Opinion
Civil Action 99-D-880-E
February 20, 2001
For Plaintiff: Donald R. Harrison, Harrison Edmondson, Dadeville, AL
For Wal-Mart Stores: Marda W. Sydnor, Dorothy A. Powell, Parsons Lee Juliano, Birmingham, AL.
For Montgomery Regional Medical Center: Walter J. Price III, Huie, Fernambucq Stewart, Birmingham, AL.
MEMORANDUM OPINION AND ORDER
Two motions in limine are presently before the court, which were filed on behalf of Defendant Montgomery Regional Medical Center on February 5, 2001. These motions are: (1) a Motion To Preclude Expert/Standard of Care Testimony of Dr. David Streeter; and (2) a Motion To Preclude Expert/Standard of Care Testimony of Dr. Martin S. Cogen. (Doc. Nos. 66, 70.) Plaintiff filed a Response on February 16. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the former motion (Doc. No. 66) is due to be denied and the latter is due to be granted (Doc. No. 70).
I. STANDARD OF REVIEW
The motion in limine is a creature of neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence. Such motions do "aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.'" Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (quoting Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., 652 F. Supp. 1400, 1401 (D.Md. 1987)). They also may save the parties time, effort and cost in preparing and presenting their cases. Pivot Point Intern., Inc. v. Charlene Products, Inc., 932 F. Supp. 220, 222 (N.D. Ill. 1996).
At the same time, it is the better practice to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. See Sperberg v. Goodyear Tire Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975); Hunter v. Blair, 120 F.R.D. 667 (S.D. Ohio 1987). Thus, the motion in limine is an effective approach only if the evidence at issue is clearly inadmissible. See United States v. Rusin, 889 F. Supp. 1035, 1038 (N.D. Ill. 1995)
The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. Plair v. E.J. Brach Sons, Inc., 864 F. Supp. 67, 69 (N.D.Ill. 1994). The court may deny a motion in limine when it "lacks the necessary specificity with respect to the evidence to be excluded." National Union v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). At trial, the court may alter its limine ruling based on developments at trial or on its sound judicial discretion. Luce v. United States, 469 U.S. 38, 41 (1984). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial." Hawthorne Partners v. ATT Tech., 831 F. Supp. 1398, 1401 (N.D.Ill. 1993). A ruling in limine does not "relieve a party from the responsibility of making objections, raising motions to strike or making formal offers of proof during the course of trial." Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir. 1987) (internal quotation omitted).
II. BACKGROUND FACTS
Plaintiff Stephen Bowden suffered severe injuries when a plastic toy became impaled in his left eyeball several years ago. After Plaintiff and his guardians declined emergency care at a local hospital, they allegedly were refused emergency treatment at Montgomery Regional Medical Center. Though Plaintiff presented with great pain, loss of vitreous fluid, and decreased eyesight, the hospital's attending triage nurse told Plaintiff that his affliction was not an emergency, and that he would not be seen by an ophthalmologist for several hours.
Plaintiff, therefore, alleges breach of the Alabama Medical Liability Act ("AMLA") and the Emergency Medical and Active Labor Treatment Act ("EMTALA"). See AMLA, ALA. CODE § 6-5-480 et seq. (1975); EMTALA, 42 U.S.C. § 1395dd et seq. He has proffered the expert testimony of Dr. Streeter and Dr. Cogen to support his case. The party that proffers the testimony bears the burden of showing that it is admissible.See Bourjaily v. United States, 483 U.S. 171, 172-73 (1987); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999)
Though Plaintiff did not disclose Streeter as an expert, and did not provide an expert report, defense counsel waived these objections during the pre-trial conference. Cf. FED.R.CIV.P. 16(c), 26(a)(2)(B).
III. DISCUSSION A. Dr. Streeter 1. AMLA
Defendant seeks to exclude Streeter's testimony on the basis that he is not a "similarly situated health care provider" as the triage nurse who screened Plaintiff. Defendant moves to exclude under § 6-5-548(b), which provides:
Doc. No. 66 at 2-3.
Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is not certified by an appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself or herself out as a specialist, a "similarly situated health care provider" is one who meets all of the following qualifications:
(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
(2) Is trained and experienced in the same discipline or school of practice.
(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.
ALA. CODE § 6-5-548(b) (1975).
The statute deals with the competency of witnesses testifying in state-based malpractice cases. To this limited extent, it is considered substantive law, and it governs the admissibility of testimony in federal court. See Barton v. American Red Cross, 829 F. Supp. 1290, 1299 (M.D. Ala. 1993) (interpreting AMLA and FED.R.EVID. 601). Though the statute was amended two years ago, the state legislature worked no significant change to § 6-5-548(b). Thus, the court may rely on pre-1999 case law for guidance interpreting Section B. See e.g., Hall v. Chi, 2000 WL 1273684 at *3 (Ala. 2000); Waddail v. Roberts, 2000 WL 1717112 at *2 (Ala.Civ.App. 2000).
Defendant claims that Streeter's knowledge as a licensed emergency room physician room renders him dissimilar from a triage nurse. (Mot. at 6.) Thus, the court must ask itself the requisite "Three Questions" before allowing Streeter to testify. See Medlin v. Crosby, 583 So.2d 1290, 1293 (Ala. 1991). After doing so, the court finds that Defendant's Motion is due to be denied.
First, what was the alleged breach of care? Broadly speaking, it was Defendant's negligent screening of Plaintiff and failure to provide him adequate expert care when he arrived at Montgomery Regional. (2d Am. Compl ¶¶ 25-26; Streeter's Dep. at 22-32.)
Second, was Defendant's triage nurse "a specialist in the discipline or school of practice of the standard of care" identified above? Evidently not. Defendant makes this claim nowhere in its Motion. In any event, as explained below, Streeter's field of expertise necessarily encompasses that of a triage nurse.
Third, does Streeter meet Section B's sub-requirements? Certainly. He is an emergency room physician, licensed by the American College of Emergency Physicians, the Southern Medical Association, and the State of Alabama. (Id. at 6-13.) He has more than 20 years of emergency room experience and has seen thousands of patients, including numerous patients during the time period relevant to this case. See Medlin, 583 So.2d at 1294.
Defendant's argument, at its core, is that an emergency room physician cannot testify that a hospital negligently failed to recognize the severity of a presenting patient's emergency. Defendant specifically argues that only an emergency room triage nurse — not an emergency room physician — can speak to the standard of care when screening patients with emergencies. The court disagrees.
In requiring medical experts to be similarly-situated to one another, the legislature intended to prevent comparisons by doctors knowledgeable only of apples or oranges. No such situation is presented here.
A triage nurse "screen[s] . . . patients to determine their relative priority for treatment." STEADMAN'S MEDICAL DICTIONARY (25th ed. 1990). Streeter's experience as an emergency room physician necessarily encompasses knowledge as to the relative seriousness of an affliction, the need for immediate care, and so forth. (Streeter's Dep; at 29-32.) Indeed, when the triage nurse performs such screening in the first instance, she does so within the context of an environment in which Streeter is intimately familiar.
For example, assume that a triage nurse presents two patients to the physician. Assume further that the physician has only ten minutes remaining on his shift. The physician, of course, will have to determine which injury is more severe and, then, which patient will be treated first. In that sense, a physician routinely and regularly differentiates between the severity of injuries within a hospital emergency room. This situation in this case differs from the court's hypothetical in no material way; if a physician is capable of determining which injury should take precedence at time T, he is also qualified to discuss which injury should have taken precedence at time T. Thus, the court finds that Streeter is a "similarly situated health care provider," who may testify on the matters proffered by Plaintiff. See Anderson v. Alabama Reference Labs., 2000 WL 1171214 at *5 (Ala. 2000); Ex parte Sonner, 707 So.2d 635, 640 (Ala. 1997); Medlin, 583 So.2d at 1294. If Streeter believes that Montgomery Regional's actions breached the standard of care, then those opinions will be helpful to the jury's analysis of Plaintiff's AMLA claim.
Although Defendant refers the court to Waddail, the case does not help Defendant's cause. The court excluded the expert because he was certified by ACEM but the defendant health care provider was certified by AOBFP. See 2000 WL 1717112 at *2. This case does not present a similar problem.
Defendant also moves to exclude because Streeter has no personal knowledge of the care that Plaintiff actually received at Montgomery Regional. On this point, of course, Alabama law has no relevance. Rather, Rule 702 of the Federal Rules of Evidence governs. See 27 CHARLES ALAN WRIGHT VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 6006 at 66 (1990).
Under Rule 702, expert testimony is admissible if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) his methodology is sufficiently reliable; and (3) the testimony will assist the trier of fact by bringing the expert's knowledge to bear upon a fact in issue. See Daubert v. Merrell Dow Pharm., Inc., 113 S.Ct. 2786, 2794-97 (1993). The expert may base his opinion on hearsay, as well as evidence gleaned from the digest of testimony presented at trial. See FED.R.EVID. 703. He also may respond to hypotheticals, provided that the testimony would be helpful to the jury.See id.
In this case, Streeter's deposition testimony is somewhat hazy; the foundations of his opinions are somewhat lacking. If the jury is to receive his opinions as to the standard of care — and Montgomery Regional's deviation from it — he must lay his Daubert/Kumho predicates. The deposition is inadmissible in his absence; the parties must have the opportunity for cross-examination. The court finds that Streeter may not testify as an expert witness unless he personally takes the witness stand. See FED.R.Civ.P. 32(a). The court will take under advisement whether Streeter's deposition may be read into the record for the limited purpose of establishing relevant facts over which he has personal knowledge. See id. 32(a)(3)(E); Brown v. Best Foods, 169 F.R.D. 385, 387 (N.D. Ala. 1996).
2. EMTALA
There should be no confusion that Streeter can offer expert opinion testimony on relevant issues concerning Plaintiff's EMTALA claim. EMTALA requires Defendant to provide Plaintiff with a screening "similar to that which would be provided for any other patient with similar complaints." Harry v. Marchant, 2001 WL 23199 (11th Cir. Jan. 10, 2001). However, "this standard does not mean that any slight deviation by a hospital from its standard screening violates EMTALA. Mere de minimus variations from the hospital's standard procedures do not amount to a violation of hospital policy." Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 523 (10th Cir. 1994).
EMTALA, of course, is not a federal malpractice statute. To the extent that Plaintiff's Response suggests that the hospital breached the standard of care and, therefore, violated EMTALA, Plaintiff's argument is clearly erroneous. Such evidence is neither necessary nor sufficient to establish an EMTALA claim.
A witness, of course, cannot offer legal conclusions. However, expert-testimony may embrace the ultimate issue in dispute. In this case, Streeter might have an opinion, for example, that Montgomery Regional did not follow its policy. His opinions might also help the jury determine whether this deviation was substantial or intangible. Provided that the opinion rests upon a firm foundation, which can be obtained from hearing testimony at trial, it is admissible. See Daubert, supra.
B. Dr. Cogen
Defendant also moves to exclude the proffered expert testimony of Dr. Cogen. Plaintiff neither designated Cogen as an expert, nor produced any Rule 26 expert disclosures. See FED.R.Civ.P. 26(a)(2)(B). Plaintiff has provided no explanation for its violation of this discovery rule. The court finds that Plaintiff's conduct was neither substantially justified nor harmless. Cf. Burney v. Rheem Mfg. Co., 196 F.R.D. 659, 691 (M.D. Ala. 2000) (discussing sanctions for violation of discovery rules). Accordingly, the court exercises its discretion to exclude Cogen's expert testimony. See Nutrasweet Co. v. X-L Eng'g Co., 227 F.3d 776, 785-86 (7th Cir. 2000).
This finding in no way affects Cogen's ability to testify as a fact witness. His deposition transcript, however, will not substitute for his appearance at trial, absent a proper showing by counsel. See FED.R.CIV.P. 32(a)(3).
IV. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that Defendant's Motion To Preclude Expert/Standard of Care Testimony Of Dr. David Streeter be and the same is hereby DENIED. (Doc. No. 66.) Defendant's Motion To Preclude Expert/Standard of Care Testimony of Dr. Martin S. Cogen be and the same is hereby GRANTED. (Doc. No. 70.)