HUGHES v. UNITED STATES OF AMERICA
ORDER denying 16 Motion to Exclude Testimony of Richard Clark. Ordered by US DISTRICT JUDGE CLAY D LAND on 02/05/2024 (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JAMIE ALLYN HUGHES,
UNITED STATES OF AMERICA,
CASE NO. 4:22-CV-165 (CDL)
O R D E R
This is a medical malpractice case.
After Jamie Allyn Hughes
had surgery on her shoulder, she received post-operative physical
therapy at Martin Army Community Hospital.
Hughes alleges that
her physical therapist, Nicole Gaylor, improperly applied a hot
pack to her shoulder during a physical therapy session.
did not exhibit any adverse symptoms while the hot pack was on her
shoulder, but her shoulder was red and felt warm about fifteen
minutes after the hot pack was removed.
A few hours later, Hughes
noticed that her shoulder looked like a blister was forming.
Hughes had a preexisting medical appointment that afternoon; she
showed her shoulder to the doctor, who prescribed burn cream. That
evening, Hughes developed a blister.
Two days later, she went
back to Martin Army and told Gaylor that she had been burned, and
then she sought treatment from her primary care physician.
than the hot pack therapy, Hughes did not use anything hot and did
not have an accident that affected her shoulder.
Hughes was later
diagnosed with a full-thickness burn and had to undergo a skin
Hughes contends that her injuries resulted from Gaylor's
improper use of the hot pack.
She brought this action against the
United States pursuant to the Federal Tort Claims Act because
Hughes alleges that Gaylor caused her injuries while acting as an
agent of the United States.
Hughes intends to rely on the expert
opinions of Richard Clark, a physical therapist who holds a
doctorate in orthopedic physical therapy. Clark opines that Gaylor
breached the standard of care in her treatment of Hughes and that
Gaylor's actions resulted in Hughes's injuries.
filed a motion to exclude all of Clark's expert opinions.
discussed below, the motion (ECF No. 16) is denied.
"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 the proponent demonstrates to the court
that it is more likely than not that" the expert has "scientific,
technical, or other specialized knowledge [that] will help the
trier of fact to understand the evidence or to determine a fact in
issue," the expert's opinion "is based on sufficient facts or
data," "the testimony is the product of reliable principles and
methods," and the "opinion reflects a reliable application of the
principles and methods to the facts of the case."
Fed. R. Evid.
In evaluating the admissibility of expert testimony, the
Court acts a gatekeeper to ensure that scientific evidence is
relevant and reliable.
Of course, in a Federal Tort Claims Act
case like this one, where the judge will serve as factfinder
instead of a jury, there is less concern about "dumping a barrage
of questionable scientific evidence on a jury"—and thus "less need
for the gatekeeper to keep the gate when the gatekeeper is keeping
the gate only for himself."
In re Teltronics, Inc., 904 F.3d 1303,
1312 (11th Cir. 2018) (quoting United States v. Brown, 415 F.3d
1257, 1268-69 (11th Cir. 2005)).1
The Court still must consider whether "the expert is qualified
address," whether his methodology "is sufficiently reliable," and
whether his testimony will help the trier of fact "to understand
the evidence or to determine a fact in issue."
Knepfle v. J-Tech
Corp., 48 F.4th 1282, 1294 (11th Cir. 2022) (quoting City of
Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.
The Court's goal is to ensure "that an expert, whether
basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field."
Under 28 U.S.C. § 2402, "any action against the United States under
section 1346 shall be tried by the court without a jury."
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en
banc) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999)). The testimony must be "properly grounded, well-reasoned,
and not speculative." Id. at 1262 (quoting Fed. R. Evid. 702
advisory committee's note to 2000 amendments)
Clark opines that Gaylor breached the standard of care for
physical therapists by applying the hot pack for too long and
failing to use adequate barrier layers between the hot pack and
resulted in the third degree burn to Hughes's shoulder.
Government does not appear to dispute that Clark is qualified to
offer an opinion on the standard of care for physical therapists.
Clark is a licensed physical therapist who holds a doctorate in
orthopedic physical therapy, has been treating physical therapy
patients for more than twenty years, and is a professor of physical
therapy who teaches doctoral level physical therapy courses at
Tennessee State University.
He is qualified to render an expert
opinion on the standard of care for physical therapists.
Clark also opined in his initial report that the hot pack was too hot.
The Government asserts that Clark could not determine the temperature
of the hot pack based on the evidence, and Hughes did not respond to
this argument or point to evidence that Clark has a specific opinion on
the temperature of the hot pack.
Thus, it appears that Hughes has
abandoned the "too hot" causation argument, and the Court does not intend
to admit any testimony from Clark on the precise temperature of the hot
pack unless Hughes can point to evidence that Clark has a reliable
opinion on this issue.
The Government argues that Clark is not qualified to offer an
opinion on causation because he admits that he is not a burn
But Clark does have education, training, and experience
as a physical therapist who regularly uses hot packs and other
heat therapy, and he has education and training on how such
therapies can cause burns if they are not done properly. The Court
is satisfied that Clark is qualified to offer an opinion on the
standard of care for physical therapists providing heat therapy
and on the consequences if heat therapy is not properly applied.
The Government's next argument is that Clark's opinion is not
supported by sufficient facts and data or reliable methodology—
and is nothing more than ipse dixit.
In reaching his opinion,
Hughes testified that Gaylor only used two
layers of protection for the hot pack, that her shoulder started
showing signs of a serious burn shortly after the hot pack was
removed, that she did not manipulate or put significant pressure
on the hot pack while it was on her shoulder, and that she did not
engage in any other activity that would have caused a burn to her
testimony, and noting that the standard of care calls for six to
eight layers of protection (not just two), Clark ruled in the hot
pack as a cause of Hughes's burn.
And, Clark explained why there
are no non-speculative alternative causes to rule out if Hughes's
testimony about what happened is believed.
The Court is satisfied
that Clark used a reasonable methodology and relied on sufficient
facts and data.3
Finally, the Government argues that Clark's opinions would
not help the trier of fact because his opinion is essentially res
But it is not.
As discussed above, Clark has
education and training on how hot packs and heat therapy can cause
burns if they are not done properly, he considered the medical
records and the deposition testimony to rule in the hot pack as
the cause of Hughes's injury and rule out other potential causes,
and he concluded that Gaylor breached the standard of care in
treating Hughes with the hot pack.
Whether Hughes's injury was
caused by negligence, was a non-negligent iatrogenic injury, or
was caused by exposure to something other than the hot pack, is a
fact question. Clark's testimony will be helpful to the factfinder
in determining these issues, and it is outside the purview of a
The Government's "post hoc ergo propter hoc fallacy" argument is
The Court recognizes that a reliable methodology must
account for the background risk of an injury without exposure to a
product or toxin.
See, e.g., McClain v. Metabolife Int'l, Inc., 401
F.3d 1233, 1243 (11th Cir. 2005). In McClain, one plaintiff's injury
was a stroke and the other plaintiff's injury was a heart attack. The
Eleventh Circuit noted that there are many causes for strokes and heart
attacks without exposure to the defendant's drug, so to prove causation
the plaintiff would have to show that the defendant's drug increased the
risk "beyond the usual incidence of these common diseases." Id. at 1244.
In contrast, here, the Government does not argue that third degree skin
burns manifest without exposure to heat or chemicals, and Clark explained
why he ruled out other potential causes for Hughes's burn.
Government may test this opinion on cross-examination.
The Court declines to exclude it.
The Court hastens
to add that nothing in this order should be construed as a decision
on the persuasiveness of Clark's testimony or how it should be
weighed along with the other evidence.
The Court simply finds
that Hughes demonstrated that Clark more likely than not satisfies
the requirements of Rule 702.
Government's motion to exclude Clark's expert opinions (ECF No.
With Clark's testimony, the Court expects that the record
viewed in the light most favorable to Hughes will reveal genuine
Therefore, the Court will issue a notice of
pretrial conference and set this case down for a bench trial.
Court recognizes that under the amended scheduling order, the
dispositive motion deadline is twenty-one days after the date of
A dispositive motion should only be filed if the
movant has a good faith belief that (1) no genuine, material fact
disputes exist under the correct evidentiary standard and (2) a
pre-trial ruling on a dispositive emotion will be a good use of
judicial resources and significantly narrow the issues for trial.
IT IS SO ORDERED, this 5th day of February, 2024.
s/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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