Hannah, et al., v. United States of America et al

Filing 29

ORDER signed by District Judge John A. Mendez on 1/23/2019 DENYING 15 Motion to Strike with respect to Dr. Hurwitz's report and testimony. (Huang, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWNEE HANNAH, et al.,

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Plaintiffs,

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v.

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UNITED STATES OF AMERICA, et
al.,

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No.

2:17-cv-01248-JAM-EFB

ORDER DENYING THE UNITED STATES’
MOTION TO STRIKE EXPERT WITNESS
DR. MICHAEL HURWITZ

Defendants.

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This matter is before the Court on Defendant United States’

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Motion to Strike.

Mot., ECF No. 15.

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and Bonnie Hannah (“Plaintiffs”) filed an opposition, Opp’n, ECF

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No. 16, to which the United States replied, Reply, ECF No. 17.

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On January 9, 2019, the Court held an evidentiary hearing

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regarding the admissibility of Dr. Michael Hurwitz’s proffered

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testimony.

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parties’ briefing on the motion and relevant legal authority, the

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Court DENIES the United States’ Motion to Strike with respect to

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Dr. Hurwitz.1

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///

Minute Order, ECF No. 24.

Plaintiffs Shawnee Hannah

After consideration of the

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The Court will rule on the United States’ motion regarding
nurse life-care planner April Stallings’s at a future date after
additional briefing and a further hearing, if necessary.
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I.

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BACKGROUND

This medical malpractice action arises out of treatment

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Plaintiff Shawnee Hannah received at the Department of Veterans

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Affairs (“VA”) Mather facility.

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Mr. Hannah sought treatment at Mather for right-sided neck pain

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and stiffness in May 2015.

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surgery to drain a neck abscess on May 21, 2015.

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Mr. Hannah woke up from anesthesia, he was quadriplegic.

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8–9.

Compl., ECF No. 1, pp. 6–10.

Id. at 6–7.

Mr. Hannah underwent
Id. at 7.

When

Id. at

Mather was unable to perform a cervical MRI on Mr. Hannah

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while he was intubated, so medical staff attempted to transfer

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him to a different facility after he stabilized.

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hospital asserts that no beds were available for Mr. Hannah’s

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transfer until May 24, 2015, when he was transferred to UC Davis

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Medical Center.

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Id.

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Id. at 9.

Id. at 8.

The

Mr. Hannah remained quadriplegic.

Plaintiffs submitted a September 2016 expert report from Dr.

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Michael Hurwitz, a general surgeon who reviewed Shawnee Hannah’s

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medical records from the VA and UC Davis Medical Center.

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Report, ECF No. 15-2, pp. 10–18.

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states that the VA provided Mr. Hannah with “timely and

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appropriate surgical care.”

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describe the “diligent” consultations that Mr. Hannah received

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from internal medicine, ENT, infectious disease, neurology,

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pulmonology and cardiology, but notes those specialties are

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beyond his purview. Id.

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trained in neurology and neurosurgery,” “there appears to have

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been a very narrow window of time in which Mr. Hannah’s

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neurologic function might have been salvageable[.]” Id.

Hurwitz

In that report, Dr. Hurwitz

Id. at 3.

Dr. Hurwitz goes on to

He opines that although he is “not

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Nevertheless, he states it is “beyond [his] expertise to

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speculate as to when this window closed.”

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Hurwitz concludes that Shawnee Hannah required emergent transfer

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to a facility with MRI and neurosurgical capabilities “if there

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was to be any hope for preservation of neurologic function” and

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by its failure to provide such emergent access, VA fell below the

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standard of care.

Id.

Finally, Dr.

Id.

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II.

LEGAL STANDARD

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In a case arising under the Federal Tort Claims Act (FTCA),

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the Court applies the law of the state in which the alleged tort

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occurred.

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2013).

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California requires the plaintiff to offer competent expert

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testimony.

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142, 147 (Cal. 1994).

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Liebsack v. United States, 731 F.3d 850, 855 (9th Cir.

The burden of proof for a medical malpractice claim in

Flowers v. Torrance Mem’l Hosp. Med. Ctr., 884 P.2d

Federal Rule of Evidence 702 governs the admissibility of

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expert witness testimony in federal courts.

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the preliminary inquiry required by Federal Rule of Evidence 104,

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the Court must assess the expert witness’s qualifications, the

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relevance of his or her testimony, and that testimony’s

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reliability.

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509 U.S. 579, 594–95 (1993).

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acting as a gatekeeper for the admissibility of expert testimony.

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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151–52 (1999).

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In conjunction with

Daubert v. Merrell Dow Pharm., Inc. (“Daubert I”),
The Court has wide discretion when

The Court considers an expert’s “scientific, technical, or

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other specialized knowledge” in assessing whether the expert’s

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qualifications “will help the trier of fact to understand the
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evidence or to determine a fact in issue.”

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“If an individual is not qualified to render an opinion on a

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particular question or subject, it follows that his opinion

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cannot assist the trier of fact with regard to that particular

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question or subject.”

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1179, 1185 (D. Nev. 2005), aff’d, 244 F. App’x 142 (9th Cir.

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2007).

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advances a material aspect of the proposing party’s case.”

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Daubert v. Merrell Dow Pharm., Inc. (“Daubert II”), 43 F.3d 1311,

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Fed. R. Evid. 702(a).

Morin v. United States, 534 F. Supp. 2d

An expert’s testimony is relevant if “it logically

1315 (9th Cir. 1995).

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An expert’s mere assurances of reliability are insufficient

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under Daubert.

Daubert II, 43 F.3d at 1319.

“Rather, the party

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presenting the expert must show that the expert’s findings are

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based on sound science, and this will require some objective,

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independent validation of the expert's methodology.”

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1316.

Id. at

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III.

DISCUSSION

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A.

Dr. Hurwitz’s Opinions Are Not Excluded

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Plaintiff seeks to offer Dr. Hurwitz’s testimony that

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physicians at Mather violated the standard of care regarding the

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timeliness of Mr. Hannah’s transfer.

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strike Dr. Hurwitz’s testimony, arguing that Dr. Hurwitz rendered

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opinions on matters outside his established expertise.

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6–7.

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a.

The United States seeks to

Mot. at

Dr. Hurwitz Is Qualified to Provide Testimony

The Court first considers Dr. Hurwitz’s “scientific,
technical, or other specialized knowledge” to determine if he is
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qualified to testify on the topics at issue.

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702(a).

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See Fed. R. Evid.

At the hearing, Dr. Hurwitz testified that he has been a

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practicing physician for over 20 years. He currently serves as a

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general surgeon and chief of staff at a hospital in Newport

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Beach, California.

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training, years of practice, and review of medical literature to

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draw conclusions about the appropriate standard of care in a

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medical situation. He believes that a general surgeon should

Dr. Hurwitz relies on his education,

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recognize that “an acute neurological change requires immediate

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intervention, assessment and intervention.” In this case, he

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opines that the general surgeons at Mather fell below the

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standard of care by not providing emergent transfer to a facility

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where a MRI machine could accommodate an intubated patient.

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The United States objects, inter alia, that Dr. Hurwitz’s

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current position does not entail overseeing patient transfer and

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that he has not personally transferred a patient within the last

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year.

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not knowledgeable about the transfer policies at different

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hospitals. The United States appears to contend that only a

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specialist in the field of patient transfer, with experience at

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VA medical facilities, may testify about the topic.

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Furthermore, the United States argues that Dr. Hurwitz is

The Ninth Circuit has not imposed such stringent

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requirements for medical experts.

See Doe v. Cutter Biological,

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Inc., a Div. of Miles Labs., Inc., 971 F.2d 375, 385 (9th Cir.

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1992) (finding it was an abuse of discretion for a district court

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to grant a motion to strike medical experts for lack of personal

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knowledge).

“Ordinarily, courts impose no requirement that an
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expert be a specialist in a given field, although there may be a

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requirement that he or she be of a certain profession, such as a

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doctor.”

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surgeon, testifying about the standard of care by other general

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surgeons as it pertains to the timeliness of transferring

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patients.

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within the last year, Dr. Hurwitz testified that he has past

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experience transferring patients.

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Id.

Here, Dr. Hurwitz is an experienced general

Although he admittedly has not transferred a patient

The Court finds Dr. Hurwitz to be sufficiently qualified to
testify about the timeliness of transfer by general surgeons.
b.

Dr. Hurwitz’s Testimony Is Relevant

Next, the Court reviews whether Dr. Hurwitz’s testimony

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“logically advances a material aspect” of Plaintiffs’ case.

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Daubert II, 43 F.3d at 1315.

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testimony is relevant because it relates to standard of care and

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causation, essential elements of Plaintiff’s case.

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c.

The Court finds that Dr. Hurwitz’s

Dr. Hurwitz’s Testimony Is Reliable

Finally, the Court determines whether Dr. Hurwitz’s

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testimony is soundly based on objective, independent methodology.

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Daubert II, 43 F.3d at 1316.

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lessened where, as here, the Court sits as trier of fact.

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Commc’ns, LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 1229,

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1233 (E.D. Cal. 2005).

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Supp. 2d 888, 896 n.5 (N.D. Cal. 1999) (“[I]t bears noting that

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the Daubert gatekeeping obligation is less pressing in connection

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with a bench trial.”).

Concerns about reliability are
CFM

See also Volk v. United States, 57 F.

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As noted above, Dr. Hurwitz based his conclusions on his

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education, training, years of practice, and review of medical
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literature.

Based on a thorough review of the record and Dr.

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Hurwitz’s report, the Court finds that Dr. Hurwitz’s conclusions

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and report are based on sufficient facts to satisfy the

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reliability prong. Indeed, as the Court repeatedly stated at the

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hearing on this motion, the United States’ objections to Dr.

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Hurwitz’s testimony go primarily to the weight to be given to

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this evidence rather than its admissibility.

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IV.

CONCLUSION AND ORDER

Accordingly, the Court hereby DENIES the United States’

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Motion to Strike with respect to Dr. Hurwitz’s report and

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testimony.

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IT IS SO ORDERED.
Dated: January 23, 2019

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