Opinion
Case No. CIV-02-0113-F
November 4, 2002
ORDER
Before the court is the defendant's motion in limine, filed August 30, 2002 (docket entry no. 27). The court has reviewed the motion as well as plaintiffs response, filed September 19, 2002.
I. Factual and Legal Background.
This is a medical malpractice action in which, for the unusual reasons shown by the court's July 5, 2002 order, the only issue remaining for trial is whether plaintiff Donnie Anderson gave his informed consent to the medical procedures which were performed by the defendant Ronal Hale. The defendant's motion in limine seeks to exclude or restrict the testimony of one of plaintiffs expert witnesses, Dr. James Horrell. Defendant relies on Rule 26(a)(2), F.R.Civ.P. and on the court'sDaubert/Kumho gatekeeper function.
Since defendant's motion focuses largely upon Dr. Horrell's report, the court will first examine the subject matter of Dr. Horrell's report. (Certain other aspects of Dr. Horrell's report are discussed in Part II, below.)
Dr. Horrell's report is dated August 5, 2002. It was timely submitted (with the benefit of an extension of time). The report addresses three topics: (i) the present value of Donnie Anderson's loss of earning capacity, (ii) the present value of the loss of Donnie Anderson's services, and (iii) the loss of Donnie Anderson's "enjoyment of life," otherwise referred to by both the plaintiffs and defendant as "`hedonic damages.'"
The first two topics, loss of earning capacity and loss of services, are commonly the subject of expert testimony in personal injury litigation. On these two topics, Dr. Horrell's report essentially provides mathematical calculations based on certain assumptions which are disclosed in the report. For instance, with respect to loss of earning capacity, Dr. Horrell assumes a specific dollar amount as a base earnings rate, selects what he describes as an appropriate differential between the future growth rate of his earning capacity and the appropriate discount rate for the purpose of reducing a future income stream to present value, applies other adjustments for matters such as taxes and fringe benefits and then arrives at a present value number for 28 years of assumed lost earnings. The calculation for lost services is similar.
With respect to the third topic, Dr. Horrell begins with the adult personal injury measure of damages as set forth in the Oklahoma Uniform Jury Instructions ("OUJI") and then purports to transmute those recoverable elements of damages into a formula for determining "a loss in the value of [Donnie Anderson's] life." Horrell report, at 3. This is referred to in Dr. Horrell's report as a calculation of Mr. Anderson's "intangible loss." Id. at 2-3. Under this heading, for the sake of illustration, Dr. Horrell picks a number ($3,000,000.00) for the "pre-injury value" of Donnie Anderson's life. Then Dr. Horrell picks another number (20%) for the percent loss in value of Donnie Anderson's life. Dr. Horrell then applies the second number he picked (20%) to the first number he picked ($3,000,000.00), to arrive, for illustration purposes, at a $600,000.00 figure for Donnie Anderson's loss of value of life. According to Dr. Horrell, it is no more complicated than that.
II. The Rule 26(a) Issue.
As has been noted, defendant's motion in limine seeks preclusion or restriction of Dr. Horrell's testimony on two bases, Rule 26(a)(2) andDaubert/Kumho. As to Rule 26(a)(2), defendant argues that Dr. Horrell's report is only preliminary and is incomplete. Citing Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002), defendant contends that the deficiencies in Dr. Horrell's report are neither justifiable nor harmless and that, consequently, Dr. Horrell's report should be stricken, with resultant exclusion of his proposed expert testimony at trial See, Rule 37(c)(1), F.R.Civ.P.; Defendant's motion in limine, at 3-6.
In Jacobsen v. Deseret Book Co., the Court of Appeals reversed the district court's refusal to strike a preliminary and incomplete expert report. Noting that the reports were admittedly incomplete, the court addressed the issue of "whether Rule 37(c) nevertheless allows the district court to allow the experts to testify on the basis of the incomplete reports." 287 F.3d at 952. In so doing, as is discussed in more detail below, the Court of Appeals provided a framework for analysis of whether the trial court should permit a litigant to proceed at trial on the basis of a preliminary or incomplete report from an expert witness. Id. at 952-53. The court's analysis began with scrutiny of the expert's report in light of the requirements of Rule 26(a)(2). Consequently, as a threshold matter, the court will further analyze Dr. Horrell's report in light of the requirements of that rule.
Rule 26(a)(2), by its own terms, requires "disclosure of expert testimony." (emphasis added). The required disclosure is thus intended to serve as a complete and reliable preview of the expert's trial testimony. The current rule was adopted at least in part because, under the former practice, answers to interrogatories as to "the substance" of expert testimony were "frequently so sketchy and vague" as to be worthless. Advisory Committee Note to 1993 Amendments to Rule 26(a)(2)(B). Thus, the combined effect of Rules 26(a)(2)(B) and 37(c)(1) is that he who fails to provide a comprehensive expert report does so at his peril. Under Rule 26(a)(2)(B), an expert's report must, absent a stipulation or order to the contrary, have 12 attributes:
1. The report must be written.
2. The report must be prepared by the witness.
3. The report must be signed by the witness.
4. The report must contain a complete statement of all opinions to be expressed by the expert witness.
5. The report must contain a complete statement of the bases and reasons for those opinions.
6. The report must contain the data or other information considered by the witness in forming the opinions.
7. The report must contain any exhibits to be used as a summary of or support for the opinions to be expressed.
8. The report must state the qualifications of the witness.
9. The report must include a list of all publications authored by the witness within the preceding 10 years.
10. The report must state the compensation to be paid for the study and testimony.
11. The report must contain a list of any other cases in which the witness has testified as an expert at trial within the preceding four years.
12. The report must contain a list of any other cases in which the witness has testified as an expert by deposition within the preceding four years.
Under Rule 37(c)(1), F.R.Civ.P., a party that without substantial justification fails to disclose information required by Rule 26(a) is not, unless the failure is harmless, permitted to use as evidence at trial any information not so disclosed. Thus, the test for trial use of undisclosed information is substanual justification and harmlessness. Jacobsen, at 952.
Dr. Horrell's report satisfies some of the Rule 26(a)(2) requirements but fails to satisfy others. The report is in writing. The court will assume that it was prepared by Dr. Horrell. Thus, the first two requirements are at least presumptively satisfied. However, the copy of the report provided by plaintiff does not show that the report has been signed by Dr. Horrell. The third requirement is thus not satisfied. The court considers this, at least for purposes of this case, to be inconsequential.
The report may or may not contain a complete statement of all opinions intended to be expressed at trial, but that requirement can certainly be enforced at trial. At trial, no opinions will be expressed by Dr. Horrell other than those which are (i) stated in the report, and (ii) otherwise determined by the court to be admissible. On that basis, the court will consider the fourth requirement to have been satisfied. As to the fifth requirement ("basis and reasons" for the opinions), the report is sketchy at best. As to the economic loss calculations, the report provides little explanation for the assumptions which are employed. However, given the uncomplicated and very familiar subject matter of the economic loss calculations, this deficit may not be fatal. As to the sixth requirement, disclosure of the data or other information considered by the witness, the report is probably (even if barely) adequate with respect to the economic loss calculations. The report is bereft of any stated basis for Dr. Horrell's proposed approach to calculation of hedonic damages. But that may be excusable because it may well be that it is simply impossible to identify, catalogue and then weigh all of the facts which one would assay in undertaking the inherently subjective task of quantifying the "loss in the value of Donnie's life. . . ." Horrell report, at 3.
The court is not confronted with a request that Dr. Horrell be permitted to offer opinion testimony on matters not addressed in his report. Thus, the court may more readily assume that plaintiff does not intend to offer testimony outside the four corners of the report, and then find the fourth requirement to be satisfied on that basis. If the court had been requested to permit testimony as to matters not fairly embraced by the report, the court's analytical task would be a bit different, but the Jacobsen v. Deseret Book Co. framework would still apply.
Requirement number seven (identification of exhibits to be used) is self-executing in the sense that Dr. Horrell will not be permitted to use any exhibits to summarize or support his opinions other than those exhibits which are attached to his report, if they have been listed and are otherwise admissible. Requirement number eight, with respect to qualifications of the witness, has been satisfied because Dr. Horrell's resume was apparently provided. The court will likewise assume that requirement number nine, with respect to publications authored by the witness, has been satisfied. Dr. Horrell's proposed compensation has been disclosed, so the tenth requirement has been satisfied.
Dr. Horrell's report shows no trial testimony after April, 2001. Unless Dr. Horrell's career as a testifying expert was abruptly interrupted 18 months ago in April, 2001, the list of trial testimony is incomplete. Therefore, the eleventh requirement does not appear to have been satisfied. The report contains no listing of deposition testimony, so the twelfth requirement is not even colorably satisfied.
Defendant correctly cites Jacobsen v. Deseret Book Co. as the definitive source of guidance in our circuit for determining the consequences of submission of a late or incomplete expert report. As noted above, the Court of Appeals, in Jacobsen, articulated a test for determining substantial justification and harmlessness under Rule 37(c)(1). Specifically, relying on its earlier decision in Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999), the Court of Appeals held that the district court should consider the following factors: (i) the prejudice or surprise to the party against whom the testimony is offered, (ii) the ability of the party to cure the prejudice, (iii) the extent to which introducing such testimony would disrupt the trial, and (iv) the moving party's bad faith or willfulness.Jacobsen, at 953.
The court will apply this test to the "hard" economic topics addressed by the Horrell report, namely the earning capacity calculation and the lost services calculation. The basic premise for the court's reasoning as to Dr. Horrell's work on these subjects, as expressed in his report (and testimony based thereon), lies in the fact that Dr. Horrell's product, on these topics, is the result of relatively simple calculations as applied to quantitative facts which are substantially uncontroverted (or, if controverted, may readily be challenged). These economic loss calculations are routine in personal injury litigation. The areas that are fair game for contest at trial are quite familiar: the reasonableness of the assumptions, the selection of inflation and discount factors, the plaintiff s personal prospects versus those of the hypothetical similarly situated wage earner, and so forth. Thus viewed, although Dr. Horrell's report is deficient in several respects, it is difficult for the court to conclude that trial testimony on the basis of these aspects of Dr. Horrell's report would be prejudicial to defendant. Any prejudice can be cured by way of cross examination or use of countervailing expert testimony. Introduction of testimony on these topics, on the basis of Dr. Horrell's report, would not disrupt the trial. As to the fourthJacobsen factor, no showing has been made that plaintiffs or their counsel have acted in bad faith.
In Jacobsen, the court, quoting Woodworker's Supply, articulated the fourth factor as "the moving party's bad faith or willfulness." Depending upon the procedural context, the "moving party" could be either the party proffering the expert report and the related expert testimony or the opposing party. It is clear from the court's discussion of this fourth factor, however, that, for analytical purposes, the "moving party" is the party proffering the report. Jacobsen at 954.
Accordingly, on the basis of Dr. Horrell's report as submitted and viewed in light of the test articulated in Jacobsen, the court concludes, in its discretion, that the deficiencies in the Horrell report, under the totality of the circumstances, are not so serious as to require that the report be stricken or that the plaintiffs be precluded from presenting Dr. Horrell's expert testimony as to the value of lost earning capacity and the value of lost services. One cautionary note is in order, however. Plaintiffs adamantly state that Dr. Horrell's report is his final report within the meaning of Rule 26. Plaintiffs' response, at 5. (Any suggestion to the contrary, would in any event, be unavailing at this stage of this case.) For that reason, and because the court considers the fourth and fifth requirements of Rule 26(a)(2) to be self-executing (as least for purposes of the relatively uncomplicated issues in this case), all parties should bear in mind that, at trial, Dr. Horrell's testimony will be permitted to cover no more ground than that which was covered by his report (to the extent that the matters addressed in his report are otherwise admissible).
As has been noted, the court is not faced with a request to permit Dr. Horrell to give expert testimony as to matters not contained in his report. It may be taken for granted that, as trial approaches (or, worse yet, during trial), it becomes much more difficult to find harmlessness where opinions are offered which are not fairly embraced by an expert's report.
Turning to the final matter addressed by Dr. Horrell's report, specifically his proposed approach to quantification of Donnie Anderson's hedonic damages (which would presumably serve as the platform for Dr. Horrell's trial testimony on the same subject), the court prefers to analyze Dr. Horrell's theory in the Daubert/Kumho framework rather than in the framework of Rule 26(a)(2) and Jacobsen v. Deseret Book Co. It is not necessary to force an analysis (and it would indeed be forced) of this aspect of Dr. Horrell's report under Rule 26(a)(2) and Jacobsen, because a Daubert/Kumho analysis is dispositive.
Defendant's Daubert/Kumho challenge is directed only to Dr. Horrell's proposed theory of hedonic damages. The "hard" economic damages (lost earning capacity and lost services) are challenged only under Rule 26(a)(2).
III. The Daubert/Kumho Issue.
A. The Gatekeeper Function
The Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) and Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999) establish a "gatekeeper" function for trial judges under Fed.R.Evid. 702. See also, Goebel v. Denver and Rio Grande Western Railroad Company, 215 F.3d 1083, at 1087 (10th Cir. 2000). The gatekeeper function "requires the judge to assess the reasoning and methodology underlying the expert's opinion, and determine whether it is scientifically valid and applicable to a particular set of facts." Goebel at 1087.
The question of how to perform its gatekeeping function is a discretionary matter for the trial court. The court may conduct a hearing, it may perform its gatekeeping obligation by ruling on a motion in limine or on an objection at trial, or even by ruling on a post-trial motion. Id. When faced with a Daubert/Kumho objection to proposed expert testimony, the Court must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper. Goebel at 1088.
Even though the court may delve deeply into the minutia of the proposed expert's opinions while conducting the Daubert/Kumbo analysis, the Court must always remain mindful that its focus "must be solely on principles and methodology, not on the conclusions that they generate." Daubert at 595. Thus, the ultimate objective of Daubert scrutiny is to ascertain whether the proffered expert testimony is "not only relevant, but reliable," Daubert at 589, and it must be emphasized that the evaluation for reliability cannot be permitted to evolve into an assessment of the ultimate persuasiveness of the proffered expert testimony.
One of the most important aspects of the relevance evaluation is the question of "fit." In assessing "fit," the court must determine whether the "expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Daubert at 591 [internal quotation marks omitted]. In explaining the 2000 amendment to Rule 702, the Advisory Committee expressed the "fit" requirement by stating that "the testimony must be the product of reliable principles and methods that are reliably applied to the facts of the case."
In Kumho the Court elaborated upon the Daubert gatekeeping function as applied to proposed expert testimony other than classical scientific testimony. The Court emphasized that, even where the proposed expert testimony is not scientific in nature, in the classical sense, the trial judge is nevertheless required to ascertain whether the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152 (emphasis added).
It is clear that, in our circuit, the Daubert/Kumho gatekeeping function is undertaken by means of a two-step analysis. Ralston v. Smith Nephew Richards, Inc., 275 F.3d 965, at 969 (10th Cir. 2001). First, the court must determine whether the proposed expert is qualified. This requires an assessment of his "knowledge, skill, experience, training or education." See Rule 702 and Ralston at 969. InGardner v. General Motors Corporation, 507 F.2d 525 (10th Cir. 1974), our Court of Appeals noted that a proposed expert "should not be required to satisfy an overly narrow test of his own qualification." 507 F.2d at 528. Even though Gardner was a pre-Daubert decision, that admonition from the Court of Appeals is still relevant. Secondly, if the proposed expert is determined to be sufficiently qualified, the court must determine whether his or her opinions are "reliable" in the sense required byDaubert and Kumho. Ralston at 969.
The Daubert case, of course, involved a proffer of expert testimony in a classical scientific discipline — epidemiology. Bearing that context in mind, it is nevertheless appropriate to review the non-exclusive list of five factors which were provided by the Daubert court. The Court, in Daubert, said that the trial judge should (1) assess whether the expert's technique or theory can be or has been tested — that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability, (2) determine whether the technique or theory has been subject to peer review and publication, (3) evaluate the known or potential rate of error of the technique or theory when applied, (4) ascertain the existence and maintenance of standards and controls and, (5) determine whether the technique or theory has been generally accepted in the scientific community. See 509 U.S. at 590-594.
The decision in Kumho made it clear that the gatekeeper function applies even where the proposed expert testimony is outside the realm of science in the classical sense. Kumho involved a proffer of engineering testimony in a product liability case. The Kumho decision makes it clear that, although the ultimate task of the trial judge, as gatekeeper, remains the same, the factors which were included in the nonexclusive list in Daubert are to be used only to the extent that they are logically applicable. See Kumho, 526 U.S. at 149. Thus, for instance, it has been noted that the factors mentioned by the Court in Daubert do not neatly apply to expert testimony from a sociologist, Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996), and that lack of peer review or publication is not dispositive where the expert's opinion is supported by "widely accepted scientific knowledge." Kannankeril v. Terminix International, Inc., 128 F.3d 802 at 809 (3rd Cir. 1997). Moreover, as noted by the Advisory Committee in commenting on the 2000 amendments to Rule 702, courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the jury. Those additional factors which may be relevant depending on the circumstances include (1) whether the expert proposes to testify about matters growing naturally and directly out of his research, independent of the litigation, or whether he has developed his opinion expressly for the purpose of testifying, (2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, (3) whether the expert has adequately accounted for obvious alternative explanations, (4) whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting, and (5) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Advisory Committee notes to 2002 amendments, and cases there cited.
B. Daubert and Kumho Applied in the Case at Bar.
As to the issue of Dr. Horrell's approach to hedonic damages, as addressed in his report and presumably in his intended expert trial testimony, defendant asserts, in substance, that Dr. Horrell's theory is so speculative and unrooted in reality as to be inherently unreliable as well as unhelpful and confusing to the jury. Defendant also asserts that the Tenth Circuit's opinion in Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000), dealing with the admissibility of the testimony of a forensic economist with respect to hedonic damages, supports defendant's position rather than plaintiffs position.
Because of the obvious relevance of Smith v. Ingersoll-Rand Co. to the issue at hand, that opinion deserves attention at the outset.
In Smith v. Ingersoll-Rand, the district court was called upon to rule on the admissibility of the proposed expert testimony of Stan Smith, the reputed father of the theory of hedonic damages. The district court excluded Smith's testimony purporting to quantify hedonic damages but did allow Mr. Smith to testify "about the meaning of hedonic damages."Smith, at 1244. It is unmistakably clear from the Tenth Circuit's opinion, affirming the judgment of the district court, that the indispensable predicate for the admission of Stan Smith's testimony about the meaning of hedonic damages was that "hedonic damages are explicitly allowed under New Mexico law. . . ." Id.
Hedonic damages, as a subject of recovery separate from (or even to be expressed separately from) those elements of damages which are set forth in OUJI 4.1, are unknown to Oklahoma law. Thus, unlike New Mexico, neither the courts nor the legislature of Oklahoma have invited or otherwise laid the groundwork for expert trial testimony by exponents of hedonic damages. Consequently, Smith v. Ingersoll-Rand is unavailing. For that reason, the court's analysis of Dr. Horrell's proffered theory of hedonic damages will proceed as a Daubert/Kumho analysis unaided by Smith v. Ingersoll-Rand.
Although, in their response, plaintiffs argue the virtues of hedonic damages, they offer very little by way of analysis of Dr. Horrell's approach to hedonic damages in the Daubert/Kumho framework. See plaintiffs response, at 3-5.
The touchstone of Dr. Horrell's approach to hedonic damages is to reckon "a value for Donnie Anderson's pre-injury value of life" and then apply to that preinjury value of life a percentage representing "the percent loss in value of life (expressed as a decimal)". Horrell report, at 3. Dr. Horrell offers this as a means of quantification of the damages to be awarded by virtue of the jury's evaluation of past and future physical and mental pain and suffering, the nature and extent of Mr. Anderson's injuries, the permanence of his injuries and his physical impairment (all of which are listed in OUJI 4.1). Id. at 2-3. By way of illustration, Dr. Horrell posits a $3,000,000.00 figure for Donnie Anderson's pre-injury value of life and a 20% loss in value of life. To his credit, Dr. Horrell does not even purport to support those numbers. Thus, neither Dr. Horrell's equation nor the numbers he plugs into that equation are substantiated by his report. Moreover, the approach to hedonic damages which Dr. Horrell advocates is demonstrably lacking in "fit" with either the facts of the case or Oklahoma law. Daubert at 591. Indeed, Dr. Horrell's approach to hedonic damages is so lacking in "visible means of support," Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 at 1320 (9th Cir. 1995) (on remand), that any attempted Daubert/Kumho analysis of his theory is undertaken only at the risk of according it undue dignity. Suffice it to say for present purposes that no showing has been made (or even attempted) that Dr. Horrell's approach to hedonic damages satisfies any of the factors made relevant by Daubert and Kumho. Merely to pose the question of whether Dr. Horrell's proffered approach to hedonic damages demonstrates "intellectual rigor," Kumho at 152, is to answer the question. Moreover, as a threshold matter under Rule 702, the court is not satisfied that expert testimony on this subject "will assist the trier of fact to understand the evidence or to determine a fact in issue." Rule 702, Fed.R.Evid.
Accordingly, Dr. Horrell will not be permitted to testify in support of Donnie Anderson's claim for intangible loss. As is discussed above, Dr. Horrell will be permitted to testify to those matters explicitly set forth in his report with respect to loss of earning capacity and lost services.
Defendant's motion in limine with respect to plaintiffs' expert James Horrell is GRANTED in part and DENIED in part as set forth above.
FOR THE UNITED STATES DISTRICT COURT THE WESTERN DISTRICT OF OKLAHOMA
DONNIE ANDERSON and STELLA ) ANDERSON, husband and wife ) ) Plaintiffs, ) Case No. CIV-02-0113-F -vs- ) ) RONAL HALE, ) ) Defendant. )
ORDER
Before the court is the plaintiffs Motion in Limine, filed September 3, 2002 (docket entry no. 28). The court has reviewed the motion as well as defendant's response, filed September 18, 2002.
The motion in limine is directed to the proposed testimony of Dr. Thomas Howard, one of defendant's expert witnesses. Although plaintiffs motion is less than precise in describing the expert testimony which plaintiff would have the court exclude by an order in limine, the court gleans from the motion that plaintiff seeks exclusion of testimony by Dr. Howard on the issue of the adequacy of the informed consent between Dr. Hale and Mr. Anderson. Thus, although, on page 1 of plaintiffs motion, plaintiff speaks broadly of "opinions of Dr. Howard with respect to medical negligence and the standard of care" it is apparent from the argument portion of plaintiffs motion that plaintiffs actual focus is on the propriety of expert medical testimony on the informed consent issue. The court will note in passing, however, that, in any event, in light of the court's July 5, 2002 ruling on defendant's motion for partial summary judgment, it would not appear that medical testimony, even if offered, would be admissible on the question of whether the original surgery which was performed by Dr. Hale should have been performed ( aside from the informed consent issue) or was performed in accordance with the applicable standard of care.
In response to plaintiffs motion, the defendant argues that Dr. Howard's testimony is admissible, on the informed consent issue, to address the quality of the defendant's interaction with the patient prior to surgery and to address issues of causation. Specifically, defendant proposes that Dr. Howard testify with respect to the following matters:
He will explain to the jury intricacies of complex shoulder injury, diagnoses and interaction with the patient prior to surgery [i.e., informed consent]. He will also explain why it is unequivocally true that the surgery performed by Dr. Hale on Donnie Anderson was "taken down" by the first surgery performed by Dr. Conway [i.e., causation].
Dr. Howard will testify that whatever may be the reason for Donnie's subsequent surgeries, and whatever may be the reason for all the psychological impairment that he and his spouse claim to suffer, there is no causal relationship between all these problems and the first shoulder surgery [causation]. Why this is true, in the medically complicated area of the shoulder, is manifestly the appropriate subject of expert testimony.
Defendant's response, at 2-3 (parentheticals added).
Defendant has proffered at least two relevant subjects for expert testimony from Dr. Howard. First, given the fact that, at trial, the issue of liability will center upon the question of whether plaintiff Donnie Anderson gave informed consent, expert medical testimony as to standards of practice relating to informed consent will be admissible. To be sure, neither Dr. Howard or any other expert will be permitted to tell the jury what the law is. Likewise, the court does not expect that Dr. Howard or any other expert will tell the jury what the underlying facts are. However, within the confines of the standard imposed by the law and the facts shown by the record, it certainly appears that there will be room at trial for expert testimony as to whether the informed consent between the defendant and Donnie Anderson comported with accepted standards of medical practice. Given the nature of the informed consent issue, the field of play for expert medical testimony may not be as sweeping as is often the case with respect to other medical issues. However, the papers before the court satisfy the court that there is room for expert medical testimony on the informed consent issue. Beyond the generalizations set forth above and below, questions with respect to the permissible scope of medical expert testimony addressed to informed consent will have to be resolved on a more topical basis as the trial proceeds.
Medical expert testimony will also be admissible on the question of whether the continuing physical difficulties experienced by plaintiff Donnie Anderson are attributable to the surgery performed by the defendant. Thus, it may be taken for granted that even if defendant is found to have breached a duty with respect to informed consent, causation — the causal link between the breach and the physical problems complained of — must still be established.
By way of illustration only, it appears from the papers before the court that:
1. Medical expert testimony will be admissible as to the appropriateness of the disclosures which were made by the defendant. Obviously, the experts will not be in a position to resolve disputes as to what was actually said prior to the surgery. However, on the basis of assumptions predicated on evidence in the record, medical expert testimony as to the appropriateness of the disclosures will be admissible as long as no expert proposes to testify to a standard of care which conflicts with applicable Oklahoma law.
2. Medical expert testimony will be admissible as to the propriety, on the basis of the consent given, of performing the anterior reconstruction (i.e., the Magnuson-Stack procedure). Again, there will likely be a fact issue as to the scope of the disclosures and the scope of the consent. Presumably, Dr. Howard will testify on the basis of the assumed truth of the testimony provided by the defendant or others with respect to the underlying facts.
This should be carefully distinguished from any issue as to the medical advisability of the procedure which was actually performed or as to whether the procedure which was performed was performed in accordance with the applicable standard of care. Those matters will not be in issue at trial.
3. Medical expert testimony will be admissible on the question of whether Dr. Conway's initial surgery effectively reversed the surgery performed by defendant. This clearly goes to the issue of causation, which is very much in issue.
4. Expert medical testimony will be admissible on the question of whether, after Dr. Conway's initial surgery, the procedure performed by Dr. Hale could have caused or contributed to Donnie Anderson's continuing difficulties. This would include testimony addressed to the existence of a link between the surgery performed by defendant and the problems which were experienced by plaintiff both before and after his shoulder replacement surgery, a matter which, as noted, will have to be resolved by the jury.
Accordingly plaintiffs motion in limine is DENIED.
Dated November 4, 2002.
_____________________ STEPHEN P. FRIOT U nited States District Judge