Opinion
No. 1:20-cv-01120-JMS-DLP
2021-07-21
Andrew J. LYONS, Plaintiff, v. UNITED STATES, Defendant.
Joseph E. Allman, Allman Law LLC, Indianapolis, IN, for Plaintiff. Julian Clifford Wierenga, United States Attorney's Office, Indianapolis, IN, for Defendant.
Joseph E. Allman, Allman Law LLC, Indianapolis, IN, for Plaintiff.
Julian Clifford Wierenga, United States Attorney's Office, Indianapolis, IN, for Defendant.
ORDER
Doris L. Pryor, United States Magistrate Judge
This matter comes before the Court on the Defendant's Motion to Preclude Expert Testimony, Dkt. [56]. Defendant seeks to prevent Plaintiff's retained expert, Dr. Luis Villa, Jr. ("Dr. Villa"), from testifying at trial regarding radiology matters, including whether the radiological services Defendant provided to the decedent, Gary L. Lyons, were negligent or failed to meet the standard of care. (Id.). This Motion is now fully briefed and ripe for decision. For the reasons discussed below, Defendant's Motion is GRANTED .
I. BACKGROUND
The decedent, Gary L. Lyons, had been undergoing medical treatment with the Department of Veterans Affairs Medical Center in Danville, Illinois ("Danville VA"). (Dkt. 52 at 2). In January 2016, one of the decedent's kidneys was removed upon discovery of a cancerous tumor. (Id.). Thereafter, at six-month intervals, the decedent was seen for follow-up examinations, including radiographs and CT scans. (Id.). On December 19, 2018, the decedent was allegedly informed by Danville VA's Chief of Staff that the Danville VA radiologists had missed cancerous markers in February 2018 imaging and had not reported to him that a cancerous mass was found near his remaining kidney in March 2018. (Id. at 2-3; Dkt. 58-2). By the time of the December 2018 notification, the decedent's cancer had begun to spread to other organs. (Dkt. 52. at 3). On November 27, 2019, the decedent initiated the present lawsuit pursuant to the Federal Tort Claims Act. (Dkt. 1). Upon the decedent's passing, Mr. Lyons’ son, Andrew J. Lyons, continued this litigation on behalf of the decedent's estate. (Dkt. 52).
On April 13, 2021, Plaintiff timely served Defendant with expert witness disclosures identifying Dr. Villa as the Plaintiff's only expert. (Dkts. 56-1; 56-2). On May 12, 2021, Defendant filed the present motion to preclude a portion of Dr. Villa's expert testimony. (Dkt. 56). On May 26, 2021, Plaintiff filed his response, and on June 2, 2021, Defendant filed its reply. (Dkts. 58, 59).
II. LEGAL STANDARD
Federal Rule of Evidence 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), provide the legal framework for the admissibility of expert testimony. C.W. ex rel. Wood v. Textron, Inc. , 807 F.3d 827, 834 (7th Cir. 2015) (citing Wallace v. McGlothan , 606 F.3d 410, 419 (7th Cir. 2010)) (holding "standards for admitting expert evidence" are "matters that fall on the procedural side of the Erie divide," and are thus governed by federal law). Federal Rule of Evidence 702 provides that expert testimony is admissible if:
(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.
Fed. R. Evid. 702. Rule 702 allows an expert witness to testify about a relevant scientific issue in contention if his testimony is based on sufficient data and is the product of a reliable methodology correctly applied to the facts of the case. Gayton v. McCoy , 593 F.3d 610, 616 (7th Cir. 2010).
The Supreme Court in Daubert interpreted Rule 702 to mandate that the district court "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. 2786. When making these determinations, the district court is the gatekeeper of expert testimony. Smith v. Ford Motor Co. , 215 F.3d 713, 718 (7th Cir. 2000). The Seventh Circuit maintains that "the key to the gate is not the ultimate correctness of the expert's conclusions. Instead, it is the soundness and care with which the expert arrived at [his] opinion." Textron , 807 F.3d at 834 (citing Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013) ).
As the gatekeeper, the trial court "must engage in a three-step analysis before admitting expert testimony." Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 779 (7th Cir. 2017). The court must determine if "the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ " Id. "Put another way, the district court must evaluate: (1) the proffered expert's qualifications; (2) the reliability of the expert's methodology; and (3) the relevance of the expert's testimony." U.S. Sec. & Exch. Comm'n v. ITT Educ. Serv., Inc. , 311 F. Supp. 3d 977, 982 (S.D. Ind. 2018). "The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard. Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir. 2009).
Steps one and two of the analysis – analyzing the expert's qualifications and examining the methodology the expert has used in reaching his conclusions – goes to the reliability of the proposed expert's testimony. Smith , 215 F.3d at 718. Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony. Gayton , 593 F.3d at 616.
A court's reliability analysis does not end, however, with its conclusion that an expert is qualified to testify about a given subject. Next, the court must examine the expert's methodology used to arrive at a particular conclusion. Gayton , 593 F.3d at 616. In assessing the reliability of the proffered expert's methodology, Daubert provides several guideposts, including: (1) whether the scientific theory has been or can be tested; (2) whether the theory has been subjected to peer-review and/or academic publication; (3) whether the theory has a known rate of error; and (4) whether the theory is generally accepted in the relevant scientific community. Textron , 807 F.3d at 835 ; Schultz , 721 F.3d at 431 (citing Daubert , 509 U.S. at 593-94, 113 S.Ct. 2786 ). This list is neither exhaustive nor mandatory. Textron , 807 F.3d at 835. Ultimately, reliability is determined on a case-by-case basis. Id. ; see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (stating that "the test of reliability is ‘flexible,’ and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case").
Under step three of the Rule 702 analysis, the district court is tasked with analyzing the relevance of the proposed expert testimony. U.S. Sec. & Exch. Comm'n , 311 F. Supp. 3d at 982. The court examines whether the proposed expert testimony will assist the trier of fact with its analysis of any of the issues involved in the case. Smith , 215 F.3d at 718. "The question of whether the expert is credible or whether his or her theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based." Id. at 719. "It is not the trial court's role to decide whether an expert's opinion is correct. The trial court is limited to determining whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound." Id.
III. DISCUSSION
Here, the Defendant moves to preclude the Plaintiff's expert, Dr. Luis Villa, Jr., an oncologist, from testifying at trial concerning matters related to radiology, including whether the radiological services provided by the Defendant in connection with the care of the decedent, Gary L. Lyons, were negligent or failed to satisfy the appropriate standard of care. (Dkt. 56). Specifically, the Defendant argues that Dr. Villa, who has no formal qualifications in the practice of radiology, is not qualified to proffer an opinion regarding the nature and quality of the radiological services that the Defendant provided to decedent Lyons. (Dkt. 57 at 2; Dkt. 56-3). In response, the Plaintiff contends that Federal Rule of Evidence 703 allows Dr. Villa to rely on the evaluation performed by Dr. Robert Tarver, a radiologist, to formulate his own opinion and that such reliance is normal in the medical profession. (Dkt. 58 at 2-6).
Dr. Villa is currently an Assistant Professor of Hematology/Oncology at the University of Miami. (Dkt. 56-2 at 3). Prior to his current role, he was a practicing physician in hematology and oncology in Miami, Florida for over thirty-five years. (Id.). Dr. Villa is board certified in internal medicine and pathology, with subspecialties in hematology and oncology. (Id. at 2). He has at least twenty years’ experience teaching in the academic setting in the areas of oncology, pathology, and hematology. (Id. at 3). He has also headed the oncology, hematology, and pathology departments in various Miami hospitals. (Id. at 3-4). Dr. Villa has submitted an expert report in this case finding that the Defendant's "failure to properly interpret radiologic procedures beginning February 2018 led to a delay in appropriate treatment" for decedent Lyons. (Dkt. 56-2 at 1). In his conclusion, Dr. Villa opines that "had Mr. Lyons been diagnosed and treated appropriately February or March 2018 [with respect to the cancerous tumors] he would have had a longer response to [the medications] and would have been in more favorable clinical status later on ...." (Id. at 2).
In the Second Amended Complaint, the Plaintiff alleges that the tort claim at issue in this case is based on the negligence of the Defendant's radiologists in missing cancerous markers in February 2018 imaging of decedent Lyons’ stomach and chest as well as a cancerous mass near his remaining kidney in March 2018. (Dkt. 52). At trial, the Plaintiff intends to call Dr. Villa to proffer his opinion that decedent Lyons’ injury was "due to the failure of the VA radiologists to inform [Lyons] or his primary physician Dr. Welch of the cancerous markers that should have been seen and reported in the VA's February of 2018 and March of 2018 imagings [sic] taken at the Danville, Illinois VA Medical Center." (Dkt. 58 at 2) (emphasis added). While the Defendant appears to agree that Dr. Villa is qualified to opine on matters concerning the cancerous tumor and its effects on decedent Lyons, it disagrees that Dr. Villa is able to reliably opine on whether the Defendant was negligent in its assessment of imaging in relation to decedent Lyons. (Dkts. 56, 57). Therefore, the Court will focus its analysis on the reliability of Dr. Villa's proffered opinions as it relates to radiological matters.
To gauge reliability, it must first be determined whether Dr. Villa is qualified in the relevant field. Defendant maintains that Dr. Villa has no formal qualifications in the practice of radiology. (Dkt. 57 at 3; Dkt. 56-3). Plaintiff appears to concede this point, yet maintains that Dr. Villa's opinion regarding radiologist Dr. Tarver's reading of the imaging is admissible under Rule 703 of the Federal Rules of Evidence . (Dkt. 58 at 2). In examining Rule 703 with the Daubert test, when the underlying expert judgment is in issue, the Seventh Circuit explained that the district court must focus on whether the disclosed expert, using inputs that are generally relied upon by other experts in the field, is offering opinions within his expertise, or merely serving as "the mouthpiece of a scientist in a different specialty." Dura Auto. Sys. of Ind., Inc. v. CTS Corp. , 285 F.3d 609, 614 (7th Cir. 2002).
See Myers v. Thoman , No. 1:09-cv-0544-JMS-DML, 2010 WL 3944654, at *4 (S.D. Ind. Oct. 6, 2010) ("The Seventh Circuit has clearly held that a party who fails to respond to points made ... concedes those points.").
"An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted." Fed. R. Evid. 703.
In Dura , the plaintiff presented an expert to testify about historical groundwater patterns at a particular site. Id. at 611-12. The expert was a recognized hydrogeologist, but he admitted that he had no expertise in mathematical modeling of groundwater flow and that he had relied on the results of his colleagues’ model in arriving at his conclusions. Id. The defendant sought to bar the hydrogeologist's testimony, arguing that the plaintiff was required to disclose the individuals who created and used the groundwater flow model. Id. at 612. The district court agreed and precluded the hydrogeologist's expert testimony. Id.
In its review, the Seventh Circuit started by acknowledging the general rule that "[a]n expert witness is permitted to use assistants in formulating his expert opinion, and normally they need not themselves testify.... Analysis becomes more complicated if the assistants aren't merely gofers or data gatherers but exercise professional judgment that is beyond the expert's ken." Id. at 612-13. Relying on its decision in Walker v. Soo Line R.R. , 208 F.3d 581, 589 (7th Cir. 2000), the Seventh Circuit noted that an expert witness is permitted to base his opinion in part on the opinion of a different expert with expert knowledge he does not possess, but that the circumstances are different when "the soundness of the underlying expert judgment is in issue." Dura , 285 F.3d at 613. The Dura court provided the following hypothetical:
In Walker , the court found that the leader of a clinical medical team did not need to be qualified as an expert in every individual discipline encompassed by the team in order to testify as to the team's conclusions.
"Suppose a thoracic surgeon gave expert evidence in a medical malpractice case that the plaintiff's decedent had died because the defendant, a radiologist, had negligently failed to diagnose the decedent's lung cancer until it was too advanced for surgery. The surgeon would be competent to testify that the cancer was too advanced for surgery, but in offering the additional and critical judgment that the radiologist should have discovered the cancer sooner he would be, at best, just parroting the opinion of an expert in radiology competent to testify that the defendant had x-rayed the decedent carelessly."
Id. The Seventh Circuit noted that the thoracic surgeon was merely a spokesman for the radiologist, and that this use of expert testimony is not permissible. Id. The Dura Court also pointed to another case, In Re James Wilson Assocs. , in which the Seventh Circuit concluded that it was improper for an architect to testify as to a building's state of repair where that opinion was based upon a consulting engineer's opinion in a subject outside of the architect's expertise. 965 F.2d 160, 172-73 (7th Cir. 1992)
The Dura Court concluded that "[a] scientist, however well credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty." 285 F.3d at 614. Other courts in this Circuit agree. "[W]hile Rule 703 was intended to liberalize the rules relating to expert testimony, it was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witnesses on whose statements or opinions the expert purports to base his opinion." Loeffel Steel Prod., Inc. v. Delta Brands, Inc. , 387 F. Supp. 2d 794, 808 (N.D. Ill. 2005), amended by No. 01 C 9389, 2005 WL 8178971 (N.D. Ill. Sept. 8, 2005) ; see also Committee Notes to the 1972 Proposed Rule of Evidence 703.
In the Committee Notes to the 1972 Proposed Rule 703, it gives an example of "a physician in his own practice [who] bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes."
That is precisely the situation here. In his expert report, Dr. Villa asserts:
I have received a report from doctor Robert D Tarver who is a board certified radiologist with his opinion regarding the sequential xray procedures performed by the treating physicians to follow up on Mr Lyons primary renal carcinoma. According to doctor Tarver there was a metastatic nodule that should have been reported in the interpretation of the February 20th 2018 abdominal CT scan and evidence of right hilar adenopathy in the chest X Ray of February the 20th 2018. the March 2018 CT of the chest shows mediastinal adenopathy and a 4 by 3 centimeters right hilar mass. By the time the December 2018 CT of the chest is performed the hilar mass already measures 5 by 3 centimeters, the mediastinal adenopathy has almost doubled and the right adrenal mass measures 3.9 centimeters.
The failure to properly interpret radiologic procedures beginning February 2018 led to a delay in appropriate treatment
for approximately 10 months. During this time the disease progressed, the patient deteriorated clinically and Mr Lyons changed from low risk to high-risk category according to the International Metastatic renal cell carcinoma database consortium criteria (Lancet Onc 2013; 14; 141). The median survival of patients with renal cell cancer treated with Pazopanib in multiple studies (NEJMed 2018:378,14; 1277) is between 24 to 36 months yet Mr. Lyons achieved only an 8 month response and died 17 months later.
(Dkt. 56-2 at 1). Here, it is evident that Dr. Villa bases his opinion on the report of Dr. Tarver, which itself has not been admitted. Dr. Tarver's report is allegedly a summary of the radiological testing the decedent underwent between October 2015 and February 2019, that outlines missed radiological findings, and which Dr. Villa attempts to proffer to prove that Defendant failed to meet the standard of care. If permitted to testify regarding whether the Defendant's radiologists were negligent in reading the imaging, Dr. Villa would be serving as the "mouthpiece" of the radiologist, Dr. Tarver, for opinions in a specialty in which he has conceded he has no formal qualifications.
The Defendant contests the Plaintiff's summarization of Dr. Tarver's findings. (See Dkt. 57 at 3-4).
The Dura and In Re James Wilson cases demonstrate the problem with Dr. Villa's testimony regarding the findings of Dr. Tarver. The issue in this case is whether the Defendant's radiologists were negligent in missing the cancerous mass, and the Plaintiff is unable to hand off this responsibility to Dr. Villa who has no expertise in this area. While Dr. Villa is able to testify on matters within his expertise, he cannot testify for the purpose of vouching for the truth of what the radiologist Dr. Tarver concluded.
Like the thoracic surgeon hypothetical in Dura , Dr. Villa, as an oncologist, would be competent to testify regarding the potential effects of delayed treatment. However, in opining that Defendant's radiologist "fail[ed] to properly interpret radiologic procedures," Dr. Villa has exceeded the span of his competency and is extrapolating from the opinion of Dr. Tarver. Accordingly, the Court deems Dr. Villa's opinion on radiological matters unreliable and thus inadmissible.
In Defendant's brief in support of its Motion to Preclude, Defendant states that Dr. Villa attributed the "failure to properly interpret" statement to Dr. Tarver. (Dkt. 57 at 4). However, in the Court's review of Dr. Villa's report, the Court reads the paragraph starting with the sentence "The failure to properly interpret radiological procedures beginning February 2018 led to a delay in appropriate treatment for approximately 10 months" to be Dr. Villa's own opinion. Nonetheless, as previously mentioned, such an opinion exceeds Dr. Villa's competency.
IV. CONCLUSION
For the reasons stated herein, the Defendant's Motion to Preclude Expert Testimony of Dr. Villa, Dkt. [56], is GRANTED . Dr. Villa is prohibited from testifying at trial about whether the radiological services provided by Defendant in connection with the decedent's care were negligent or failed to satisfy the standard of care. Because Defendant does not challenge Dr. Villa's ability to testify regarding the effects of delayed treatment, Dr. Villa may still offer testimony on this topic.
So ORDERED.