Stricklin v. Bordelon et al

Filing 76

ORDER Denying Plaintiff's 72 Motion to Limit Defendant's Expert Opinions Pursuant to F.R.E. 702. ORDERED by Judge William J. Martinez on 4/26/2021.(angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 19-cv-1242-WJM-KMT
WALTER STRICKLIN,
Plaintiff,
v.
BROCK BORDELON, M.D.,
Defendant.

ORDER DENYING PLAINTIFF’S MOTION TO LIMIT
DEFENDANT’S EXPERT OPINIONS PURSUANT TO F.R.E. 702

This medical negligence lawsuit arises from injuries sustained by Plaintiff Walter
Stricklin after he fell from an operating room table during surgery performed by
Defendant Brock Bordelon, M.D. (ECF No. 1 ¶¶ 51–56.)
This matter is before the Court on Plaintiff’s Motion to Limit Defendant’s Expert
Opinions Pursuant to F.R.E. 702 (“Motion”), filed on March 12, 2021. (ECF No. 72.)
Defendant responded on March 22, 2021. (ECF No. 74.) For the reasons explained
below, the Motion is denied.
I. BACKGROUND
On April 3, 2020, Defendant served his Initial Expert Disclosures under Federal
Rule of Civil Procedure 26(a)(2), disclosing three experts in general surgery, Kian A.
Modanlou, M.D.; William C. Chambers, Jr., M.D.; and John Conn, M.D. (ECF No. 72-1
at 3, 12–15.)

A.

Dr. Modanlou
Dr. Modanlou was designated as an “expert i[n] general surgery and is expected

to testify in his area of expertise.” (Id. at 3.) In his expert report, he opines, inter alia:
•

With every surgical procedure, the entire operating room
team has a responsibility for the safety and security of the
patient during the perioperative period which includes, but is
not limited to, the positioning and securing of the patient on
the operating room table. Current accepted standards in the
[operating room] do not put the entire burden of culpability
on one person and instead focuses on a team approach
where there is no hierarchy and any member of the team is
expected to speak up if they feel there is something wrong.

•

During my fellowship at Northwestern University, I was
taught the “team approach” to surgery, which is how I and
the majority of Colorado surgeons practice today. This
approach thrives on checklists and division of labor, where
the surgeon is no longer the sole authority in the [operating
room]. . . . From a review of the deposition testimony given
in this case, it appears that Dr. Bordelon and Penrose
Hospital has adopted some form of the surgical checklist and
the team approach.

•

In general, it is the role of the operating room nurse or
nurses to position and secure the patient before any
procedure. The surgeon typically is not present in the
[operating room] when this happens. The standard of care
does not require the surgeon to personally verify that the
nurses did their job correctly. A surgeon expects his/her
[operating room] nurses to be properly trained in preparing
and securing patients to the [operating room] table.

•

During many surgical procedures, a surgeon may need to
change the position of the [operating room] table in order to
facilitate the operation. Nursing staff should know that an
operating room table for a robotic or laparoscopic case is
likely to be adjusted during surgery and should
position/secure the patient accordingly.

•

Dr. Bordelon acted within the standard of care when he
reasonably relied upon the [operating room] nursing staff to
properly secure and position Mr. Stricklin for surgery. . . . To
the extent the patient was negligently secured to the
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operating room table, that fault lies with the nursing staff.
(ECF No. 72-3.)
B.

Dr. Chambers and Dr. Conn
Likewise, Dr. Chambers and Dr. Conn are described as “surgeon[s] licensed to

practice medicine in Colorado.” (ECF No. 72-1 at 12, 14.) Among other things, both Dr.
Chambers and Dr. Conn plan to testify as follows:
•

“[I]t is well known by health care providers involved in
surgery that nursing staff is responsible for positioning and
securing a patient to the [operating room] table” and that
“[s]urgeons rarely, if ever, double check the nurses’ work.”

•

“The standard of care does not require surgeons to double
check that nurses have appropriately positioned and secured
a patient to the [operating room] table.”

•

“[N]ursing staff should anticipate that the [operating room]
table likely will be moved during surgery, especially if
laparoscopic or robotic,” that “[operating room] nurses know
(or should know) that one of the first maneuvers to address
low blood pressure during surgery is to adjust the table to a
Trendelenburg position,” that “[operating room] nurses at
Penrose should easily realize when an [operating room]
table is being adjusted and should speed up if they have any
concerns about patient safety with such adjustments.”

•

“[A]ny suggestion that a surgeon is responsible when
nursing inadequately secures a patient to the [operating
room] table because they should either double check nursing
work or because they did not spell out possible table
adjustments is illogical and highly inconsistent with how
these issues are handled at Penrose.”

(ECF No. 72-5 at 1–2; ECF No. 72-7 at 1.)
II. ANALYSIS
Plaintiff argues that because Defendant, Dr. Modanlou, Dr. Chambers, and
Dr. Conn are surgeons, the Court should “limit their testimony to the standard of care

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applicable to a surgeon, and preclude these surgeons from testifying regarding the
standard of care applicable to nurses” on the basis that surgeons are not qualified in the
field of nursing. (ECF No. 72 at 1.)
A.

Legal Standard
A district court must act as a “gatekeeper” in admitting or excluding expert

testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2005).
Expert opinion testimony is admissible if it is relevant and reliable. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 594–95 (1993). Opinions are relevant if
they would “assist the trier of fact to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702. They are reliable if (1) the expert is qualified “by knowledge,
skill, experience, training, or education,” (2) his opinions are “based upon sufficient facts
or data,” and (3) they are “the product of reliable principles and methods.” Id. The
proponent of expert testimony has the burden to show that the testimony is
admissible. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). Expert
testimony should be liberally admitted under Federal Rule of Evidence 702, see United
States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995), and the trial court has broad
discretion in deciding whether to admit or exclude such testimony, see Werth v. Makita
Elec. Works, Ltd., 950 F.2d 643, 647 (10th Cir. 1991).
“Expert testimony, like any other evidence, is subject to exclusion if it fails
the Fed. R. Evid. 403 balancing test.” Thompson v. State Farm Fire & Cas. Co., 34
F.3d 932, 941 (10th Cir. 1994); see Fed. R. Evid. 403 (“The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

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wasting time, or needlessly presenting cumulative evidence.”).
B.

Analysis
Plaintiff does not challenge whether Defendant, Dr. Modanlou, Dr. Chambers,

and Dr. Conn are qualified to testify regarding the standard of care applicable to
surgeons; instead, he argues that “these surgeons are not nurses, do not have training
or experience in the field of nursing according to their own reports and CVs, and
therefore should not be permitted to testify regarding the nursing standard of care.”
(ECF No. 72 at 3.)
Defendant responds that his experts are qualified to testify as to the standard of
care for nurses working in the operating room because they possess “sufficient, if not
overwhelming, knowledge and experienced to testify regarding the roles,
responsibilities, and expectations (i.e. standard of care) of operating room nurses in
connection with securing patients to the operating room table.” (ECF No. 74 at 3, 5.)
He further argues that Plaintiff has also endorsed a surgeon as an expert witness to
“explain the roles of the surgeon and [operating room] nurses in positioning and
securing a patient to the [operating room] table” and that “it would be fundamentally
unfair and unduly prejudicial under [Federal Rule of Evidence 403] for allow Plaintiff to
offer testimony from his surgery expert and Penrose nursing staff about responsibility
for positioning while at the same time precluding testimony from Defendant’s surgery
experts to rebut that evidence.” (ECF No. 74 at 8–9 (quoting ECF No. 74-1 at 6).) The
Court agrees.
Colorado Revised Statute § 13–64–401 sets the qualifications for expert
witnesses in medical malpractice actions against physicians:

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No person shall be qualified to testify as an expert witness
concerning issues of negligence in any medical malpractice
action or proceeding against a physician unless he not only
is a licensed physician but can demonstrate by competent
evidence that, as a result of training, education, knowledge,
and experience in the evaluation, diagnosis, and treatment
of the disease or injury which is the subject matter of the
action or proceeding against the physician defendant, he
was substantially familiar with applicable standards of care
and practice as they relate to the act or omission which is
the subject of the claim on the date of the incident. The
court shall not permit an expert in one medical subspecialty
to testify against a physician in another medical subspecialty
unless, in addition to such a showing of substantial
familiarity, there is a showing that the standards of care and
practice in the two fields are similar. The limitations in this
section shall not apply to expert witnesses testifying as to
the degree or permanency of medical or physical
impairment.
Nothing in this statute renders a physician incompetent per se to provide
testimony regarding nursing standards. See Melville v. Southward, 791 P.2d 383, 388–
89 (Colo. 1990) (en banc) (recognizing that it is possible for an expert medical witness
to testify regarding whether a defendant that practices in another school of medicine to
adhere to or deviated from the requisite standard of care). Likewise, the Tenth Circuit
has recognized that an expert “should not be required to satisfy an overly narrow test of
his own qualifications.” Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir.
1974).
Defendant and his expert witnesses, by virtue of their own training and
experience as surgeons, are not necessarily experts regarding all matters involving
nursing standards of care. Although they often work together in a symbiotic
relationship, nurses and surgeons each have their own standards and idiosyncrasies.
Surgeons undoubtedly do not have the requisite training and experience to testify

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regarding the standard of care for all areas of nursing. Nonetheless, the Court cannot
conclude that Defendant, Dr. Modanlou, Dr. Chambers, and Dr. Conn should be barred
from discussing their expectations and understandings of a nurse’s standard of care
within an operating room setting.
Defendant and his experts have decades of experience working in an operating
room and conducting surgeries. (See, e.g., ECF No. 72-4 (Dr. Modanlou has been
board certified since 2006); ECF No. 72-6 (Dr. Conn has been board certified since
1993); ECF No. 72-8 (Dr. Chambers has been board certified since 1988).) They have
expectations derived from their extensive surgical experience as to how an operating
room should be run and how responsibilities are divided. From that experience, their
testimony regarding nursing responsibilities within an operating room setting would
assist the trier of fact in understanding the evidence. They may have less experience
regarding the standard of care for nurses within an operating room than surgical nurses,
but they nonetheless have substantially more expertise on this topic than a layperson,
and their testimony would not be speculative. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 156 (1999) (“[N]o one denies that an expert might draw a
conclusion from a set of observations based on extensive and specialized experience.”);
Loyd v. United States, 2011 WL 1327043, at *5 (S.D.N.Y. Mar. 31, 2011) (recognizing
that an expert “need not be a specialist in the exact area of medicine implicated by the
plaintiff’s injury, [but] he must have relevant experience and qualifications such that
whatever opinion he will ultimately express would not be speculative” (internal citations
and quotation marks omitted)).
Considering their extensive surgical training and experience, Defendant, Dr.

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Modanlou, Dr. Chambers, and Dr. Conn are qualified to testify regarding nursing
responsibilities within an operating room setting. Cf. Griffey v. Adams, 2018 WL
3447700, at *7 (W.D. Ky. July 17, 2018) (denying motion to exclude surgeon’s
testimony regarding exposure to general anesthesia where surgeon has extensive
experience in operating room where general anesthesia is commonly administered);
Petrancosta v. Malik, 2015 WL 12516203, at *6 (M.D. Pa. Jan. 27, 2015) (finding spinal
surgeon is qualified to opine as to a nurse’s standard of care as it pertains to the
treatment of trauma patients with possible spine injuries based on “his interaction with,
direction over, and reliance upon the activities of hospital nurses”). Plaintiff’s objections
to the surgeons’ qualifications go more to the weight of their expertise than their
qualifications, and any perceived insufficiencies in the surgeons’ qualifications may be
adequately addressed on cross examination.
****
The Court pauses to make one final observation. As set forth above, Dr.
Modanlou, Dr. Chambers, and Dr. Conn each plan to testify about, among other things,
a nurse’s responsibilities during surgical procedures. (ECF Nos. 72-3, 72-5, 72-7.)
Under Rule 403, the marginal probative value of allowing such duplicative testimony
from three expert witnesses is substantially outweighed by a danger of needlessly
presenting cumulative evidence. Accordingly, exercising its authority under Federal
Rule of Evidence 611 to control the introduction of evidence and avoid duplicative
testimony, Defendant will be given the option to choose only one expert to opine on a
nurse’s standard of care within the operating room setting. 1 However, the Court will not

1

To the extent Plaintiff has also endorsed multiple expert witnesses to opine on this

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preclude Defendant’s expert witnesses from testifying regarding other non-cumulative
matters.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS that Plaintiff’s Motion to
Limit Defendant’s Expert Opinions Pursuant to F.R.E. 702 (ECF No. 72) is DENIED.
Dated this 26th day of April, 2021.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

subject, Plaintiff is advised that he may also only present one expert on this subject at trial.

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