Opinion
CASE NO. CV418-099
08-06-2020
JEMME J. JENKINS, Individually, and JULIANNE GLISSON, Administrator of the Estate of Jimmie L. Alexander, Sr., Plaintiffs, v. CORIZON HEALTH INC., a Delaware Corporation; GUY AUGUSTIN, M.D.; VICTORIA NEILSER, LPN.; KEVIN TODD, Corporal; MARK DAMBACH, LPN.; CARL MILTON, Sergeant; WANDA WILLIAMS, Lieutenant; DESMOND BRYANT, Corporal; CHATHAM COUNTY COMMISSIONERS; JOHN WILCHER, Sheriff of Chatham County; and JOHN DOES 1-5; Defendants.
ORDER
Before the Court are Plaintiffs' Daubert Motion to Exclude and Limit the Testimony of William A. Reese, M.D., as amended (Docs. 74, 87) and Daubert Motion to Limit the Testimony of Charles Lewinstein, M.D. (Doc. 86). For the following reasons, Plaintiffs' Daubert Motion to Exclude and Limit the Testimony of William A. Reese, M.D., as amended (Docs. 74, 87) is GRANTED IN PART, DISMISSED AS MOOT IN PART, and DENIED IN PART. Plaintiffs' Daubert Motion to Limit the Testimony of Charles Lewinstein, M.D. (Doc. 86) is DENIED.
BACKGROUND
On May 22, 2016, around 8:30 p.m., Jimmie Alexander, Sr. ("Alexander"), a pretrial detainee at Chatham County Detention Center ("CCDC") began to experience pain in his right hip and leg. (Doc. 96 at ¶ 15; Doc. 145 at ¶ 15.) Alexander was evaluated by Defendant Mark Dambach, a licensed practical nurse ("LPN"), and Dambach noted that Alexander complained of sudden onset of right leg pain, that Alexander had a weak thread pedal pulse in his right foot, and that his blood pressure was elevated. (Doc. 96 at ¶¶ 17-19; Doc. 145 at ¶¶ 17-19.) Dambach informed Defendant Guy Augustin, M.D., of Alexander's symptoms and Alexander was prescribed medications to treat the pain and lower his blood pressure. (Doc. 96 at ¶¶ 26-29; Doc. 145 at ¶¶ 26-29.) However, later that evening, Alexander crawled into the middle of Unit 6D floor, vomiting on the floor at some point. (Doc. 96 at ¶¶ 38-39; Doc. 145 at ¶¶ 38-39.) Dambach responded and checked Alexander's vitals, but did not otherwise check Alexander's right leg. (Doc. 96 at ¶¶ 41-43; Doc. 145 at ¶¶ 41-43; Doc. 48 at 131.) Alexander was moved to a cell in Receiving and Discharge ("R&D") for observation during the night. (Doc. 48 at 133-34.)
Augustin arrived at CCDC the next day, May 23, at 7:30 a.m. and spoke with other medical providers at morning conference, and left CCDC around 8:30 a.m. (Doc. 96 at ¶¶ 73-75; Doc. 145 at ¶¶ 73-75.) Augustin returned later that day and examined Alexander at approximately 3:00 p.m. on Monday, May 23, 2016. (Doc. 96 at ¶ 84; Doc. 145 at ¶ 84.) During his examination, Augustin noted the absence of a pulse on the top of the foot and that Alexander's right lower limb was cool to the touch. (Doc. 45 at 163.) Augustin ordered Alexander to be taken to the hospital. (Id. at 165-66.)
Alexander arrived at the Memorial Health University Medical Center ("Memorial") emergency room at 5:38 p.m. on May 23. (Doc. 96 at ¶ 97; Doc. 145 at ¶ 97.) It was ultimately determined by Dr. Bhandari, a vascular interventional radiologist, that surgery would be needed to address the extensive blood clot that had been found in Alexander's right leg. (Doc. 96 at ¶¶ 100-01; Doc. 145 at ¶¶ 100-01.) Dr. Avino, a vascular surgeon, began a thrombectomy on Alexander at 10:05 p.m. on May 23, 2016 and Alexander was transferred from the operating room to the post-anesthesia care unit ("PACU") for recovery at 11:52 p.m. (Doc. 96 at ¶¶ 103, 104, 106; Doc. 145 at ¶¶ 103, 104, 106). At 7:07 p.m. on May 23, prior to the thrombectomy, Alexander's potassium level was recorded at 5.1 mmol/L. (Doc. 77, Attach. 1 at 87.) At 4:37 a.m. on May 24, 2016, after surgery, Alexander's potassium level was recorded at 7.3 mmol/L. (Id. at 91.) Alexander's potassium level was reported to Dr. Moon, the chief resident working that night, and Dr. Moon and his team went to the PACU and found Alexander in cardiac arrest. (Doc. 96 at ¶¶ 113-14; Doc. 77, Attach. 1 at 12-13.) Alexander could not be revived and was declared dead by Dr. Moon on May 24, 2016 at approximately 5:13 a.m. (Doc. 96 at ¶ 116; Doc. 90, Attach. 3 at 1.)
In their complaint, Plaintiffs pursue counts of negligence, professional negligence, wrongful death, and deliberate indifference to serious medical needs, among other things, due to the alleged inadequate medical attention Alexander received at CCDC. Both Plaintiffs and Defendants have retained experts to testify on a variety of subjects. At issue in this order is the testimony of William A. Reese, M.D. (Doc. 74), as amended (Doc. 87), and Charles Lewinstein, M.D. (Doc. 86).
STANDARD OF REVIEW
The admission of expert testimony is controlled by Federal Rule of Evidence 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:The trial judge is assigned "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469 (1993). "As the Supreme Court made abundantly clear in Daubert, Rule 702 compels district courts to perform the critical gatekeeping function concerning the admissibility of expert scientific evidence." United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (internal quotation omitted). This gatekeeping function equally applies to the admissibility of expert technical evidence. Id.; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S. Ct. 1167, 1174-75, 143 L. Ed. 2d 238 (1999). The Eleventh Circuit Court of Appeals has explained that district courts fulfill that function by engaging in a three-part inquiry, considering whether
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as to be determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific . . . expertise, to understand the evidence or to determine a fact in issue.Frazier, 387 F.3d at 1260.
When a court considers the reliability of a particular expert's opinion, it considers, to the extent possible, (1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (citing McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)). These factors "do not constitute a definitive checklist or test." Kumho Tire, 526 U.S. at 150, 119 S. Ct. at 1175 (internal quotation marks and citation omitted). Rather, the applicability of these factors "depends upon the particular circumstances of the particular case at issue." Id. The same criteria that are used to assess the reliability of a scientific opinion may be used to evaluate the reliability of non-scientific, experience-based testimony. Frazier, 387 F.3d at 1262.
ANALYSIS
I. PLAINTIFFS' DAUBERT MOTION TO EXCLUDE AND LIMIT THE TESTIMONY OF WILLIAM A. REESE, M.D.
According to William A. Reese, M.D.'s ("Dr. Reese") expert report, he is a Board-certified Emergency Medicine physician who has sub-specialized in emergency medical systems with over thirty years of experience directing and overseeing emergency medical personnel. (Doc. 74, Attach. 28 at 1.) Dr. Reese additionally has over twenty years of experience in correctional medicine as a treating physician and a Medical Director. (Id.) Dr. Reese's opinions go to the standard of care for the staff employed by Defendant Corizon. Specifically, Dr. Reese opines that:
1. Dr. Augustin was not indifferent to the medical needs of Mr. Alexander.
2. Dr. Augustin met the standard of care (with a reasonable degree of medical certainty).
3. The Medical Staff and Correctional Staff were not deliberately indifferent to Mr. Alexander's medical needs.
4. From the point of view as a Jail Medical Director who has worked with correctional nurses for over 20 years, I feel the nurses met the standard of care with respect to Mr. Alexander.(Doc. 74, Attach. 28 at 7 (numbering added).) Plaintiffs have moved to exclude numerous opinions by Dr. Reese on various grounds. Defendants Corizon Health, Inc., Guy Augustin, M.D., Mark Dambach, LPN, and Victoria Neisler, LPN (the "Corizon Defendants") have responded in opposition (Doc. 100). Defendant Chatham County Commissioners (Doc. 113) and Defendants Kevin Todd, Carl Milton, Wanda Williams, Desmond Bryant, John Wilcher, and John Does 1-5 (the "Sheriff Defendants") (Doc. 115) have adopted Corizon Defendants' brief in opposition.
5. The death of Mr. Alexander attributed to acidosis and hyperkalemia induced dysrhythmia was not caused by and cannot be attributed to care given by Dr. Augustin, Nurse Dambach, Nurse Neisler, the jail medical or correctional staff.
6. Corizon Health, Inc., as the employer for Dr. Augustin, Nurse Dambach and Nurse Neisler, is not a responsible party in the death of Mr. Alexander.
Because Defendant Chatham County Commissioners and the Sheriff Defendants do not provide any additional arguments and rely solely on Corizon Defendants' brief in opposition, the Court will refer only to Corizon Defendants' arguments.
A. Dr. Reese's Opinions on Deliberate Indifference
Plaintiffs first argue that Dr. Reese's opinions that "Dr. Augustin was not indifferent to the medical needs of Mr. Alexander" and "[t]he Medical Staff and Correctional Staff were not deliberately indifferent to Mr. Alexander's medical needs" must be excluded because they are factual issues on which expert opinion testimony is not helpful. (Doc. 74 at 12.) Plaintiffs contend that permitting Dr. Reese to present this opinion on deliberate indifference is argumentative and unreliable. (Id. at 13.) In response, the Corizon Defendants argue that Dr. Reese's opinion is that the Corizon Defendants complied with the standard of care and that Dr. Reese "found no evidence that any of the defendants failed to pay attention to Mr. Alexander, failed to treat him, or ignored him and his medical needs." (Doc. 100 at 14.)
