Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al

Filing 224

ORDER granting in part and denying in part 127 Motion in Limine. Dr. Blais' causation opinion is not excluded; granting in part and denying in part 198 Motion to Strike. Dr. Blais may still testify about when the ischemic event began, to the extent permitted herein, but Dr. Blais cannot offer an opinion that the total occlusion occurred at 8:30 p.m. Signed by Judge William T. Moore, Jr on 8/6/2020. (pts)

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

JEMME J. JENKINS, Individually,
and JULIANNE GLISSON,
Administrator of the Estate of

Jimmie L. Alexander, Sr.,

Plaintiffs,
CASE NO. CV418-099

V.

CORIZON HEALTH INC., a Delaware
Corporation; GUY AUGUSTIN,
M.D.; VICTORIA NEILSER, LPN.;

KEVIN TODD, Corporal; MARK
DAMBACH, LPN.; CARL MILTON,

Sergeant; WANDA WILLIAMS,
Lieutenant; DESMOND BRYANT,

Corporal; CHATHAM COUNTY
COMMISSIONERS; JOHN WILCHER,

Sheriff of Chatham County; and
JOHN DOES 1-5;
Defendants.

ORDER

Before the

Augustin,

M.D.,

Court

Mark

are

Defendants

Dambach,

and

Corizon

Health,

Inc., Guy

Victoria

Neisler

(^'Corizon

Defendants") Motion to Exclude Testimony of Robert Blais, M.D.

{Doc. 127) and Motion to Strike the Affidavit of Robert Blais,

M.D. (Doc. 198). For the following reasons, Corizon Defendants'
Motion to Strike the Affidavit of Robert Blais, M.D. (Doc. 198) is
DENIED IN PART and GRANTED IN PART and Corizon Defendants' Motion

to Exclude Testimony of Robert Blais (Doc. 127) is DENIED IN PART
and GRANTED IN PART.

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 2 of 23

BACKGROUND

On May 22, 2016, around 8:30 p.m., Jimmie Alexander, Sr.

(^'Alexander"), a pretrial detainee at Chatham County Detention
Center {^"CCDC") began to experience pain in his right hip and leg.
(Doc. 96 at ^ 15; Doc. 145 at 1 15.) Alexander was evaluated by

Defendant Mark Dambach, a licensed practical nurse (""LPN"), and
Dambach noted that Alexander complained of sudden onset of right

leg pain, that Alexander had a weak thread pedal pulse in his right
foot, and that his blood pressure was elevated. (Doc. 96 at
19; Doc. 145 at

M.D.,

of

17-

17-19.) Dambach informed Defendant Guy Augustin,

Alexander's

symptoms

and

Alexander

was

prescribed

medications to treat the pain and lower his blood pressure. (Doc.
96 at a 26-29; Doc. 145 at

26-29.) However, later that evening,

Alexander crawled into the middle of Unit 6D floor, vomiting on

the floor at some point. (Doc. 96 at

38-39; Doc. 145 at

38-

39.) Dambach responded and checked Alexander's vitals, but did not
otherwise check Alexander's right leg. (Doc. 96 at SISI 41-43; Doc.
145 at SISl 41-43; Doc. 48 at 131.) Alexander was moved to a cell in

Receiving and Discharge ("R&D") for observation during the night.
(Doc. 48 at 133-34.)

Augustin arrived at CCDC the next day. May 23, at 7:30 a.m.
and spoke with other medical providers at morning conference, and
left CCDC around 8:30 a.m. (Doc. 96 at

73-75; Doc. 145 at

73-75.) Augustin returned later that day and examined Alexander at

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 3 of 23

approximately 3:00 p.m. on Monday, May 23, 2016. {Doc. 96 at SI 84;
Doc. 145 at SI 84.) During his examination, Augustin noted the

absence of a pulse on the top of the foot and that Alexander's

right lower limb was cool to the touch. (Doc. 45 at 163.) Augustin
ordered Alexander to be taken to the hospital. (Id. at 165-66.)
Alexander arrived at the Memorial Health University Medical

Center (^"Memorial") emergency room at 5:38 p.m. on May 23. (Doc.
96 at SI 97; Doc. 145 at SI 97.) It was ultimately determined by Dr.
Bhandari,

a

vascular

interventional

radiologist,

that

surgery

would be needed to address the extensive blood clot that had been

found in Alexander's right leg. (Doc. 96 at SISI 100-01; Doc. 145 at
SISI 100-01.) Dr. Avino, a vascular surgeon, began a thrombectomy on

Alexander

at

10:05

p.m.

on

May

23,

2016

and

Alexander

was

transferred from the operating room to the post-anesthesia care
unit ("PACU") for recovery at 11:52 p.m. (Doc. 96 at SISI 103, 104,
106; Doc. 145 at SISI 103, 104, 106). At 7:07 p.m. on May 23, prior
to the thrombectomy, Alexander's potassium level was recorded at
5.1 mmol/L. (Doc. 77, Attach. 1 at 87.) At 4:37 a.m. on May 24,

2016, after surgery, Alexander's potassium level was recorded at
7.3 mmol/L. (Id. at 91.) Alexander's potassium level was reported
to Dr. Moon, the chief resident working that night, and Dr. Moon
and

his

team

went

to

the

arrest. (Doc. 96 at SISI

PACU

113-14;

and

found

Alexander

in

cardiac

Doc. 77, Attach. 1 at 12-13.)

Alexander could not be revived and was declared dead by Dr. Moon

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 4 of 23

on May 24, 2016 at approximately 5:13 a.m. (Doc. 96 at 5 116; Doc.
90, Attach. 3 at 1.)

In their complaint. Plaintiffs pursue counts of negligence,
professional

negligence,

wrongful

death,

and

deliberate

indifference to serious medical needs, among other things, due to

the alleged inadequate medical attention Alexander received at
CCDC.

Both

Plaintiffs

and

Defendants

have

retained

experts

to

testify on a variety of subjects. At issue in this order is the
testimony of Robert Blais, M.D. (Doc. 127.)
STANDARD OF REVIEW

The admission of expert testimony is controlled by Federal
Rule of Evidence 702:

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 is based on sufficient facts or data;
(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.

The trial judge is assigned ""the task of ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to
the task at hand." Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 597, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469 (1993). "As the

Supreme Court made abundantly clear in Daubert, Rule 702 compels
district

courts

to

perform

the

critical

gatekeeping

function

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 5 of 23

concerning

the

admissibility

of

expert

scientific

evidence."

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)

(internal quotation marks and citation omitted). This gatekeeping
function equally applies to the admissibility of expert technical
evidence. Id.; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-

49, 119 3. Ct. 1167, 1174-75, 143 L. Ed. 2d 238 (1999). The Eleventh

Circuit Court of Appeals has explained that district courts fulfill
that function by engaging in a three-part inquiry, considering
whether

(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions
is sufficiently reliable as to be determined by the sort
of inquiry mandated in Daubert; and (3) the testimony
assists the trier of fact, through the application of
scientific . . . expertise, to understand the evidence
or to determine a fact in issue.

Frazier, 387 F.3d at 1260.

When

a

court

considers

the

reliability

of

a

particular

expert's opinion, it considers, to the extent possible, (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. Quiet Tech. DC-8, Inc. v. Hurel-Dubois,
UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (citing McCorvey v.
Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)).

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 6 of 23

These factors ^'do not constitute a definitive checklist or test."

Kumho Tire, 526 U.S. at 150, 119 S. Ct. at 1175 (internal quotation
marks and citation omitted). Rather, the applicability of these

factors

^Mepends

upon

the

particular

circumstances

of

the

particular case at issue." Id. The same criteria that are used to
assess the reliability of a scientific opinion may be used to

evaluate

the

reliability

of

non-scientific,

experience-based

testimony. Frazier, 387 F.Sd at 1262.
ANALYSIS

I.

CQRIZON DEFENDANTS" MOTION TO STRIKE THE AFFIDAVIT OF ROBERT

BLAIS, M.D.

Robert Blais, M.D. (''Dr. Blais") was deposed on February 13,
2019. (Doc. 79 at 1.) On June 4, 2019, Corizon Defendants moved to

exclude the testimony of Dr. Blais (Doc. 127) to which Plaintiffs

responded in opposition (Doc. 171). Plaintiffs attached to their
response an affidavit by Dr. Blais. (Doc. 171, Attach. 2.) Corizon
Defendants have now moved to strike the affidavit filed by Dr.

Blais (Doc. 171, Attach. 2) on the grounds that it is untimely,

contains new opinions, and is unnecessarily cumulative. (Doc. 198
at 1.) Specifically, Corizon Defendants identify Paragraph 9 of
the affidavit in which "Dr. Blais states that it is his opinion

that Mr. Alexander had a high grade or total occlusion beginning
at the time that he began to suffer right hip and leg pain on May

22, 2016" and argue that this opinion differs from Dr. Blais's

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 7 of 23

deposition

in

which

he

could

not identify

when

the

occlusion

occurred. (Doc. 198, Attach. 1 at 4.)

The Court notes that Corizon Defendants offer contradictory

positions in their motion. Despite Corizon Defendants' arguments

that the above opinion is a new, previously undisclosed opinion,
Corizon Defendants also state that ^^Plaintiffs' affidavit simply

parrots opinions that Dr. Blais has already rendered in his expert

report and deposition testimony, and it is nothing more than an

attempt

to

bolster

testimony

already

given."

(Id.

at

5.)

Nevertheless, Corizon Defendants maintain that the above opinion

regarding the timing of the total occlusion is a new opinion that
must be stricken. In response. Plaintiffs argue that this is not

a new opinion, that the affidavit elaborates on prior opinions and
cite to Dr. Blais's Rule 26 report in which he stated his opinion

that Alexander's right leg likely became totally occluded during
the time he was left in the observation room. (Doc. 212 at 1.)

^^Affidavits from expert witnesses, which are served after the
deadline

for

disclosing

contain new opinions and/or

expert

restructure

reports

the

and

also

original

expert

opinions may be stricken as untimely." Walker v. Yamaha Motor Co.,
No. 613CV15460RL37GJK, 2016 WL 7325525, at *2 (M.D. Fla. Jan. 20,

2016) (citing Corwin v. Walt Disney Co., 475 F.3d 1239, 1252 (11th
Cir. 2007)). See also Cochran v. Brinkman Corp., 2009 WL 4823858,
at *13-15 (N.D. Ga. Dec. 9, 2009). However, '"affidavits, which

7

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 8 of 23

merely provide further explanation, clarification or justification
for opinions already contained in expert reports and that are used
to combat an attack upon the expert's methodologies have been
allowed." Walker, 2016 WL 7325525, at *2.
The

Court

finds

that

Dr.

Blais's

affidavit

offers

a

new

opinion to the extent that Dr. Blais now identifies 8:30 p.m. as
the time when the total occlusion occurred. The paragraph that

Corizon Defendants take issue with, paragraph nine, states that:

Alexander began to complain of right hip and leg pain
around 8:30 p.m. on May 22, 2016. It is my opinion that
Alexander had a high grade or total occlusion beginning
at that time and that the sudden severe pain he was

reporting was likely the result of tissue injury. . . .
While neither I nor anyone else can determine an exact
time

when Alexander's total occlusion occurred, I can

state with a reasonable degree of medical certainty that

Alexander's right leg tissue was likely becoming
nonviable during the early morning hours of May 23^^,
probably between 2:30-5:30 a.m., while he was locked in
the observation cell by himself.
(Doc. 171, Attach. 2 at 4-5.)

First,

the

Court

does

not

strike

the

paragraph

in

its

entirety. The Court finds that Dr. Blais's opinion generally that

Alexander began to suffer from the ischemic event at 8:30 p.m. is
consistent with his Rule 26 report and his deposition testimony.

In his Rule 26 report. Dr. Blais opined that Alexander ''suffered
from ischemia of his right leg, beginning in the early evening of

May 22, 2016," and that "[i]t is my opinion that Mr. Alexander's
right leg suffered severe injury and likely became totally occluded

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 9 of 23

during the time he was left in the observation room." (Doc. 79,
Attach. 2 at 2,

4.) This

is also consistent

with

Dr.

Blais's

supplemental report in which he listed his opinions and included

an opinion that ^^Alexander had right leg ischemia beginning on
night of May 22"<^." (Doc. 79, Attach. 3 at 1.) The Court finds that

this opinion is also consistent with Dr. Blais's deposition in
which he testified that he could not say when the total obstruction
occurred, but that ^^in all likelihood, it started at one point and

the symptoms gradually progressed that at some point when he had
a

total obstruction, they

were

critical.

I can't

give

you

a

timeline on that." (Doc. 79 at 52.) This opinion is consistent

with Dr. Blais's opinions, stated above, that the ischemic event

began on the evening on May 22 but he cannot opine on the exact
time of total occlusion. Thus, Dr. Blais may testify as to when

the ischemic event began, the progress of that event and the
concomitant tissue death as set out in his deposition. Rule 26
report, and affidavit.

However, to the extent that Dr. Blais is now opining that the
total occlusion occurred at 8:30 p.m., such opinion is new or

contradictory and must be excluded. As stated above. Dr. Blais
testified in his deposition that he could not give a timeline on
when the total occlusion occurred but that it was likely overnight

in the observation cell. (Doc. 79 at 52; Doc. 79, Attach. 2 at 2,

4.) Despite his statement that he cannot ^^determine an exact time

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 10 of 23

when Alexander's total occlusion occurred," Dr. Blais opines in

his affidavit that Alexander had a high grade or total occlusion
beginning at 8:30 p.m. on May 22, 2016. {Doc. 171, Attach. 2 at 4-

5.) "'[A] party may not rely on untimely-disclosed expert opinions
contained in an affidavit." Daggett v. United States, No. 0821026-CIV,

2010

WL

11553196,

at

*1

(S.D.

Fla.

Feb.

4,

2010)

(collecting cases). See also Travelers Prop. Cas. Co. of Am. v.
All-S. Subcontractors, Inc., No. CV 17-0041-WS-B, 2018 WL 1787883,

at *10 (S.D. Ala. Apr. 13, 2018) (''There is ample authority for

the

proposition

that

untimely

expert

opinions

submitted

by

supplemental report or affidavit are impermissible. It is equally
true, however, that such affidavits are typically allowed if they

do not offer new expert opinions but simply clarify or explain

previously

given

opinions.").

As

stated

above.

Dr.

Blais's

affidavit is stricken only to the extent that he now specifically
identifies the time of the total occlusion.

Corizon Defendants also seek to exclude Dr. Blais's affidavit
on the basis that the rest of the affidavit is cumulative and

simply restates the same opinions set forth in Dr. