Opinion
Case No. 8:09-cv-294-T-23EAJ.
August 18, 2010
ORDER
Following elective knee surgery at Bay Pines VA Hospital, the plaintiff Alexander Batistoni could not swallow or speak. The plaintiffs allege that, during the knee surgery, the nurse anesthetist negligently intubated the plaintiff and injured Batistoni's throat. Doctor Joseph Stirt, a board-certified anesthesiologist, offers an opinion that "the anesthetic management and instrumentation applied to Mr. Batistoni's airway on August 20, 2007, was substandard, negligent and represented a deviation from the standard of care, resulting in his pharyngeal injury and functional loss." Pursuant to Rule 702, Federal Rules of Evidence, and Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993), the United States moves (Doc. 25) to exclude Stirt's opinion as unreliable. The plaintiffs respond (Doc. 26) in opposition. Although the United States advances a forceful argument, in the circumstances and pending the non-jury trial of this action the motion (Doc. 25) to exclude Stirt's opinion is DENIED.
The United States also moves (Doc. 24) for summary judgment. The only ground for summary judgment is plaintiff's failure to provide evidence of medical causation. See Lambert v. United States, 198 F. App'x 385 (11th Cir. 2006). Because Stirt's expert opinion is admissible, the motion (Doc. 24) for summary judgment is DENIED.
ORDERED in Tampa, Florida.