First, the Court notes that while Defendants maintain that "Dr. Reese is not opining on deliberate indifference as a legal conclusion. Rather, it is his opinion that Defendants complied with the applicable standard of care and showed an appropriate amount of care and diligence towards Mr. Alexander," Dr. Reese does explicitly opine that Corizon Defendants were not deliberately indifferent. (Id. at 13.) In Dr. Reese's expert report, he opines that "Dr. Augustin was not indifferent to the medical needs of Mr. Alexander" and "[t]he Medical Staff and Correctional Staff were not deliberately indifferent to Mr. Alexander's medical needs." (Doc. 74, Attach. 28 at 7.)
"A plaintiff could, in such an instance, produce opinions of medical experts which assert that the official's actions were so grossly contrary to accepted medical practices as to amount to deliberate indifference," however, "[e]ven if the medical experts assert that the care was grossly inadequate, it remains for a court or jury to determine if the care amounts to deliberate indifference." Howell v. Evans, 922 F.2d 712, 720 (11th Cir. 1991), vacated pursuant to settlement, 931 F.2d 711 (11th Cir. 1991), and opinion reinstated sub nom. Howell v. Burden, 12 F.3d 190 (11th Cir. 1994). See also Keele v. Glynn Cty., Ga., No. CV211-074, 2012 WL 13085291, at *1 (S.D. Ga. June 26, 2012) (excluding an expert's opinion that the individual defendants were deliberately indifferent to the decedent's serious medical needs on the basis that the opinion would be an ultimate legal conclusion); Dukes v. Georgia, 428 F. Supp. 2d 1298, 1315 (N.D. Ga.), aff'd sub nom. Dukes v. State of Georgia, 212 F. App'x 916 (11th Cir. 2006). Accordingly, the Court GRANTS Plaintiffs' motion on this ground. The Court finds that Dr. Reese cannot offer a legal conclusion couched as an expert opinion. However, in accordance with the entirety of this Order, Dr. Reese may opine on what he believes the standard of care is, whether and how the Corizon Defendants met the standard of care, and whether and how the Corizon Defendants' actions otherwise addressed Alexander's medical needs.
B. Dr. Reese's Opinions on Post-Surgical Hospital Care
1. Qualifications under Georgia Law
Plaintiffs also move to exclude Dr. Reese's fifth and sixth opinions that Alexander died from secondary complications, hyperkalemia, from the arterial occlusion that should have been treated post-operatively. (Doc. 74 at 13.) Plaintiffs contend that Dr. Reese does not satisfy the Georgia statutory requirements to provide expert testimony on post-operative hospital care because he has not taught post-operative care in an accredited educational institution from 2011-2016 or practiced in post-operative care within the applicable timeframe. (Id. at 13-14.)
In response, Corizon Defendants contend that Dr. Reese is qualified to testify on the diagnosis and treatment of hyperkalemia following reperfusion because is a board-certified emergency medicine physician who has seen, assessed, and treated "thousands of patients with tissue ischemia" for over thirty years. (Doc. 100 at 13-14.) Corizon Defendants argue that physicians who treat acute limb ischemia, regardless of the setting they are in, "expect that a hospital-based laboratory will report potassium level findings in a timely manner." (Id. at 15.)
Pursuant to O.C.G.A. § 24-7-702(c)(2), in a medical malpractice action, the expert witness must
have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge . . .
The United States Court of Appeals for the Eleventh Circuit has held that O.C.G.A. § 24-7-702 applies in federal court where the court exercises supplemental jurisdiction over a Georgia medical malpractice claim. Dutton v. United States, 621 F. App'x 962, 966 (11th Cir. 2015); McDowell v. Brown, 392 F.3d 1283, 1294 (11th Cir. 2004).
Thus, to qualify as an expert in a medical malpractice action in Georgia, "the witness must (1) have actual knowledge and experience in the relevant area through either active practice or teaching and (2) either be in the same profession as the defendant whose conduct is at issue or qualify for the exception to the same profession requirement." Dutton v. United States, 621 F. App'x 962, 967 (11th Cir. 2015) (internal quotation marks and citation omitted). The requirement that the expert have "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given," O.C.G.A. § 24-7-702(c)(2), does not mean that the expert
must have knowledge and experience in the same area of practice/specialty as the defendant doctor but instead means that the expert must have knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff's injuries.Bonds v. Nesbitt, 322 Ga. App. 852, 857, 747 S.E.2d 40, 46 (Ga. Ct. App. 2013).
In this case, Plaintiffs' complaint alleges professional negligence by Corizon Defendants due to their failure to provide Alexander with adequate medical attention for Alexander's medical emergency. (Doc. 1, Attach. 1 at 157.) However, Plaintiffs move to exclude Dr. Reese's fifth opinion that Alexander's death was due to the acts and omissions of Memorial in that Alexander's death from hyperkalemia was preventable in the post-operative setting. (Doc. 74, Attach. 2 at 13.)
The Corizon Defendants characterize Dr. Reese's opinions as concerning the treatment of acute limb ischemia and contend that, as Dr. Reese has treated acute limb ischemia as an emergency room physician, he is qualified. However, it is apparent to this Court from the Corizon Defendants' brief and Dr. Reese's expert report that the opinion challenged by Plaintiffs is Dr. Reese's opinion concerning Alexander's post-operative treatment and Memorial's alleged failure to report the results of a metabolic profile in a timely manner. In their brief, Corizon Defendants state that "Dr. Reese is as qualified as anyone to opine that the standard practice for reporting post-treatment potassium level labs in a hospital is something much faster than two hours and thirty-seven minutes." (Doc. 100 at 16.) However, within the last five years, Dr. Reese has not provided post-operative care or worked in a hospital laboratory setting. (Doc. 74, Attach. 31.) While Dr. Reese may be qualified to discuss the diagnosis and treatment of ischemia generally, there is no evidence that Dr. Reese has the requisite recent experience in treating a patient recovering from a thrombectomy or even providing general post-surgical care.
Accordingly, the Court finds that Dr. Reese is not qualified under Georgia law to testify on the standard of care applicable to Memorial's hospital lab or post-operative care in a hospital setting. See Bonds, 322 Ga. App. at 858, 747 S.E.2d at 46 (affirming the trial court's exclusion of the expert's standard of care testimony in an action alleging negligence in the emergency room because the expert worked in the field of pulmonary and critical care medicine and did not practice medicine in the emergency room); Dutton, 621 F. App'x at 967 (applying Georgia law and finding that the expert with a specialty in interventional vascular radiology was properly excluded from offering an opinion on whether the defendants negligently managed the care of a patient suffering from crucial ischemia because the expert did not specialize in vascular surgery). As a result, Plaintiffs' motion to exclude Dr. Reese from testifying on post-operative hospital care is GRANTED.
Because this Court finds that Dr. Reese is not qualified under Georgia law to offer expert witness testimony as to the post-operative standard of care, the Court does not reach Plaintiffs' remaining arguments under Federal Rule of Evidence 702.
C. Dr. Reese's Opinions on the Applicable Standard of Care at the CCDC
Plaintiffs also move to exclude Dr. Reese's second and fourth opinions that "Dr. Augustin met the standard of care (with a reasonable degree of medical certainty)" and "[f]rom the point of view as a Jail Medical Director who has worked with correctional nurses for over 20 years, I feel the nurses met the standard of care with respect to Mr. Alexander." (Doc. 74 at 19.) Plaintiffs contend that these opinions must be excluded because (1) Dr. Reese testified that the standard of care expected in a correctional institution is not the same as that expected in the general community, which runs contrary to Corizon's standards, (2) Dr. Reese did not rely on any standards in forming his opinions, including the National Commission on Correctional Health Care ("NCCHC") Standards that apply to the Corizon contract, and (3) Dr. Reese admitted that he could not testify on the standard of care of a licensed practical nurse ("LPN"). (Id. at 19-21.) In response, Corizon Defendants contend that the published NCCHC standards do not themselves establish the standard of care, that Dr. Reese did review Corizon's policies and procedures for CCDC, and that Corizon's contract does not alter the standard of care applicable to correctional settings. (Doc. 100 at 17-20.) Along with their response, Defendants filed Dr. Reese's declaration. (Doc. 99.)
Plaintiffs then moved to strike the declaration (Doc. 134), which Magistrate Judge Ray dismissed pending the resolution of this motion to exclude (Doc. 219). However, in their reply to Corizon Defendants' response, filed on the same day that Plaintiffs moved to strike the declaration, Plaintiffs state that "Reese adopts the standard of care that applies in the community, which conforms to both the contract and NCCHC," and that as Dr. Reese has seemingly adopted the correct standard, "[t]his matter may be left to discuss during cross examination. Plaintiffs withdraw their request on this issue." (Doc. 135 at 9-10.) Thus, despite the inconsistent position, it appears to this Court that Plaintiffs no longer seek to challenge Dr. Reese's opinions on the standard of care in the correctional setting. Accordingly, the Court DISMISSES AS MOOT Plaintiffs' motion to the extent it seeks to exclude Dr. Reese's opinions concerning the correctional standard of care.
However, as to the challenge concerning Dr. Reese's opinions on the standard of care applicable to LPNs, the Court finds Plaintiffs' motion should be denied. Plaintiffs point to Dr. Reese's deposition in which he testified as follows:
Q. All right. Now, let me ask you this about Nurse Dambach: Was his charting consistent with the standards of nursing?
A: That -- you're going to have to ask a nurse expert for that for sure. I have seen nurse's document fully and not fully. And I saw what he wrote. It seems pretty
curt and to the point, but I can't offer a standard of care on an LPN.(Doc. 84 at 225.) In response, Corizon Defendants argue that "[b]ased on his experience, including the supervision of registered and licensed practical nurses, Dr. Reese is familiar with the standard of care applicable to correctional health providers." (Doc. 100 at 10.)
The Court finds that Dr. Reese is qualified to opine on the standard of care for LPNs. Pursuant to O.C.G.A. § 24-7-702(c)(2)(D),
an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider.
Dr. Reese testified that he oversees LPNs at the correctional facilities he works (Doc. 84 at 61-66) and testified as to the standard of care for LPNs assessing a patient (Doc. 84 at 196-97, 204-05). The Court finds that the single statement by Dr. Reese that he cannot offer an opinion on nurses' charting is insufficient to exclude his opinion on the LPN standard of care for seeing patients. The Court DENIES Plaintiffs' motion to exclude Dr. Reese's testimony on the standard of care for LPNs.
The Court does not find a single statement in which the expert limits his opinion on LPNs to be adequate evidence of the expert's inability to offer an opinion of the standard of care. Notably, Dr. Reese also limited his opinion regarding LPNs in his Rule 26 report where he stated that, as to "how they structure care plans, that is something that refers to nursing education methods, and something a nurse expert would have to offer an opinion on." (Doc. 84, Attach. 2 at 5.)
D. Dr. Reese's Opinions on Alexander's Reported Past Use of Illicit Drugs
Finally, Plaintiffs move to exclude any opinion or testimony by Dr. Reese concerning purported illegal drug use by Alexander. (Doc. 74 at 21.) Specifically, Plaintiffs state that Dr. Reese referenced use of illicit drugs in his expert report but does not otherwise provide any opinion that this illicit drug use is relevant to any issue in this case. (Id.) Thus, Plaintiffs argue that any opinion on effects of past drug use should be excluded because Dr. Reese did not relate the past drug use to any of his opinions in his expert report and because such an opinion would be unreliable, irrelevant, and not helpful to the jury. (Id. at 21-22.) In response, Corizon Defendants contend that (1) to the extent Plaintiffs' complain that Dr. Reese did not have the documents he relied on physically present with him at his deposition, the proper remedy is a motion to compel, not a motion to exclude the testimony and (2) Alexander's statements about his drug use was made to medical providers and fall into a hearsay exception. (Doc. 100 at 20-21.)
Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert witnesses and requires that the disclosure of such experts be accompanied by a written report that, among other things, contains "a complete statement of all opinions the witness will express and the basis and reasons for them." A party must make these disclosures "at the times and in the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D). A party also must supplement or correct its disclosure "in a timely manner if the party learns that in some material respect the disclosure . . . is incomplete or incorrect." Id. at (e)(1). Further, Federal Rule of Civil Procedure 37(c)(1) provides
[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Pursuant to Southern District of Georgia Local Rule 26.1, defendants must furnish expert witness reports within ninety (90) days after the Rule 26(f) conference or sixty (60) days after filing his answer, whichever is later, unless otherwise modified by the Scheduling Order. In this case, the Rule 26(f) conference occurred on May 2, 2018 and the scheduling order set the deadline to finish expert reports by the defense for October 20, 2018. (Doc. 6.) Magistrate Judge Smith subsequently granted an extension of the scheduling order deadlines and extended the deadline to furnish expert reports by the defense to January 18, 2019. (Doc. 32.)
In this case, the Court can discern no opinion given in Dr. Reese's expert report that concerned or related to Alexander's illicit drug use. Corizon Defendants do not address the fact that Dr. Reese's expert report does not contain any connection between the drug use and Dr. Reese's opinions and it does not appear that Dr. Reese has supplemented his report to include any opinions related to the drug use. Additionally, Corizon Defendants have not argued how the failure to provide this opinion earlier than the response brief to Plaintiff's motion to exclude is substantially justified or harmless.
The Court finds that any attempt to now interject an opinion related to Alexander's illicit drug use is untimely and must be excluded. See Career Emp't Prof'ls, Inc. v. Mfrs. All. Ins. Co., No. CV417-083, 2019 WL 2661520, at *2 (S.D. Ga. June 27, 2019) (finding that defendant's expert's new report was an improper supplemental report as it provided additional review and testing by the expert after the deadline had passed and was an attempt to bolster the initial opinion but ultimately allowing the report to stand as the failure was harmless); Coward v. Forestar Realty, Inc., 282 F. Supp. 3d 1317, 1330 (N.D. Ga. 2017) (finding the expert's supplemental report was not a proper supplemental report under Rule 26(e) because it offered new opinions and ultimately excluded the supplemental report because the plaintiffs' failure was not shown to be substantially justified or harmless); Cochran v. Brinkmann Corp., No. 1:08-CV-1790-WSD, 2009 WL 4823858, at *5 (N.D. Ga. Dec. 9, 2009), aff'd sub nom. Cochran v. The Brinkmann Corp., 381 F. App'x 968 (11th Cir. 2010).
