Obeso v. Jacobson et al

Filing 238

ORDER granting in part and denying in part 222 Motion in Limine; granting in part and denying in part 224 Motion in Limine. Signed by Judge Richard W. Story on 06/02/11. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
JAMES A. OBESO, ATTORNEY
AD LITEM for AMT, a minor, and
RELIANCE TRUST COMPANY,
as CONSERVATOR of AMT’S
ESTATE,
Plaintiffs,
v.
ROSS L. JACOBSON, M.D., and
THE LONGSTREET CLINIC,
P.C.,
Defendants.

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CIVIL ACTION NO.
2:08-CV-248-RWS

ORDER
This case comes before the Court on Defendants’ Continuing Motions in
Limine [222] and Plaintiffs’ Motion in Limine [224]. After considering the
record, the Court enters the following Order.
Background
This is a medical malpractice case in which Plaintiff alleges that the
Northeast Georgia Medical Center (“NEGMC”), Ross L. Jacobson, M.D., and
The Longstreet Clinic, P.C. failed to properly monitor AMT’s mother while she

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was being observed and evaluated during her pregnancy; and as a result,
NEGMC, Dr. Jacobson, and the The Longstreet Clinic failed to timely
recognize signs of fetal distress, which resulted in AMT suffering severe
neurological deficits at birth.
Plaintiffs have settled their claims against NEGMC. (See Dkt. [173]).
Prior to that point, Dr. Jacobson and The Longstreet Clinic (“Defendants”) had
not alleged any fault on the part of NEGMC. Following the settlement between
Plaintiffs and NEGMC, Defendants amended their initial disclosures and
answers to interrogatories to assert that NEGMC was in whole, or in part, liable
to Plaintiffs for AMT’s injuries as a result of the nursing care it provided to
AMT’s mother, Amanda Hernandez. (See Dkt. [186, 187]). Defendants’ expert
witness, Dr. Simpson, also filed a supplemental report asserting that NEGMC
was negligent in the care it provided to AMT’s mother. (Dkt. [224-1]).
Normally such an amendment after the close of discovery would be
inappropriate. “However, given the particular circumstances of this case, the
Court [found] that the amendment of Defendants’ initial disclosures and
interrogatory responses, to the extent they [were] based upon the deposition of
Ms. Hernandez, [were] timely.” (Dkt. [208] at 23). The Court noted that
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“absent the recent testimony of Ms. Hernandez, Defendants would be
foreclosed from offering any expert evidence that NEGMC failed to provide the
appropriate standard of care to AMT’s mother.” (Id. at 19).
Discussion
I.

Defendants’ Continuing Motions in Limine [222]
Defendants’ Motion [222] seeks an order that: prohibits the questioning

of witnesses as to the veracity of other witnesses; prohibits any comment by
Plaintiffs’ Counsel during the opening statement which purports to tell the jury
which witnesses or evidence Defendants may present during trial; prohibits any
criticism of Defendants’ actions or care which do not arise to a deviation from
the standard of care supported by expert testimony; prohibits any reference to
other claims and lawsuits brought against Dr. Jacobson; and prohibits evidence
or argument seeking damages for medical expenses of AMT up until the age of
his majority. For the reasons discussed at the March 10, 2011 hearing in this
matter, and with the limitations discussed therein, Defendants’ Motion in
Limine [222] is GRANTED as to asking witnesses to comment on the veracity
of other witnesses and referencing other claims or lawsuits brought against Dr.
Jacobson, and DENIED as to the limitation of Plaintiffs’ opening statement and
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as to criticism of the care provided by Defendants. The Court now turns to the
question of whether Plaintiffs may present evidence or argument of damages for
AMT’s medical expenses up until the age of his majority.
Defendants state that “the issue before this Court is whether Reliance
Trust or James Obeso has the right to sue for those medical expenses incurred
while AMT is a minor.” (Dkt. [237] at 4). The Court has already ruled upon
this issue. In its Motion to Dismiss [143], Defendants stated:
[AMT] is a minor and has no right to personally recover damages
for medical expenses incurred while he is a minor. Further, [AMT]
is a ward of the State of Florida, and the State of Florida has solely
assumed the obligation of paying for [AMT’s] medical expenses.
Accordingly, Mr. Obeso is not the real party in interest in terms of
collecting any damages for any medical expenses incurred by
[AMT].
(Dkt. [143] at 2). In the brief accompanying their Motion to Dismiss [143],
Defendants correctly noted that “FRCP 17(c) provides guidance for situations
in which a minor seeks to bring a suit or defend a suit.” (Id. at 40). In relying
upon Fed. R. Civ. P. 17(c) to deny Defendants’ Motion to Dismiss [143], the
Court stated:
The June 18, 2008 Order of the family court states “the Court has
determined that it is in the child’s best interest to be represented by
an attorney ad litem because . . . the child may have a civil court
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cause of action.” (Ex. 1, Dkt. [143]). That Order further states
that:
James A. Obeso is appointed to serve as a contract
attorney through the State of Florida Guardian ad
Litem Program as attorney ad litem to represent the
legal interest of [AMT]. The attorney ad litem is
granted full authority to file pleadings, conduct
discovery and represent the child’s express wishes.
(Id.). Because Mr. Obseso was appointed by a Florida court to act
as AMT’s representative specifically in anticipation of a civil
action such as this, the Court finds that he is AMT’s representative
either as a “general guardian” or “like fiduciary.” See Fed. R. Civ.
P. 17(c)(1)(A), (c)(1)(D). AMT is the real party in interest in this
action, but as a minor he needs an individual to represent his
interests in this action. The State of Florida has appointed Mr.
Obeso to do just that.
(Dkt. [174] at 3-4). If Defendants believed that the Court had made a clear error
of law in that ruling, its appropriate avenue for relief is through a motion for
reconsideration. Having failed to seek reconsideration of the Court’s Order
[174], the Court will not allow Defendants to relitigate this issue through their
Motion in Limine [222]. Defendants’ Motion in Limine [222] is DENIED as to
the request to preclude evidence or argument seeking damages for medical
expenses of AMT up until the age of his majority.

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II.

Plaintiffs’ Motion in Limine [224]
Plaintiffs seek to exclude opinions set forth in Dr. William Simpson’s

Supplemental Rule 26 Report [224-1]. Plaintiffs argue that Dr. Simpson is not
qualified to offer an expert opinion as to the care provided by NEGMC’s
nursing staff, and even assuming he is, the process he used to arrive at his
opinions concerning that care lacks reliability. Plaintiffs also contend that Dr.
Simpson’s new opinions, regarding Ms. Hernandez’s clinical picture and Dr.
Jacobson’s care of her, should be excluded as untimely.
Defendants seek to offer Dr. Simpson’s supplemental testimony in
support of the argument that the NEGMC nursing staff was negligent in the care
it provided to AMT. To prove that the nurses caring for Ms. Hernandez at
NEGMC were negligent, Defendants must show: “(1) the duty inherent in the
health care provider-patient relationship; (2) breach of that duty by failing to
exercise the requisite degree of skill and care; and (3) that this failure is the
proximate cause of the injury sustained.” McDowell v. Brown, 392 F.3d 1283,
1295 (11th Cir. 2004) (quoting Smith v. Am. Transitional Hosps., Inc., 330 F.
Supp. 2d 1358, 1361 (S.D. Ga. 2004)). Under Georgia law, a physician’s area
of expertise encompasses the standard of care applicable to nurses. Id. at 12966

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1297 (citations omitted). The opinion of an expert deemed competent to testify
on a given subject matter must still be “screened by Rule 702 to determine if it
is otherwise admissible expert testimony.” Id. at 1295 (quoting Legg v.
Chopra, 286 F.3d 286, 292 (6th Cir. 2002)). Federal Rule of Evidence 702
requires Defendants to demonstrate that Dr. Simpson is “qualified to render an
expert opinion, that the opinion is reliable, and that the opinion would assist the
trier of fact in resolving a disputed issue of material fact.” Id. at 1298.
After reviewing Dr. Simpson’s supplemental deposition in its entirety,
for the reasons stated below the Court finds Dr. Simpson’s opinion concerning
the nursing care to be unreliable. Further, the Court does not find that his
opinion would assist the jury in resolving whether the actions of the nurses
caused AMT’s injuries. Dr. Simpson opines that the nurses’ negligence in
removing the call button from the room, negligence in failing to record
syncopal episodes, and negligence in failing to properly monitor Ms.
Hernandez’s condition and properly respond to her complaints contributed to
AMT’s injuries. (Deposition of William B. Simpson, M.D., Jan. 19, 2011
(“Simpson Depo”) at 36:20-37:16, 49:12-19). While Georgia law considers
doctors competent to testify as to the care provided by nurses, Dr. Simpson
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appeared unable to articulate the applicable standard of care during his
supplemental deposition. (Id. at 45:13-46:17, 61:1-12, 85:11-20; see also
Smith, 330 F. Supp. 2d at 1363 (excluding expert testimony from a nurse who
could not articulate the appropriate standard of care)).
Further, Dr. Simpson’s opinions about the care provided by the nurses
are based solely on the deposition testimony of Amanda Hernandez. (Id. at
29:25-30:2). He did not “attempt to compare whether the comments [Ms.
Hernandez] made regarding what happened on December 15th were consistent
or inconsistent with the medical record” before offering his supplemental expert
report. (Id. at 29:10-15). While he opines that the nurses did not see Mrs.
Hernandez often enough on the afternoon of December 15, Dr. Simpson was
not aware of how many times they actually saw her, nor could he offer an
opinion as to how often the nurses should have seen her given her presentation
and complaints. (Id. at 56:25-58:4, 58:16-20, 61:1-12; see also Smith, 330 F.
Supp. 2d at 1362 (noting that “expert testimony required to prove medical
malpractice must be . . . detailed in order to assist the trier of fact in
understanding what was reasonably required of the nursing staff”)). Further, he
has never previously given an opinion about the care provided by any medical
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provider, including nurses, where he did not review the medical record in
forming that opinion. (Id. at 52:5-10). Additionally, Dr. Simpson did not
examine any of the deposition testimony of the nurses previously retained by
NEGMC to offer their opinion of the nursing care provided to Ms. Hernandez.
(Id. at 16:11-16).
It is not the case that Dr. Simpson examined the record as a whole and
then concluded that despite evidence to the contrary, he would credit the
testimony of Ms. Hernandez concerning the care provided by the nurses.
Rather, he put on blinders and focused exclusively on the testimony of Ms.
Hernandez without examining the medical record. This approach to offering an
opinion on the medical care provided to a patient lacks reliability. Not
surprisingly, it is not an approach that Dr. Simpson has previously utilized.
Furthermore, it is within the ken of the average juror to recognize that removing
a patient’s call button from a hospital room or ignoring a patient’s pleas for help
is inappropriate. See McDowell, 392 F.3d at 1299 (noting that “the notion
[that] early treatment is [better than delayed treatment] well within common
knowledge that would be obvious to the average juror, but has nothing to do

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with causation”). Plaintiff’s Motion in Limine [224] to prohibit Dr. Simpson
from offering his opinion of the nursing care is GRANTED.
Plaintiffs also contend that Dr. Simpson’s new opinions, regarding Ms.
Hernandez’s clinical picture and Dr. Jacobson’s care of her, should be excluded
as untimely. Plaintiffs’ Motion in Limine [224] as to these two opinions is
DENIED. While not dispositive, Plaintiffs’ Counsel do not address either of
these opinions in their Reply in Support of the Motion [236]. The Court will
allow Dr. Simpson to testify as to Ms. Hernandez’s clinical picture on the
afternoon of December 15, because Plaintiffs’ Counsel specifically explored
this topic with him during the supplemental deposition and it does not appear to
be inconsistent with his initial deposition. The Court will also allow Dr.
Simpson to note the distinction between Ms. Hernandez’s pregnancy with AMT
and her previous pregnancies in which she displayed signs of premature labor.
While Dr. Simpson may have been able to glean most of this information from
the records provided to him, Ms. Hernandez testified as to the details of her
prior pregnancies during her deposition and specifically confirmed the nature of
her prior pregnancy and delivery that occurred in Mexico.

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Conclusion
For the aforementioned reasons, Defendants’ Continuing Motions in
Limine [222] is GRANTED in part, and DENIED in part, and Plaintiffs’
Motion in Limine [224] is GRANTED in part, and DENIED in part.
SO ORDERED, this 2nd day of June, 2011.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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