Goines v. Lee Memorial Health System et al

Filing 165

ORDER granting in part and denying in part 95 Motion to Exclude Expert Testimony; denying 96 Motion to Exclude Expert Testimony. Signed by Judge John E. Steele on 2/28/2019. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.

Case No:

2:17-cv-656-FtM-29UAM

LEE MEMORIAL HEALTH SYSTEM,
d.b.a. Cape Coral Hospital
and JEOVANNI HECHAVARRIA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant Lee Memorial’s
Motions to Exclude Expert Testimony (Doc. #95; Doc. #96) filed on
November 5, 2018.

Plaintiff Donia Goines filed Responses in

Opposition (Doc. #130; Doc. #131) on December 21, 2018, to which
Lee Memorial filed Replies (Doc. #135; Doc. #136) on January 10,
2019.
I.
Lee Memorial, a public health care system codified under
Florida law, hired defendant Jeovanni Hechavarria as a night nurse
for the Cape Coral Hospital in the fall of 2014.
2; Doc. #120-22, pp. 761-62.)

(Doc. #31, p.

In March of 2015, non-party Brianna

Hammer, a patient at the hospital, accused Hechavarria of sexual
assault.

(Doc. #122-1, pp. 3-5.)

Lee Memorial investigated

Hammer’s allegation and determined it was unsubstantiated.

(Doc.

#120-29, p. 1889.)

In July of 2016, Hechavarria was arrested by

the Charlotte County Sheriff’s Office for an unrelated battery.
(Doc.

#120-46,

pp.

2849-50.)

Seven

days

after

the

arrest,

plaintiff was admitted to the Cape Coral Hospital and Hechavarria
was assigned as her night nurse.
20.)

(Doc. #120-49, pp. 3011, 3019-

Plaintiff alleges she was sexually assaulted by Hechavarria

during the evening.
In

April

of

(Id. pp. 3024-36.)
2018,

plaintiff

filed

an

Amended

Complaint

asserting a section 1983 claim and several common law negligence
claims against Lee Memorial, as well as a common law assault and
battery claim against Hechavarria.

(Doc. #31.)

In support of

these claims, plaintiff has retained Barbara Cain, RN, and Tracy
Decker, RN.

Ms. Cain has been retained to provide opinions

regarding hospital risk management standards and investigations,
and

specifically

Lee

Memorial’s

investigations,

response,

actions involving Hechavarria’s alleged sexual assaults.
#130, p. 1.)
regarding

and

(Doc.

Ms. Decker has been retained to provide opinions

nurse

management

and

nurse

supervisor

standards,

including “oversight and supervision of nurses, investigation of
nursing misconduct, disciplinary action for nursing misconduct and
other appropriate responses to nursing misconduct.”
p. 1.)

(Doc. #131,

Lee Memorial now seeks to exclude both Ms. Cain’s and Ms.

Decker’s testimony.

(Doc. #95; Doc. #36.)

- 2 -

II.
The admission of expert testimony is governed by Rule 702 of
the Federal Rules of Evidence, which provides that:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony
facts or data;

is

based

on

sufficient

(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
Fed. R. Evid. 702.

Rule 702 contemplates that the district court

will serve as gatekeeper to the admission of scientific testimony
to ensure that any and all expert testimony is both relevant and
reliable.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589

(1993); Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1183
(11th Cir. 2013).

“The Supreme Court did not intend, however,

that the gatekeeper role supplant the adversary system or the role
of the jury: vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional

and

appropriate

means

- 3 -

of

attacking

shaky

but

admissible evidence.”

McDowell v. Brown, 392 F.3d 1283, 1299

(11th Cir. 2004) (marks and citations omitted).
In determining the admissibility of expert testimony under
Rule 702, the Court applies a “rigorous” three-part inquiry.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en
banc).

Expert testimony is admissible if (1) the expert is

qualified to testify on the topic at issue, (2) the methodology
used by the expert is sufficiently reliable, and (3) the testimony
will assist the trier of fact.

Arthrex, Inc., v. Parcus Med.,

LLC, 2014 WL 3747598, *1 (M.D. Fla. July 29, 2014) (citing Tampa
Bay Water, 731 F.3d at 1183).

The burden of laying the proper

foundation for the admission of expert testimony “is on the party
offering the expert, and the admissibility must be shown by a
preponderance of the evidence.”

Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010) (quoting McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)).

The

admission of expert testimony is a matter within the discretion of
the district court, which is accorded considerable leeway in making
its determination.

Frazier, 387 F.3d at 1258.
III.

Ms.

Cain

has

a

master’s

degree

in

health

services

administration and a bachelor of science degree in nursing.
#95-1, p. 21.)

(Doc.

She was also a certified healthcare risk manager

from 2002 until 2017.

(Id.)

Ms. Cain has over thirty years of

- 4 -

experience in the health care industry as both a nurse and a risk
manager.

(Doc. #130-2, p. 16.)

From 2009 until 2015, Ms. Cain

was a clinical risk manager for a health care system in Florida.
(Doc. #95-1, p. 21.)
Ms.

Cain

employees,

While a practicing hospital risk manager,

investigated
educated

allegations

hospital

staff

of

sexual

regarding

misconduct
risk

by

management

policies and procedures, developed measures to minimize the risk
of adverse incidents, recommended and implemented safety measures
and policies to ensure patient protection, and reported incidents
and findings to the Agency of Health Care Administration and the
Florida Department of Health.

(Doc. #130-2, pp. 16-18.)

Ms. Decker has a doctorate in nursing practice in executive
leadership, a master’s degree in health sciences, a bachelor of
science degree in nursing, and a bachelor of arts degree in
psychology.

(Doc. #96-1, p. 21.)

in health care risk management.
practicing

continuously

since

She also holds a certificate
(Id.)

receiving

Ms. Decker has been
her

Florida

nursing

license in 1984 and is now a board-certified nurse executive.
(Id.)

In her thirty-five years in nursing, Ms. Decker has been

employed as a nurse administrative supervisor of a night shift, a
nursing operations manager, and a patient care administrator.
(Id.)

In

these

roles,

Ms.

Decker

has

been

responsible

for

coordinating patient and nursing staff placement, responding to
hospital emergencies, acting as a resource person for interpreting

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hospital polices, acting as a liaison to hospital administration,
responding to patient and employee complaints, coordinating work
schedules for employees, and hiring, supervising, and disciplining
nurses.

(Id.)

Lee Memorial seeks to exclude Ms. Cain from providing the
following opinions: (1) Lee Memorial failed to “take seriously”
Hammer’s sexual assault allegation against Hechavarria; (2) Lee
Memorial’s legal services department did not immediately refer
Hammer’s accusation to the risk manager; (3) Lee Memorial failed
to secure evidence in connection with Hammer’s accusation; (4) Lee
Memorial’s

risk

manager

failed

to

“appropriately

assess

statements” of Hammer in connection with the investigation, and
failed to “include a qualified professional” in the investigative
process;

(5)

Lee

Memorial

failed

to

provide

an

adequate

investigation, including a “neutral environment” for the interview
of

Hammer;

(6)

Lee

Memorial

failed

to

consult

with

employee

relations for guidance regarding Hechavarria’s unrelated battery
arrest and failed to implement a corrective action plan; and (7)
Lee Memorial failed to “adequately educate hospital staff” on risk
management policies.

(Doc. #95, pp. 4-5.)

Additionally, Lee Memorial seeks to exclude Ms. Decker from
providing the following opinions: (1) Lee Memorial failed to
conduct

a

“thorough”

or

“proper”

investigation

into

Hammer’s

allegation against Hechavarria; (2) Lee Memorial did not properly

- 6 -

handle Hechavarria’s return to work after Hammer’s allegation; (3)
Lee Memorial failed to investigate Hechavarria’s unrelated battery
arrest; (4) Lee Memorial did not have “adequate policies and
procedures” regarding prevention of sexual abuse; and (5) Lee
Memorial showed “indifference to the rights and safety of future
patients”

which

Hechavarria.

resulted

in

the

(Doc. #96, pp. 4-5.)

assault

of

plaintiff

by

Lee Memorial argues both Ms.

Cain and Ms. Ms. Decker lack the knowledge, skill, experience,
training, or education to offer opinions on these matters, their
opinions on these topics are unreliable, and their opinions would
not assist the trier of fact.
6-19.)

(Doc. #95, pp. 7-19; Doc. #96, pp.

The Court will address these arguments in turn.

1. Qualifications To Render Opinions
As noted, the first inquiry in determining whether an expert’s
testimony is admissible is determining whether the expert is
qualified to testify on the topic at issue.

Arthrex, 2014 WL

3747598, *1 (citing Tampa Bay Water, 731 F.3d at 1183).

Lee

Memorial argues Ms. Cain and Ms. Decker are not qualified to offer
any of the opinions listed above.

The Court will address this

argument as it relates to each of the opinions rendered by Ms.
Cain and Ms. Decker.

- 7 -

Ms. Cain
a) Opinions One through Five
Lee Memorial offers the same argument regarding the first
five of Ms. Cain’s opinions.

Specifically, Lee Memorial asserts

that Ms. Cain is not qualified to offer these opinions because
“these are opinions that require the expertise of someone qualified
in the area of investigating patient sexual abuse allegations
against a nurse or other employee.”

(Doc. #95, p. 8.)

Lee

Memorial argues that because Ms. Cain has only participated in two
investigations in which a patient made allegations of sexual
misconduct, she does not have the requisite experience to be
qualified as an expert for purposes of the above opinions.

(Id.)

The Court disagrees with Lee Memorial’s argument.
Ms.

Cain

possesses

fourteen

years

of

experience

in

the

oversight of risk management and direct clinical risk management.
(Doc. #130-2, p. 16.)

Ms. Cain was a certified healthcare risk

manager and has investigated allegations of inappropriate conduct
and/or practices of hospital employees.
of

this

role,

Ms.

Cain

misconduct by employees.

(Id. pp. 16-17.)

investigated
(Id. p. 16.)

allegations

of

As part
sexual

The Court finds this

experience sufficient to meet the “relatively low threshold for
qualification” of expert testimony.

StoneEagle Servs., Inc. v.

Pay-Plus Sols., Inc., 2015 WL 3824170, *4 (M.D. Fla. June 19,
2015).

To the extent Lee Memorial argues Ms. Cain is not qualified

- 8 -

to offer opinions because she does not have enough experience with
investigations of sexual assault complaints, (Doc. #95, p. 8),
“[a]n expert is not necessarily unqualified simply because her
experience

does

not

precisely

match

the

matter

at

hand.”

Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1126,
1129 (M.D. Fla. 2007)).

Lee Memorial’s argument regarding Ms.

Cain’s experience investigating sexual assault allegations goes to
the weight of Ms. Cain’s opinions rather than their admissibility.
Anderson v. Techtronic Indus. N. Am., Inc., 2015 WL 12843836, *2
(M.D. Fla. Apr. 14, 2015) (“The qualification standard for expert
testimony is not stringent, and so long as the expert is minimally
qualified, objections to the level of the expert’s expertise go to
credibility

and

weight,

not

to

admissibility.”

(citation

omitted)).
b) Opinion Six
Ms. Cain opines that Lee Memorial’s risk manager should have
consulted with Lee Memorial’s employee relations department after
Hechavarria was arrested for an unrelated battery approximately a
week before plaintiff was admitted to the Cape Coral Hospital. 1
(Doc. #95-1, p. 23.)

Ms. Cain also asserts that a corrective

action plan should have been implemented for Hechavarria after

1

Hechavarria testified at a deposition that he informed his
direct supervisor of the arrest the next day he went to work.
(Doc. #120-18, pp. 617-18.)

- 9 -

this event.
red-flag”

(Id.)

that

Ms. Cain asserts that such an event was “a

“should

have

prompted

intervention

management for the protection of patients.”

from

risk

(Doc. #130-2, p. 25.)

Additionally, Ms. Cain testified at a deposition that a corrective
action plan is not necessarily about imposing discipline, but
rather about “getting help for the employee if they have a problem
that might impact patient safety.”

(Doc. #130-4, p. 99.)

Lee Memorial argues that Ms. Cain is not qualified to offer
these opinions because they address matters “typically handled by
a human resources department,” and Ms. Cain does not have human
resources experience, education, or training.
The Court disagrees with this argument.

(Doc. #95, p. 9.)

Ms. Cain has stated that

“[p]art of a risk manager’s job function is to recommend the
removal of dangerous employees and/or negligent employees from the
workforce prior to a patient injury.”
part

of

this

prevention

process,

(Doc. #130-2, p. 25.)

risk

management

As

identifies

employees and coordinates with hospital management regarding their
removal.

(Id.)

Accordingly, Ms. Cain’s opinions on this topic

stem from her experience as a risk manager, and therefore her lack
of human resources experience does not render her unqualified.
c) Opinion Seven
Ms. Cain has opined that Lee Memorial failed to provide
adequate education to its non-physician employees, specifically
regarding sexual assault prevention.

- 10 -

(Doc. #95-1, p. 23; Doc.

#130-2, p. 25.)

Lee Memorial argues that Ms. Cain is not qualified

to

opinion

offer

this

because

she

does

not

have

sufficient

experience, education, or training on what constitutes “adequate”
education of risk management policies.

(Doc. #95, p. 9.)

Lee

Memorial also argues “[t]he mere fact that Cain has worked as a
risk manager herself does not make her an expert in education
regarding policies.”

(Id.)

These arguments are without merit.

Florida law requires licensed healthcare facilities to establish
an internal risk management program that includes, among other
things,

“[r]isk

management

and

risk

training of all nonphysician personnel.”
Stat.

prevention

education

and

§ 395.0197(1)(b)1., Fla.

The Court finds Ms. Cain’s experience as a State of Florida

certified risk manager and knowledge of hospital risk management
standards renders her sufficiently qualified to offer an opinion
on this topic.
Ms. Decker
As noted previously, Lee Memorial is seeking to prevent Ms.
Decker from testifying to the following opinions: (1) Lee Memorial
failed to conduct a “thorough” or “proper” investigation into
Hammer’s allegation against Hechavarria; (2) Lee Memorial did not
properly

handle

Hechavarria’s

return

to

work

after

Hammer’s

allegation; (3) Lee Memorial failed to investigate Hechavarria’s
unrelated battery arrest; (4) Lee Memorial did not have “adequate
policies and procedures” regarding prevention of sexual abuse; and

- 11 -

(5) Lee Memorial showed “indifference to the rights and safety of
future patients” which resulted in the assault of plaintiff by
Hechavarria.

(Doc. #96, pp. 4-5.)

a) Opinion One
In her report, Ms. Decker opined that Lee Memorial “failed to
conduct

a

thorough

investigation”

and

“failed

investigate” Hammer’s complaints of sexual assault.
pp. 22-23.)

to

properly

(Doc. #96-1,

At a deposition, Ms. Decker testified that Lee

Memorial should have sequestered potential physical evidence and
waited until the Cape Coral Police Department concluded their
investigation. 2

(Doc. #131-3, p. 76.)

Ms. Decker also stated in

a subsequent declaration that her opinion regarding this topic is
that

after

Hammer’s

allegation,

Lee

investigated Hechavarria’s background.

Memorial

should

(Doc. #131-2, p. 21.)

have
Ms.

Decker suggests that such an investigation would have revealed
information prompting either additional supervision or termination
of Hechavarria. 3

(Id.)

2

There’s evidence in the record that Hammer informed hospital
personnel that the gloves and gown Hechavarria wore during the
alleged sexual assault were in the hospital room’s trash can.
(Doc. #122-1, p. 4-5.)
However, the gloves and gown were not
collected.
(Id.)
Further, Lee Memorial’s risk manager
investigated Hammer’s accusation and notified the Florida
Department of Health the following day that the allegation could
not be validated. (Doc. #120-29, p. 1889.)
3

Plaintiff has produced evidence that prior to being hired
by Lee Memorial, Hechavarria had been subject to multiple temporary
restraining orders due to allegations of domestic violence made by
Hechavarria’s former wife. (Doc. #120-14, p. 538; Doc. #120-15,

- 12 -

Lee Memorial first argues that Ms. Decker has insufficient
education, training, and experience to offer the above opinions.
(Doc. #96, pp. 7-8.)

The Court disagrees.

Ms. Decker has a

certificate in in health care risk management and, as part of her
work experience, has held positions requiring her to investigate
patient complaints regarding acts of misconduct by nursing staff.
(Doc. #96-1, p. 21; Doc. #131-2, p. 20.)

As a nursing supervisor,

she participated in an investigation of a patient’s allegations of
sexual misconduct made against a nurse.

(Doc. #131-3, p. 123.)

As with Ms. Cain, the Court finds this knowledge and experience
sufficient

to

meet

the

“relatively

qualification” of expert testimony.
WL 3824170, *4.
not

qualified

low

threshold

for

StoneEagle Servs., Inc., 2015

To the extent Lee Memorial argues Ms. Decker is
to

offer

opinions

on

the

sufficiency

of

this

investigation because she does not have enough experience with
investigations of sexual assault complaints, (Doc. #96, pp. 7-8),
the Court rejects this argument for the same reasons articulated
regarding Ms. Cain.

See Anderson, 2015 WL 12843836, *2 (“The

qualification standard for expert testimony is not stringent, and
so long as the expert is minimally qualified, objections to the
level of the expert’s expertise go to credibility and weight, not
to admissibility.” (citation omitted)); Furmanite Am., Inc., 506

p. 545; Doc. #120-16, p. 551; Doc. #120-17, p. 561.)

- 13 -

F. Supp. 2d at 1129 (“An expert is not necessarily unqualified
simply because her experience does not precisely match the matter
at hand.”).
b) Opinion Two
In

her

opportunity

to

Hechavarria’s
worked.” 4

report,
more

conduct

Ms.

Decker

closely
and

opines

observe

behavior

(Doc. #96-1, p. 23.)

by

that
and

“[t]here

supervise

changing

the

was

an

Jeovanni
shift

he

Lee Memorial argues that Ms.

Decker is unqualified to offer an opinion on this topic because
she does not have risk management or human resources experience.
(Doc. #96, p. 9.)

The Court disagrees.

Ms. Decker notes in her declaration that her opinion that Lee
Memorial did not properly handle Hechavarria’s return to work is
based on her “years of training and work experience pertaining to
nurse

discipline,

including

additional

supervision

and

termination, nurse management, and appropriate conditions on a
nurse’s return to the workforce following disciplinary action.”
(Doc. #131-2, pp. 21-22.)

She also testified at her deposition

that she has spent the majority of her career working on the night
shift, but has worked on the day shift for the last thirteen years.

4

Hechavarria was placed on leave following Hammer’s
allegation but allowed to return to work after Lee Memorial
determined Hammer’s allegations could not be validated.
Per
Hechavarria, no changes were made to his shift or his access to
female patients, and he was not required to undergo any additional
supervision or training. (Doc. #120-37, p. 2373.)

- 14 -

(Doc. #131-3, p. 42.)

The Court finds Ms. Decker has sufficient

experience and knowledge to offer an opinion regarding whether
Hechavarria should have been switched to the day shift in order to
be more closely supervised after Hammer’s allegation.
c) Opinion Three
In her report, Ms. Decker notes that there is no documentation
that Lee Memorial investigated Hechavarria after he was arrested
for the unrelated battery.
states

that

considering

Hechavarria
his

(Doc. #96-1, p. 23.)

“troubled

should

have

history,”

resulted in disciplinary action.

been
the

Ms. Decker

investigated
arrest

and,

should

have

(Doc. #131-2, p. 22.)

Lee

Memorial argues Ms. Decker cannot offer this opinion because she
does not have experience in conducting or reviewing background
investigations,

nor

does

she

know

what

kind

of

disqualify a person from employment as a nurse.
9-10.)

events

would

(Doc. #96, pp.

Once again, this argument misses the mark.

Ms. Decker is not offering an opinion that a specific type of
investigation should have been conducted.

Rather, Ms. Decker’s

opinion relates to whether Lee Memorial should have done some type
of investigation in response to Hechavarria’s arrest, which is
based on her experience as a nurse manager and administrative
supervisor.
implementing

In

these

roles,

“appropriate

Ms.

Decker

corrective

was

actions”

responsible
following

for

“non-

employment conduct that could be detrimental to the image of the

- 15 -

hospital system – such conduct could range from DUI arrests to
domestic battery.”

(Doc. #131-2, p. 22.)

The Court finds this

experience sufficient to offer the opinion at issue.
d) Opinion Four
In her report, Ms. Decker opines that Lee Memorial “failed to
have adequate policies and procedures that speak to preventing
sexual abuse.”

(Doc. #96-1, p. 23.)

Ms. Decker notes that one

of Lee Memorial’s policies, titled Sexual Abuse and Prevention,
fails to include information on how to protect patients.

(Id.)

Lee Memorial argues that an opinion on the sufficiency of Lee
Memorial’s policies requires education, training, or experience in
the development of such policies, which Ms. Decker lacks.
#96,

p.

10.)

supervisor,
policies.

The

Ms.

Court

Decker

disagrees.

has

As

experience

an

(Doc.

administrative

interpreting

hospital

(Doc. #96-1, p. 21); see also Silcox v. Hunter, 2018

WL 3633251, * 10 (Fla. M.D. July 31, 2018) (finding expert was
qualified to offer opinion on policies and procedures based on,
inter alia, administrative experience).

Lee Memorial’s argument

that Ms. Decker never developed policies goes to the weight of her
opinions and not their admissibility.
e) Opinion Five
Ms.

Decker’s

final

opinion

Memorial’s

“indifference

to

patients”

resulted

the

in

the

in

her

rights

sexual

- 16 -

report
and

is

safety

assaults

that
of

Lee

future

committed

by

Hechavarria.

(Doc. #96-1, p. 23.)

Lee Memorial argues this is a

generalized restatement of the opinions already set forth above
and Ms. Decker lacks the experience, education or training to
render it.

(Doc. #96, p. 10.)

However, even if the Court accepted

Lee Memorial’s argument that this is a restatement of Ms. Decker’s
prior opinions, the Court has determined she is qualified to offer
those opinions.

Therefore, Lee Memorial’s argument regarding Ms.

Decker’s qualifications for this opinion have been rendered moot.
2. Reliability of Testimony
The

second

inquiry

for

determining

the

admissibility

of

expert testimony is whether the methodology used by the expert is
sufficiently reliable.

Arthrex, 2014 WL 3747598, *1 (citing Tampa

Bay Water, 731 F.3d at 1183).

The reliability prong is distinct

from an expert’s qualifications; thus, an expert can be qualified
but his opinions unreliable.

See Frazier, 387 F.3d at 1261.

The

Supreme Court has provided a non-exhaustive list of factors to
guide courts in assessing the reliability of expert opinions: “(1)
whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3)
the known or potential rate of error of the particular scientific
technique; and (4) whether the technique is generally accepted in
the

scientific

community.”

Kilpatrick,

(citing Daubert, 509 U.S. at 593-94).

613

F.3d

at

1335

Although these criteria are

more applicable to assessing the reliability of a scientific

- 17 -

expert’s opinions, they “may be used to evaluate the reliability
of non-scientific, experience-based testimony.”

Frazier, 387 F.3d

at 1262 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152 (1999)).

“Exactly how reliability is evaluated may vary from

case to case, but what remains constant is the requirement that
the trial judge evaluate the reliability of the testimony before
allowing its admission at trial.”

Id.

Lee Memorial argues that even if Ms. Cain and Ms. Decker are
qualified to offer opinions on the topics at issue, such opinions
are inadmissible because they are unreliable.
15; Doc. #96, pp. 10-16.)

(Doc. #95, pp. 10-

The Court will address these arguments

in turn.
Ms. Cain
Ms. Cain’s methodology used to reach her opinions is described
in her report and her declaration.

Ms. Cain states that she

analyzed the documents and depositions from this case based on her
years of experience as a certified hospital risk manager and the
standards

that

are

accepted

amongst

hospital

accreditation

agencies and similar hospital systems.

(Doc. #130-2, p. 19.)

expert

to

report

also

makes

references

the

Joint

Her

Commission

Sentinel Event publication, as well as Florida’s risk management
statute and various other authoritative texts and publications
regarding investigation and analysis.

(Doc. #95-1, p. 23.)

Ms.

Cain states she utilized these sources as part of her methodology

- 18 -

for finalizing her opinions.
reviewed

the

expert

(Doc. #130-2, pp. 19-20).

reports,

declarations,

and

Having

deposition

testimony, the Court finds the majority of Ms. Cain’s opinions are
sufficiently reliable to be admissible.

See Silcox, 2018 WL

3633251, *11 (“Eisner explains that his experience and education
have made him familiar with several publications concerning jail
standards and practices, and that he analyzed the facts of the
case in accordance with those standards and what he knowns from
his

education

opinions.”

and

substantial

(citations

experience

omitted)).

in

However,

formulating
the

Court

his

finds

plaintiff has not sufficiently demonstrated the reliability of Ms.
Cain’s second opinion or a portion of her fifth opinion.
Regarding the second opinion, Ms. Cain believes Lee Memorial
should have immediately contacted its risk manager when Hammer’s
allegation came to light.

(Doc. #130-4, pp. 77-78.)

However,

when asked if it was an industry standard for a risk manager to
immediately report to the scene, Ms. Cain responded, “I think it
depends on the hospital,” and stated she could not answer what Lee
Memorial’s practice was.

(Id. at 79.)

In her fifth opinion that

Lee Memorial did not provide an adequate investigation, Ms. Cain
stated Lee Memorial should have provided a “neutral environment”
for Hammer during the interview.

By this, Lee Memorial “should

have moved the patient to a comfortable room.”
95.)

(Doc. #130-4, p.

When asked if this was an industry standard, Ms. Cain said

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it was recommended in an article she could not remember the name
of.

(Id. p. 96.)

She also suggested it was common sense.

(Id.)

The Court finds Ms. Cain’s opinions on these topics do not meet
the reliability requirement for admission.

See Daubert, 509 U.S.

at 590 (noting that expert testimony must be “more than subjective
belief or unsupported speculation”); Rosenfeld v. Oceania Cruises,
Inc., 682 F.3d 1320, 1331 (11th Cir. 2012) (“[M]atters of common
sense typically do not require or allow for expert testimony.”);
Gardner v. Ford Motor Co., 2015 WL 12841011, *4 (M.D. Fla. June 3,
2015) (“Opinions that are formulated in accordance with an unknown
methodology cannot be tested or evaluated and cannot be deemed
reliable.”).

Accordingly, these opinions will not be admissible

at trial.
Turning to Ms. Decker, she states in her declaration that her
opinions were formulated by reviewing the relevant facts from the
depositions, documents and exhibits, and then applying those facts
to the standards of care known to her through her education,
training and experience.

(Doc. #131-2, p. 20.)

Ms. Decker also

developed her opinions by comparing Lee Memorial’s policies and
procedures at the time of the alleged assaults with the manner in
which Lee Memorial employees responded.

(Id.)

Finally, Ms.

Decker notes that she reviewed and utilized her knowledge of the
Florida Nurse Practice Act, which contains some of the standards
of practice and behavior requirements for nurses.

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(Id.)

The

Court

finds

Ms.

Decker

has

reliability of her opinions. 5

sufficiently

demonstrated

the

See Silcox, 2018 WL 3633251, *11.

3. Assistance To Jury
The final criteria for the admission of expert testimony is
the requirement that the testimony assist the jury.
WL

3747598,

*1

(citing

Tampa

Bay

Water,

731

Arthrex, 2014

F.3d

at

1183).

“[E]xpert testimony is admissible if it concerns matters that are
beyond the understanding of the average lay person . . . Proffered
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.”

Frazier, 387 F.3d at 1262-63.

Lee Memorial

argues that none of Ms. Cain’s and Ms. Decker’s opinions will
assist the jury and, therefore, none are admissible.
pp. 15-19; Doc. #96, pp. 16-19.)
Ms.
practices

Cain’s
for

and
a

Ms.

hospital

(Doc. #95,

The Court disagrees.

Decker’s
risk

opinions

manager

and

address

standard

hospital

supervisor, respectively, with respect to patient safety.

5

nurse
Such

To the extent Lee Memorial also challenges Ms. Cain and Ms.
Decker’s factual support for their opinions, (Doc. #95, p. 11;
Doc. #96, pp. 13-15), the Court finds both have sufficient factual
knowledge. However, Lee Memorial is free to address this issue
during cross-examination should Ms. Cain or Ms. Decker testify.
See Grawbadger v. Emanoilidis, 2012 WL 3627054, *3 (M.D. Fla. Aug.
21, 2012) (“Issues arising from Mr. Berg’s knowledge about civil
commitment centers, knowledge about current industry standards for
civil commitment centers, specific knowledge about the FCCC’s core
mission, floor plan, housing options, and capabilities of the
housing computer program, may be subject to impeachment if Mr.
Berg testifies.”).

- 21 -

opinions go directly to the negligence claims raised by plaintiff
and are based on knowledge and experience unlikely to be held by
the average citizen.

Therefore, the Court concludes plaintiff has

satisfied the third criteria for admissibility.
In conclusion, the Court finds both witnesses may offer the
opinions at issue, subject to the Court’s ruling regarding Ms.
Cain’s second and fifth opinions.
Accordingly, it is hereby
ORDERED:
1. Defendant’s Motion to Exclude Expert Testimony (Doc. #95)
is GRANTED IN PART AND DENIED IN PART to the extent Ms.
Cain’s second opinion and the portion of her fifth opinion
addressing a “neutral environment” are excluded.
2. Defendant’s Motion to Exclude Expert Testimony (Doc. #96)
is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of February, 2019.

Copies:
Counsel of Record

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28th

day