In this case, it is not clear to this Court, or seemingly to Plaintiffs, what exactly Dr. Reese's opinions are on the matter of Alexander's drug use. In their response, Corizon Defendants state that Alexander's drug use "go[es] to the question of why he had such severe artiosclerotic disease at the time of his death" which "in turn, goes to the question of reasonable life expectancy." (Doc. 100 at 20.) Corizon Defendants also state "[a]s Dr. Reese explains, Mr. Alexander's past cocaine use explains the severity of his vascular disease and the reason for his stroke-like symptoms in March of 2016" and, because Alexander did not disclose his past or current drug use on presentation to CCDC, "no one at the CCDC had the opportunity to connect the dots between his past cocaine use and his elevated blood pressures." (Id. at 22, 23.) However, upon reviewing the deposition cites Corizon Defendants provide, the only opinion the Court is able to discern is a statement by Dr. Reese that using cocaine is contrary to the management of good blood pressure. (Doc. 84 at 34.) The Court does not see where Dr. Reese connects a general opinion that cocaine use is contrary to the management of blood pressure to the specific opinions Dr. Reese offers in this case. In sum, the Court can discern no opinion where Dr. Reese connects Alexander's drug use to his opinions. The Court finds the best course of action to be the exclusion of any opinion concerning Alexander's drug use. Accordingly, Plaintiff's motion seeking to exclude any opinion by Dr. Reese related to Alexander's drug use is GRANTED.
II. PLAINTIFFS' DAUBERT MOTION TO LIMIT THE TESTIMONY OF CHARLES LEWINSTEIN, M.D.
According to Charles Lewinstein, M.D.'s ("Dr. Lewinstein") expert report, he is a vascular surgeon who has been practicing for over thirty-one years and is an Assistant Professor at Emory School of Medicine. (Doc. 86, Attach. 25 at 1.) Additionally, Dr. Lewinstein is board-certified in vascular surgery by the American Board of Surgery, a Fellow of the American College of Surgeons, and a member of the Society for Vascular Surgery, the Southern Association for Vascular Surgery, and the Society for Clinical Vascular Surgery. (Id.) Dr. Lewinstein offers a number of opinions in his report, however, Plaintiffs take issue with the following:
1. MMC took too long to result the post-surgical Chem One basic metabolic panel [BMP] on the morning of May 24th. The specimen should have been processed and reported in an hour or less. MMC took 2 hours and 23 minutes to result the lab and report the potassium level. He considered the delayed processing and reporting of Mr. Alexander's Chem One by MMC to have been a deviation from the standard of care for the processing and reporting of labs drawn in the recovery room.
2. The delay in the "processing and reporting" of the Chem One BMP labs prevented the timely initiation of emergency measures which could have lowered Alexander's potassium levels and prevented his death.(Doc. 86 at 9-10.) Plaintiffs have moved to exclude these two opinions by Dr. Lewinstein. The Corizon Defendants have responded in opposition. (Doc. 101.) Defendant Chatham County Commissioners (Doc. 114) and the Sheriff Defendants (Doc. 116) have adopted Corizon Defendants' brief in opposition.
Because Defendant Chatham County Commissioners and the Sheriff Defendants do not provide any additional arguments and rely solely on Corizon Defendants' brief in opposition, the Court will refer only to Corizon Defendants' arguments. --------
A. Dr. Lewinstein's Qualifications Under Georgia Law
Plaintiffs take issue with Dr. Lewinstein's opinions regarding the "delayed processing and reporting of Mr. Alexander's Chem One by Memorial Health University Medical Center" and contend that Dr. Lewinstein cannot offer an opinion on a hospital's processing and reporting of a BMP lab under Georgia law because Dr. Lewinstein has not practiced or taught in the field of hospital lab processing or reporting. (Doc. 86 at 16-17.) In response, Corizon Defendants argue that Dr. Lewinstein is qualified to opine on the reporting of critically-high lab results by a hospital-based laboratory due to his extensive experience in performing vascular surgery, which includes post-operative monitoring of patients. (Doc. 101 at 17.) Additionally, Corizon Defendants contend that Plaintiffs improperly focus on the performance of the tests, which Dr. Lewinstein does not opine on, rather than whether the delay of returning post-operative labs on potassium levels was within the standard of care for Mr. Alexander, who was recovering from vascular surgery. (Id. at 18.)
First, the Court finds that Dr. Lewinstein's opinion is not, as Plaintiffs contend, purely opining on the process and reporting of labs in a hospital setting. Rather, from this Court's review of Dr. Lewinstein's expert report, he is offering an opinion on the standard of care for patients after undergoing vascular surgery. In his experience as a vascular surgeon, he expects post-operative labs to be turned around in an hour or less. (Doc. 86, Attach. 25 at 7.) As cited by Plaintiffs in their motion, their own expert Linda Hudson, M.D., a hospitalist, stated that "[w]hile in the PACU, a patient may be under the care of a surgeon or anesthesiologist." (Doc. 86 at 13; Doc. 86, Attach. 27 at 19, 21.) Thus, a surgeon is not "off the hook" and continues to be involved in a patient's post-operative care. (Doc. 86, Attach. 27 at 19.)
The Court agrees with Corizon Defendants' contention that Dr. Lewinstein is not opining on the actual laboratory work itself. Rather, Dr. Lewinstein is opining on when post-operative labs, particular panels on potassium levels, should be returned on post-operative vascular patients. This understanding is confirmed by Plaintiffs' description of their own expert, Dr. Hudson, in their Daubert motion to exclude Dr. Lewinstein's opinions. As set forth in their motion under the section "Hospital Lab Policies and Practice—Standard of Care," Plaintiffs rely almost exclusively on the opinions of Dr. Hudson, a hospitalist and Chief of Staff of a regional hospital in Georgia. (Doc. 86 at 13-16.) Plaintiffs state that (1) Dr. Hudson is experienced in hospital post-operative care, (2) that Dr. Hudson found the medical care provided by Memorial to Alexander to be within the standard of care for routine post-operative care, and (3) specifically explained her opinion on post-operative care as "[r]outine laboratory studies were ordered and obtained within two hours of completion of surgery. Chemistries were resulted within 3 hours of collection and the critical potassium value was called to the staff, which based on my experience would have been within hospital policies." (Id. at 14.) Plaintiffs also state that Dr. Hudson "further explained her standard of care opinion" in her deposition and goes on to discuss how routine hospital labs are run, when routine labs are usually reported, and how "Alexander's vital signs were stable in the PACU and there was no obvious need for a doctor or anyone else in the hospital to order, process, or report Alexander's blood specimen" as a STAT lab. (Id. at 14-16.)
Meanwhile, Dr. Lewinstein opines that the standard of care for ordering and processing labs in the post-operative setting for vascular patients is STAT. Dr. Lewinstein opines that labs drawn in acute care settings, including the operating room, the post-anesthesia care room, and the intensive care unit room, are expected to be returned within an hour and that these labs are not routine labs but STAT labs. (Doc. 81 at 40.) Dr. Lewinstein bases this opinion on his thirty-one plus years of vascular surgery at various hospitals. Notably, this general standard of care is confirmed by Mr. Alexander's surgeon, Dr. Avino, who testified that labs drawn in the recovery room are "essentially stat" and that nurses draw the lab "after other priorities of the nurses that [Mr. Alexander] is comfortable and that [Mr. Alexander] is hooked up to all of the monitors and that kind of thing." (Doc. 47 at 58.) Thus, at what speed post-operative labs should be processed and returned (e.g. STAT v. routine) is within the medical opinion of medical professionals providing post-operative care. See Robles v. Yugueros, 343 Ga. App. 377, 387, 807 S.E.2d 110, 119 (Ga. Ct. App. 2017) (finding no abuse of discretion where trial court permitted the expert radiologist to opine on whether the hospital had been negligent with respect to its policies and procedures that pertained to how radiologists' findings were communicated to treating physicians because of the expert's background and experience in reading x-rays in collaboration with emergency medicine physicians). The Court DENIES Plaintiffs' motion on this basis.
B. The Reliability of Dr. Lewinstein's Opinion on the "Processing and Reporting" of Alexander's Post-Operative Labs
Plaintiffs argue that Dr. Lewinstein's opinion on the "processing and reporting" of Alexander's post-operative labs is unreliable because (1) Dr. Lewinstein does not know the medical standard of care for hospital processing and reporting of lab values, and (2) Dr. Lewinstein "did not have or did not review relevant information" that would be necessary to form an opinion on a breach of that standard of care. (Doc. 86 at 20.)
First, the Court, as discussed above, is not persuaded that Dr. Lewinstein is offering a standard of care opinion for hospital laboratories. Plaintiffs also argue that Dr. Lewinstein's opinion is not reliable because he cites only to his experience and "does not provide any authority that recovery room labs are to be processed and reported in the same amount of time as emergency room STAT labs." (Doc. 86 at 21.) A standard of care opinion may be based upon the expert's experience and knowledge. Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1330 (11th Cir. 2014); Powell v. Variety Wholesalers, Inc., No. CV617-058, 2019 WL 403966, at *3 (S.D. Ga. Jan. 31, 2019); Anderson v. Techtronic Indus. N. Am., Inc., No. 613CV15710RL41TBS, 2015 WL 12843836, at *4 (M.D. Fla. Apr. 14, 2015).
Second, to the extent Plaintiffs seek exclusion of Dr. Lewinstein's opinions as unreliable because they are not based on adequate information and are solely based on his ipse dixit, the Court is similarly unpersuaded. Plaintiffs contend that Dr. Lewinstein did not have information to base his opinion on including:
how the [hospital] nurse or technician transmitted the BMP sample, when the sample arrived in the lab after it was reportedly drawn at 2:05 a.m., how the [hospital] laboratory was set up, how Alexander's blood sample was processed for analysis, who performed the processing, the specific actions taken by personnel in the laboratory, what laboratory work sheets looked like, when or how the machine calibration was conducted for BMP, why certain blood tests were reported before the BMP results, when the BMP test was actually resulted, whether there was any delay in reporting, why the BMP was not ordered STAT, who processed the blood for BMP testing, the machines used to conduct the testing, the condition of the machines, any difficulties the MMC technicians or nurses had conducting the test, the amount of other testing being done in the MMC laboratory that morning, or whether Alexander was in the care of the anesthesiologist, the vascular surgeon, the residents or a hospitalist.(Doc. 86 at 21-22.) In response, Corizon Defendants argue that Dr. Lewinstein's opinions are based on the medical records from Memorial and that "the medical records show on their face the basis to conclude that something happened with the lab results in this case." (Doc. 101 at 18-19 (emphasis in original).)
