Nancy Dickenson, Conservator for Sandra Robinson v. Cardiac and Thoracic Surgery of Eastern Tennessee, P.C. And Robert Rosser, M.D.
Docket: 03-5355
Court: Court of Appeals for the Sixth Circuit; October 25, 2004; Federal Appellate Court
Nancy Dickenson, acting as conservator for Sandra Robinson, appeals a summary judgment favoring Cardiac and Thoracic Surgery of Eastern Tennessee, P.C. (C.T.) and Dr. Robert Rosser in a medical malpractice case. The appeal centers on the exclusion of Dickenson's medical experts' testimony regarding the standard of care. Robinson suffered brain damage after her ventilation tube was allegedly removed prematurely following heart bypass surgery performed by Dr. Richard Michalik, an employee of C.T. The district court, presided over by Magistrate Judge Dennis H. Inman, granted summary judgment based on the lack of competent testimony from the plaintiff's witnesses to establish the applicable standard of care for either defendant.
On appeal, the court reviews the summary judgment de novo, determining that such judgment is proper only when no genuine material fact exists and the moving party is entitled to judgment as a matter of law. The plaintiff argues that the court erred by excluding testimony from cardiac surgeon W. Dudley Johnson and pulmonologist John Penek. The appellate court affirms the summary judgment concerning C.T., reverses and remands for further proceedings regarding Dr. Rosser, and vacates the order excluding Dr. Penek’s testimony, indicating that the exclusion of expert testimony was a critical error affecting the outcome of the case against Dr. Rosser.
The district court's exclusion of Dr. Johnson's testimony regarding Dr. Rosser's alleged negligence is claimed to be an abuse of discretion. Dr. Johnson, a cardio-thoracic surgeon with extensive experience since 1965, detailed his qualifications, including daily involvement in extubation decisions and familiarity with the standard of care for postoperative cardiac patients in Kingsport, Tennessee. His understanding stems from various sources: published literature on medical standards, community-specific information, his own vast experience, depositions from Dr. Rosser and Dr. Michalik on the standard of care, their educational backgrounds, and a review of Sandra Robinson's medical records.
In his deposition, Dr. Johnson noted that he manages a substantial number of ventilated patients, approximately two hundred over the past three years, and frequently consults pulmonary specialists for these cases. He described the collaborative decision-making process for extubation, indicating that both he and the pulmonary consultant could make the decision, though they sometimes disagreed. Dr. Johnson elaborated on his criteria for determining extubation readiness, emphasizing the need for stable blood gases, reduced respiratory assistance, adequate lung capacity, alertness, stable cardiovascular function, and satisfactory chest x-ray results.
Dr. Johnson's testimony regarding the medical services provided by Dr. Rosser was excluded by the district court due to concerns over its reliability, as established by the Daubert standard. The court found that Dr. Johnson, a cardiac thoracic surgeon, lacked the necessary qualifications to testify on the standard of care for pulmonologists, particularly concerning extubation practices. His deposition revealed significant gaps in his knowledge of ventilatory equipment and procedures, and he had never qualified as an expert in cases against pulmonologists. Furthermore, he could not identify any authoritative medical literature relevant to his opinion on Dr. Rosser's alleged negligence, nor did he demonstrate a consistent methodology, as evidenced by contradictions between his expert report and deposition testimony regarding the examination of the plaintiff's chest x-ray.
The court underscored that expert testimony must meet reliability standards defined by Federal Rule of Evidence 702, which includes requirements for the foundation of the testimony, the reliability of the methods used, and their application to the facts of the case. The court concluded that Dr. Johnson's assertions alone were insufficient to establish that Dr. Rosser deviated from the standard of care. Consequently, the motion for summary judgment in favor of Dr. Rosser was granted. The admissibility of expert testimony is subject to an abuse-of-discretion standard on review, which means a court's exclusion of such testimony will not be overturned unless there is clear error or misapplication of the law.
The district court incorrectly stated that an expert must demonstrate familiarity with accepted medical literature or published standards to provide reliable testimony under Federal Rule of Evidence 702, without citing any supporting authority. The rule allows for expert qualification based on experience, as noted in the advisory committee's comments and relevant case law. An expert can draw conclusions from observations based on specialized experience, and any lack of textual support should affect the weight of the testimony rather than its admissibility.
Additionally, the district court highlighted Dr. Johnson's limited knowledge of ventilator types and settings, citing specific portions of his deposition. However, it failed to explain how this knowledge impacts the reliability of Dr. Johnson's testimony regarding the timing of extubation—an issue central to the case. Dr. Johnson's extensive experience in making extubation decisions makes his testimony reliable, regardless of his familiarity with specific ventilator mechanics, as the timing of extubation is distinct from its mechanical execution.
The district court identified contradictions in Dr. Johnson's testimony compared to his affidavit, notably regarding his examination of the plaintiff's chest x-ray. While he stated in his expert report that he reviewed the x-ray to form his opinion, he later clarified in his deposition that he did not examine the x-ray films but did review the radiologist's report. This distinction, although potentially affecting the weight of his testimony, did not justify the complete exclusion of his testimony, as it was supported by his extensive relevant experience.
The court emphasized that excluding expert testimony like Dr. Johnson's, which is grounded in experience, does not align with Daubert's aim to prevent "junk science" in court. Consequently, the court found that it abused its discretion by excluding Dr. Johnson's testimony concerning the medical services rendered by Dr. Rosser.
In contrast, the district court correctly excluded Dr. Johnson's testimony regarding the alleged negligence of C.T. Dr. Johnson claimed that he based his understanding of the standard of care on the depositions of Drs. Michalik and Rosser, but no evidence supported his assertion that the cardiac surgeon was responsible for the pulmonologist's extubation decisions. Evidence indicated that Dr. Rosser had assumed that responsibility. Additionally, affidavits from local physicians confirmed the standard practice in Kingsport, Tennessee, which designated the pulmonologist as responsible for managing ventilation and extubation once consulted. Thus, the district court did not abuse its discretion in excluding Dr. Johnson's opinion on this matter. The trial judge retains significant discretion in evaluating the reliability of expert testimony.
The exclusion of Dr. Penek's expert testimony under Rule 37(c)(1) of the Federal Rules of Civil Procedure was addressed in a March 5, 2003, order. Rule 37(c)(1) prohibits the use of evidence not disclosed without substantial justification, unless the failure to disclose is harmless. The exclusion is reviewed under an abuse-of-discretion standard, requiring that any sanction, particularly if it results in case dismissal, must be proportionate to the infraction. The district court found that allowing Dr. Penek to testify would cause serious prejudice, citing the extensive time (1525 days) since the plaintiff's injury to gather evidence and the potential for significant delays in trial scheduling. However, with a new trial date to be set upon remand, concerns over trial delays related to Dr. Penek's testimony are no longer applicable. Consequently, the order excluding his testimony is vacated, while affirming the district court's judgment regarding C.T. and reversing and remanding for further proceedings concerning Dr. Rosser.
