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.
Defendant filed a motion to exclude the expert report and testimony of Plaintiffs’ expert witness, Jeri Morris, Ph.D., because she is not qualified to render opinions regarding the cause of the Minor Plaintiff’s brain injury and the applicable standard of care, and because her opinions are unreliable.
Neuropsychology Expert Witness
Jeri Morris has been in clinical practice for nearly 30 years, focusing on evaluating and treating those with neurological disorders and disabilities. She has been extensively involved in studying issues related to brain injury, PTSD, cognitive rehabilitation, and other areas of neuropsychology. Her work extends to training students of psychology, and being in a continuous state of study herself – regularly involved in research, publishing for peer-reviewed journals, and increasing her knowledge in this rapidly evolving field of science.
Morris provided a neuropsychological evaluation in her expert report. In her report, she stated the medical records that she reviewed, her interviews with Jenna and Tyler, the tests administered, the results of standardized testing, her observations of the Minor Plaintiff, and her impressions. Defendant did not dispute Morris’s qualifications as a neuropsychologist, nor does it raise an objection as to the tests she administered. Defendant objected to Morris giving opinions as to causation and standard of care rendered to the Minor Plaintiff. Plaintiffs affirmatively represented that Morris is not an expert witness who will render expert opinions as to the cause or causes of the Minor Plaintiff’s injuries nor regarding the standard of care of the medical practitioners involved in the birth and care of the Minor Plaintiff.
The Court did not permit Morris to give opinion testimony about causation and standard of care but allowed her to testify about the tests she administered to the Minor Plaintiff, and the results of those tests.
Morris provided her “impressions” and included a widely sweeping comment about the Minor Plaintiff’s future care: “Given the extensive nature of his impairments and his current profile, he can be expected to have significant cognitive, social, and other deficits and require assistance and the close availability of supervision by a trained caregiver throughout his lifetime on a 24-hour basis.”
The Court held that this statement regarding the Minor Plaintiff’s limitations and future care is not supported by identifiable principles and methodology and therefore did not meet the requirements of Rule 702.
Held
The Court limited the testimony of Plaintiff’s expert Jeri Morris.
Key Takeaway:
The Court excluded Morris’ opinions on causation and standard of care because she is not qualified to render opinions in these areas, and as to her opinion on future care because she failed to provide a basis for the opinion. Morris, however, is permitted to testify about the tests that she administered to the Minor Plaintiff and the test results.
Please refer to the blogs previously published about this case:
Plaintiffs, Kathian Marie López-Concepción and Lenymar López-Concepción sought to recover damages for the alleged wrongful death of their late father, Angel I. López-Diaz in this medical malpractice action.
Plaintiffs alleged in their complaint that the medical treatment and care provided by CMC, Dr. Benny Nieves Matias, Dr. Iolani Garcia Rosario, and Dr. Cristina I. Ortiz Garcia deviated from the standards of care of the medical professional community and was the cause of the death of Ángel I. López Díaz, after he received treatment and care for what turned out to be ingestion of a toxic substance.
Plaintiffs, in turn, requested the exclusion of two experts announced, respectively, by Co-Defendants Dr. Cristina Ortiz-García and Dr. Iolani García-Rosario: Drs. Wilfredo Nieves-Colomer (“Dr. Nieves”) and Alvaro Reymunde (“Dr. Reymunde”).
Emergency Medicine Expert Witnesses
Edwin Miranda-Aponte is a licensed Specialist in Emergency Medicine with over 36 years of professional experience in Direct Care, Administrative, Operations Management, Aero-Medical Transport, and Academic Medicine. From 1983 through 2019, he held an unrestricted current permanent license to Practice Medicine and Surgery issued by the Puerto Rico Board of Medical Examiners. His Curriculum Vitae shows that he worked as an emergency room physician from 1994 through 2018 at Centro Médico. For a span of 8 years, he was the emergency room director at that same institution (2001-2009). Miranda was also a Professor at the University of Puerto Rico School of Medicine during the years 1983 through 1994.
Wilfredo Nieves Colomer, MD is an emergency medicine specialist in Carolina and has over 37 years of experience in the medical field. He graduated from Ponce Health Sciences University School of Medicine in 1986.
Alvaro Reymunde, MD is a gastroenterologist in Ponce, PR and has over 40 years of experience in the medical field. He graduated from University Central Del Este in 1983. He
Defendants argued that Miranda is unqualified to render reliable testimony because he is not a toxicology expert and never treated a glyphosate poisoning while working as an emergency room physician.
Defendants’ contention that he is not qualified because his medical training is limited to the “basic medical training as a General Practitioner” with no academic background or medical experience in toxicology, misses the mark considering his ample experience as an emergency room physician and emergency room director.
The Court held that Miranda does not need to be an expert in toxicology to render an opinion regarding the treatment of López at CMC’s emergency room for ingesting a poisonous substance. Even more so when the allegations in this case all relate to treatment of López in the emergency room, as he was allegedly never admitted to the regular ward or the intensive care unit.
Even though Miranda affirmed in his deposition that he never treated a patient with glyphosate poisoning, his expertise as an emergency room physician qualifies him to testify on whether the Defendants failed to abide by the accepted standards of care in managing López’s condition at the emergency room.
The Court added that the admission of Miranda’s testimony does not prevent Defendants from presenting their own expert to refute his opinion at trial, or from confronting him through cross examination with matters that go to credibility or the weight, if any, that the jury will assign to his opinions. Moreover, Plaintiffs also challenged Miranda’s qualifications because his medical license was expired when he rendered his report. Miranda retired from the practice of medicine in 2018 and his license expired in 2022. However, Plaintiffs have not explained how the expiration of Miranda’s license undermines his credibility or makes his testimony unreliable.
Benny Nieves Matias
Nieves’ report stated that he was asked to review the medical record of López with particular attention to the care provided by Ortiz at CMC’s emergency department in February 2020.
Because there was no list of his qualifications; no mention of other cases where he has testified; and no statement of the compensation he received for the study and testimony in the case, the Court held that Nieves’ three-page report did not fulfill the requirements of Rule 26(a)(2)(B). Moreover, Nieves’ report did not reference any additional data, medical literature, or treatises that he reviewed or considered.
When Nieves stated that the intervention of Cristina Ortiz García with Angel I. López Díaz at the emergency department at Caribbean Hospital on February 27, 2020, was adequate, that Court held that Nieves’ input offered little that could not be obtained from the medical records. The report did not identify a national standard of care, nor did it state how Ortiz adhered to that standard of care. Moreover, Plaintiffs deemed Nieves’ conclusions as ipse dixit.
In conclusion, the report did not guide the Court through Nieves’ analytical process to reach the conclusion that no standard of care was breached.
Alvaro Reymunde
To begin with, Reymunde opined that the mechanism that is triggered with the poison ingestion (“oxidative stress”) was already damaging López’s organs when he was admitted to the emergency room. And that there was nothing the doctors could have done because there’s no antidote for ingesting glyphosates. In fact, he categorically stated that other treatments that could have been attempted, such as dialysis, would have been futile because “the damage was already done.”
Like Nieves’ expert report, Reymunde’s did not comply with all the requisites of Fed. R. Civ. P. 26(a)(2)(B). Also, the report was also missing any reference to medical literature and standards of care. Reymunde admittedly based his opinion on his vast experience but his report, however, does not delve into how his experience led to the conclusions he reached.
Regarding García-Rosario’s care, he states that her decisions and medical criteria did not deviate from the standards of medical practice since she was in constant contact with the in-house physicians even when she wasn’t there in person to check on the patient.
The Court held that Reymunde’s conclusory opinion that nothing could be done by the medical personnel at CMC is not supported by an explanation of the principles and methods he used to arrive at it. Likewise, the Court is left to guess how he estimated the amount of glyphosate López consumed, and the time elapsed between the ingestion of the poison and the arrival at the emergency room.
Held
In conclusion, the Court denied the Defendants’ motion to exclude the testimony of Plaintiffs’ expert witness, Dr. Edwin Miranda-Aponte but granted the motion as to the exclusion of the reports and testimonies of Benny Nieves Matias and Alvaro Reymunde.
Key Takeaways:
If Nieves was relying solely or primarily on his own experience, he was required to “explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Concerning the standards of care, Reymunde did not enunciate what that standard is or why he understands that García-Rosario’s actions or medical decisions had no bearing on the outcome of López’ health condition. The Court is left to wonder what the reasoning or the methodology are underlying his conclusions and whether they are scientifically valid and applicable to the facts in issue. An expert’s opinion “must be supported by appropriate validation” and rely on “more than subjective belief or unsupported speculation.”
Case Details:
Case Caption:
Lopez-Concepcion Et Al V. Caribe Physicians Plaza Corporation Et Al
Plaintiff Logan Demboske (“Demboske”) alleged in this premises liability action that he slipped and fell on or about January 30, 2023, on “a transitory foreign substance.”
Demboske has retained David Collette as a walkway expert. In Collette’s expert report, he contended that Demboske slipped and fell on a liquid contaminant on a vinyl floor, coated with floor finish, and was injured on January 30, 2023. Collette opined that the walkway where Demboske slipped and fell was a dangerous condition caused by Greer’s unreasonable standard of care that created a pedestrian slip hazard.
Autry Greer & Sons, Inc., filed a motion to exclude Collette’s opinions on several grounds. First, Greer sought to have the opinions excluded as untimely. Second, Greer argued Collette’s opinions failed to meet the admissibility standards set forth in Federal Rule of Evidence 702.
WalkwaySafety Expert Witness
David Collette has a degree in Mechanical Engineering and is a qualified Walkway Auditor. He has over 18 years of experience in developing, commercializing, analyzing, and troubleshooting walkway solutions including chemistry, tools, mats (walk-off, bath), cleaning processes, coatings, treatments, and flooring material selection. Collette is a Walkway Audit Certificate Holder and has a Certificate in Assessing Walkway Safety from the University of Northern Texas.
The Court found Collette’s opinions should be excluded under Federal Rule of Civil Procedure 37(c)(1) because they are incomplete and, thus, untimely. Collette has not provided his entire case list, his case notes, or his billing statements as per the requirements of Rule 26. Despite having two (2) additional months to produce Collette’s written report, the Court found no basis for Demboske’s failure to produce Collette’s full case list, case notes, or invoices.
Federal Rule of 702
As stated above, Collette sought to offer two opinions in this case, a hazard opinion and a breach of the standard of care opinion.
Hazard Opinion
Collette was questioned about his opinion regarding the condition of the walkway at length during his deposition. Repeatedly, Collette admitted that his opinion boils down to this – “water on floor finish is a hazard.” According to Collette, his hazard opinion is not based on Greer selecting the wrong flooring or that the floor was unsafe for any reason. Indeed, the flooring in Greer’s store is a vinyl composition tile (“VCT”) floor – the same type of floor found in large, big-box stores, such as Walmart and Target. Collette’s testimony is simply that standing water makes the finished floor slippery.
The Court held that Collette’s opinion that the floor was a hazard when slippery is a matter “in the realm of common sense” making his opinion a “superfluous” one which provides “no benefit to the trier of fact.”
Also, Demboske’s counsel expressly represented to the Court that she does not seek to have that opinion admitted at trial or for Collette to testify about that opinion. For sake of completeness, the Court finds that even without counsel’s concession, the hazard opinion would be excluded as unhelpful.
Greer also argued Collette’s hazard opinion is unreliable because Collette did not test the flooring until February 5, 2024, more than one year after Demboske’s fall which is why Collette did not know whether the floor finish was the same as at the time of the accident. Because Collette lacks sufficient information about the condition of the floor at the time of the accident, his hazard opinion is also not reliable.
Opinion Regarding Greer’s Breach of the Standard of Care
The second opinion Collette sought to offer is that the hazard condition referenced in his first opinion – that is, that the finished floor was slippery when wet – was caused by Greer’s breach of the standard of care. According to Collette, Greer breached the standard of care by failing to have defined and published procedures, policies, and training programs on slip and fall hazard identification, sweeps, and cleaning. Greer argued this opinion should be excluded under Rule 702 because Collette relies on facts that are not in the record and also, the opinion goes to an ultimate legal issue, which is not within the province of an expert opinion.
The Court held that while Collette may be able to provide testimony regarding industry standards for maintaining, cleaning, and inspecting floors, he cannot opine that Greer breached the standard of care or that such breach caused the hazard condition or injuries. Such testimony is not admissible because it would usurp the District Court’s pivotal role in explaining the law to the jury.
Held
The Court granted Greer’s motion to strike and to exclude David Collette as an expert witness.
Key Takeaways:
For sake of completeness, the Court found that even without counsel’s concession, Collette’s hazard opinion would be excluded as unhelpful. As stated above, in assessing helpfulness, “expert testimony is only admissible if it concerns matters that are beyond the understanding of the average layperson and offers something more than what lawyers can argue in closing arguments.”
Collette’s breach of the standard of care opinion was excluded because it concerned the ultimate issue for the jury to decide.
Manes is a pharmacy that has served the Van Buren, Arkansas community for nearly 40 years. AmerisourceBergen is a wholesale distributor of pharmaceutical products, including controlled substances. This dispute arises from AmerisourceBergen’s decision to restrict its sale of controlled substances to Manes. Manes sued AmerisourceBergen for breach of contract, tortious interference with Manes’ business expectancies, defamation, and compelled self-defamation.
Both parties sought to exclude some of their opponent’s experts. Manes sought to exclude the testimony of James Place and Deborah Komoroski. AmerisourceBergen sought to exclude the testimony of Jack Teitelman.
Drug Enforcement Expert Witnesses
James Place has 27 years of experience working for the United States Drug Enforcement Administration and nearly ten years of doing compliance work in the private sector.
Deborah Komorski works for Cencora, Inc., which is AmerisourceBergen’s parent company. She has eight years’ experience as a pharmacist, twenty-five years’ experience as a Drug Control Agent for the State of Connecticut, and thirteen years’ experience doing compliance and diversion control work for private companies.
Jack Teitelmean worked for the DEA as a special agent for 13 years, and he has worked in other law enforcement capacities for an additional 13 years. For the last seven years, he has worked for a private company which he describes as “a leading Veterinary Industry provider of DEA-compliance and controlled-substance anti-diversion solutions.”
Manes argued that the Court should exclude Place’s opinions because he was not a pharmacist and his expert report contained opinions about “the practice of pharmacy and how a pharmacist fulfills his/her corresponding responsibility.” Additionally, Manes argued that Place should be excluded under Arkansas law because he could not judge whether a medical professional had deviated from the accepted standard of care.
The Court held that the Arkansas statute titled “Plaintiff’s burden of proof” Manes relied on did not apply to this case because Manes is the Plaintiff here and this is not an action for negligence. Also, the statute’s definition of medical care provider does not include a drug distributor like AmerisourceBergen. Moreover, Manes has alleged injuries arising out of AmerisourceBergen’s decision to stop selling it controlled substances instead of a medical injury.
Place’s opinions do not discuss the exercise of pharmacological judgment
The Court found that Place’s testimony discussed the steps a distributor or government agency might take when investigating possible diversion. Place’s opinions did not question the drugs Manes’ pharmacists dispensed; his opinions questioned the steps the pharmacists took to investigate questionable prescriptions based on red flags (such as commonly diverted substances) before filling the prescriptions. This opinion fell within his decades of experience with investigations and compliance in the public and private sectors.
Moreover, Manes argued the following opinion is impermissible: “AmerisourceBergen was justified in questioning Plaintiff’s ability to satisfy its corresponding responsibility for the proper dispensing of controlled substances.” The Court held that Place’s opinion is made from the perspective of an outside investigator, not that of a pharmacist challenging Manes’ pharmacist’s pharmacological judgment.
Some of Manes’ objections are simply disputes over the factual basis for Place’s opinions
Manes took issue with paragraph 39 of Place’s report. That paragraph read, in part, “[p]roper controls can be accomplished by following common sense, sound professional practice, and proper dispensing procedures.”
This paragraph is a direct quote from the DEA’s Pharmacist’s Manual. Manes argued that this is an example of where Place “opines as to what pharmacies and pharmacists should or should not do.” The Court held that the paragraph is an example of what the DEA says what a pharmacist should or should not do. In other words, Manes’ argument missed the mark because it challenged the factual basis for Place’s opinions.
Deborah Komoroski
Manes next asked the Court to exclude Deborah Komorski because she is testifying on matters outside of her experience. Manes made the same argument as above about Arkansas’s standard of care for pharmacists, which the Court rejected for the same reasons stated above: the statute did not apply to this case.
Plaintiff objected to Komoroski’s opinions which discussed AmerisourceBergen’s processes when investigating whether a pharmacist carries out their corresponding responsibility. The Court held that these opinions all fall within her decades-long experience as both a pharmacist and diversion control agent.
Manes argued that not only did Komorski fail to consider all the facts but Komoroski cannot testify as to the applicable standard of care because she never practiced pharmacy in Arkansas. The Court did not find any of these arguments convincing because Komoroski’s opinions did not discuss the standard of care.
Jack Teitelman
AmerisourceBergen argued that because Teitelman failed to review a multitude of key sources of information, his testimony should be excluded because it is “so fundamentally unsupported that it can offer no assistance to the jury.” The Court held that while Teitelman’s report may have more thoroughly listed the documents he relied on, that he might base his opinion on different facts than Place does not render his opinion inadmissible.
AmerisourceBergen argued Teitelman is unaware of the steps in its investigation. However, the Court found that reviewing Teitelman’s report in its entirety reveals that he is aware of various steps AmerisourceBergen took as part of its investigation.
Teitelman’s report attempts to explain how Ruan V. United Statess, 497 U.S. 450 (2022) applies to the way that AmerisourceBergen and the DEA should evaluate a pharmacist’s corresponding responsibility. The Court held that Teitelman’s testimony about Ruan impermissibly ventured into testimony about legal matters because he applied the Ruan case out of its criminal context.
The Court did not agree with AmerisourceBergen that Teitelman’s opinions about AmerisourceBergen’s policies were unreliable because they were purely speculative. AmerisourceBergen primarily argued that because Mr. Teitelman did not have personal knowledge of how AmerisourceBergen’s policies had changed over time, his opinions on the topic should be excluded. However, Teitelman based his opinion in part on his previous work with pharmacies that had a relationship with AmerisourceBergen.
Held
The Court denied Manes’ motion to exclude the testimony of James Place and Deborah Komoroski but granted in part and denied in part AmerisourceBergen ‘s motion to exclude the testimony of Jack Teitelman.
Key Takeaways:
Place’s opinions all fall within his area of expertise and Arkansas’s statute about the standard of care does not apply in this case. Manes is free to challenge the factual basis of Place’s opinions on cross-examination, but Manes has not identified any reason Place’s testimony is inadmissible.
As per Rule 703, Teitelman can base his opinion on facts or data he has been made aware of or personally observed.
Case Details:
Case Caption:
Manes’ Pharmacy, Inc. V. Amerisourcebergen Drug Corporation
Plaintiff, James Rowedder alleged a Field & Stream Stealth Climber Tree stand HEH01293 (“tree stand”) manufactured by Defendant Primal Vantage Company, Inc. (“Primal”) and sold by Defendant Dick’s Sporting Goods, Inc. d/b/a Field & Stream failed while Rowedder was using it and that he sustained injuries as a result. Plaintiff brought claims for (1) Negligence—Product Defect; (2) Breach of Warranty; and (3) Strict Liability.
Plaintiff’s proffered expert Rick Brenner was retained to testify about the standard of care and best practices for consumer products manufacturers, and, specifically, how Primal failed to meet these standards.
Defendants filed a motion to exclude opinions offered by Plaintiff’s proffered expert Rick Brenner.
Product Safety Expert Witness
Robert (Rick) Brenner is a recognized expert in consumer product safety, regulatory compliance, and quality management programs. He is president of Product Safety Advisors, a consulting firm that advises clients in the development and implementation of product safety and regulatory compliance programs including best practices in product design, risk assessment and failure mode analysis, performance and compliance testing protocols, supply chain risk, production oversight, quality management strategies, and related employee training programs.
His experience includes being president and CEO of Prime Resources Corporation for 12 years, an “importer, manufacturer, and distributor of consumer products sourced from multiple overseas factories” where Brenner had “direct oversight responsibility for Prime’s overseas sourcing business including the development of our standard operating procedures for product safety, risk assessment, compliance management, selection and vetting of vendors, factory oversight, correction actions, factory auditing . . . and product safety testing.”
Defendants argued Brenner was not qualified to offer such opinions because, despite his extensive experience with product safety and quality management practices, Brenner was not an engineer, not familiar with tree stands, and, inter alia, had not physically examined the evidence in this case.
The Court denied Defendants’ motion on this point and found Brenner qualified to offer opinions on the standard of care and best practices for consumer products manufacturers or importers considering his extensive experience as a “manufacturer, importer, and product safety professional” in his report.
Brenner’s Opinions are Based on his Relevant Knowledge and Experience
Last, Defendants argued Brenner’s opinions must be excluded because they are speculative, unreliable, and legal in nature. Namely, Defendants argued that Brenner’s testimony that Primal “did not conduct specific risk assessments under CPSC [Consumer Product Safety Commission] and ISO [International Organization for Standardization 10377:2013 Consumer Product Safety Guidelines for Suppliers] standards” should be excluded because he admitted “that those are not mandatory standards for manufacturers of consumer products.”
The Court found that Brenner based his opinions regarding Primal’s alleged disregard for the safety of consumers on evidence—namely deposition testimony—adduced in this case.
Brenner did not purport to be a design or engineering expert and could not opine on whether the products or component parts of those products at issue here were defective. Nor could Brenner opine that any alleged failure on Primal’s part to meet the standards of care Brenner articulates rendered the products at issue defective. However, the Court held that Brenner will be able to testify, generally, as to what he believes constitute best practices for a manufacturer or importer of products such as Primal and how Primal did not live up to those standards considering the evidence adduced in this case and cited in his report.
Held
The Court denied Defendants’ motion to exclude the testimony of Rick Brenner.
Key Takeaway:
The Court, citing Brenner’s extensive experience with product safety and quality management practices, decided he is more than qualified to testify about the standard of care and best practices for consumer products manufacturers, and, specifically, how Primal failed to meet these standards.
Brenner based his opinions regarding Primal’s alleged disregard for the safety of consumers on evidence—namely deposition testimony—adduced in this case. The Court concluded that Brenner’s opinions are based on his relevant knowledge and experience.
A district judge in Oklahoma noted the expert witness’ extensive background in event safety at live events but barred him from testifying because he never inspected the area where Plaintiff fell and ignored relevant statutes and codes.
Plaintiff Boulac sought damages for injuries she allegedly sustained at the Bank of Oklahoma Center (“BOK Center”) in Tulsa, Oklahoma. Boulac was covering the NCAA Basketball Tournament as a member of the CBS Sports crew. She tripped on a cheerleader mat in a walkway.
On February 26, 2024, Defendant SMG identified Steven A. Adelman as an expert to provide an opinion on whether SMG breached or satisfied its duty of care owed to Boulac under Oklahoma law.
Adelman concluded that SMG met its duty of care by ensuring the mat was wholly outside the marked walkway designated for production workers and Boulac failed to meet her duty to maintain reasonable situational awareness. In other words, Boulac’s breach of her own duty of care was a proximate cause of her unfortunate injuries.
Plaintiff Boulac contended that Adelman should be permitted to testify because he lacked the knowledge, skill, experience, or education to qualify as an expert; Adelman’s opinions did not help the jury to understand the evidence or determine the facts in issue; and Adelman’s testimony was not supported by sufficient facts or data, or the product of reliable methods.
Safety Expert Witness
Steven A. Adelman has practiced as an attorney with Adelman Law Group, PLLC, “focusing on risk and safety at live events throughout North America” since 2010. He is the vice president of an international trade association Event Safety Alliance, since 2012. He is the principal author of “Crowd Management,” “Event Security,” “Event Safety Alliance Reopening Guide,” and editor of the forthcoming “Event Safety Guide,” second edition. Adelman was also an adjunct faculty member at Arizona State University, teaching “Risk management in Venues,” and an online “Sports Facilities Management” course.
Defendant SMG retained Adelman to offer testimony about “event safety standard of care.” Plaintiff Boulac contended Defendant SMG “was attempting to pass a litigation-experienced lawyer as an expert witness in a premises liability case.”
Qualifications
Adelman describes himself as “an authority regarding safety at live events, particularly crowd management and event security.” Adelman focuses on risk and safety at live events throughout North America. Plaintiff Boulac argued that Adelman’s “education and work history demonstrated that he lacked the necessary experience to opine on event safety standards of care or Human Factors Engineering principles and definitions.” Adelman testified to never taking any classes on live event operations or crowd management, either during school or since graduation from law school. He admitted to not having any licenses or certifications in these, or the event safety fields.
The Court, however, concluded that Adelman was qualified in the area of event safety because of his extensive background in event safety at live events, including many publications and his position as the vice-president of an international trade association.
Reliability and Relevance
The Court held that Defendant SMG failed to meaningfully satisfy its burden at each step of the Daubert analysis and instead focused solely on the supposed difference between “back of house” and “front of house” standards of care.
To begin with, Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care— were all legal conclusions.
Next, the Court concluded that Adelman’s testimony would not help the jury understand the evidence or to determine a fact in issue. As Adelman acknowledged (and as Plaintiff Boulac pointed out), “there is no standard of care that requires venue operators to store thick mats any particular distance away from brightly marked paths of travel in a back of house production area such as BOK Center during an NCAA tournament.”
The Court also agreed with Plaintiff Boulac that testimony on situational awareness did not require specialized knowledge and would be commonly known and easily understood by the jury.
The Court held that Adelman’s opinions were based upon the various court documents filed in this case (complaint, motion for summary judgment, discovery responses), BOK Center contracts, incident reports and depositions. Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In conclusion, Adelman’s testimony was not supported by sufficient facts or data, or reliable principles and methods.
Held
The Court granted the Plaintiff Boulac’s motion to exclude the testimony of Defendant’s purported expert, Steven A. Adelman.
Key Takeaways:
Whether Defendant SMG reasonably knew or should have known of the alleged dangerous condition, and whether it acted reasonably in mitigating and protecting against the danger, are factors in determining whether an owner is liable to an invitee under Oklahoma law. This led to the Court rejecting all of Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care.
Adelman contended that Boulac failed to meet her duty to maintain reasonable situational awareness. The Court held that testimony on situational awareness did not require specialized knowledge.
The Court found that Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In this regard, Adelman’s testimony was based on subjective belief or unsupported speculation
A district judge in Florida limited the testimony of a Business Valuation Expert Witness because he did not identify how exactly the CFO breached his unidentified standard of care.
This case arises out of Nextplat’s termination of its former Chief Financial Officer (“CFO”), Thomas Seifert. Nextplat contended in its Second Amended Complaint (among other things) that Seifert breached his employment contract with Nextplat and sought damages as a result. Specifically, Nextplat claimed that Seifert’s errant administration of a $45,000.00 wire in response to a phishing scam breached the section of the employment agreement that required him to act “with such duties, responsibilities and authority as are commensurate and consistent with his position, as may be, from time to time, assigned to him by the [Nextplat board of directors].”
The bulk of Nextplat’s breach of contract claim, then, hinged on whether Seifert adequately complied with that subsection of the employment agreement. To support its case, Nextplat sought to elicit testimony from Gary Moll, CPA, MSA, to opine on Seifert’s duties and responsibilities as CFO and whether Seifert’s adequately performed those duties and responsibilities. Seifert, of course, disputed that he breached the employment agreement and disputed that he acted beneath the CFO standard of care incorporated by the employment agreement.
Seifert filed a motion to strike the testimony of Gary Moll on February 3, 2023.
Business Valuation Expert Witness
Gary A. Moll is the Director of Forensic & Valuation Services at Fiske & Company, a CPA firm specializing in business valuation and litigation support services. He joined Fiske & Company in 2022 and has provided business valuation and litigation support services to manufacturers, wholesalers, retailers, medical practices, restaurants, service entities, and family limited partnerships, including valuing intangibles and intellectual property. He is a frequent speaker on topics such as business valuation, economic damages, and forensic accounting and has written articles on these topics. Additionally, he is a member of the American Institute of Certified Public Accountants (“AICPA”) Forensic & Valuation Section (“FVS”).
The Court first addressed Seifert’s argument that Moll should be excluded because he was not timely disclosed as an expert.
After both parties moved for deadline extensions, the Court extended the deadline for disclosing expert witness summaries and reports to November 11, 2022. Subsequently, the Court ordered that the parties disclose their expert reports on or before December 19, 2022. Seifert argued that, while Moll’s expert report was filed on December 19, 2022, Moll’s expert summary was not disclosed before November 11, 2022, nor was he even disclosed as an expert witness. Essentially, then, Seifert had no idea that Moll was going to be an expert witness—despite the November 11 deadline to disclose expert summaries—until on December 19 when his full expert report was disclosed. The proper remedy for this failure to disclose, argued Seifert, was to strike Moll as an expert witness.
Even if a disclosure is untimely, there must be resulting harm. The Court observed that Seifert still had (and will have) adequate time to prepare for Moll’s testimony.
The Court acknowledged Nextplat’s failure to adequately and timely disclose its expert witness. But Seifert suffered no prejudice and thus had no remedy under Rule 37(c)(1) since that failure was promptly cured.
B. Whether Moll is qualified
Seifert argued that Moll’s undisputed experience as a Certified Public Accountant (“CPA”), CFO, and financial analyst did not qualify him to render opinions in this case. Specifically, Seifert argued that Moll had not served as a CFO for a publicly traded company, and that his curriculum vitae failed to specify the amount of time for which he served in his roles. Further, Seifert took issue with the fact that Moll had never written internal accounting controls.
Moll’s testimony and expert report indicated that he had experience as a financial analyst for a company that underwent the IPO process, had served as a CFO, and had CPA experience relevant to internal control issues. Given Moll’s experience serving in positions and in factual situations relevant to this case, the Court found that Moll is at the very least “minimally qualified” to serve as an expert witness in this case.
C. Whether Moll’s methodology is reliable
In Moll’s expert report, he rendered two expert opinions still relevant to this case: (1) that the “CFO is tasked with creating systems and controls to ensure the safeguarding of company assets” and ensuring compliance with those controls; and (2) that Seifert’s administration of the errant $45,000.00 phishing scam wire fell “far short of proper conduct of a CFO.”
Seifert argued that Moll, in reaching his expert opinions, employed no accepted method or analysis; rather, he just offered his personal, unsubstantiated judgment as to what the CFO should have done. As Seifert characterized it, Moll’s report was primarily “based on his review of various articles, internet searches, and the allegations provided by Nextplat’s counsel.”
Seifert bolstered this argument with the fact that Moll largely inherited the file from two of his associates, and relied substantially on their research and investigation to draw his conclusions.
Seifert argued that Moll’s experience did not carry the burden of rendering his opinion reliable—this was in fact his first time researching the “niche area of cyber security and the CFO’s role.”
1.Moll’s opinion as to the responsibilities of a CFO
Moll concluded that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
The Court noted that Moll has experience as a CFO; as a financial analyst working closely with a CFO for a company who was undergoing the IPO process; and as a CPA and auditor. His experience in this arena is coupled with his review of relevant SEC guidelines and other scholarly articles on the topic.
While Moll did not employ a peer-reviewed methodology to conclude that CFOs are responsible for implementing and ensuring compliance with certain internal controls, Seifert did not suggest a method that should have been used instead, nor did he point the Court even to the existence of such a method for this niche, non-scientific request.
The Court held that Moll’s testimony—based on his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert. If Seifert finds his testimony to be “shaky” or wishes to attack the factual underpinnings of Moll’s opinion, he can do so before the jury.
2.Moll’s opinion as to whether Seifert fell short of the proper conduct of a CFO
Moll concluded that Seifert’s errant administration of the Phishing Wire fell “far short of proper conduct of a CFO.”
The Court acknowledged Moll’s general qualifications but held that Moll’s experience and methodology were not sufficient to produce reliable findings.
Moll admitted that assessing whether Seifert’s actions conformed with a CFO’s standard conduct was more of a “one off” than it is a “typical type project” for which he is engaged as an expert. In fact, Moll had never assessed whether a CFO has complied with his duties.
Moreover, Moll’s auditing experience did not include “an audit of internal controls,” and did not include “cybersecurity risk assessment measures.” Additionally, Moll’s audit experience involved private—not public—companies, and involved audits that he did not “run or manage.”
Moll concluded that it is the CFO’s job to “develop internal controls to prevent or to preserve the security of the assets of the company.” Moll plainly admitted that he did not know what internal controls Seifert should have put in place.
The Court held that the lack of relevant experience and expertise could not be overcome on a reliability analysis, especially when Moll concluded with certainty that Seifert’s actions fell “far short” of proper conduct. Also, a pivotal area of this case is cybersecurity—i.e., the area in which Moll believed Seifert acted below standard. Moll conceded in his deposition that this case represented his first time researching the “niche area of cyber security and the CFO’s role.”
Moll did not explain how he arrived at his conclusion that Moll breached his standard of conduct as CFO, leaving the Court to infer that, simply, Moll made a judgment call.
D. Whether Moll’s testimony will assist the trier of fact
For this analysis, the Court addressed only the portion of Moll’s proffered testimony that was deem reliable; i.e, that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
Seifert’s argument as to this prong was primarily aimed at the portion of Moll’s testimony that the Court held to be unreliable (i.e., the Seifert fell short of the proper conduct of a CFO). But to the extent Seifert may argue that the reliable portion of Moll’s testimony is unhelpful, the Court disagreed. Here, it would certainly aid a jury to hear from a proffered expert that the SEC requires internal controls, the burden to implement those controls falls on the CFOs of publicly-traded companies, and those controls should include cybersecurity measures. The nature of Moll’s testimony (i.e., the duties and expectations of a CFO in publicly-traded companies in the context of cybersecurity) clearly goes beyond the “understanding and experience of the average citizen.”
Additionally, much, if not all, of Seifert’s argument in this area attacked the implications of the factual underpinnings of Moll’s testimony. But it is well established that Seifert can attack those factual underpinnings at trial.
E. Whether Moll’s Limited Testimony is Misleading Under Rule 403
As for Seifert’s argument that Moll’s testimony is likely to mislead, confuse, and persuade the jury to follow his opinions, the Court addressed only the portion of Moll’s proffered testimony about the CFO being tasked with creating systems and controls to ensure the safeguarding of company assets.
To this point, Seifert’s only argument concerned the portion of Moll’s testimony that was already deemed unreliable; i.e., that Seifert breached the proper conduct of a CFO. And specifically, at the heart of that argument was Seifert’s viewpoint that Moll would offer an impermissible legal conclusion as to Seifert’s conduct. Seifert advanced no argument that the other, reliable portion of Moll’s testimony violated 403—especially because his legal conclusion concerns did not extend to Moll’s standard-based testimony. Accordingly, this issue was effectively moot.
Held
The Court granted the Defendant’s motion to exclude Moll’s opinion and testimony as to whether Seifert’s conduct here fell “far short of proper conduct of a CFO.” The Court denied the Defendant’s motion in all other respects.
Key Takeaway:
Moll never assessed whether a CFO had performed within his standard of care; had never researched cybersecurity; had not suggested what internal controls Seifert should have put in place; had not analyzed how Seifert breached his un-identified standard of care; had not identified the methodology he used to conclude that Seifert breached that standard of care; and did not, it appears, complete the bulk of the relevant research in his report. Moll’s invalidating testimony, lack of methodology, and dearth of direct experience undermine the reliability of his opinion that Seifert acted beneath the proper standard of conduct for a CFO.
Yet, Moll’s opinion about the responsibilities of a CFO —based on his experience as CFO, financial analyst, and CPA of similarly-situated companies; his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert.
A district judge in Kansas barred an expert physician and nurse from testifying about the Defendants’ deviation from the requisite standard of care.
Facts:
On April 9, 2021, Smoky Hill admitted Arlen Dority, age 82, after a fall at his home on April 6, 2021 and a decline in his ability to care for himself. Dority resided in the COVID-19 isolation unit. On April 10, 2021, Smoky Hill completed a 48 Hour Care Plan Conference Summary and conducted a fall risk assessment for Dority, and concluded that Dority was at high risk for falls. Shortly thereafter, Dority began physical therapy and occupational therapy to improve his balance and decrease the risk for falls. Between April 9 and April 17, 2021, Dority did not have a documented fall at Smoky Hill.
On April 18, 2021, licensed nurse Andrea Stika noted that Dority was found lying on the floor against the wall, mostly on his left side. He was complaining of right hip and knee pain from his fall, and had scraped his elbow & behind his right ear. When touching the right hip, [Dority] yelled out in pain. He stated that he could not move it. Neuros were done, and no obvious injury was noted, besides the scrape behind right ear.
Smoky Hill notified Salina Emergency Medical Services (“EMS”), which arrived at Smoky Hill six minutes after the nurse found Dority, at 1:31 A.M. EMS transferred Dority to Salina Regional Medical Center, where radiographs indicated a fractured right hip. At the hospital, Dority relayed to staff, and personnel recorded, that the fall occurred while Dority was walking down the hallway at full speed. Surgeons conducted an open reduction internal fixation of the fracture.
At 4:07 P.M. on April 19, 2021, one day after his fall, Dority died. His death certificate listed hip fracture due to a fall as the primary cause of death, with congestive heart failure as a contributing cause.
Wrongful Death and Negligence
On July 9, 2022, Keyna Leonard, Dority’s surviving daughter and the administrator of his estate, sued Defendants for wrongful death and negligence.
Plaintiff claimed that Defendants negligently failed to do one or more of the following: (1) include in Dority’s Interim Care Plan fall-related interventions of a bed in the lowest position and a fall mat; (2) create a Comprehensive Care Plan, containing fall-related interventions of a bed in the lowest position and a fall mat; (3) ensure Dority’s bed was in the lowest position and a fall mat in place on the morning of April 18, 2021; (4) adequately supervise and monitor Dority on April 18, 2021; (5) ensure Dority’s safe transfer from one position to the other on April 18, 2021; and (6) ensure Defendants employed sufficient competent staff.
Defendants argued that Plaintiff has not demonstrated a genuine issue of material fact as to whether they breached any alleged duty of care and, if so, whether that breach caused Dority’s injury.
The Plaintiff retained two experts: Dr. John Kirby and Nurse Eleanore Tache. Tache opined on (1) Defendants’ deviations from the standard of care and (2) how those deviations caused Dority’s fall. John Kirby testified about all aspects of negligence and causation.
Internal Medicine Expert Witness
John Kirby is the Associate Professor of Medicine in the Department of Medicine, Cooper Medical School of Rowan University. John Kirby holds an M.D. from the University of Pennsylvania School of Medicine. Prior to that, he completed his undergraduate studies at Yale University, where he obtained a Bachelor of Science in Biology, graduating magna cum laude with distinction in biology. He previously served as a Consultant to the United States Department of Justice.
Eleanore Tache has been a registered nurse since 1979. She currently holds a certification as a Director of Nursing in Long Term Care from the National Association of Directors of Nursing Administration Long Term Care. Additionally, she holds an active Nursing Home Administrator licensure since 2007. She is a graduate of Molly College with a Bachelor’s Degree in Nursing.
To begin with, Tache’s expert report stated that she examined whether any deviations from the standard of care “were a probable cause of harm to [Dority].” She broadly concluded that “multiple deviations” occurred, and that they were a “probable cause” of harm to Dority. She criticized Defendants’ documentation practices, but she did not implicate them in Dority’s fall on April 18, 2021. Tache found fault with Defendants’ assessments because a registered nurse did not conduct them, but she likewise expressed no opinion that this shortcoming contributed to his fall.
She opined that Defendants’ care plan was not sufficiently comprehensive or implemented early enough. But Dority took no falls before the one in question, and the record contains no evidence that any such deviation from the standard of care caused Dority’s fall. She stated that Defendants had inadequate staffing on the night in question, but did not suggest how additional staff would likely have prevented the fall. Ultimately, her opinion on causation is that Defendants “failed to prevent an avoidable fall.”
The Court held that her opinion did not create a genuine issue of material fact as to whether any alleged breach of Defendants’ duty of care caused Dority’s injury.
John Kirby
John Kirby opined that (1) given Dority’s medical history, he was at a risk of falling while in Smoky Hill’s care; (2) Smoky Hill’s fall prevention interventions were “inadequate to prevent” Dority’s fall on April 18, 2021; and (3) the trauma of the fall caused a hip fracture, which together with congestive heart failure, caused his death.
Kirby’s expert report established a causal link between Dority’s fall and his death. However, it did not create a genuine issue of material fact regarding whether any alleged deviations in the standard of care were the proximate cause of Dority’s fall. Like Tache, Kirby advanced the conclusory opinion that “[f]all prevention interventions were inadequate to prevent Dority’s 4/18/21 fall.”
Once again, Kirby’s opinion did not create a genuine issue of material fact as to whether Defendants breached a duty of care which resulted in Dority’s fall. Breach of the standard of care cannot be inferred merely from lack of success or an adverse result in treatment.
Held
Under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Court held that expert testimony from Tache and Kirby on the issue of causation would cause confusion and delay. In short, their opinions are based on the incorrect legal premise that failure to prevent an accident is sufficient to find liability, and are tethered to specific evidence about the circumstances of the fall.
Key Takeaways:
Opinions of Eleanore Tache and John Kirby did not create a genuine issue of material fact as to whether Defendants breached a duty of care which resulted in Dority’s fall. Moreover, breach of the standard of care cannot be inferred merely from lack of success or an adverse result in treatment. If the Court were to equate breach with an adverse result, the test would become no different than strict liability; indeed, medical facilities are not responsible each time a resident or patient is injured. Consequently, with or without expert testimony on causation, mere failure to prevent a bad outcome is not sufficient to create a genuine issue of material fact as to liability.
In an underinsured motorist (“UIM”) bad faith action stemming from a car accident, Todd Cope presented at the emergency room after his vehicle was rear-ended on November 6, 2013, citing complaints of occipital headache, pain behind his right eye, and cervical spine pain. Medical records at that time indicated no acute traumatic injuries to the skull, brain, cervical, or thoracic spine. Cope was discharged without medication and advised self-care. Subsequently, a lumbar MRI conducted two months post-accident revealed a disc herniation at L5-S1.
Before the accident, in March 2011, Cope experienced a back injury from a fall through a flight of stairs. This incident caused low back pain radiating down his extremities. A lumbar spine MRI in May 2011 showed disc bulges at L4-5 and L5-S1. Even two years later, in April 2013, Cope continued treatment for low back and right leg pain attributed to the 2011 fall.
Within this UIM bad faith action, Todd Cope disclosed several medical providers as non-retained expert witnesses, including Dr. Bryan Castro, his former treating spine surgeon, and Dr. Roberta Anderson-Oeser, his treating physical medicine and rehabilitation physician. Additionally, Cope disclosed Aubrey Corwin as a life care planning “expert” and Brad Levin as an insurance standard-of-care expert. Auto-Owners Insurance Company seeks to exclude opinions they deem improperly disclosed, unsupported, unreliable, or unhelpful.
Life Care Planning Expert Witness
Aubrey A. Corwin M.S., L.P.C., C.R.C., C.LC.P. is a vocational rehabilitation and life care planning expert. She testifies as an expert in cases involving both loss of earning capacity and life care planning nationwide. She is a Licensed Professional Counselor (LPC); a Certified Rehabilitation Counselor (CRC); a Certified Life Care Planner (CLCP); and a former Certified Guidance Counselor. She is past Co-Chair of the Forensic Section of the International Association of Rehabilitation Professionals (IARP) and past Forensic Representative to the IARP International Board of Directors. She is also a member of the American Board of Vocational Experts (ABVE).
Insurance Law Expert Witness
Bradley A. Levin focuses his practice on tort and commercial litigation, especially insurance bad faith and insurance coverage disputes. He has significant litigation and trial experience.
Levin received his undergraduate degree from Stanford University, with distinction, where he was elected Phi Beta Kappa. He graduated from the University of California, Hastings College of Law, and served as editor-in-chief of the Hastings Constitutional Law Quarterly.
In addition to teaching legal writing and research at Hastings College of Law, Levin has lectured frequently in the areas of insurance coverage and bad faith law. He is licensed to practice in California and Colorado. He is a member of the Denver, Colorado and American Bar Associations.
Discussion by the Court
The Defendant sought to prevent Castro and Anderson-Oeser from presenting causation opinions during the trial. Both doctors were non-retained experts who had not submitted formal expert reports. The Defendant argued that their opinions on causation lacked reliability for various reasons. Proving injury causation necessitates demonstrating both general and specific causation. “Specific causation” pertains to whether a particular incident directly caused the specific injury, while “General causation” concerns whether the incident could theoretically lead to the type of injury suffered.
According to the ruling in Hollander v. Sandoz Pharmaceuticals Corp. (289 F.3d 1193, 10th Cir. 2002), general causation could be established through means like epidemiological evidence. The Court highlighted that an expert was not obligated to reference published studies to reliably conclude that a specific object caused a particular illness.
In the Defendant’s Motion, it was outlined that based on the Plaintiff’s Rule 26(a)(2) expert disclosures, Castro intended to testify about several key points:
Cope’s persistent back and leg pain, attributing it to a substantial herniation on the right side at L5-S1, asserting it was caused by the November 6, 2013, collision.
Denial that Cope suffered any disc herniation due to a 2011 worker’s compensation fall at any spinal level.
Confirmation that Cope underwent a corrective surgery on May 8, 2014, not for impingement but explicitly linked to the November 6, 2013, crash.
Affirmation that subsequent surgeries, including a revision on November 19, 2015, were deemed necessary and reasonable consequences of the November 6, 2013, collision.
Assertion that Cope’s symptoms preceding the specific collision did not necessitate a subsequent lumbar MRI and that the pain experienced was notably distinct.
Examination and reference to all physical therapy records preceding the collision and all records pertinent to Cope’s 2011 worker’s compensation claim, encompassing impairment ratings and work restrictions.
Expressing the potential for the third herniation to self-heal but highlighting the possibility of future fusion surgery if self-healing doesn’t occur.
Affirmation of the reasonableness of bills for services rendered by Castro.
The Defendant sought to prevent Castro from expressing opinions on causation related to whether the car accident caused the Plaintiff’s reported injuries or pain, specifically disputing Castro’s assertion that the accident led to the disc herniation or the subsequent lumbar surgeries he performed.
Initially, the Defendant argued that Castro’s statement didn’t constitute a causation opinion as it didn’t assert that the accident was more likely than not the cause of the Plaintiff’s current symptoms, pointing to a June 02, 2017 statement in Plaintiff’s medical records. The Defendant further contended that Castro’s language was too vague and incomplete to be considered a definitive opinion on causation, especially concerning the surgeries he conducted in 2014 and 2015.
The Defendant stressed that the medical records by Castro contained no explicit causation opinions, highlighting a supposed violation of Rule 26 disclosure requirements. The Plaintiff, however, argued that any such violation was harmless since the Defendant had elicited opinions from Castro during a deposition in 2018 before the expert disclosure deadline. The Plaintiff also contended that the Defendant’s objection was based on Castro not being paid to document his causation opinions expressed during the 2018 deposition.
Ultimately, despite Castro discussing causation in his deposition testimony, the Court ruled that his deposition didn’t suffice as an expert report as required by Rule 26. The Court emphasized that even for retained experts who usually submit expert reports, deposition testimony couldn’t substitute for Rule 26’s explicit disclosure requirements. Consequently, the Court decided to preclude Castro from offering causation opinions during the trial.
The Court emphasized that based on the absence of general or specific causation opinions from Castro, Rule 26(a)(2) doesn’t permit curing deficient expert reports through subsequent deposition testimony. With the accident having occurred over a decade ago and the litigation spanning several years, the Court noted the ample time available for the Plaintiff to disclose an expert report containing Castro’s causation opinions.
In line with the rule’s requirements, the Court outlined that a treating physician who previously provided a causation opinion during treatment (in compliance with specific standards) without submitting a formal report could only testify to the historical fact that such an opinion was part of the treatment. However, the physician couldn’t testify that this remains their current opinion, emphasizing the need for strict compliance with the Federal Rules. Consequently, the Court granted this part of the Motion, precluding Castro from offering causation opinions during the trial.
Nevertheless, the Court acknowledged the existence of a statement in Plaintiff’s medical records that could potentially be construed as a causation opinion formed during treatment by Castro. Thus, while barring Castro from presenting this as a current opinion under oath, the Court allowed Plaintiff to present this fact at trial. Castro could testify solely to the historical aspect that this opinion was part of the treatment, adhering to the Court’s directive.
Given this ruling, the Court instructed the parties to submit proposed instructions for the jury at trial, aiming to clarify in simple terms the distinction drawn by the Court regarding Castro’s testimony about the historical treatment-based opinion versus a current opinion.
The Defendant requested the Court to prevent Anderson-Oeser from testifying about the necessity of a future spinal fusion resulting from the injuries sustained in the accident. In response, the Plaintiff didn’t address the Defendant’s causation arguments regarding Anderson-Oeser, except to assert that the Defendant hadn’t specified which causation opinions it aimed to exclude, focusing solely on the future surgery opinion. Plaintiff did not argue that any failure to properly disclose Anderson-Oeser’s causation opinions was harmless or substantially justified.
The Court deemed Plaintiff’s argument disingenuous, emphasizing that the Defendant’s intention was clear—to exclude Anderson-Oeser’s testimony regarding the accident’s role in necessitating future spinal fusion. Similar to Castro, Anderson-Oeser, a non-retained treating physician who hadn’t submitted an expert report, was the subject of this exclusion request. The Defendant highlighted that Anderson-Oeser endorsed a statement in a letter, prepared for litigation and drafted by Corwin’s office staff, stating, “Cope will likely require a lumbar spine fusion at L5-S1 at some point.” The Defendant contended that Anderson-Oeser aimed to testify regarding the future surgery recommendation outlined in Corwin’s report/letter. However, the Defendant argued that this evidence should be excluded as the recommendation in the letter lacked any opinion regarding whether the accident caused the necessity for this future surgery.
The Plaintiff, however, clarified that Castro’s testimony would focus on the standard of care for third herniations, asserting that the typical practice doesn’t involve a third laminectomy but leans towards spinal fusion. Plaintiff argued that both doctors were qualified to discuss the clinical standards pertaining to the type of surgery and the conditions influencing the decision-making process for surgery, such as pain tolerance and neurological deficits.
Plaintiff contended that there was no obligation to present expert testimony specifically establishing the probability of future surgery to seek damages for such potential procedures. However, Plaintiff failed to acknowledge that neither Castro nor Anderson-Oeser’s medical records contained any prognosis or explicit recommendations for future surgery. Additionally, Plaintiff didn’t address the concerns raised by the Defendant regarding Rule 26 and Rule 37 compliance.
Consequently, the Court granted the Defendant’s motion, barring Anderson-Oeser from presenting any causation opinions and from testifying about the necessity of a spinal fusion resulting from the injuries sustained by the Plaintiff in the accident.
The Court determined that Castro and Anderson-Oeser’s opinions regarding the Plaintiff’s future medical treatment and potential surgery were not derived from their observations, actions, or reasons during their treatment of the Plaintiff. Instead, the Court noted that these opinions seemed to be shaped primarily due to the existence of the lawsuit.
Given that the opinions sought to be introduced through Castro and Anderson-Oeser concerned potential future treatments and associated medical costs, the Court held that Rule 26(a)(2)(B) necessitated an expert report—which neither physician had prepared.
Consequently, the Court precluded Castro from testifying on several points: 1) the assertion regarding the standard of care for third herniations favoring spinal fusion over a third laminectomy; 2) opinions about the Plaintiff’s potential future surgery needs based on factors like pain tolerance and future neurological deficits; and 3) any testimony related to clinical standards governing the type of surgery and factors influencing the Plaintiff’s future decisions about surgery, as proposed through Castro and Anderson-Oeser.
The Defendant had requested the Court to prevent Castro from testifying about the Plaintiff’s pre-accident physical therapy and medical treatments stemming from a 2011 workers’ compensation fall. After deliberation, the Court granted this aspect of the Motion.
The Court noted that Castro commenced treating the Plaintiff on March 21, 2014—four months subsequent to the accident and three years following the Plaintiff’s fall down a flight of stairs. As Castro hadn’t administered the physical therapy or medical treatment associated with the earlier fall, the Court excluded Castro from offering any testimony regarding those pre-accident treatments.
The Defendant had sought to exclude Anderson-Oeser’s opinion predicting the necessity of a future spinal fusion resulting from the injuries sustained in the accident. The Defendant reiterated that this opinion, akin to her causation opinion, was inadmissible due to Plaintiff designating her as a non-retained expert without a formal report under Rule 26. The Defendant emphasized that Anderson-Oeser’s opinion pertained not to her direct treatment but rather to potential future treatment for the Plaintiff, which she wouldn’t perform as she wasn’t a surgeon. Additionally, the Defendant argued that Anderson-Oeser’s qualification as a non-spine surgeon rendered her unqualified to opine on hypothetical future lumbar spinal fusion surgeries.
However, since the Court had previously excluded Anderson-Oeser’s opinions about the Plaintiff’s future spine surgeries and medical treatment, the Court denied this aspect of the Defendant’s Motion as moot.
The Defendant argued that the Plaintiff hadn’t disclosed any retained expert or report addressing the reasonableness of his medical bills. Instead, Plaintiff’s disclosures indicated the intent to rely on testimony from non-retained treating physicians on this matter. However, the Court excluded the opinions of Plaintiff’s non-retained treating physicians concerning the reasonableness and necessity of his medical bills.
The Defendant moved to exclude testimony regarding surgery-related treatments in Aubrey Corwin’s May 2021 life care plan, arguing that Corwin failed to reliably apply her stated methodology in forming opinions about the cost of future surgical treatment and related care.
In response, the Plaintiff acknowledged that introducing expert testimony indicating the need for future surgical care was necessary to seek future surgical costs. However, as the Court had excluded the testimonies of Castro and Anderson-Oeser regarding future surgery, and the Plaintiff hadn’t disclosed any other experts to testify about his future surgical needs, the Court granted the Defendant’s motion. Consequently, the Court excluded Corwin’s opinions regarding future medical expenses for surgical treatment and related care.
The Defendant moved to exclude attorney Bradley Levin’s opinions, contending that they lacked an objective basis and were solely derived from his experience. In response, the Plaintiff highlighted that Levin’s opinions were rooted in ten insurance industry standards outlined in his report, several of which were based on direct language of the Colorado Unfair Competition-Deceptive Claims Practices Act.
After reviewing Levin’s report, the Court acknowledged the Defendant’s contention that Levin could have more precisely linked his opinions to the specific standards purportedly violated by the Defendant. However, the Court noted that Levin explicitly stated in his opinion that the Defendant had contravened relevant portions of Colorado’s Unfair Competition-Deceptive Claims Practices Act. Levin also cited Regulation 5-1-14 promulgated by the Colorado Division of Insurance. The Court concluded that while the Defendant’s arguments might challenge the strength of Levin’s opinions, they did not render his opinions inadmissible. As a result, the Court denied the Defendant’s motion, allowing Levin’s opinions to stand, but stated that the Defendant could address these concerns during cross-examination.
Held
Defendant Auto-Owners Insurance Company’s Omnibus Motion to Exclude Certain Opinions of Dr. Bryan Castro, Dr. Roberta Anderson-Oeser, Aubrey Corwin and Bradley Levin was granted in part and denied in part by the Court.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaway
In a legal dispute over an underinsured motorist (“UIM”) claim, various motions were filed by the Defendant seeking to exclude certain expert testimonies and opinions from the trial. The Defendant aimed to preclude causation opinions from non-retained experts, Dr. Bryan Castro and Dr. Roberta Anderson-Oeser, alleging lack of reliability, improper disclosure, and absence of expert reports. Despite some arguments put forth by the Plaintiff, the Court precluded Castro from providing causation opinions, emphasizing the inadequacy of deposition testimony as a substitute for the required expert report under Rule 26.
The Court highlighted strict adherence to the Federal Rules and barred Castro and Anderson-Oeser from testifying on future surgical needs. This ruling stemmed from their opinions not being formed during treatment but apparently due to the ongoing litigation.
Additionally, the Court excluded discussions on pre-accident medical treatments and future surgical needs as neither expert had prepared an expert report as mandated by Rule 26. Despite the absence of specific expert reports, the Court allowed some opinions rooted in Colorado law from attorney Bradley Levin, indicating that the Defendant breached certain sections of the Colorado Unfair Competition-Deceptive Claims Practices Act.
In a similar vein, Aubrey Corwin’s opinions regarding future medical expenses for surgical treatment were excluded due to the lack of supporting expert testimony after the Court had previously precluded discussions on future surgery from other witnesses.
Overall, the Court enforced strict compliance with expert disclosure rules, precluding opinions lacking proper reports while permitting those supported by established legal standards. The Defendant’s objections and challenges were taken into account, but the Court emphasized the distinction between admissibility and weight of opinions, allowing certain expert testimonies to proceed while offering the opportunity to contest their strength during cross-examination.
This case arises from a stroke allegedly caused by a chiropractic adjustment performed by Dr. Frederick Stinner. In February 2015, Justin Brutosky began experiencing chronic back, neck, and head pain. To treat these issues, he periodically saw Stinner, a chiropractor at Madison Avenue Chiropractic Center. From early 2015 to September 17, 2018, Stinner performed 39 chiropractic cervical manipulation procedures on Justin. Though a cervical manipulation procedure is a non-invasive one, it does carry risks, including cervical artery dissection that can lead to stroke.
On September 17, 2018, Stinner performed another cervical manipulation on Justin. Within weeks, the 37-year-old Justin suffered an embolic stroke resulting from a cervical artery dissection in the same area of his neck where Stinner had performed the procedure. At the time, Stinner was aware Justin had a family history of stroke but did not know cervical manipulation could cause artery dissection and stroke. As such, he never informed Justin of these risks or suggested alternative treatments.
On September 29, 2020, Justin and his wife Suzana filed suit against Stinner for professional negligence and against Madison Avenue Chiropractic Group for vicarious liability. Suzana also brought a loss of consortium claim against all Defendants.
Defendant filed successive motions to bar the testimony of Plaintiff’s expert witnesses- Santosh B. Murthy and Eric G. Chesloff while the Plaintiff responded by filing a motion for partial summary judgment.
Medical Expert Witnesses
Dr. Santosh Murthy is an Associate Professor of Neurology at Weill Cornell Medical College and serves as the Associate Chief of the Division of Neurocritical Care at New York-Presbyterian Hospital/Weill Cornell. He earned his medical degree from Bangalore Medical College in India and completed his Neurology residency at Baylor College of Medicine. Murthy has a fellowship in Neurocritical Care from the Johns Hopkins University School of Medicine and holds a Masters in Public Health from the University of Texas. He is board certified in Neurology, has authored numerous publications, and received various awards and scholarships in his field.
Dr. Eric Chesloff is a licensed chiropractor in Pennsylvania. He earned his Doctor of Chiropractic degree from the Pennsylvania College of Chiropractic. He also holds a Doctor of Higher Science Education degree from Walden University and a Master of Science degree in Chemistry from Indiana State University. Chesloff has nearly 40 years of experience in private chiropractic practice.
Discussions by the Court
The Court first considered Stinner’s motion to exclude the testimony of Santosh Murthy. Stinner argued that Murthy, a neurologist, could not testify because he is not a chiropractor. He contended New Jersey’s Medical Care Access and Responsibility and Patients First Act (Patients First Act) requires experts to have the same specialty as the Defendant. The Patients First Act used to provide that an expert had to have the same type of practice and possess the same credentials as the Defendant health care provider, unless waived by the Court. However, the Court found that the same-specialty rule only applied if the party against whom or on whose behalf the testimony was offered was a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, and the care or treatment at issue involved that same specialty or subspecialty. Stinner had failed to show that he, being a chiropractor, fell within the category of medical practitioners covered by the Patients First Act. In fact, neither the American Board of Medical Specialties nor the American Osteopathic Association recognized a chiropractic specialty or subspecialty. Stinner did not raise any further arguments in support of his motion to bar Murthy’s testimony, and as a result, the motion was denied.
The Court next examined Stinner’s motion to exclude the testimony of Eric Chesloff. Chesloff is a chiropractor with nearly 40 years of experience. Stinner argued his conclusions improperly relied on other experts’ findings, lacked specificity about the September 17, 2018 procedure. Stinner also pointed to his failure to provide a detailed explanation of his opinion instead of offering a mere conclusion, which was a violation of New Jersey’s net opinion rule.
The Court upheld eight factors which are crucial in assessing the reliability of the expert testimony:
Whether the method had a testable hypothesis.
If the method has undergone peer review.
The known or potential rate of error.
The existence and maintenance of standards controlling the technique’s operation.
Whether the method is generally accepted.
The relationship of the technique to established reliable methods.
The qualifications of the expert witness testifying based on the methodology.
The non-judicial uses of the method.
After the District Court establishes that the testimony of the expert is based on “good grounds”, it is advisable to subject its validity to the adversary process, involving competing expert testimony and thorough cross-examination instead of excluding it from the scrutiny of jurors due to concerns about their ability to comprehend its intricacies or grasp its complexities.
The Court affirmed the reliability of Chesloff’s testimony due to his 40 years of extensive experience. Chesloff had examined pleadings, depositions, interrogatories, photographs, various medical records, and other documents, drafted a report, and opined that the standard chiropractic manipulative procedure was unlikely to cause vascular deficits, but applying excessive force during chiropractic manipulation increased the risk of harm, including arterial dissection. Stinner sought to exclude this testimony, but failed to provide a valid basis under Daubert for doing so.
Stinner’s argument that Chesloff improperly relied on the opinions of other medical practitioners was unfounded. There was no precedent or case law indicating that an expert couldn’t partially rely on the opinions of other experts and medical practitioners. Courts in the district routinely held that experts could consult a mix of objective data and subjective analysis from other experts to create an admissible report, citing I.B.E.W. Local Union 380 Pension Fund v. Buck Consultants. Furthermore, Chesloff’s lack of knowledge regarding the underlying facts went to the weight accorded to his report and testimony, rather than its admissibility.
Chesloff’s testimony was allowed by the Court to help the jury understand three key points: (a) the chiropractic standard of care, (b) the potential harm resulting from failure to adhere to this standard, including arterial dissection and stroke, and (c) the likelihood that Stinner had deviated from the standard of care by using excessive force. The Court deemed testimony from a chiropractor regarding the chiropractic standard of care relevant to the case and therefore permissible.
However, the Court ruled that Chesloff’s conclusions about Stinner’s September 17, 2018 cervical manipulation violating the standard of care and directly causing Justin’s arterial dissection and stroke were impermissible. The Court cited an analytical gap between the manipulation and these conclusions, asserting that they were based primarily on Chesloff’s personal assertions rather than concrete factual evidence. Chesloff’s report relied heavily on his lack of awareness regarding any other “medical predisposition that [Justin] may have had for cervical artery dissection and stroke.”
In summary, the Court allowed Chesloff’s testimony concerning the chiropractic standard of care, the consequences of non-compliance, and the likelihood of Stinner deviating from the standard of care. However, the Court found Chesloff’s testimony asserting that Stinner had indeed violated the standard of care on September 17, 2018, and caused Justin’s stroke to be inadmissible. As a result, the Court granted Stinner’s motion to bar Chesloff’s testimony in part and denied it in part.
In the case at hand, to establish a claim for negligence based on a lack of informed consent, the Plaintiff needed to prove four key elements:
The physician’s failure to meet the reasonably-prudent-patient standard for disclosure.
The occurrence of the undisclosed risk, leading to harm for the Plaintiff.
The decision not to consent to the operation or surgical procedure by a reasonable person under the circumstances, had they been adequately informed.
The operation or surgical procedure being a proximate cause of the Plaintiff’s injuries.
It was uncertain whether the Plaintiffs had sought summary judgment on all four elements of their claim for negligence based on a lack of informed consent. The Court determined that summary judgment was appropriate for the first element but had to be denied for the remaining elements.
Held
The Court denied Stinner’s motion to bar the expert testimony of Santosh B. Murthy. The Court after considering Stinner’s motion to bar the expert testimony of Eric Chesloff, granted this motion in part and denied it in part. Chesloff was permitted to testify regarding the chiropractic standard of care, the consequences of failing to comply with it, and the likelihood of Stinner had deviating from the standard of care. However, Chesloff was not allowed to testify that Stinner had, in fact, violated the standard of care on September 17, 2018, and caused Justin Brutosky’s stroke. Lastly, the Court addressed Plaintiffs’ motion for partial summary judgment. The Court granted this motion with regard to Stinner’s failure to comply with the reasonably prudent patient standard for disclosure. However, the Court denied the motion as it pertained to the remaining elements of Plaintiffs’ claim for professional negligence based on a lack of informed consent.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates several important considerations for expert witness testimony. First, experts can rely on a mix of objective data and other experts’ analyses, as Chesloff permissibly did. Second, while experts can testify to causation generally, Courts may exclude opinions with too great an analytical gap between the facts and conclusions. Moreover, compliance with the applicable legal standards determines admissibility, including requirements for reliability, fit, and factual support. Here, the Court conducted a robust analysis of these standards. Finally, appropriate expert testimony should aid the factfinder on the disputed issues without invading its role to make ultimate determinations.