Federal Rule of Evidence 702 "requires that the expert do two things: (1) rest their testimony on sufficient facts or data, and reliable principles and methods; and (2) apply their principles and methods reliably to the facts of the case." Wint v. Neurosurgical Grp. of Chattanooga, P.C., No. 4:11-CV-0185-HLM, 2013 WL 10178335, at *6 (N.D. Ga. Jan. 22, 2013) (citing Federal Rule of Evidence 702). This Court must "consider whether the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert." United States v. Azmat, 805 F.3d 1018, 1041 (11th Cir. 2015) (internal quotation mark and citation omitted). Additionally, while "[t]rained experts commonly extrapolate from existing data," there is
nothing in either Daubert or the Federal Rules of Evidence [that] requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 519, 139 L. Ed. 2d 508 (1997).
In this case, Dr. Lewinstein opines that "the delayed processing and reporting of Mr. Alexander's Chem One by Memorial Health University Medical Center [was] a deviation from the standard of care for the processing and reporting of labs drawn in the recovery room," and that the delay prevented the timely initiation of emergency measures. (Doc. 86, Attach. 25 at 7.) From his expert report, it appears that this opinion is premised on three things: (1) his experience in which the expected turnaround time of labs drawn in the recovery room is one hour or less, (2) the fact that Alexander's other labs drawn in the recovery room at the same time resulted in thirty-two to forty-six minutes, and (3) the comparison against Alexander's labs from his admission in the emergency room which had a turnover time of an hour and eight minutes. (Id.)
The Court does not find that Dr. Lewinstein's opinion that Memorial deviated from the standard of care must be excluded as unreliable. As stated, Dr. Lewinstein based his opinion on his experience, the result times of other labs drawn at the same time, and the general fact that the lab at issue was not reported until two hours and twenty-three minutes after the blood was drawn. In Dr. Lewinstein's opinion, the failure to process and report the lab within approximately an hour deviated from the standard of care for taking and running post-operative labs. (Id.)
To the extent that Dr. Lewinstein cannot explain or offer an opinion as to the cause of the "delayed processing and reporting" of the lab, such a weakness is better left to be explored on cross-examination. " '[T]he weaknesses in the underpinnings of the expert's opinion go to its weight rather than its admissibility,' and opposing counsel may address such weaknesses on cross-examination." Higgs v. Costa Crociere S.p.A. Co., No. 15-60280-CIV, 2016 WL 4370012, at *6 (S.D. Fla. Jan. 12, 2016) (quoting Jones v. Otis Elevator Co., 861 F.2d 655, 663 (11th Cir. 1988)). "Expert testimony must amount to more than 'guess or speculation,' but 'where the expert testimony has a reasonable factual basis, a court should not exclude it. Rather, it is for opposing counsel to inquire into the expert's factual basis.' " Eastep v. Newman, No. 1:12-CV-102 WLS, 2013 WL 6835197, at *2 (M.D. Ga. Dec. 20, 2013) (quoting United States v. 0.161 Acres of Land, 837 F.2d 1036, 1040 (11th Cir. 1988)).
Plaintiffs argue that Lewinstein is "speculating on why Alexander's potassium lab was reported in over two hours while other lab results were reported both before and after the potassium value," and "Dr. Lewinstein would be speculating on the cause of the alleged undue delay if he were to attempt to explain the alleged delay." (Doc. 86 at 24.) However, Dr. Lewinstein is not offering an opinion on what caused the delay. (Doc. 81 at 128.) As is clear from his expert report and deposition, Dr. Lewinstein is offering an opinion that Alexander's lab should have been processed and reported within approximately one hour after it was drawn and that the failure to do so deviated from the standard of care. The Court finds that Dr. Lewinstein's opinion is sufficiently based on the medical records in this case to be reliable. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S. Ct. at 2798. Accordingly, Plaintiffs' motion to limit the testimony of Dr. Lewinstein is DENIED.
CONCLUSION
For the following reasons, Plaintiffs' Daubert Motion to Exclude and Limit the Testimony of William A. Reese, M.D., as amended (Docs. 74, 87) is GRANTED IN PART, DISMISSED AS MOOT IN PART, and DENIED IN PART. Plaintiffs' Daubert Motion to Limit the Testimony of Charles Lewinstein, M.D. (Doc. 86) is DENIED.
SO ORDERED this 6th day of August 2020.
/s/_________
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA