McBride v. Houston County Health Care Authority et al

Filing 189

MEMORANDUM OPINION AND ORDER as follows: (1) Defendants' 133 Motion to Strike the Testimony and/or Opinion of Plaintiff's Expert Carol E. Dankin, and 134 Motion to Strike and Exclude Testimony of Carol Dakin PhD, RN be and are hereby DE NIED as further set out in the order. (2) Defendants 136 Motion in Limine to Exclude or Limit Testimony From Plaintiffs Experts, 138 Motion to Strike and Preclude Expert Testimony of Dr. Carla Rodgers, Dr. Allan Nineberg, and Dr. Robert Auerbach, and 151 Supplemental Motion in Limine to Exclude or Limit Testimony From Plaintiffs Experts be and are hereby DENIED as further set out in the order. (3) To the extent that Defendants request that Dr. Nineberg be stricken as an expert witness, the 109 Motion to Strike, 110 Motion to Strike, 136 Motion in Limine to Exclude or Limit Testimony From Plaintiffs Experts, and 151 Supplemental Motion in Limine to Exclude or Limit Testimony From Plaintiffs Experts be and are hereby DENIED as f urther set out in the order. (4) To the extent Defendants request that Dr. Nineberg supplement his written report, the 109 Motion to Strike, 110 Motion to Strike, 136 Motion in Limine to Exclude or Limit Testimony From Plaintiffs Experts, and [ 151] Supplemental Motion in Limine to Exclude or Limit Testimony From Plaintiffs Experts be and are hereby GRANTED as further set out in the order. Dr. Nineberg shall supplement his report within seven (7) days of the date of this order. Defendants e xperts shall have fourteen (14) days from the date that Plaintiff submits Dr. Ninebergs supplemented written report, to supplement their written reports. (5) To the extent that Defendants request that the Plaintiff be prohibited from conducting disco very on issues contained in Dr. Rodgers expert report that exceed the scope of the Plaintiffs complaint, the 109 Motion to Strike, and 110 Motion to Strike be and are hereby DENIED as further set out in the order. Signed by Honorable Judge Terry F. Moorer on 9/3/2014. (dmn, )

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
COURTNEY MCBRIDE,
Plaintiff,
v.
HOUSTON COUNTY HEALTH CARE
AUTHORITY d/b/a Southeast
Alabama Medical Center, et al.,
Defendants.

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CASE NO. 1:12cv1047-MHT-TFM
[wo]

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants’ Motion to Strike (Doc. 109, filed May 27,
2014), Motion to Strike (Doc. 110, filed May 27, 2014), Motion to Strike the Testimony
and/or Opinion of Plaintiff’s Expert Carol E. Dankin (Doc. 133, filed July 3, 2014),
Motion to Strike and Exclude Testimony of Carol Dakin PhD, RN (Doc. 134, filed July 3,
2014), Motion in Limine to Exclude or Limit Testimony From Plaintiff’s Experts (Doc.
136, filed July 3, 2014), Motion to Strike and Preclude Expert Testimony of Dr. Carla
Rodgers, Dr. Allan Nineberg, and Dr. Robert Auerbach (Doc. 138, filed July 3, 2014), and
Supplemental Motion in Limine to Exclude or Limit Testimony From Plaintiff’s Experts
(Doc. 151, filed July 17, 2014). The Court has found two underlying issues within all
seven motions, the basic premise being whether Plaintiff’s experts are qualified to testify,
and whether the Plaintiff’s experts’ reports are compliant with Rule 26(a)(2)(B).
I.
A.

DISCUSSION

Similarly Situated Health Care Provider

Rule 601 of the Federal Rules of Evidence states that “in civil actions and
proceedings, with respect to an element of a claim or a defense as to which State law
supplies the rule of decision, the competency of a witness shall be determined in
accordance with State law.” FED. R. CIV. P. 601. Generally speaking, “state law governs
the competency of a witness where the proof is directed at a substantive issue governed by
state law.” Barton v. Am. Red Cross, 829 F. Supp. 1290, 1299 (M.D. Ala. 1993) aff'd, 43
F.3d 678 (11th Cir. 1994) and aff'd, 43 F.3d 679 (11th Cir. 1994) (citing Charles A. Wright
and Victor J. Gold, 27 Federal Practice and Procedure § 6007 at 78–79 (1990); James Wm.
Moore and Helen I. Bendix, 10 Moore's Federal Practice § 601.06 at VI–22 (2d ed. 1993)).
Although the basis of jurisdiction in this Court falls under an action for deprivation of civil
rights pursuant to 42 U.S.C. § 1983, Rule 601 provides the basis for the source of
applicable substantive law. Id. Since Alabama law provides the rule of substantive law
for the issues before this Court, specifically, whether the relevant Defendants committed
medical malpractice under the Alabama Medical Liability Act of 1987, § 6-5-542 et seq. of
the Code of Alabama (1975) (“AMLA”), Alabama law also governs the competency of
witnesses to testify as experts on those issues. Id.
The AMLA provides the rule of law governing expert witnesses. Subsection (e) to
§ 6–5–548 states that “[a] health care provider may testify as an expert witness in any
action for injury or damages against another health care provider based on a breach of the
standard of care only if he or she is a ‘similarly situated health care provider.’” ALA.
CODE § 6-5-548(e). The case at bar concerns medical professionals who do not hold
themselves out as specialists, thus, subsection (b) to § 6–5–548 provides the proper
Page 2 of 22

analysis. Subsection (b) states in full:
Notwithstanding any provision of the Alabama Rules of Evidence to the
contrary, if the health care provider whose breach of the standard of care is
claimed to have created the cause of action is not certified by an appropriate
American board as being a specialist, is not trained and experienced in a
medical specialty, or does not hold himself or herself out as a specialist, a
“similarly situated health care provider” is one who meets all of the
following qualifications:
(1) Is licensed by the appropriate regulatory board or agency of this or some
other state.
(2) Is trained and experienced in the same discipline or school of practice.
(3) Has practiced in the same discipline or school of practice during the year
preceding the date that the alleged breach of the standard of care
occurred.
ALA. CODE § 6-5-548(b).
Plaintiff Courtney McBride (“McBride” or “Plaintiff”) offers three expert witnesses
to testify about alleged breaches of the standard of care committed by the defendants, and
one expert witness to testify about causation. McBride disclosed Carol E. Dakin, PhD,
RN (“Dr. Dakin”) to provide expert testimony on the alleged breach of the standard of care
committed by Herminia Coppage, RN (“Nurse Coppage”). See Doc. 156-1 at 44-53.
McBride disclosed Carla Rodgers, M.D. (“Dr. Rodgers), and Allan S. Nineberg, M.D.
(“Dr. Nineberg”) to provide expert testimony on the alleged breach of the standard of care
by Defendants Dinesh Karumanchi, M.D. (“Dr. Karumanchi”), and Rajendra Paladugu,
M.D. (“Dr. Paladugu”). See Doc. 156-1 at 2-7, 18-19.

McBride disclosed Robert

Auerbach, M.D., F.A.A.D., F.A.C.P. (“Dr. Auerbach”) to provide expert testimony on
causation. See Doc. 156-1 at 29-30.
Page 3 of 22

i.

Dr. Dakin

First, the Court will address whether Dr. Dakin is qualified to provide expert
testimony on whether Nurse Coppage breached the standard of care. The record indicates
that Dr. Dakin is a licensed Registered Nurse (“RN”) in Pennsylvania and New Jersey.
See Docs. 156-1 at 54; 163-1 at 1. Thus, she meets the first criterion under subsection (b).
See ALA. CODE § 6-5-548(b)(1).
Next, the ALMA requires Dr. Dakin to have training and experience in the same
discipline or school of practice. ALA. CODE § 6-5-548(b)(2). The Alabama Supreme
Court explained that subsection (b)(2) requires that a nonspecialist be trained in the
practice in which the alleged breach occurred. Ex parte Waddail, 827 So. 2d 789, 795
(Ala. 2001) (citing Husby v. South Alabama Nursing Home, Inc., 712 So.2d 750, 753
(Ala.1998)). Thus, in order to testify about the breach of the standard of care in this case,
Dr. Dakin must possess training and experience in psychiatric nursing. Dr. Dakin’s
affidavit and curriculum vitae, which are part of the record, indicate that she received a
Bachelor of Science degree (“B.S.N.”) in 1966 and a Master of Science degree (“M.S.N.”)
in 1968 from the University of Pennsylvania School of Nursing, and a Doctorate in Health
Professions Education (“Ph.D.”) in 1987 from the University of Pennsylvania. See Docs.
156-1 at 54; 163-1 at 1. The record also indicates that Dr. Dakin has over 45 years of
experience as an instructor in psychiatric/mental health nursing which has required her to
provide hands-on treatment to patients. See Docs. 156-1 at 55; 163-1 at 1. Thus, the
Court finds that Dr. Dakin has the requisite “training and experience” in psychiatric

Page 4 of 22

nursing to meet the second criterion under subsection (b).

See ALA. CODE §

6-5-548(b)(2).
Finally, the third criterion requires that Dr. Dakin has “practiced in the same
discipline or school of practice during the year proceeding the date that the alleged breach
of the standard of care occurred.” ALA. CODE § 6-5-548(b)(3). It is undisputed that Dr.
Dakin is an adjunct nursing instructor and psychiatric clinical supervisor to nursing
students at Temple University’s College of Allied Health Sciences where she is
“responsible for supervising nursing students in the care of in-patient psychiatric patients.”
See Docs. 134 at 3; 156-1 at 55; 163-1 at 1. At contention is whether Dr. Dakin “practiced
in the same discipline or school of practice.” Defendants contend that as an adjunct
instructor, Dr. Dakin has not served as a full-time staff nurse at an in-patient facility since
1972. See Doc. 134 at 3.
In Dowdy v. Lewis, the Alabama Supreme Court already decided this very issue.
612 So. 2d 1149, 1152 (Ala. 1992). The court addressed the issue after the plaintiff
alleged that the lower court “erred in permitting testimony of two experts [. . .] who were
not qualified” under § 6-5-548(b)(3). Id. at 1150. The relevant defendant was a medical
surgical nurse, and the defendant called two experts on her behalf; one was the associate
dean and director of graduate studies at the University of South Alabama, and the other was
an instructor and supervisor of nursing students at University of North Alabama School of
Nursing. Id. at 1152. The court explained that “[a]lthough § 6–5–548 does not explain
what is meant by ‘practice of nursing,’ Ala.Code 1975, § 34–21–1(3)(a), defines ‘practice
of professional nursing,’ in part, as follows:
Page 5 of 22

The performance, for compensation, of any act in the care and counselling of
persons or in the promotion and maintenance of health and prevention of
illness and injury based upon the nursing process which includes systematic
data gathering, assessment, appropriate nursing judgment and evaluation of
human responses to actual or potential health problems through such
services as case finding, health teaching, health counselling, and provision
of care supportive to or restorative of life and well-being, and executing
medical regimens including administering medications and treatments
prescribed by a licensed or otherwise legally authorized physician or
dentist.”
Id. at 1151 (quoting ALA.CODE § 34–21–1(3)(a) (1975)) (emphasis in original). The
Court conducted review of both expert witnesses’ education and experience, and found that
with decades of experience in the same type of nursing as the defendant and the fact that
they were “still working in the nursing field as a teacher and supervisor of nursing students
as they actually perform nursing care on patients. The trial court did not abuse its
discretion in permitting these registered nurses to testify” Id. at 1152.
As previously stated, Dr. Dakin possesses a Bachelor’s degree and Master’s degrees
in Nursing, and a Ph.D. in Health Professions Education. Dr. Dakin has been a clinical
professor in psychiatric/mental health nursing at seven different universities/colleges
spanning over four decades, has attended several continuing education units in the field,
and is a teacher and supervisor of psychiatric nursing students as both she and her students
perform hands-on nursing care to patients in the behavioral medicine unit. Dr. Dakin is
clearly a “similarly situated health care provider” under 6-5-548(b)(3) and in line with
Alabama Supreme Court’s decision in Dowdy.
However, Defendants attempt to distinguish the ruling in Dowdy by arguing that
“the court reasoned that these experts ‘had devoted their full efforts to the teaching of
Page 6 of 22

nursing’ and ‘made it their business to determine what was on the ‘cutting edge’ of the
profession by continual study of modern trends in nursing.’” See Doc. 134 at 4 (quoting
Dowdy, 612 So.2d at 1151). Thus, the Defendants argue, an adjunct professor is “not
devoting her ‘full efforts’ to the teaching of psychiatric nursing in the year preceding June
25, 2012.” Id. However, the Defendants’ argument fails because the Alabama Supreme
Court made no such “reason[ing]” in Dowdy. On the contrary, the Court was simply
presenting the defendant’s argument, and it was not the Court’s holding or reasoning. 1
The court did, however, indicate that it agreed with that argument by simply saying “We
agree.” Dowdy, 612 So.2d at 1151. However, a simple “[w]e agree” is not a sufficient
basis to interpret that the Court intended any sort of full-time versus part-time distinction.
In fact, the Alabama Supreme Court has explicitly stated that despite the expert witness at
issue being a part-time clinical professor “that fact would not disqualify him as an expert
witness, because the statute does not specify the amount of time spent practicing or the
nature and quality of the practice.” Medlin v. Crosby, 583 So. 2d 1290, 1296 (Ala. 1991).
Here, Dr. Dakin provided an affidavit outlining her training and experience,
clarified that at all times she has provided hands-on treatment to patients in her role of

1

The paragraph in full provides:
Lewis maintains that although in the year preceding the date that the alleged breach of the standard
of care occurred, her proffered experts had not performed acts related to the care of persons
hospitalized, they had devoted their full efforts to the teaching of nursing, which, she contends,
establishes their competence to testify because “each nurse witness ... was a highly qualified expert
possessing post-graduate degrees in nursing”; that “these witnesses made it their business to
determine what was on the ‘cutting edge’ of the profession by continual study of the modern trends
in nursing”; and “[if] anything, the two witnesses ... were more highly qualified and current in their
perception of the existing standard of care than would be required by § 6–5–548(b).” We agree.

Dowdy, 612 So.2d at 1151

Page 7 of 22

supervising students in the behavior medicine unit, stating that as an educator she makes it
her business to “determine what is on the cutting edge of the profession of psychiatric
nursing by [her] continued study of modern trends in nursing.” See Doc. 163-1 at 1.
Thus, the Court finds that she meets the third criterion under subsection (b). See ALA.
CODE § 6-5-548(b)(3). Since Dr. Dakin meets the requirements of a “similarly situated
health care provider,” as defined in § 6–5–548(b), she can testify in this case as an expert
witness about the alleged breach of the standard of care committed by Nurse Coppage.
ii.

Dr. Rodgers and Dr. Nineberg

Next, the Court must determine if Dr. Rodgers and Dr. Nineberg are ‘similarly
situated health care provider[s]” to Dr. Karumanchi and Dr. Paladugu. See ALA. CODE §
6-5-548(e).

The record indicates that Dr. Rodgers is a licensed psychiatrist in

Pennsylvania, New York, New Jersey, and Illinois (inactive), and Dr. Nineberg is a
licensed psychiatrist in Massachusetts. See Doc. 156-1 at 9, 20. Thus, they both meet the
first criterion under subsection (b). See ALA. CODE § 6-5-548(b)(1).
The second criterion requires Dr. Rodgers and Dr. Nineberg to have training and
experience in the same discipline or school of practice. ALA. CODE § 6-5-548(b)(2). To
testify about the breach of the standard of care in this case, Dr. Rodgers and Dr. Nineberg
must have training and experience in psychiatric medical care. Dr. Rodgers’ curriculum
vitae indicates that she received a Bachelor of Arts (“B.A.”) with Honors from University
of Illinois, Chicago in 1970, and a Doctor of Medicine (“M.D.”) from Rush University
Medical School in 1980. See Docs. 156-1 at 8. Dr. Rodgers has approximately 23 years
of experience as professor in psychiatry and human behavior, 16 years in solo private
Page 8 of 22

practice in psychiatry, plus additional years as a staff, attending, and consulting
psychiatrist at various hospitals. See Doc. 156-1 at 8-9. Additionally, Dr. Rodgers
continues to lecture on psychiatry and mental health, serves in editorial positions with two
psychiatry journals, among others. Id. Dr. Nineberg received a Bachelors of Science in
Biology (“S.B.”) from Massachusetts Institute of Technology in 1973, and a Doctor of
Medicine from Emory University School of Medicine in 1977. See Doc. 156-1 at 20.
Dr. Nineberg has approximately 33 years of experience as a staff, private practice, and
consulting physician in psychiatry, as well as 15 years as lecturer and 4 years as a professor
at Harvard Medical School. See Doc. 156-1 at 21. Dr. Nineberg also regularly attends
continuing education conferences and courses in psychiatry, and has been a presenter at
numerous seminars and lectures. See Doc. 156-1 at 21-24. Thus, the Court finds that Dr.
Rodgers and Dr. Nineberg have the requisite “training and experience” in psychiatric
medical care to meet the second criterion under subsection (b).

See ALA. CODE §

6-5-548(b)(2).
Finally, the third criterion requires that Dr. Rodgers and Dr. Nineberg have
“practiced in the same discipline or school of practice during the year proceeding the date
that the alleged breach of the standard of care occurred.” ALA. CODE § 6-5-548(b)(3). It
is undisputed that, in the year prior to the alleged breach, Dr. Rodgers was a clinical
assistant professor of psychiatry at University of Pennsylvania Medical School and
operated her solo private practice in forensic, adult, and geriatric Psychiatry. See Doc.
156-1 at 8-9. It is similarly undisputed that, in the year prior to the alleged breach, Dr.
Nineberg was a staff psychiatrist at Mt. Auburn Hospital in Cambridge, Massachusetts and
Page 9 of 22

a clinical instructor in psychiatry at Harvard Medical School. See Doc. 156-1 at 21. At
contention is whether Dr. Rodgers and Dr. Nineberg “practiced in the same discipline or
school of practice.” Defendants contend that Dr. Rodgers and Dr. Nineberg have not
served in an in-patient psychiatry environment in the year preceding the alleged breach
because they served as clinical professors in psychiatry and practiced out-patient
psychiatry. See Doc. 134 at 3.
The largest flaw in Defendants’ argument is it narrows “similarly situated” down to
“identically situated,” and neither the law nor the statute supports such a stance. For
example, Dr. Paladugu argues that Dr. Rodgers is not “similarly situated” because Dr.
Paladugu served as a covering psychiatrist for Dr. Karumanchi while he was out of town
for a few days. Dr. Paladugu argues that for Dr. Rodgers to be “similarly situated,” she
must show that she that she has served as a covering psychiatrist in the year preceding the
alleged breach. The Alabama Supreme Court has consistently refused to narrow their
interpretation of the statute in such a manner. In Medlin, the defendant was board
certified in family medicine, but he was practicing emergency medicine at the time of the
alleged breach. 583 So. 2d at 1294. Plaintiff’s expert witness testified that in the year
preceding the alleged breach, he was a clinical professor in emergency medicine and saw
“patients who presented in the emergency room and participat[ed] in the diagnosis and the
treatment of the patient,” as well as worked for his own company. Id. at 1296. The Court
ultimately held 2:

2

The court’s main holding in Medlin involved whether the plaintiff’s expert witness should be analyzed under
subsection (b) or (c), and the holding regarding if he was “similarly situated” was secondary to that holding.

Page 10 of 22

Although Dr. Borak testified that the majority of his time was spent working with
his company, that fact would not disqualify him as an expert witness, because the
statute does not specify the amount of time spent practicing or the nature and quality
of the practice. Therefore, we hold, for the purposes of determining whether Dr.
Borak qualifies as a similarly situated health care provider, that Dr. Borak practiced
emergency medicine during the year preceding Dr. Crosby's alleged breach.
Id. Thus, the Court found that a clinical professor in emergency medicine did, in fact,
practice emergency medicine.
Clearly, the statute does not require an expert witness to serve in a nearly identical
role as the Defendants tend to suggest.

Dr. Rodgers and Dr. Nineberg both saw,

diagnosed, and treated psychiatric patients, and have continued to be highly involved in the
field of psychiatry by lecturing, attending continuing education course and conferences,
and publishing. Dr. Rodgers and Nineberg meet the requirements of “similarly situated
health care provider[s],” as defined in § 6–5–548(b), and thus, they can testify in this case
as expert witnesses on the alleged breach of the standard of care committed by Dr.
Karumanchi and Dr. Paladugu.
B.

Daubert Motion
Next, Dr. Karumanchi moves to “preclude the expert testimony” of Dr. Auerbach

pursuant to Daubert. 3 See Doc. 138. According to Defendants, the Plaintiff plans to
offer Dr. Auerbach for testimony related to causation. See Doc. 138 at 2. Specifically,
Dr. Auerbach is expected to testify that “the initial dose of Lamictal was a contributing
factor in the causation of Ms. McBride’s condition and delay in treatment contributed to
3

Dr. Karumanchi also filed his Daubert motion with respect to Dr. Rodgers and Dr. Nineberg; however, during oral
argument Dr. Karumanchi admitted that the exclusion of Dr. Rodgers and Dr. Nineberg are better suited to be analyzed
under § 6-5-548(b) of the Alabama Code. Thus, the Court will not address Dr. Rodgers or Dr. Nineberg under the
Daubert standard. Dr. Auerbach, on the other hand, is not offering testimony related to standard of care, thus §
6-5-548(b) is not applicable to his testimony.

Page 11 of 22

increased morbidity, and made the possibility of death more likely.” Id. Essentially, Dr.
Auerbach has been retained to offer an alternative explanation on what caused Plaintiff’s
condition. Defendants assert that the Plaintiff’s expert should be excluded because his
testimony does not meet the standards set forth in Rule 702 of the Federal Rules of
Evidence or under the Daubert test.
Defendants contend that Plaintiff’s expert witness fails to satisfy the requirements
of Daubert and Rule 702 of the Federal Rules of Civil Procedure because he is not
qualified, his opinion is not sufficiently reliable, and his opinions will not be helpful to the
trier of fact. See Doc. 138 at 5-16. The Eleventh Circuit has held that expert testimony is
only admissible under Rule 702 if it satisfies three requirements:
(1) the expert witness is qualified to testify competently about the matters he
intends to address; (2) the methodology used by the expert to reach his
conclusion is sufficiently reliable as determined by the sort of inquiry
mandated by Daubert; and (3) the testimony is relevant in that it assists the
trier of fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence and to determine a fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (quoting City of Tuscaloosa
v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1999)). To establish a witness as an
expert, the proffering party can cite to the following traits: “knowledge, skill, experience,
training, or education.” FED. R. EVID. 702. It must then be determined if the expert
witness’ testimony is reliable by considering multiple factors such as:
(1) whether the expert's methodology has been tested or is capable of being
tested; (2) whether the technique has been subjected to peer review and
publication; (3) the known and potential error rate of the methodology; and
(4) whether the technique has been generally accepted in the proper scientific
community.
Page 12 of 22

McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (citing Daubert, 509 U.S. at
593–94, 113 S.Ct. at 2796-97). This list of factors is not an exhaustive list nor are any of
the factors dispositive, and the court may “consider any additional factors that may
advance its Rule 702 analysis.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326
F.3d 1333, 1341 (11th Cir. 2003) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
The trial court is granted “considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is reliable.” Kumho Tire Co,
526 U.S. at 152. Moreover, Daubert’s relevance and reliability analysis “applies not only
to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ or
‘other specialized’ knowledge.” Kumho Tire Co, 526 U.S. at 141. The court “may
consider” one or more of the specific factors listed in Daubert but the actual test is left
“flexible.” Kumho Tire Co, 526 U.S. at 141. (emphasis in original text). “The burden of
establishing qualification, reliability, and helpfulness rests on the proponent of the expert
witness...” Frazier, 387 F.3d at 1260. Thus, the court’s screening must “ensure that
speculative, unreliable expert testimony does not reach the jury under the mantle of
reliability that accompanies the appellation expert testimony.” Rink v. Cheminova, Inc.,
400 F. 3d 1286, 1291 (11th Cir. 2005).
First, the Court must determine if Dr. Auerbach is “qualified to testify competently
about the matters he intends to address.”

Harcros Chems., Inc., 158 F.3dat 562.

Defendants do not offer up any explanation on why they believe Dr. Auerbach is not
qualified other than by stating that he “offers conclusory opinions without providing
Page 13 of 22

scientific basis or insight as to his own qualifications as an expert in this rare occurrence.”
See Doc. 138 at 7. However, after a review of Dr. Auerbach’s curriculum vitae it is clear
to this Court that Dr. Auerbach possesses the necessary “knowledge, skill, experience,
training, or education” to testify in this matter. FED. R. EVID. 702. Dr. Auerbach
received a Bachelor of Science in Chemistry at New York University (“NYU”) in 1954,
and a Doctor of Medicine from NYU’s Schools of Medicine in 1958. See Doc. 156-1 at
31. He is a licensed dermatologist in New York, New Jersey, Illinois, and Wisconsin.
Id. He has 51 years in private practice in dermatology and as a clinical professor at
NYU’s Skin and Cancer Clinic and the Veterans Administration Dermatology Clinics, all
practiced concurrently. See Doc. 156-1 at 31-34. In the same five decade time span, Dr.
Auerbacher has also served as an attending, visiting, and consulting physician for
numerous hospitals. Id. He has more than 79 publications in the field of dermatology,
and has given numerous lectures and seminars. See Doc. 156-1 at 35-40. Of particular
relevance to this case is that he has published on Toxic Epidermal Necroloysis as far back
as 1960 4 and wrote a chapter in Dermatologic Diagnosis & Treatment in 2001, entitled
“Erythema Multiforme, Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis.”
See Doc. 156-1 at 35, 40. He was part of a seminar in 2007 on Toxic Epidermal
Necrolysis. See Doc. 156-1 at 32. It is clear to this Court that Dr. Auerbach is qualified
to testify competently on the matters at issue in this case.
Second, the Court must determine if “the methodology used by the expert to reach
his conclusion is sufficiently reliable.”
4

Harcros Chems., Inc., 158 F.3dat 562.

This was actually Dr. Auerbach’s very first publication. See Doc. 156-1 at 40.

Page 14 of 22

Throughout their argument on this issue, Defendants continually cite to the superiority of
their own evidence and theory over that of the Plaintiff as a basis to show that the
Plaintiff’s expert does not meet this factor of the Daubert standard. For example, the
Defendants spend the bulk of their argument laying out the opinions of their own experts,
Dr. Steven Myers and Dr. Andrew Muzyk. See Doc. 138 at 9. Dr. Myers and Dr. Muzyk
opine that Dr. Auerbach’s opinion is “speculative and unreliable” and claim that the reports
of complications have been rare and that “the black box warnings are often provided
because of a perceived or suspected potential association that is not understood or proven
by medical science.” See Doc. 138 at 9-10. They further lay out Dr. Myers and Dr.
Muzyk’s opinion on what might have been the cause of McBride’s reaction. See Doc. 138
10-12.
The Eleventh Circuit has held that “[i]ssues concerning the credibility of witnesses
and weight of the evidence are questions of fact which require resolution by the trier of
fact.”

Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986).

“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. Defendants will have the
opportunity to cross-examine Plaintiff’s expert witness in order to test his credibility and
differing opinions in front of the jury. The Court finds the arguments that the experts
should be excluded based solely on the Defendants’ interpretation of the cause of the
reaction giving rise to this action is insufficient. There is a range in which different expert
witnesses may reasonably differ. Kumho Tire Co., 526 U.S. at 153, 119 S.Ct. at 1177
Page 15 of 22

(citing Daubert, 509 U.S. at 596, 113 S.Ct. at 2798). Simply asserting that Plaintiff’s
expert uses methods that do not conform with Defendants’ experts does not make them
faulty. Id. The Supreme Court has recognized that experts may reasonably differ on
issues of science and conclusions, but that these differences should be admitted to aid the
trier of fact in deciding the issues. Kumho Tire Co., 526 U.S. at 153; see also Globetti v.
Sandoz Parm. Cor., 111 F.Supp.2d 1174, 1177 (N.D. Ala. 2000) (stating that it is the role
of the finder of fact, not the judge, to decide whether an expert’s opinion is correct).
Defendants also argue that there is no evidence that Dr. Auerbach has “performed
any independent research, authored any articles, or given any lectures on these subjects.”
See Doc. 138 at 12. However, as stated above, at the very least as far back as 1960 and as
recently as 2007, Dr. Auerbach has been published on both Stevens-Johnson Syndrome
and Toxic Epidermal Necrolysis, as well as being a part of a seminar on the subject. See
Doc. 156-1 at 32, 35, 40.
Additionally, Defendants argue that according to their experts the potential link
between Lamictal and Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis is not
proven by medical science and the condition is of speculative nature. See Doc. 138 at 13.
The Court finds this argument lacking, especially considering Defendants’ own expert
witnesses would be disqualified from testifying under this theory. If there is a speculative
nature around the condition at issue in this case, then that would indicate that all expert
testimony should be disqualified under the Daubert standard and not just Plaintiff’s expert.
Although the connection between Lamictal and the cause of Stevens-Johnson Syndrome
and Toxic Epidermal Necrolysis is still a developing area in medicine, the analysis of
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whether Dr. Auerbach’s opinion is reliable can only be done based on what the medical
research currently shows.
After reviewing the Plaintiff’s opposition brief, as well as considering the oral
arguments on the motion, the Court finds that the Plaintiff’s expert bases his opinion on
sufficiently reliable methods.
Finally, the Court must determine if “the testimony is relevant in that it assists the
trier of fact.” Defendants argue that Dr. Auerbach offers nothing more than “blanket,
“generalized, and conclusory statements.” See Doc. 138 at 15. However, that is not
within the analysis that the Court has to make under this factor. The consideration of
whether the expert witness’ testimony is helpful to the trier of fact “goes primarily to
relevance.” Daubert, 509 U.S. at 591, 113 S.Ct. 2786. “Expert testimony which does
not relate to any issue in the case is not relevant, and, ergo, non-helpful.” Frazier, 387
F.3d at 1262 (citation and internal quotation marks omitted). In other words, “expert
testimony generally will not help the trier of fact when it offers nothing more than what
lawyers for the parties can argue in closing arguments.”

Id. at 1262–63.

Expert

testimony also does not help the trier of fact if it fails to “fit” with the facts of the case.
McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir.2004). This occurs when “a large
analytical leap must be made between the facts and the opinion.” Id. The court may
exclude otherwise reliable testimony if it does not have “sufficient bearing on the issue at
hand.”

Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1121 (10th Cir.2004).

Expert

testimony is additionally helpful “if it concerns matters that are beyond the understanding
of the average lay person.” Frazier, 387 F.3d at 1262.
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Dr. Auerbach’s testimony is clearly relevant, and obviously fits the facts of this case
without any analytical leap. His medical opinion speaks directly to the facts of this case as
derived from McBride’s medical records. Defendants have not convinced the Court that
Dr. Auerbach would detract in any way from the trier of fact’s ability to ultimately decide
the case. The Court finds that the Defendants primary argument is that they disagree with
the Plaintiff’s experts’ opinions. The Defendants are free at trial to argue against any
opinions and conclusions reached by Plaintiff’s experts, as well as present evidence of their
own theories, reinforcing the ruling of courts that “the weaknesses in the underpinnings of
the expert’s opinions go to its weight rather than its admissibility.” Jones v. Otis Elevator
Co., 861 F. 2d 655, 663 (11th Cir. 1988).
C.

Rule 26 Expert Reports
Finally, Defendants object to the Plaintiff’s Rule 26 expert disclosures for Dr.

Nineberg and Dr. Rodgers. See Docs 109 at 1; 110 at 1-3; 136 at 6. Defendants object to
Dr. Nineberg’s Rule 26 disclosure because his written report is facially noncompliant with
the Federal Rules of Civil Procedure, and to Dr. Rodgers Rule 26 disclosure because in her
written report she criticizes Dr. Paladugu and Dr. Karumanchi for acts and/or omissions
that were not expressly and specifically alleged in Plaintiff’s Complaint. See Docs. 70;
109-110; 136. Subsection (2)(B) of Rule 26 of the Federal Rules of Civil Procedure
provides the guideline for the content that must be included in a written report that
accompanies the party’s expert disclosure:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied by a
written report--prepared and signed by the witness--if the witness is one
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retained or specially employed to provide expert testimony in the case or one
whose duties as the party's employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and
the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications
authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
FED. R. CIV. P. 26(2)(B).
Upon review of Dr. Nineberg’s written report, it is immediately clear to this Court
that it is not compliant with the requirements of Rule 26(2)(B). See Doc. 110-1 at 2. The
report is a page and a half with a list of materials Dr. Nineberg used to come to his
conclusions, and a single paragraph generally stating what he believes to have been the
breaches of the standard of care in this case. See Doc. 110-1 at 2-3. Dr. Nineberg
concluded his opinion by stating that “[t]he above-described opinions are not intended to
be a complete summary of deviations from the standard care and are subject to revision.”
See Doc. 110-1 at 3. To date, no such revision has been provided to the Defendants. Dr.
Nineberg clearly did not present a “complete statement,” and accordingly Dr. Nineberg
must provide a supplement to his written report that fully complies with Rule 26 as further
set out below. Plaintiff is hereby warned that if Dr. Nineberg fails to supplement his
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written report, this Court will strike Dr. Nineberg as an expert witness. Additionally, at
the Defendants request, Defendants’ experts shall be granted an opportunity supplement
their written reports to incorporate the new opinions set forth in Dr. Nineberg’s
supplemented written report.
Defendants also object to Dr. Rodgers Rule 26 disclosure because in her written
report she criticizes Dr. Paladugu and Dr. Karumanchi for acts and/or omissions that were
not expressly and specifically alleged in Plaintiff’s Complaint. See Docs. 70; 109-110.
Defendants state that pursuant to § 6-5-551 of the Alabama Code, a plaintiff is prohibited
from conducting discovery on any alleged act or omission that is not properly pled in the
complaint with “detailed specification and factual description of each act or omission.
See Docs. 109 at 2; 110 at 2-3. However, despite two separate defendants filing a motion
for this same relief, neither of them provided any description of the excessive alleged acts
and/or omissions in Dr. Rodgers’ report, nor was it argued at the hearing. A general
statement and citation to the law without any application to the facts of this case is not a
sufficient argument before this Court. If Defendants wish to refile their motion with more
specificity, the Court will take up the issue at that time. Accordingly, at the present time
the motions are due to be denied.
II.

CONCLUSION

Accordingly, upon consideration of the motions, for the reasons as stated, and for
good cause, it is ORDERED as follows:
(1)

Defendants’ Motion to Strike the Testimony and/or Opinion of Plaintiff’s

Expert Carol E. Dankin (Doc. 133), and Motion to Strike and Exclude Testimony of Carol
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Dakin PhD, RN (Doc. 134) be and are hereby DENIED.
(2)

Defendants’ Motion in Limine to Exclude or Limit Testimony From

Plaintiff’s Experts (Doc. 136), Motion to Strike and Preclude Expert Testimony of Dr.
Carla Rodgers, Dr. Allan Nineberg, and Dr. Robert Auerbach (Doc. 138), and
Supplemental Motion in Limine to Exclude or Limit Testimony From Plaintiff’s Experts
(Doc. 151) be and are hereby DENIED.
(3)

To the extent that Defendants request that Dr. Nineberg be stricken as an

expert witness, the Motion to Strike (Doc. 109), Motion to Strike (Doc. 110), Motion in
Limine to Exclude or Limit Testimony From Plaintiff’s Experts (Doc. 136), and
Supplemental Motion in Limine to Exclude or Limit Testimony From Plaintiff’s Experts
(Doc. 151) be and are hereby DENIED.
(4)

To the extent Defendants request that Dr. Nineberg supplement his written

report, the Motion to Strike (Doc. 109), Motion to Strike (Doc. 110), Motion in Limine to
Exclude or Limit Testimony From Plaintiff’s Experts (Doc. 136), and Supplemental Motion
in Limine to Exclude or Limit Testimony From Plaintiff’s Experts (Doc. 151) be and are
hereby GRANTED. Dr. Nineberg shall supplement his report within seven (7) days of the
date of this order. Defendants’ experts shall have fourteen (14) days from the date that
Plaintiff submits Dr. Nineberg’s supplemented written report, to supplement their written
reports.
(5)

To the extent that Defendants request that the Plaintiff be prohibited from

conducting discovery on issues contained in Dr. Rodgers’ expert report that exceed the
scope of the Plaintiff’s complaint, the Motion to Strike (Doc. 109), and Motion to Strike
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(Doc. 110) be and are hereby DENIED.
DONE this 3rd day of September, 2014.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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