to Banks’ “private areas,” causing her “burning, itching, and irritation of her vaginal area.”
At her deposition, Patrick also testified that the medication was misapplied to Banks’ “groin and buttocks” so as to cause her “second-degree burns” and associated pain. Lakeland argued that Patrick cannot offer opinions about Lakeland’s standard of care, any breach of it, or medical causation.
Nurse Patrick received both a Bachelor of Science and Master of Science in Nursing at the University of Mississippi Medical Center in Jackson, Mississippi. Nurse Patrick is a member of the American Nurses Association and the Mississippi Nurses Association & Eliza Pillars Registered Nurses of Mississippi. She has over fifteen (15) years of practice experience in the field of nursing.
According to Lakeland, Patrick can’t testify about its standard of care because she lacks sufficient experience working at a nursing home, evaluating chemical burns, assessing skin breakdown, or applying the medication at issue in this case (Elidel). Banks counters that Patrick worked two months as a supervisor over the RNs at a nursing home and that her credentials qualify her to testify to the standard of care.
Banks offered Patrick for the opinion that applying Elidel in a manner contrary to its manufacturer’s recommendations would violate the standard of care. According to the Court, this is not an opinion that requires the level of particularized expertise Lakeland suggests. Whether a medication is correctly administered lies within the area of nursing practice. And Patrick’s education and experience in various nursing jobs qualifies her to offer this opinion.
Moreover, none of the cases Lakeland cited said that the relevant nursing standard changed from one type of facility to the other, and Lakeland did not show that Patrick was unqualified to supervise nurses at a nursing home.
Breach of the Standard of Care
Although Patrick can testify about the standard of care, Lakeland has shown that she lacks sufficient facts to testify about whether Lakeland’s staff did breach that standard by misapplying the Elidel.
Patrick looked at various records and one deposition to render her opinions. But as to her breach opinion, Patrick testified that she relied on the allegations in the complaint.
The Court granted Lakeland’s motion to exclude Patrick’s opinion that the facility incorrectly administered the medication to Banks. Patrick can opine that if the medication was applied other than as directed by the manufacturer, then a breach of the standard of care occurred.
Medical Causation
To the extent that Patrick in her deposition said or implied that the Elidel caused second-degree burns or other severe injuries to body parts for which Elidel is not contraindicated, the Court held that those opinions went beyond the scope of a nursing expert and are thus inadmissible.
Held
The Court denied in part Lakeland’s motion, insofar as Patrick may offer opinions at trial about what standard of care applied to Lakeland’s administration of topical medication to Banks and whether any application to areas contraindicated for that medication would violate the standard of care. Any other opinions from Patrick, including those alleging breach or addressing medical causation, are excluded.
Key Takeaway:
Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.
Under Rule 702(b), experts must base opinions “on sufficient facts or data.” Allegations in a complaint fail that test.
Case Details:
Case Caption:
Banks V. Lakeland Nursing And Rehabilitation Center, Llc Et Al
Docket Number:
3:22cv433
Court:
United States District Court, Mississippi Southern
Joy Banner brought this suit against Defendants Michael Wright, St. John the Baptist Parish, and Jaclyn Hotard (collectively “Defendants”) alleging violations of her First Amendment right to freedom of speech during a St. John the Baptist Parish council meeting.
Richard Stanley, an attorney-expert, has been hired by Defendants to opine about “whether a person could reasonably believe that a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications.” Banner alleged that she was only allowed to speak for five seconds before she was interrupted by Defendant Parish President Jaclyn Hotard and then by Defendant Chairman Michael Wright. Plaintiff filed a motion to exclude Stanley’s testimony.
Wright recited Louisiana Revised Statute § 42:1141.4(L)(1) which provided that:
“It shall be a misdemeanor, punishable by a fine of not more than two thousand dollars or imprisonment for not more than one year, or both, for any member of the Board of Ethics, its executive secretary, other employee, or any other person, other than the person who is subject to the investigation or complaint, to make public the testimony taken at a private investigation or private hearing of the Board of Ethics or to make any public statement or give out any information concerning a private investigation or private hearing of the Board of Ethics without the written request of the public servant or other person investigated.”
Banner alleged that the Defendants threatened her with criminal sanctions based on the content of her speech. According to Banner, the law they threatened her with had been long ruled unconstitutional – both facially and as applied.
Law And Legal Expert Witness
Richard C. Stanley represents clients throughout Louisiana and the surrounding region in complex commercial litigation and in the representation of lawyers and law firms in connection with issues of ethics and professional liability.
He handles cases in both state and federal courts at the trial and appellate levels. His clients include two of Louisiana’s largest electric utilities (Entergy and Cleco), as well as numerous out-of-state clients with litigation in Louisiana. He has been recognized as Lawyer of the Year by Best Lawyers in America in multiple categories, including Bet-The-Company Litigation (2019), Real Estate Litigation (2020), Legal Malpractice Law – Defense (2014, 2016, 2018) and Antitrust (2012, 2015).
Plaintiff argued that Stanley’s expert testimony should be excluded from trial because (1) Stanley is offering a legal opinion which is in the province of the judge; (2) Stanley’s opinions are irrelevant; and (3) Stanley conceded that he could only opine as to what a reasonable lawyer would do, not a non-lawyer. In opposition, Defendants argued that Stanley did not intend to offer legal opinions, rather he plans to testify as to the reasonable standard of care of an attorney.
A.Plaintiff’s Argument in Support of the Motion
Plaintiff contended that Stanley is a partner at the law firm Stanley Reuter Alford Owen Munson & Paul, LLC, a firm that has represented Saint John the Baptist Parish.
First, Plaintiff argued that Stanley’s testimony should be excluded because his opinion is a legal opinion, and explaining the law to the jury is the province of the judge, not an expert witness.
Plaintiff contended that Stanley’s methodology includes legal analysis, which an expert witness is prohibited from offering at trial.
Next, Plaintiff argued that Stanley’s testimony should be excluded because it was irrelevant. Plaintiff stated that the statute Stanley has been asked to interpret was found unconstitutional “as applied” and on its face. Plaintiff contended that Stanley’s opinions are about the reasonableness of a “person who is either advised by a lawyer or who has the equivalent information as if they were advised by a lawyer.”
Lastly, Plaintiff contended that Stanley’s testimony should be excluded because he testified that he could only opine as to what a reasonable lawyer would do, not a reasonable non-lawyer.
B. Defendants’ Argument in Opposition to the Motion
Defendants contended that Stanley’s testimony is not a legal opinion, rather Stanley intended to testify regarding the standard of care of a reasonable lawyer because a reasonable lay person, even without the advice of counsel, would have no reason to conclude that Louisiana Revised Statute § 42:1141.4(L)(1) is unconstitutional in all applications.
While Plaintiff argued that Stanley’s testimony should be excluded because the standard of care on which he bases his opinion is that of a lawyer, Defendant contended that the standard of care of an lawyer is higher than the standard of care of lay person.
Defendants conceded that neither Wright nor Hotard are lawyers, and Stanley’s expert opinion is that their actions at the Council meeting did not fall below the reasonable standard of care under the circumstances. Defendants asserted that Plaintiff has not attempted to challenge the constitutionality of the underlying statute.
C. Plaintiff’s Argument in Further Support of the Motion
Plaintiff asserted that neither Hotard nor Wright are attorneys, and this Court has excluded an advice-of-counsel defense. Moreover, this case does not involve negligence or malpractice wherein “standard of care” is an element of the claim. Plaintiff averred that Defendants have not offered any authority that requires a showing of a “standard of care” in a First Amendment case.
Analysis
This Court reviewed Stanley’s expert report and found that it clearly invaded the province of the Court to instruct the jury on any applicable law. In his report, Stanley opined that it was reasonable for a lawyer to believe a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications. In addressing Plaintiff’s First Amendment claim, the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.” Consequently, Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder. This Court cannot allow Stanley’s opinion as it runs afoul of the Federal Rules of Evidence.
Further, the Court found that Stanley’s testimony was irrelevant. Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer. Even without Stanley’s opinion, the jury may hear testimony from fact witnesses and consider said testimony alongside the jury instructions regarding the applicable law and make their own determination of whether Defendants’ assumptions and actions were reasonable.
Held
The Court granted Plaintiff’s motion to exclude Defendants’ attorney-expert Richard Stanley under Daubert.
Key Takeaways:
Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder because the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.”
Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer.
In conclusion, being a lawyer does not disqualify one as an expert witness. Lawyers may testify as to legal matters when those matters involve questions of fact. However, there is only one legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.
Plaintiff, Mikhaila Lenoir filed this healthcare liability action on March 15, 2023, regarding care that occurred at Regional One Health from October 8, 2021 through January 21, 2022. Plaintiff alleged that Regional One Health and its nurses, nurses’ assistants, and other employees allegedly breached the applicable standards of care by:
. . . failing to properly turn Plaintiff in her bed, failing to restrain and attend to plaintiff while sitting in a chair, failing to properly clean and treat Plaintiff’s bed/pressure sores, failing to place Plaintiff’s call device, performing medical procedures on Plaintiff without her informed consent and in blatant disregard for her clearly expressed non-consent, and by severely limiting Plaintiff’s family visitation.
Plaintiff designated Dr. Richisa Salazar as her expert witness. She was responsible for establishing the relevant standard of care. Defendant Shelby County Health Care Corporation filed a motion to exclude the opinions of Plaintiff’s medical expert witness Salazar.
Emergency Medicine Expert Witness
Richisa Salazar is a licensed physician in Mississippi, Texas, Florida and Georgia. She is currently practicing as an emergency room physician with multiple hospitals including several in the Atlanta, Georgia area.
Defendant argued that Salazar’s testimony should be excluded because she (1) is not licensed in a profession or specialty that would make her testimony relevant; (2) does not satisfy Tennessee’s locality rule; and (3) improperly relies on a national standard of care.
A. Whether Salazar is Licensed in a Profession or Specialty that Would Make Her Testimony Relevant
Defendant contended that Salazar’s license in emergency medicine does not amount to a license in a practice or specialty that makes her testimony relevant. Apparently, the issue is that Salazar is not a “wound care specialist.” Defendant insists that Salazar’s experience in the emergency room is irrelevant because the complaint’s allegations pertain to events that occurred while Plaintiff was under continuous care. As they see it, “the issue in this case is the prevention, development and appropriate treatment of pressure injuries.”
The Court finds that Salazar is licensed in a profession or specialty that would make her testimony relevant. The Tennessee Supreme Court has made clear that Tenn. Code. Ann. § 29-26-115 does not require that an expert witness practice the same specialty as the Defendant. Instead, courts must “look carefully at the particular issues presented in the case to determine if an expert practices a profession or specialty that would make the expert’s testimony relevant to those issues.”
The Court finds there to be little reason to require that any medical expert witness in this case be licensed as a wound-care specialist; this case turns on whether Defendant’s medical personnel failed to follow basic patient-care protocols as opposed to wound care specialist-specific standards. To that end, Salazar’s license in emergency medicine, her training in Geriatrics, and her experience with pressure ulcers all demonstrate that she is licensed to practice in a profession or specialty that makes her testimony relevant.
B. Whether Salazar Satisfies the Locality Rule
Defendant contended that Salazar failed to establish that she is familiar with the Memphis medical community, or that she practices medicine in a medical community similar to Memphis, and she has not testified as to the Memphis medical community’s standard of care.
i. Whether Salazar’s Deposition Testimony Satisfies the Locality Rule
It is given that Salazar does not practice medicine in Memphis. Defendant argued that the only basis Salazar gave for her conclusion that she practiced medicine in a similar community was her statement that she was familiar with the standard of care in Memphis because it seemed very similar to Jackson, Mississippi where she grew up.
Defendant, however, noted that Salazar never practiced medicine in Jackson, Mississippi. Specifically, Plaintiff acknowledged that Salazar did not know the specific population of the Memphis area, its demographic or socioeconomic makeup, or the exact number of hospitals.
Plaintiff insisted that Salazar’s testimony reflects that she did know that the University of Tennessee Medical School was in the Memphis area and that Regional One Health was Level 1 trauma center which offered a wide range of specialties.
Based on a review of the deposition transcript, the Court held that it would be quite charitable to conclude that Salazar knew either of these facts. Nowhere in this response did Salazar affirm that she “knows” that there are medical schools in Memphis. To the contrary, her response reflects that she is uncertain. Moreover, all of Salazar’s purported knowledge regarding Regional One Health appears to have been derived from a string of assumptions she made because the hospital was treating Plaintiff.
The Court held that Salazar’s deposition testimony does not establish that she is familiar with the Memphis medical community or its standard of care.
ii. Whether Salazar Satisfies the Locality Rule with the Addition of her Affidavit
Plaintiff included a supplemental affidavit, in seeming acknowledgment of the inadequacy of Salazar’s testimony on this matter. Here, Salazar’s familiarity with the Memphis medical community and its standard of care turns on two facts: (1) that she earned her Master’s Degree in Public Health with a concentration in Health services and Doctorate of Medicine from Meharry Medical College in Nashville, and (2) that Memphis is very similar to Atlanta—where she has practiced medicine since 2018—with respect to size, population, medical facilities, and access to medical information.
Concerning (1), Salazar appears to be suggesting that she became familiar with the Memphis standard of care via her “Tennessee medical education.” She also mentions that she frequently visits her family in Memphis. Defendant argued that Plaintiff’s attempt to connect Salazar’s time in medical school in Nashville, Tennessee still fails to satisfy the locality rule because Salazar was in medical school 13 years before the time that the events in this case took place, and her history in Nashville still does not establish her familiarity with Memphis’s medical community.
The Court is not persuaded that Salazar satisfies the locality rule even with the additional information from her affidavit. She fails to explain how her Nashville education provided her with any insight into the Memphis medical community and provides a hazy rationale on why she believes that Atlanta’s medical community is similar to Memphis’s. She also conceded that she was applying a national standard of care when she was testifying.
Held
The Court granted the Defendant’s motion to exclude the opinions of Plaintiff’s medical expert witness Richisa Salazar, M.D.
Key Takeaway:
Given Plaintiff’s concession that Salazar did not know the specific population of the Memphis area, its demographic or socioeconomic makeup, or the exact number of hospitals and the Court’s finding that Salazar has failed to make a strong enough affirmative showing that she has any familiarity with the Memphis medical community and standard of care, the Court concluded that Salazar did not satisfy the locality rule.
The dispute in this matter stems from the prenatal care provided in January 2021 to Brittany S. Gobble by David P. Russell, M.D. at Bristol Gynecology and Obstetrics, P.C. (“BGO”) and Haley L. Akin, M.D. The Plaintiffs accused Haley Akin, M.D. of failing to make a diagnosis of severe pre-eclampsia during the hospitalization of January 16-17, 2021, insisting that Gobble should have been kept in the hospital. In other words, Defendants failed to properly diagnose and treat Gobble for severe preeclampsia which developed during her pregnancy and resulted in injuries to her minor child.
David Russell, M.D. saw Gobble in the office on January 18, 2021, the day following discharge from the hospital. Russell is accused of failing to send Gobble to the hospital that day.
Preeclampsia is described as “a disorder of pregnancy associated with new-onset hypertension” and “often accompanied by new-onset proteinuria.”
Both Plaintiffs and Defendants have now disclosed multiple expert witnesses who they intend to call at trial to address the claims that Plaintiffs have asserted against Defendants. One of these experts who has been disclosed by Plaintiffs is Jack Ayoub, M.D. (“Dr. Ayoub”), whose testimony Defendants sought prohibit.
Plaintiffs retained Ayoub to opine as to the standard of care for the diagnosis and treatment of patients with preeclampsia and preeclampsia with severe features.
Obstetrics and Gynecology Expert Witness
Jack Ayoub is board certified in obstetrics and gynecology, completed an obstetrics and gynecology residency training program at The George Washington University Medical Center in Washington, D.C., and has long been affiliated with both the American College of Obstetricians and Gynecologist and the American Board of Obstetrics and Gynecology. Ayoub founded Virginia Obstetrics & Gynecology, P.C. in July 2009 and currently serves as the CEO of that practice, while also having a surgery affiliation with Stone Springs Hospital Center in Dulles, Virginia.
Ayoub has delivered between 4,000 and 5,000 babies and in the process has routinely managed patients with and without prenatal issues, including diabetes, preeclampsia, and preeclampsia with severe features, among other conditions. While Ayoub presently delivers 5 to 8 babies a month, in the past he has delivered between 25 and 30 a month.
Ayoub’s testimony should be excluded because he is not an expert on preeclampsia
Defendants specifically advised that Ayoub is a sole practitioner who practices in the areas of ‘minimally invasive gynecologic procedures, including laparoscopy, heavy menstrual bleeding, fibroids, myomectomy, pelvic pain and endometriosis.”
Defendants noted that Ayoub has not published, written an abstract, or conducted bench research on preeclampsia or preeclampsia with severe features nor on hypertension in pregnancy. They further claimed that Ayoub testified that every person who completes a residency in obstetrics and gynecology is an expert on these topics. Finally, they noted that Ayoub’s lack of qualifications are demonstrated by the fact that he did not know the definition of a term pregnancy.
Ayoub has a long history of serving as a board-certified physician practicing in the field of obstetrics and gynecology. He has delivered numerous children and has been responsible for the care of the mothers who bore those children and has testified that in providing prenatal care he has frequently treated patients with diabetes and preeclampsia both with and without severe features. While Defendants assert that Ayoub spends most of his time handling gynecological matters at this juncture rather than practicing in the field of obstetrics, the question is whether Ayoub was qualified under Rule 702 at the time Gobble was treated by Defendants to opine as to the standard of care for the diagnosis and treatment of preeclampsia and preeclampsia with severe features. Given Ayoub’s education, training and experience, the Court finds that he possesses the qualifications necessary to offer expert testimony on these issues.
Ayoub’s opinions are unreliable and unhelpful as an initial matter because Ayoub provided an incorrect definition of a “term” pregnancy under ACOG guidelines
Defendants contended that Ayoub was wrong regarding the definition of a term pregnancy in opining as to when the minor child should have been delivered in accordance with the applicable standard of care. However, in reviewing Ayoub’s testimony it appeared that he is familiar with the ACOG standards addressing when a child should be delivered. In the Court’s reading of Ayoub’s testimony, he appeared to agree that it is generally preferable for delivery to wait until thirty-seven weeks in cases where a patient is experiencing preeclampsia.
Defendants argued that Ayoub’s opinions are unreliable because he has opined that the headache Gobble was experiencing while hospitalized supported a diagnosis of preeclampsia with severe features. They claimed that the idea that a headache is supportive of this diagnosis has been “generally rejected.”
Defendants pointed out that Ayoub opined that the fetal heart monitor tracing from that date fell into Category I, the best category under the ACOG classification system.
The Court held that Ayoub’s opinions simply diverge from those of Defendants and their experts. Plaintiffs have demonstrated that Ayoub’s opinions regarding when Gobble should have been delivered have a factual basis and are supported by applicable ACOG guidelines, just like the opinions of Defendants and their expert witnesses have a factual basis and are supported by applicable ACOG guidelines. In short, it comes down to which version of the facts should be accepted, which is a decision solely for a jury and not the Court. Resolving factual disputes is beyond the role of the Court as a gatekeeper.
Ayoub’s opinions should be excluded because he failed to consider Gobble’s comparative fault and was unfamiliar with the impact of maternal smoking on an unborn child
Defendants further attacked the opinions offered by Ayoub because Gobble smoked during her pregnancy, and he is not familiar with the toxins contained in cigarette smoke or whether those toxins pass the placenta. They further claimed that Ayoub did not properly consider Gobble’s comparative fault in causing her minor child’s injuries, i.e., her smoking and her failure to report to the hospital sooner on January 20, 2021, despite not feeling her baby move for several hours.
Defendants asserted that Gobble was given verbal and written instructions regarding counting her baby kicks when discharged from the hospital. On the other hand, Gobble had testified that Russell advised her that the baby’s movement would slow significantly as she got closer to her due date. Plaintiffs note that Ayoub has opined that Gobble should have been delivered while initially hospitalized and if she had been, there would be no issue regarding whether she appropriately monitored fetal movement. The Court found that once again, the issue here is not one of whether Ayoub’s opinions have a proper basis but instead of significant factual disputes, which are the province of the jury.
Held
The Court denied the Defendant’s motion to exclude the testimony of Jack Ayoub, M.D.
Key Takeaways:
Fed. R. Evid. 702 specifically provides that an expert may be qualified to testify by their “knowledge, skill, experience, training or education.” While it may certainly be a feather in an expert’s cap to have published or conducted research in the field in which they are offering expert opinions, nothing in Rule 702 requires it.
Significant factual differences between what Plaintiffs state that Gobble was told about fetal monitoring and what Defendants contended that she had been told are the province of the jury. When it comes down to which version of the facts should be accepted, it is a decision solely for a jury and not the Court. Resolving factual disputes is beyond the role of the Court as a gatekeeper.
Case Details:
Case Caption:
Gobble Et Al V. Bristol Gynecology And Obstetrics, P.C. Et Al
On November 30, 2022, Plaintiff, Cynthia Burgett, was at the Hy-Vee Fast & Fresh convenience store in Prairie Village, Kansas, to purchase gas. The gas station’s fuel pump islands are shaped like an “H” and also referred to by the parties as a “dog bone” shape. The fuel pump islands are elevated above the parking lot pavement. While at Defendant’s gas station, Plaintiff tripped over a fuel pump island and suffered serious injuries. Plaintiff’s alleged injuries are extensive and she asserts that she will need lifetime medical care as a result.
Plaintiff asserted a claim of negligence against Defendant. Plaintiff contended that the fuel pump island was an unreasonably dangerous tripping hazard, that Defendant had knowledge or should have known that it was dangerous, that the design was not in accordance with industry standards, and it lacked safety features of Defendant’s standard pump and the industry standards. Both parties will present expert testimony at trial. Plaintiff has identified two experts that will testify as to the dangerousness of the fuel pump island: Lila Laux, a human factors expert, and Albert Kerelis, a licensed architect. Defendant has identified Richard Serignese as a non-retained expert to testify about the design and maintenance of fuel pumps. The parties have filed motions to exclude the opinions of these experts.
Human Factors Expert Witness
Lila Laux has a doctorate in Industrial/Organizational Psychology with a specialization in Human Factors Engineering from Rice University. She has worked as a human factors engineer for more than 30 years. She now works as a Principal Human Engineer for a firm that provides human factors research and consultative services to the military, NASA, the Nuclear Regulatory Commission, public service organizations, and private businesses.
Albert Kerelis has a master’s degree in architecture and is licensed in several jurisdictions, including Kansas. He has over 27 years’ experience in architecture. For the past five years, Kerelis has worked for Robson Forensic providing expert analysis. He also continues to work as an architect for Facilities Design Group and has done so for twenty years by providing architectural services for residential, commercial, and industrial projects. This includes site analysis, code review, code compliance, schematic design, structural design, mechanical, electrical and fire suppression design.
Laux’s opinions include the following: Plaintiff behaved how most people would behave at a gas station; the fuel pump created a hazard because Plaintiff’s attention was not attracted to the “extended lobe in her path” and she was unlikely to see it; the extended lobe of the fuel pump created an unexpected trip hazard that caused Plaintiff to trip; it is unreasonable to expect that people walking between the store and the fuel pump would expect or detect the unmarked and undifferentiated pump pedestal protruding into their path; and it was foreseeable that customers could fail to detect the raised pedestal and trip as they walked to their vehicle.
Qualifications
Defendant made a cursory attempt to exclude Lila Laux’s testimony on the basis that she is not qualified.
A review of Laux’s resume shows that she has decades of experience on human factors and her opinions largely relate to how individuals and Plaintiff would navigate the obstacle of the fuel pump and whether they would be aware of the elevated fuel pump in their path based on her experience. The Court finds that she is qualified to offer such opinions based on her education and experience.
Helpfulness
Defendant argued that Laux’s opinions would not assist the jury in understanding the evidence or facts in this case because what ordinary people see in situations and how they understand their surroundings are within the common understating of a juror.
Here, the Court found that Laux’s opinions and testimony would not be helpful to the jury. Laux offers opinions regarding the types of customers that would go to a gas station, how customers would walk from the fuel pump to the convenience store, whether customers would expect to see or detect the raised fuel pump, and whether it was foreseeable that someone would trip on the raised fuel pump. Such opinions are not helpful here because the average juror has experience getting gas at a gas station. An average juror also has experience walking from a fuel pump to the convenience store to either pay for the gas or to go inside and purchase additional items.
Albert Kerelis
Kerelis is a licensed architect and will provide the following opinions at trial: 1) the edge of the fuel pump island was dangerous and caused Plaintiff to fall; 2) the edge of the fuel pump island was a low obstruction in a foreseeable pedestrian path that violated the standard of care for safe walkways; 3) the property owners should have known it was dangerous and provided warnings to pedestrians; 4) the failure to eliminate the hazardous condition or provide warnings was a violation of the standard of care for safe walkways and created the hazardous condition that caused Plaintiff’s injury; and 5) the owner violated nationally recognized standards of care and the city’s codes and ordinances.
Qualifications
Defendant asserted that Kerelis is not qualified to provide expert testimony on the fuel pump island because he has not prepared design drawings in the past five years, has not designed any projects in Kansas, and has not prepared a design with a fuel pump island in at least 15 years. Kerelis is a licensed architect with decades of experience who has designed hundreds of sites. He testified extensively regarding his experiences in site design and the related considerations of safety for pedestrians and users of sites when designing sites. The Court held that Defendant’s arguments called into question the weight of his testimony rather than his qualifications.
Reliability
Essentially, Defendant argued that the expert’s opinions are not reliable because he fails to cite any publications regarding the design and maintenance of fuel pump islands. Defendant took issue with Kerelis’ reliance on several national publications which he has identified as standards of care in the industry because they are not publications regarding the design and maintenance of fuel pump islands. Kerelis’ opinions, however, clearly stated that Defendant violated the standards of care regarding safe walkways and warnings regarding obstructions. His expert report cites to various publications, including a publication by ASTM International, formerly the American Society for Testing and Materials (ASTM), which is a “globally recognized leader in the development and delivery of professional consensus standards.”
In the report, Kerelis states that ASTM’s publication, “Standard Practice for Safe Walking Surfaces, is a nationally recognized standard of care for the safe construction and maintenance of walkways to prevent pedestrian falls.” That publication states that “in situations where a short flight stair or single step transition exists or cannot be avoided, obvious visual cues shall be provided to facilitate step identification.”
The Court held that Defendant’s arguments claiming Kerelis failed to cite publications on fuel pump islands are unpersuasive. The standards cited by Kerelis relate to obstructions in a walkway and based on the facts in this case and the expert opinions, a jury could conclude that the fuel pump island extended into the walkway.
Richard Serignese
Defendant identified Richard Serignese as a non-retained expert that will “testify that the shape, size, color, and condition of the fuel pump island is within industry standards and that Hy-Vee did not violate any standard of care in regard to the maintenance of the fuel pump islands.”
Serignese is the Vice Presicent and General Manager of Simon Surfaces and will testify based on his “knowledge, education, training, and experience in the fuel island industry.”
With respect to his opinions, Serignese testified that he actually doesn’t “know the exact industry standard” for fuel pump island designs and that his “understanding has always been people pick what they want to pick. It’s a matter of preference. I don’t know that — I don’t know what the — anybody could tell you what the exact industry standard is.” He then reiterated that he did not know the industry standard for fuel islands and admitted that he could not say that this particular design is or is not industry standard.
Defendant argued that Serignese’s inability to articulate an industry standard should not preclude him from testifying because his testimony is that he doesn’t think there is an industry standard. Defendant, however, offered Serignese as an expert who will testify as to the industry standard and that Defendant’s fuel pump island is within that standard. The Court held that Serignese is not qualified to opine as to these issues and his deposition makes clear that he has no opinion on these issues.
Defendant designated Serignese as an expert who will testify that Defendant met the standard of care for maintaining the fuel pump island. The Court held that his deposition testimony, however, made it clear that he has no expertise in that area.
Held
1. The Court granted the Defendant’s motion to exclude the testimony of Lila Laux.
2. The Court denied the Defendant’s motion to exclude the testimony of Albert Kerelis.
3. The Court granted the Plaintiff’s motion to exclude the testimony of Richard Serignese.
Key Takeaways:
Laux offers opinions regarding the types of customers that would go to a gas station, how customers would walk from the fuel pump to the convenience store, whether customers would expect to see or detect the raised fuel pump, and whether it was foreseeable that someone would trip on the raised fuel pump. Such opinions are not helpful here because the average juror has experience getting gas at a gas station.
Kerelis’ opinions, however, clearly stated that Defendant violated the standards of care regarding safe walkways and warnings regarding obstructions. His expert report cites to various publications, including a publication by ASTM International, formerly the American Society for Testing and Materials (ASTM), which is a “globally recognized leader in the development and delivery of professional consensus standards.” The Court held that Defendant’s arguments claiming Kerelis failed to cite publications on fuel pump islands are unpersuasive.
Case Details:
Case Caption:
Burgett V. Hy-Vee, Inc. Et Al
Docket Number:
2:23cv2173
Court:
United States District Court for the District of Kansas
Plaintiff, Ansur America Insurance Company, sued Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorious, Chtd., an experienced defense lawyer and his law firm, for alleged legal malpractice in handling a complex product liability case in St. Clair County, Illinois. Plaintiff alleged that Defendants failed to meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the underlying plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.
Defendant filed motions to excude the opinions of Plaintiff’s experts Falak Shah and Sari Montgomery.
Structural Engineering Expert Witness
Falak Shah, Ph.D., P.E., C.W.I., is a managing engineer in Exponent’s Mechanical Engineering Practice with experience assessing the performance, mechanical integrity, and fitness-for-service of structural and mechanical systems. His experience involves leading investigations of different structures, products, and mechanical systems in a broad variety of applications and a wide range of materials. He is a licensed professional engineer in the state of Illinois and is a certified welding inspector (C.W.I.), a certification from the American Welding Society (AWS). Shah has a Ph.D. and M.S. in civil engineering (with a specialization major in structural engineering) from the Georgia Institute of Technology and a B.S. in civil engineering from the University of Florida. He has completed advanced coursework in and has experience with the analysis and design of a variety of materials, including wood, metals, and composite materials. In addition to his degrees, licensure, and other certifications, he has a multidisciplinary certificate in the mechanical properties of materials.
Sari Montgomery received her B.A. at the University of Chicago and her J.D. at Loyola University Chicago. Since her graduation in 1994, she has worked as Litigation Counsel for the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) and was ultimately promoted to Senior Litigation Counsel. In those roles, she performed hundreds of investigations and prosecuted over 50 disciplinary cases before the ARDC’s Hearing Board. She also trained ARDC counsel and staff.
Since 2010, Montgomery has been employed at Robinson, Steward, Montgomery & Doppke LLC, where she has represented attorneys in disciplinary investigations, hearings, and appeals before the ARDC and the Illinois Supreme Court, represented judges before the Illinois Judicial Inquiry Board and bar applicants in character and fitness matters. She has provided ethics advice and opinion letters to law firms, attorneys, government agencies and law-related businesses, and has served as an expert witness in legal malpractice and fee litigation. She has served as an adjunct professor teaching legal ethics and professional responsibility, has served on numerous committees and boards, and has authored numerous publications.
Shah was requested to “analyze the mechanical cause or causes of the failure” of the shower stool.
Defendants argued that Shah’s opinions are irrelevant and unreliable in that he provides only an outline of untested hypotheses in his June 14, 2023 report, such that his analysis is incomplete and cannot be analyzed through any relevant means. They further argued that Shah provides failed to eliminate possible causes related to the failure of the shower stool.
Shah’s report and opinions are based on his visual inspection of the shower stool in April 2023, and a review of documents provided. The parties had agreed in advance of Shah’s inspection that the stool could be photographed, videoed, examined, and measured. Whether any additional testing would take place was left to be determined.
Shah opined that a visual examination alone did not provide him with sufficient information to determine the mechanical cause or causes for the stool’s failure to a reasonable degree of engineering certainty. He further opined that there are three categories under which the mechanical cause or causes could fall, but additional analyses beyond merely visual inspection would be required to assess each of those.
While Shah didoes not identify the mechanical cause for the stool’s failure, the Court finds that his opinions and conclusion that a visual inspection alone could not determine the mechanical cause or causes of the stool’s failure are directly relevant to the issue of whether the applicable standard of care required Defendants to retain an engineering expert to conduct the analyses necessary to make the determination.
Sari Montgomery
Defendants sought to exclude Montgomery’s opinions that Defendants violated the standard of care by:
(1) Failing to issue a litigation hold letter at the beginning of the litigation;
(2) Failing to conduct jury verdict research;
(3) Failing to timely advise Ansur and Signature of conflicts of interest over the law barring insurance for punitive damages; and,
(4) Failing to inform Ansur and Signature that there could be a $10 million punitive damage award in addition to a $1.35 million award in compensatory damages, one month before the trial, when prior liability estimates had exposure not exceeding $325,000.
Montgomery is not qualified to render opinions in this case regarding the standard of care because she lacks the experience to qualify her as an expert product liability litigation attorney
Defendants also pointed out that Montgomery has never represented a product manufacturer nor handled a case involving a personal injury or consumer products, has never represented a client who has been alleged to be liable for punitive damages apart from sanctions, and has not handled a case in St. Clair County, Illinois.
As a licensed attorney who had represented attorneys in disciplinary investigations, hearings and appeals, both for the Illinois Attorney Registration and Disciplinary Commission and in private practice, the Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants owed to Plaintiff based on the applicable ethical requirements and rules of professional responsibility.
Montgomery’s opinions regarding Defendants’ requirement to give coverage advice to Ansur and the insured company in the underlying case violate the Rules of Professional Conduct
Defendants contended that if they had disclosed a conflict of interest between Ansur and the insured, Signature, Ansur would have been handed a significant coverage defense, thereby greatly harming Signature and violating Rules of Professional Conduct 1.6(b)(7). They also argued that an attorney retained by an insurance company to defend its insured owes a duty to the insured not to disclose facts to the insurer that might prejudice the insured’s rights in a potential coverage dispute with the insurer, as set forth in the Illinois State Bar Association (“ISBA”) Advisory Opinion, dated July 17, 1992.
In the instant case, Ansur alleged that at no time after the filing of the motion seeking punitive damages in the underlying case, did Defendants advise Ansur or Signature that there was a potential conflict of interest between them because punitive damages would not be covered under Signature’s policy.
Montgomery’s report sets forth her opinions regarding Defendants’ ethical duties and that a breach occurred when Defendants did not disclose the existence of a resulting conflict of interest between Ansur (the insurer) and Signature (the insured) on the issue of punitive damages. The Court held these opinions to be reliable, and directly relevant to Ansur’s claims and the issues raised in this case.
Defendants also argued that Montgomery’s opinions regarding a conflict of interest on coverage and punitive damages conflict with an Illinois State Bar Association Advisory Opinion and are therefore impermissible.
However, the ISBA opinion itself stated “While the Opinions express the ISBA interpretation of the Illinois Rules of Professional Conduct and other relevant materials in response to a specific hypothesized fact situation, they do not have the weight of law.”
Montgomery’s opinions regarding Defendants’ communications to Ansur about the liability and damages exposure in the underlying case should be barred because she doesn’t have education, training, or experience in evaluating a product liability case
Defendants asserted that her opinions, claiming Defendants violated Rule 8.4(c) and were dishonest and deceitful, are “off base” because she has never handled a product liability case and would not know whether rapid changes in the case as it approaches trial require different or additional reporting.
The Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility. Specific experience with respect to product liability litigation is not required in this case.
Finally, Defendants argued that Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research should be barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. On this point, the Court agreed. Montgomery failed to provide a basis for this particular opinion, and her background and experience alone do not suffice.
Held
The Court denied Defendants’ motion to exclude the expert testimony of Falak Shah.
The Court granted in part and denied in part Defendants’ motion to exclude the expert testimony of Sari S. Montgomery.
Key Takeaway:
Defendants’ argument that Shah’s opinions are unreliable because they do not address each of the Daubert factors fails as well. Here, Shah’s methodology and analysis were appropriate given the issues and under the circumstances presented. He performed a visual inspection as agreed before opining that he could not determine the cause the stool’s failure solely based on that type of inspection, which is an issue presented in this case.
Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research was barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. However, specific experience with respect to product liability litigation is not required in this case. Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility.
Case Details:
Case Caption:
Ansur America Insurance Company V. Borland Et Al
Docket Number:
3:21cv59
Court:
United States District Court for the Southern District of Illinois
This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.
Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.
Plaintiffs sought to strike the testimony of Defendant’s expert witness, Thomas Wiswell, M.D., in its entirety because he is a neonatologist and is not qualified to render opinions regarding causation of the injuries sustained by the Minor Plaintiff nor the standard of care surrounding his delivery at birth.
Neonatology Expert Witness
Dr. Thomas E. Wiswell is a neonatologist in Honolulu, Hawaii. He graduated from the United States Military Academy at West Point, N.Y., in 1973 and subsequently attended medical school at the University of Pennsylvania in Philadelphia, graduating in 1977. Dr. Wiswell completed his pediatric residency and neonatology fellowship at Tripler Army Medical Center in Honolulu, Hawaii. He held active medical practitioner licenses from the states of Hawaii and Maryland and was certified by the American Board of Pediatrics.
Wiswell reviewed the Complaint filed in the instant action, Tripler records for Jenna and the Minor Plaintiff, various medical records from medical facilities for the Minor Plaintiff, Plaintiffs’ expert reports, the deposition transcripts for Jenna and Tyler as well as those for various individuals involved in Jenna’s labor and the delivery of the Minor Plaintiff.
Wiswell lists 17 opinions regarding the instant matter. The Court excluded about ten of his opinions because Wiswell does not present qualifications in the specific medical practice areas to render opinions regarding the standard of care for obstetrics, and labor and delivery, certain opinions are generalized and overly broad, and he did not provide any methodology or principles supporting his conclusions. For example, he opined that “none of the Tripler Army Medical Center providers breached the standard of care” and went on to state that “J.A.G.’s medical problems were not caused by negligence by any TAMC providers.”
Seven of his opinions are not excluded because Wiswell is qualified as a pediatrician and neonatologist to opine on the standard of care for newborn infants and children.
Held
The Court granted in part and denied in part Plaintiffs’ motion to strike the testimony of Thomas Wiswell.
Key Takeaway:
As a pediatrician and neonatologist, Wiswell was allowed to opine on the standard of care for newborn infants and children. However, Wiswell does not present qualifications in the specific medical practice areas to render opinions regarding the standard of care for obstetrics, and labor and delivery. To add to that, certain opinions provided by him are generalized and overly broad, and he did not provide any methodology or principles supporting his conclusions.
Please refer to the blogs previously published about this case:
