Amrani v. United States of America

Filing 211

ORDER denying 189 Motion in Limine to preclude testimony from Dr. Shayam Shridharani. See PDF. Signed by Judge John W Sedwick on 12/10/14. (JWS)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 Jacob Amrani, 10 Plaintiff, 11 vs. 12 13 United States of America, 14 Defendant. 15 16 2:12-cv-2583 JWS ORDER AND OPINION [Re: Motion at docket 189] I. MOTION PRESENTED 17 18 ) ) ) ) ) ) ) ) ) ) At docket 189 plaintiff Jacob Amrani (“Dr. Amrani”) asks the court to preclude testimony from Dr. Shayam Shridharani (“Dr. Shridharani”) about Dr. Armani’s earning 19 20 21 potential on the grounds that he is not competent to offer opinion testimony pursuant to Federal Rule of Evidence 702. Defendant United States of America (“United States”) 22 opposes at docket 192. No reply has been filed. Oral argument would not assist the 23 court. 24 25 II. BACKGROUND Dr. Amrani is a board certified orthopedic surgeon who specialized in spine 26 27 28 surgery. He practiced for many years in Kansas, but moved to Phoenix in 2006. Dr. Amrani’s practice in Phoenix was conducted at his own clinic, the Deer Valley Spine 1 2 3 Center. Because he is a veteran, Dr. Amrani is eligible to receive his own medical care from the Veteran’s Administration (“VA”). Dr. Amrani had been an avid weightlifter and injured his right shoulder lifting 4 5 weights. At first, Dr. Amrani avoided seeking care from another physician. Eventually 6 Dr. Amrani sought treatment at the VA hospital in Phoenix. Dr. Amrani was placed 7 under the care of Dr. Cranford, a board certified orthopedic surgeon employed by the 8 VA hospital. On November 17, 2011, Dr. Cranford performed right shoulder rotator cuff 9 surgery on Dr. Amrani. The surgery included excision of a soft tissue mass in the 10 shoulder. As a result of the surgery, Dr. Amrani experienced some degree of damage 11 12 to the axillary nerve. Dr. Amrani claims that the excision of the soft tissue mass was 13 undertaken without his consent, was performed negligently, and resulted in the nerve 14 damage. Dr. Amrani claims that as a result of the medical negligence of Dr. Cranford, 15 he has experienced a substantial loss of function in his right shoulder and right arm 16 which has deprived him of the ability to practice spine surgery and has generally 17 18 19 interfered with his enjoyment of life. Dr. Amrani seeks in excess of $6.2 million in damages. 20 The United States retained Dr. Shridharani to determ ine and offer opinion 21 testimony relating to Dr. Amrani’s earning capacity. Dr. Amrani asks the court to 22 preclude the opinion testimony on the grounds that Dr. Shridharani does not qualify to 23 offer such testimony under Federal Rule of Evidence 702. 24 25 26 27 28 2 1 2 3 III. STANDARD OF REVIEW Rule 702 permits opinion testimony by an expert when the witness is qualified and the witness’s opinion is relevant and reliable. 1 With respect to Rule 702, “a district 4 5 court’s inquiry into admissibility is a flexible one.”2 The purpose of the district court’s 6 inquiry is “to screen the jury from unreliable nonsense opinions” and not to “exclude 7 opinions merely because they are impeachable.”3 The district court functions as a 8 “gatekeeper, not a fact finder.”4 9 10 Under Rule 702, a witness “is qualified as an expert by knowledge, skill, experience, training, or education.”5 “Expert opinion testimony is relevant if the 11 12 knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable 13 if the knowledge underlying it has a reliable basis in the knowledge and experience of 14 the relevant discipline.”6 The district court’s task in screening a scientific opinion for 15 reliability has been explained in Daubert v. Merrell Dow Pharmaceuticals, Inc.7 and its 16 progeny. “The court must assess the expert’s reasoning or methodology, using as 17 18 appropriate criteria such as testability, publication in peer-reviewed literature, known or 19 20 1 21 Fed. R. Evid. 702. 2 22 23 24 25 City of Pomona v. SQM North America Corp., 750 F. 3d 1036, 1043 (9th Cir. 2014). 3 Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). 4 Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (internal quotation omitted). 5 Fed. R. Evid. 702. 26 6 27 7 28 Primiano, 598 F.3d at 565 (internal quotation omitted). 509 U.S. 579 (1993). 3 1 2 3 potential error rate, and general acceptance.” 8 When non-scientific testimony is at issue, the “Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable . . . .” 9 The reliability of such non-scientific testimony depends more 4 5 6 “on the knowledge and experience of the expert, rather than the methodology or theory behind it.”10 7 8 9 IV. DISCUSSION Dr. Shridharani is a board certified orthopedic surgeon who has completed a fellowship in spine surgery. He is currently an assistant professor of orthopedic surgery 10 11 12 at the University of Arizona College of Medicine in Tucson. His curriculum vitae is lengthy and impressive. His training and experience as a spine surgeon establish that 13 Dr. Shridharani is qualified to testify about what medical and surgical procedures fall 14 within the ambit of orthopedic spine surgeons. Furthermore, his deposition testimony 15 shows that he is familiar with the particular surgical procedures Dr. Amrani has 16 performed subsequent to his own shoulder surgery. The deposition testimony also 17 18 shows that Dr. Shridharani is familiar with the use of spinal injections in the treatment of 19 back problems. Dr. Shridharani is of the opinion that Dr. Amrani is capable of 20 administering spinal injections despite the sequella of his own surgery. 21 22 23 24 25 26 27 28 8 City of Pomona, 750 F.3d at 1044. 9 Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (quoting United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000)). 10 Id. 4 1 2 3 Dr. Shridharani’s opinion is based on his own training and experience as an orthopedic spine surgeon. Dr. Amrani’s principal objection to Dr. Shridharani’s qualification is that he is not 4 5 a vocational rehabilitation specialist. That objection misses the point. Dr. Shridharani is 6 not offering an opinion about vocational rehabilitation. His opinion is directed at the 7 services Dr. Amrani can actually provide as an orthopedic spine surgeon. That is an 8 area in which Dr. Shridharani is obviously qualified. 9 Dr. Amrani also points out that Dr. Shridharani has only six years of experience 10 as an orthopedic surgeon, that he has generally worked as an employee in large 11 12 practice groups rather than as a surgeon with his own private practice, such as the one 13 Dr. Amrani has operated, that he has never practiced in Phoenix, and that he is 14 unfamiliar with the market for surgeons in Phoenix. These concerns go to the weight of 15 Dr. Shridharani’s testimony, not its admissibility. 16 Dr. Shridharani’s testimony will not address all of the issues relating to 17 18 19 20 21 22 23 Dr. Amrani’s earning capacity. Nevertheless, what he has to say about the kind of services that could be provided to patients by Dr. Amrani will be helpful to the trier of fact. Dr. Shridharani will be allowed to offer opinion testimony under Rule 702. V. CONCLUSION For the reasons above, the motion at docket 189 is DENIED. DATED this 10th day of December 2014. 24 25 26 /s/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE 27 28 5

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