Opinion
EP-99-CA-339-DB
December 8, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant United States of America's "Motion for Summary Judgment or in the Alternative Motion in Limine/Motion to Exclude Opinions and Testimony of Plaintiff's Designated Experts," filed on September 26, 2000, in the above-captioned cause. On October 16, 2000, Plaintiff filed a Response. Defendant filed a Reply to Plaintiff's Response on October 17, 2000. After due consideration, the Court is of the opinion that Defendant's Motion in Limine/Motion to Exclude Opinions and Testimony of Plaintiff's Designated Experts should be granted for the reasons set forth below.
Because the Motion for Summary Judgement is sought in the alternative to the motion on which the Court now rules, the Court need not address the merits of that motion.
Since a November 2, 2000, trial setting in this cause (which has since been continued) was fast approaching, the Court telephonically informed the Parties of its ruling on the instant motion.
FACTS
Plaintiff injured his ankle while hiking at Hueco Tanks State Historical Park near El Paso, Texas, on February 2, 1990. He was taken to the emergency room at R.E. Thomason General Hospital ("Thomason") in El Paso. Plaintiff had an open wound and was diagnosed with a spiral fracture of the distal tibia and a comminuted fracture of the proximal fibula. The emergency room physician sought a consult from the department of orthopedic surgery. Over a period of two days, Plaintiff was seen by Doctors Randall Espinosa, Larry Shank, and Allan J. Moede, all Army residents-in-training in a joint residency program between Texas Tech Health Sciences Center and William Beaumont Army Medical Center, and doing an orthopedic surgery residency at Thomason.Following surgery by Dr. Espinosa on February 2, 1990, Plaintiff was in stable condition. The following day, on February 3, Dr. Shank ordered that Plaintiff begin physical therapy. Later that day, Plaintiff was seen by a physical therapist at Thomason and began walking short distances on his injured leg with the help of a crutch and a physical therapist. In the late afternoon, however, Plaintiff complained of severe pain. By early evening, Plaintiff was returned to surgery, where the orthopedic surgeon on duty diagnosed him with compartment syndrome and performed fasciotomy surgery to relieve the pressure within the muscle compartments. Three days later, Plaintiff was transferred to Sun Towers Hospital, in El Paso, Texas, later known as Columbia Medical Center West and now Las Palmas Medical Center.
Compartment syndrome is the swelling of the muscles within the fascia (the sheath covering muscles) to such a degree that the pressure restricts blood flow within the muscle. The condition can lead to death of muscle tissue which can result in permanent disability in the muscle. To relieve the condition, physicians conduct surgery in which the fascia is cut open to allow the muscle to expand without being constricted. This surgery is referred to as a fasciotomy.
Plaintiff brought suit against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674. This Court has subject matter jurisdiction over the claim under 28 U.S.C. § 1346(b). Plaintiff alleges in a complaint filed on October 14, 1999, that Dr. Espinosa was negligent in failing to place an intramedullary pin in the fracture site during surgery on February 2, 1990. In addition, Plaintiff contends that Dr. Shank was negligent in prematurely giving orders to begin physical therapy before such treatment was appropriate. Finally, Plaintiff argues that the surgery performed by Dr. Moede on February 3, 1990, resulted in the removal of too much tissue, which would not have happened in the absence of negligence on the part of the operating physician. The instant alternative Motions followed.
DISCUSSION
The FTCA provides that "the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C.A. § 2674 (West 1994). It is established law that liability and the measure of damages in FTCA claims are determined according to the law of the state where the tort occurred. See, e.g., Ferrero v. United States, 603 F.2d 510, 511 (5th Cir. 1979). Evidentiary matters, however, including the standard for admitting expert scientific testimony, are subject to the Federal Rules of Evidence. See, e.g,. Beins v. United States, 695 F.2d 591 (D.C. Cir. 1982) (relying on Federal Rule of Evidence 702 to determine admissibility of expert's excluded testimony in an FTCA claim); Buscaglia v. United States, 25 F.3d 530 (7th Cir. 1994) (same). Plaintiff seeks to establish, through his expert witness, Dr. James E. Baum, D.O. ("Dr. Baum"), that Defendant's agents breached their duty of care by failing to conform to the standard of care necessary when faced with Plaintiff's injuries. Defendant alleges that Dr. Baum does not meet the qualification requirements as defined in the Texas Medical Liability and Insurance Improvement Act. The Court finds that based on Federal Rule of Evidence 702 Dr. Baum indeed fails to meet the qualification requirements.
Defendant incorrectly argues that Plaintiff's expert must qualify as an expert under the Texas Medical Liability and Insurance Improvement Act, which defines the qualification requirement for a doctor testifying in a suit involving a healthcare liability claim. In support of this position, Defendant cites Songne v. United States, No. CIV. A. 96-3742, 1998 WL 352175, (E.D.La., June 30, 1998) as well as Woods v. Holy Cross Hosp., 591 F.2d 1164 (5th Cir. 1979). While both cases indeed hold that a state's medical malpractice act is substantive law for purposes of the FTCA, neither case is on point. The Songne Court made its finding with regard to the applicability of state law in determining whether the plaintiff was subject to a medical review panel as required by Louisiana law. Similarly, the Wood court considered the question in determining whether the plaintiff was subject to Florida's Medical Malpractice Law, which mandates that medical malpractice claimants participate in a mediation process prior to bringing an action in court.
A Doctor of Osteopathic Medicine ("D.O.") generally focuses on the neuro-musculoskeletal system and may perform manipulations to treat a wide range of problems. A D.O. is trained to evaluate the body by taking histories which focus both on the patient's symptom and on that individual's lifestyle. A D.O. practices in nearly every healthcare setting from community clinics to conventional hospitals. Practice specialties are similar to those of Medical Doctors and may include, inter alia, obstetrics/gynecology, neurology, surgery, or psychiatry. NATIONAL LIBRARY OF MEDICINE, Medline Plus Health Information, MEDICAL ENCYCLOPEDIA, Special Topic Reference, Doctor of Osteopathy Profession, available at http://medlineplus.adam.com/ency/article/002020.htm
Federal Rule of Evidence 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." FED. R. EVID 702.
Rule 702 identifies a two-part test for the admissibility of expert testimony: "(1) the expert must be qualified, and (2) the subject matter of the expert's testimony must be suitable, that is, consist of specialized knowledge that will be helpful or essential to the trier of fact in deciding the case correctly." Buscaglia, 25 F.3d at 533. The Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 469 (1993), that "an expert's opinion must have a `reliable basis in the knowledge and experience of his discipline.'" Id., 509 U.S. at 592, 113 S.Ct. at 2796. The party offering the expert bears the burden of establishing his expert's qualifications and competency as to the particular issue in a case. See Smith v. Hobart Mfg. Co., 185 F. Supp. 751 (E.D.Pa. 1960). The qualifications requirement of Rule 702 has been interpreted liberally. See In Re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741 (3d Cir. 1994). Exclusion is not proper solely based on the fact that the expert does not have the most appropriate degree or training. Id. In Paoli, an internist who had "spent significant time reviewing the literature" on the subject was allowed to testify as to whether a certain chemical caused illness in the plaintiffs. 35 F.3d at 754. Where, however, an expert's knowledge of the specialty about which he is to testify is too tenuous, courts have excluded that testimony. See, e.g., O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1107 n. 19 (7th Cir. 1994) (finding plaintiff's expert properly excluded where expert claimed plaintiff's cataracts were radiation-induced, but expert had treated only five cases of radiation-induced cataracts).
According to his own deposition testimony, Dr. Baum's specialty is pain intervention. He evaluates patients' injuries and impairments, reviews patient records for insurance companies, and renders opinions as to whether the treating physician provided appropriate treatment for the particular injury. He is not a practicing orthopedics specialist, nor has he ever dealt with the treatment of fractured bones in his medical practice. He is not currently board certified or board eligible in general surgery.
Dr. Baum testified that if he were presented with the kind of fracture which Plaintiff sustained, he would have called an orthopedics surgeon rather than determine the appropriate treatment himself. When asked if he had ever dealt with a case similar to the one at hand, Dr. Baum testified that he had assisted in surgeries that involved such injuries, but had done so in the 1970's. He added that his experience in surgical assistance in such cases was not particularly vast. Additionally, Dr. Baum stated that an injury of the type sustained by Plaintiff should, under most circumstances, be handled by an orthopedic surgeon, not a general orthopedist. Finally, Dr. Baum testified that an orthopedic surgeon would be more qualified to render an expert opinion on this particular issue than would a general orthopedist, based upon the surgeon's training and specialized knowledge.
Dr. Baum, although board certified by the American College of Osteopathic Pain Management and Sclerotherapy, the American Osteopathic College of Family Physicians, and the American Academy of Neurologic and Orthopedic Surgeons, and board eligible in the American Academy of Neurological and Orthopedic Surgeons under pain management, orthopedic medicine and surgery, is not qualified to give standard of care evidence in this particular trial. Having reviewed the evidence submitted by the Parties, the Court finds that, while Dr. Baum has training in the general area in question, Dr. Baum simply does not have the specialized knowledge necessary — either by knowledge, skill, experience, training, or education — to provide expert opinions regarding the standard of care appropriate for treatment of the particular kind of injury that Plaintiff suffered.
Although the Court finds that Defendant's Motion to Exclude Opinion and Testimony of Plaintiff's Designated Experts should be granted, Defendant's Motion for Summary Judgement is premature. The Court finds that if Plaintiff were to designate a new expert, genuine issues of material fact would remain unresolved in this case. Hence, the Court finds that the trial in this case, set for November 2, 2000, should be continued to permit Plaintiff thirty days as of that trial date to designate an additional expert witness.
Accordingly, IT IS HEREBY ORDERED that Defendant United States of America's "Motion in Limine/Motion to Exclude Opinions and Testimony of Plaintiff's Designated Experts" is GRANTED.
IT IS FURTHER ORDERED that on or before December 4, 2000, Plaintiff designate a new expert witness, if any.
The Court notes that on November 22, 2000, Plaintiff filed a "Supplemental Designation of Potential Witnesses and Testifying Experts," in which he designates as proposed expert Dr. Brian J. Awbrey, M.D., a medical doctor and instructor in orthopedics with the Department of Orthopaedic Surgery at Harvard Medical School.
IT IS FURTHER ORDERED that the parties have until January 2, 2001, to depose Plaintiff's new expert witness, if at all.
The Court also notes that attorney for Plaintiff, Marshall Yaker, contacted the Court telephonically on December 7, 2000, to advise that a deposition of Dr. Awbrey is scheduled for December 13, 2000, in Boston, Massachusetts.
IT IS FINALLY ORDERED that trial for this case is reset for January 18, 2001.
SIGNED this 8th day of December 2000.