Watkins et al v. Action Care Ambulance, Inc.

Filing 275

ORDER granting in part and denying in part 231 Plaintiffs Rule 702 Motion by Judge William J. Martinez on 9/9/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Case No. 07-cv-02598-WJM-BNB
RONNIE WATKINS, surviving spouse,
MADELINE WATKINS,
LANDON WATKINS, and
MICHAELA WATKINS, surviving minor children,
by and through their father Ronnie Watkins,
Plaintiffs,
v.
ACTION CARE AMBULANCE, INC., a Colorado corporation,
Defendant.

ORDER ON PLAINTIFFS’ RULE 702 MOTION

THIS MATTER comes before the Court on Plaintiffs’ Rule 702 Motion (“702
Motion”), ECF No. 231, filed on July 11, 2011. For the foregoing reasons, the 702
Motion is GRANTED in part and DENIED in part.
BACKGROUND
This is a wrongful death case against Action Care Ambulance Company
(“Defendant” or “Action Care”) arising out of the death of Mellissa Watkins (“Mrs.
Watkins” or “Decedent”), wife and mother of Plaintiffs Ronnie Watkins (“Mr. Watkins”),
Madeline Watkins, Landon Watkins, and Michaela Watkins. Mrs. Watkins was killed
after falling out of the back of Defendant’s ambulance while being transported to a
mental health hospital on July 8, 2007. At the time, Mrs. Watkins was on an involuntary
72-hour mental health hold after attempting suicide the day before.
Mrs. Watkins had been an inpatient at Highlands Behavioral Health System

(“Highlands”), a mental health hospital, from June 20-29, 2007, and an outpatient from
July 1-6, 2007. On June 20, 2007, Mrs. Watkins told a staffer that she had wanted to
jump out of the car on the way there. (Foster Dep., ECF No. 184-9 at 68:22-24.) This
information was not provided to Defendant prior to transporting her from Parker
Adventist Hospital (“Parker Adventist”) on July 8, 2007. (ECF No. 238 at 2.)
Defendants allege that they had limited information regarding Mrs. Watkins’ history of
depression and suicide attempts. (Id. at 3.) Further, there were no orders for restraints
to be used on Mrs. Watkins during the transport. (Id.)
Plaintiffs claim that Defendant’s ambulance attendants were negligent in failing to
adequately supervise Mrs. Watkins, resulting in her death.
On April 10, 2009, Defendant filed its required expert witness disclosures,
notifying Plaintiffs of Defendant’s intent to proffer the expert testimony Dr. Frederick
Miller (“Dr. Miller”), Dr. Michael Jobin (“Dr. Jobin”), Dr. Eugene Eby (“Dr. Eby”), Dr.
Peter Vellman (“Dr. Vellman”), and Nancy Lynch, R.N (“Nurse Lynch”). Plaintiffs argue
that the Court should restrict the expert testimony of these individuals based on their
education and training, the foundation of their opinion, and the relevance of the opinions
to the claims at issue. The 702 Motion is fully briefed and an evidentiary hearing on the
Motion was held on September 7, 2011 (the “702 Motion Hearing).
STANDARD FOR EXPERT TESTIMONY
Admissibility Under Rule 702
“The admissibility of evidence in diversity cases in federal court is generally
governed by federal law.” Blanke v. Alexander, 152 F.3d 1224, 1231 (10th Cir. 1998).
See also Hanna v. Plumer, 380 U.S. 460, 465 (1965) (“[F]ederal courts are to apply
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state substantive law and federal procedural law.”); cf. Mut. Life Ins. Co. of N.Y. v.
Bohlman, 328 F.2d 289, 293-94 (10th Cir. 1964) (“It seems to be well settled that
questions concerning the admissibility of evidence in a diversity case are procedural
matters to be governed by application of federal law and not substantive matters which
are governed by state law.”).
The admission of expert testimony is governed by Rule 702 of the Federal Rules
of Evidence. Rule 702 states, in pertinent part:
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, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of
the case.
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an
expert be qualified based upon knowledge, skill, experience, training, or education to
give opinions in a particular subject area. Rather, the Court must “perform[ ] a two-step
analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
After “determin[ing] whether the expert is qualified by ‘knowledge, skill, experience,
training, or education’ to render an opinion,” id. (quoting Fed. R. Evid. 702), the specific
proffered opinions must be assessed for reliability. See id.; see also Fed. R. Evid. 702
(requiring that the testimony be “based upon sufficient facts or data,” be the “product of
reliable principles and methods,” and reflect a reliable application of “the principles
and methods . . . to the facts of the case”).
Rule 702 “imposes on the district court a gatekeeper function to ‘ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.’”
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United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). During the gatekeeping process,
the Court undertakes two analytical steps. First, it determines whether a witness is
qualified to provide the expert testimony at issue. Specifically, under Rule 702, an
expert must possess expertise based on “knowledge, skill, experience, training or
education.” See United States v. Crabbe, 556 F. Supp. 2d 1217, 1221 (D. Colo. 2008).
Second, the court must focus on the proffered expert testimony itself to
determine if it is reliable. Id. The testimony must be based on “scientific, technical, or
other specialized knowledge,” and must be of a kind that will assist the trier of fact in
understanding the evidence. Fed. R. Evid. 702. The Court must “assess the reasoning
and methodology underlying the expert’s opinion, and determine whether it is both
scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328
F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). When assessing
reliability, “the court may consider several nondispositive factors: (1) whether the
proffered theory can [be] and has been tested; (2) whether the theory has been subject
to peer review; (3) the known or potential rate of error; and (4) the general acceptance
of a methodology in the relevant scientific community.” 103 Investors I, 470 F.3d at 990
(citing Daubert, 509 U.S. at 593-94). These considerations are not exhaustive. Rather,
“the trial judge must have considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is reliable.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999). Ultimately, the test requires that the expert
“employs in the courtroom the same level of intellectual rigor that characterizes the
practice of any expert in the relevant field.” Id.
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Further, the court must determine whether the proffered expert testimony is
relevant in that it will assist the trier of fact. The question of relevance is essentially
“whether [the] reasoning or methodology properly can be applied to the facts in issue.”
Daubert, 509 U.S. at 593; see also General Elec. Co. v. Joiner, 522 U.S. 136, 151-52
(1997). Even if deemed relevant, however, expert evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence” under Rule 403 of the Federal Rules
of Evidence. See e.g. C.A. Assocs. v. Dow Chemical Co., 918 F.2d 1485, 1489 (10th
Cir. 1990).
Burden of Establishing Admissibility
While the proponent of the challenged testimony has the burden of establishing
admissibility, its proffer is tested against the standard of reliability, not correctness; a
proponent need only prove that “the witness has sufficient expertise to choose and
apply a methodology, that the methodology applied was reliable, that sufficient facts and
data as required by the methodology were used and that the methodology was
otherwise reliably applied.” Crabbe, 556 F. Supp. 2d at 1221 (citing Mitchell v. Gencorp
Inc., 165 F.3d 778, 781 (10th Cir. 1999)).
The proponent of the opinion need not prove that the expert is indisputably
correct. See Mitchell, 165 F.3d at 781. However, the proponent must show that the
method employed by the expert in reaching the conclusion is sound and that the opinion
is based on facts which sufficiently satisfy Rule 702’s reliability requirements. See id. A
court’s focus generally should not be upon the precise conclusions reached by the
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expert, but upon the expert’s qualifications, information relied upon and the
methodology employed in reaching those conclusions. See Daubert, 509 U.S. at 595;
see also Dodge, 328 F.3d at 1222.
Standard of Care
In a negligence action against a licensed professional in the State of Colorado,
the professional “is generally entitled to be judged according to the tenets of the school
of practice which the practitioner professes to follow.” United Blood Servs. v. Quintana,
827 P.2d 509, 520 (Colo. 1992). Because the applicable standard of care in most
professional negligence cases is not within the common knowledge and experience of
members of the jury, the applicable standard of care must be established by expert
testimony. Id. “Without expert opinion testimony in such cases, the trier of fact would
be left with no standard at all against which to evaluate the defendant’s conduct.” Id.
(citation omitted). Colorado courts provide that the applicable standard may be
established by
the opinion testimony of a qualified expert practicing in the same school or by the
opinion testimony of an expert practicing in another school if the expert is
sufficiently familiar with the standard of care applicable to the school in question
as to render the witness’s testimony as well-informed on the applicable standard
of care as would be the opinion of an expert witness practicing the same
profession . . . or if the standard of care at issue is substantially identical to both
schools of practice.
Id. at 521.
I.

FEDERAL RULE OF CIVIL PROCEDURE 26(a)(2)(C)
In their 702 Motion Plaintiffs object to the fact that Defendant did not provide the

requisite disclosures for non-retained experts Dr. Vellman, Dr. Eby, and Nurse Lynch
pursuant to Fed. R. Civ. P. 26(a)(2)(C). Rule 26(a)(2)(C) provides:
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(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise
stipulated or ordered by the court, if the witness is not required to provide a written
report, this disclosure must state: (I) the subject matter on which the witness is
expected to present evidence under Federal Rule of Evidence 702, 703, or 705;
and (ii) a summary of the facts and opinions to which the witness is expected to
testify.
Fed. R. Civ. P. 26(a)(2)(C). In its April 28, 2010 order adopting the amendment to the
Federal Rules, the United States Supreme Court ordered that the changes “shall take
effect on December 1, 2010, and shall govern all proceedings thereafter commenced,
and insofar as just and practicable, all proceedings then pending.” See U.S. v. Sierra
Pacific Indus., No. CIV S-09-2445 KJM EFB, 2011 WL 2119078, at *2 (E.D. Cal. May 26,
2011). Prior to implementation, only experts retained or specifically employed to provide
expert testimony were required to provide a written report prior to their testimony.
Defendant disclosed Dr. Vellman, Dr. Eby, and Nurse Lynch on April 10, 2009,
well before implementation of the new Rule. (ECF No. 238 at 10.) Defendant has not
provided Plaintiffs with disclosures pursuant to the newly-enacted Rule 26(a)(2)(C).
Here, Plaintiffs failed to raise this issue until the eve of trial. The Court finds that
Plaintiffs have waived any argument that Defendant’s non-retained experts should have
made disclosures under Rule 26(a)(2)(c). To enforce the amended Rule 26 now would
cause undue prejudice to Defendant. Therefore, the Court will apply the pre-December
1, 2010 version of Rule 26 to the proffered expert witnesses.

II.

EXPERT OPINIONS AT ISSUE
A.

Frederick M. Miller, M.D.
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Plaintiffs’ 702 Motion challenges Dr. Miller’s qualifications to testify regarding the
standard of care of an EMT, paramedic, emergency room physician and non-physician
staff members at Highlands. Specifically, Plaintiffs request the Court exclude Dr.
Miller’s testimony or opinions about events surrounding the ambulance transport,
including any commentary on Mrs. Watkins treatment in the ambulance and at Parker
Adventist. (ECF No. 231 at 6.) Plaintiffs argue that Dr. Miller is not an emergency room
physician, is not involved in evaluating patients in the emergency room setting, is not an
expert regarding the conduct or standard of care of an EMT or paramedic, nor is he
involved in the transport of psychiatric patients from one facility to another. (ECF No.
231 at 4-5.) Further, Plaintiffs argue the issue in this case is the transport of Mrs.
Watkins, not the care she received by Highlands or at Parker Adventist. (Id.)
Dr. Miller is a psychiatrist who has been trained in emergency medicine and has
treated psychiatric patients for years. (ECF No. 238 at 4.) He has worked alongside
professionals in formulating diagnosis and providing treatment. (Id.) Dr. Miller has
experience working in the emergency room, and is currently called for assistance in
emergency situations to make decisions regarding the care and treatment of psychiatric
patients, including making decisions regarding the feasability of transferring psychiatric
patients by ambulance. (ECF No. 238 at 7; Miller Dep., ECF No. 238-1 at 27:3-24.) Dr.
Miller works with social workers in determining the best course of treatment, and has
provided training to social workers on the process of evaluating mentally ill patients. (Id.)

Defendant argues that due to the necessary interaction of healthcare providers to
effectuate the total care and treatment of patients, a physician must be knowledgeable
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about the standards of care in those other areas of expertise. (Id.) Defendant maintains
that Dr. Miller is well qualified to form opinions as to the standard of care provided by
emergency room physicians, social workers, and paramedics.
Defendant states that Dr. Miller’s testimony will assist the jury in understanding
Mrs. Watkins’ history of prior treatment, which Defendant states is relevant to the case.
(Id. at 5.) Defendant claims it is essential that the jury be provided with Mrs. Watkins’
entire history of depression and suicidal attempts so that they can appreciate the severity
of her illness and the degree of her determination to end her life. (Id. at 6.)
Plaintiffs argue that Dr. Miller admits that he is not an expert in the field of
paramedics nor in ambulance services. (ECF No. 231 at 5, Miller Dep., ECF No. 231-5
at 26:1-25, 27:1-17.) However, it is the Court, not the parties or the witness himself, who
determines whether a witness is qualified to give expert testimony. Watson v. United
States, 485 F.3d 1100, 1105 (10th Cir. 2007).
In light of the fact that Defendant did not present evidence at the 702 Motion
Hearing as to Dr. Miller’s qualifications, the Court is unable to determine whether Dr.
Miller has the qualifications to provide expert testimony regarding the standard of care of
an EMT, a paramedic or for an ambulance transport. It is Defendant’s burden to prove
the foundational requirements of Rule 702 by a preponderance of the evidence, including
establishing the witness’s qualifications to testify on certain subjects. See United States
v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). The Court finds that Defendant failed
to meet its burden with regard to Dr. Miller’s proffered testimony regarding the standard
of care of an EMT, a paramedic, or an ambulance transport.
Dr. Miller is a trained psychiatrist and will be able to provide expert opinion
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testimony related to his field, and this is something Plaintiffs do not oppose. However
the Court here grants in part Plaintiffs’ 702 Motion with regard to Dr. Miller’s proffered
testimony and hereby orders that Dr. Miller will not be permitted to provide expert
testimony regarding the standard of care of an EMT, a paramedic, or an ambulance
transport. Further, Dr. Miller will be precluded from providing expert opinion testimony
regarding the standard of care with regard to Mrs. Watkins’ treatment at Highlands and
Parker Adventist, as more fully detailed below.
B.

Michael Jobin, M.D.

Plaintiffs’ 702 Motion challenges Dr. Jobin’s qualifications to testify regarding
psychiatric medicine and Mrs. Watkins’ employability. Plaintiffs appear to be concerned
about criticisms by Dr. Jobin of the treatment Mrs. Watkins received at Highlands, stating
that Dr. Jobin is not trained to make such accusations. (ECF No. 231 at 10-12. See also
Jobin Dep., ECF No. 231-8 at 20:9-20.) Plaintiffs further argue against admissibility of
Dr. Jobin’s disagreement with a Highlands’ doctor’s prognosis that Mrs. Watkins would
return to the workforce, ECF No. 231 at 11, and Dr. Jobin’s opinions about whether or
not Mr. Watkins was aware of the June 20, 2007 statement by Mrs. Watkins about
wanting to jump out of a car, id. at 12. (See Jobin Report, ECF No. 231-4 at 2, 4.)
Dr. Jobin is an emergency room physician who has worked with psychiatric
patients in various states of crisis. (Jobin Dep., ECF No. 238-2 at 26:18-25, 27:1-3.)
Defendant argues that Dr. Jobin has worked alongside social workers and worked with
psychiatric patients to such a degree that he is familiar with the standard of care in their
fields. (Id. at 24:2-10; 29:16-25, 30:1-6, 38:21-25, 39:1-3.)
Dr. Jobin is familiar with the process of gathering information from friends and
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relatives, the patient, prior medical records and any prior care providers to develop a
diagnosis and treatment plan. (ECF No. 238 at 8.) Defendant argues that Dr. Jobin’s
testimony will assist the jury in understanding the process required when assessing a
patient in crisis by gathering information from various sources so that the appropriate
method of transfer can be implemented. (Id.)
Defendant addresses Mrs. Watkins’ potential to re-enter the workforce through Dr.
Jobin by stating that Dr. Jobin was sufficiently familiar with Mrs. Watkins’ prior treatment
records and could, based on his experience and education, form an opinion as to the
likelihood of Mrs. Watkins returning to her prior profession as a nurse. (Id. at 10.)
As with Dr. Miller, Defendant failed to produce Dr. Jobin at the evidentiary 702
Motion Hearing. The Court finds as a consequence that Defendant failed to meet its
burden of establishing that Dr. Jobin has the qualifications to provide expert opinion
testimony regarding psychiatric medicine and Mrs. Watkins’ employability.
Dr. Jobin is an emergency room physician and will be able to provide expert
opinion testimony related to his field, and this again is something Plaintiffs do not
oppose. The Court hereby grants in part Plaintiffs’ 702 Motion with regard to Dr. Jobin’s
testimony and hereby orders that Dr. Jobin will not be permitted to provide expert
testimony regarding psychiatric medicine or Mrs. Watkins’ employability. Further, Dr.
Jobin will be precluded from providing expert opinion testimony regarding the standard of
care of Mrs. Watkins’ treatment at Highlands and Parker Adventist, as more fully detailed
below.
C.

Dr. Peter Vellman

Plaintiffs’ 702 Motion challenges the reliability of Dr. Vellman’s testimony.
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Plaintiffs argue that Dr. Vellman did not conduct a thorough investigation into Mrs.
Watkins’ death. Plaintiffs ask the Court to find Dr. Vellman’s testimony unreliable
because he does not base his opinions on sufficient facts and data, but instead on a
telephone call for which he does not remember the details of the conversation. (ECF No.
231 at 13.)
Dr. Vellman is an emergency room physician and was the medical advisor for
Defendant Action Care at the time of the incident at issue in this case. Dr. Vellman has
been endorsed to testify that based upon his investigation after the incident, given the
information then available to Defendant’s employees about the decedent, its employees
met or exceeded the standard of care in regards to the transport of Mrs. Watkins on July
8, 2007. Defendant states that Dr. Vellman will testify that based on observations made
by the staff at Parker Adventist and the report provided by the staff to Defendants, the
transfer procedure was within the standard of care. (ECF No. 238 at 11.) Defendant
argues that Dr. Vellman has sufficient information to express opinions pertaining to the
policies and procedures followed by paramedics in Colorado and will offer opinions
pertaining to the standard of care performed by Action Care employees. (ECF No. 238
at 1.)
During the 702 Motion Hearing, Dr. Vellman testified that after the incident he
discussed the matter with Defendant’s quality improvement lead as well as
administrators at Action Care. (Unofficial 702 Motion Hearing Tr. “702 Tr.” at 14:24:5814:25:10.) He further testified that he has reviewed the trip report and incident reports
created by Defendant’s personnel in forming his opinion. (Id. at 14:31:58-14:32:06.) Dr.
Vellman has developed transfer protocols and engages in efforts to train transfer
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personnel in the community. (Vellman Dep.; ECF No. 238-3 at p. 6-7:7-1; p. 22-23:2225; p. 24:2-15; p. 29:15-11.)
The Court finds that Dr. Vellman is qualified to provide expert opinion testimony,
and that his proposed expert testimony is reliable. Therefore, the Court here denies in
part Plaintiffs’ 702 Motion with regard to Dr. Vellman’s testimony. As with Defendant’s
other expert witnesses, Dr. Vellman will be subject to the limitation regarding providing
opinion testimony on the standard of care of Mrs. Watkins’ treatment at Highlands and
Parker Adventist, as more fully detailed below.
D.

Dr. Eugene Mark Eby

Plaintiffs’ 702 Motion challenges the reliability of Dr. Eby’s testimony. Plaintiffs
point out that Dr. Eby was endorsed to testify consistent with facts and opinions set forth
in his expected deposition. However, Dr. Eby’s deposition was not taken. (ECF No. 231
at 13.) Plaintiffs contest Dr. Eby’s expert testimony because his disclosure is devoid of
any statement of facts, data, or information with which to determine the reliability of his
testimony. (Id. at 14.)
During the 702 Motion Hearing Defendant represented to the Court that Dr. Eby
would be providing fact testimony at trial, and would no longer be proffered as an expert
to provide opinion testimony pursuant to Rule 702. (702 Tr. at 14:41:38.) Thus, the
Court hereby grants Plaintiffs’ 702 Motion with regard to Dr. Eby providing any expert
opinion testimony. Dr. Eby will be precluded from testifying as an expert witness at trial.
E.

Nancy Lynch, R.N.

Plaintiffs’ 702 Motion challenges whether Nurse Lynch’s opinions will assist the
jury in determining a fact in issue. Plaintiffs argue that Defendant did not disclose which
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opinions it intends to elicit from Nurse Lynch and the basis of those opinions. (ECF No.
231 at 14.)
Nurse Lynch is a registered nurse, and is licensed to practice in the State of
Colorado. (702 Tr. at 13:18:56-13:19:04.) In 2007, Nurse Lynch was director of nursing
at Highlands, and is currently practicing at the Colorado Mental Health Institute at Fort
Logan. (Id. at 13:19:10- 13:19:24.) Defendant offers Nurse Lynch to testify regarding
rights of psychiatric patients with respect to the use of restraints, and how the use of
restraints is determined. (702 Tr. at 13:18:54-13:23:46.) Further, Nurse Lynch is being
offered to testify to facts in the case including Mrs. Watkins’ prior history. (ECF No. 238
at 14.)
Defendant argues Nurse Lynch will assist the jury in understanding the difficult
balance between providing a safe environment and respecting a patient’s rights. (Id.)
During the 702 Motion Hearing, Nurse Lynch testified to her experience regarding
transfer orders and their origin with physicians. (702 Tr. at 13:36:16-13:36:26.) Nurse
Lynch explained to the Court what a transfer order asking for basic life support would
entail, id. at 13:36:58-13:37:42, and testified regarding a plan that Mrs. Watkins likely
developed at Highlands for her own understanding of her disease and treatment, id. at
13:38:06-13:39:58, 13:42:50-13:43:16.
Based on Nurse Lynch’s experience and her testimony during the 702 Motion
Hearing, the Court finds that Nurse Lynch is qualified to provide expert opinion testimony
regarding the rights of psychiatric patients with respect to the use of restraints and how
the use of restraints is determined, and that this proposed expert testimony is reliable.
Therefore, the Court here denies in part Plaintiffs’ 702 Motion with regard to Nurse
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Lynch’s testimony. Nurse Lynch will, however, be subject to the limitation regarding
providing opinion testimony on the standard of care of Mrs. Watkins’ treatment at
Highlands and Parker Adventist, as more fully detailed below.
III.

LIMITATION ON ALL EXPERT WITNESSES
The issue in this case is whether Action Care acted below the standard of care in

the transport of Mrs. Watkins given the information that it had at the time of transport.
An overarching argument by Plaintiffs in their 702 Motion and during the 702 Motion
Hearing was that expert opinion testimony regarding the standard of care of Mrs.
Watkins’ treatment at Highlands and Parker Adventist is not relevant to the issues in this
case and will not assist the jury.
The Federal Rules of Evidence provide a guideline for determining relevance.
“‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Fed. R. Evid. 401. However,
“[e]vidence which is not relevant is not admissible.” Fed. R. Evid. 402. The
consideration of relevant evidence is one of “fit” or “the logical relationship between the
evidence proffered and the material issue that evidence is supposed to support to
determine if it advances the purpose of aiding the trier of fact.” Bitler v. A.O. Smith
Corp., 391 F.3d 1114, 1121 (10th Cir. 2004).
Here, the Court finds that while facts regarding Mrs. Watkins’ treatment at Parker
Adventist may be relevant to the standard of care provided at the time of transport, expert
opinion testimony regarding the standard of care of treatment received by the decedent at
Highlands and Parker Adventist is not relevant. On March 23, 2011, the Court ruled that
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Defendant could not establish a prima facie case of negligence sufficient to designate
Highlands as a non-party at fault. (ECF No. 215.) Thus, the standard of care of Mrs.
Watkins’ treatment at Highlands is not relevant to this case.
Additionally, on April 10, 2009, Defendant withdrew its designation of Parker
Adventist as a non-party at fault. (ECF No. 97.) In so doing, Defendant conceded that
Parker Adventist has no liability for the tragic events of this case . Thus, the standard of
care of Mrs. Watkins’ treatment at Parker Adventist is also not relevant to this case.
Accordingly, the Court precludes all expert opinion testimony regarding the standard of
care of Mrs. Watkins’ treatment at Highlands and Parker Adventist.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ 702 Motion, ECF
No. 231, is GRANTED in part and DENIED in part as follows:
1)

Plaintiffs’ 702 Motion with regard to Fed. R. Civ. P. 26 is DENIED. The
Court hereby applies the pre-December 1, 2010 version of Rule 26 to
Defendant’s non-retained expert disclosures;

2)

Plaintiffs’ 702 Motion with regard to Dr. Miller’s testimony is GRANTED.
Dr. Miller will not be permitted to provide expert testimony regarding the
standard of care of an EMT, a paramedic, or an ambulance transport;

3)

Plaintiffs’ 702 Motion with regard to Dr. Jobin’s testimony is GRANTED.
Dr. Jobin will not be permitted to provide expert testimony regarding
psychiatric medicine or Mrs. Watkins’ employability;

4)

Plaintiffs’ 702 Motion with regard to Dr. Vellman’s testimony is DENIED;

5)

Plaintiffs’ 702 Motion with regard to Dr. Eby is GRANTED. Dr. Eby will not
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be permitted to provide any expert opinion testimony at trial; and
6)

Plaintiffs’ 702 Motion with regard to Nurse Lynch’s testimony is DENIED.

It is further ORDERED that all expert witnesses are precluded from providing
expert opinion testimony regarding the standard of care of Mrs. Watkins’ treatment at
Highlands and Parker Adventist.
Dated this 9th day of September, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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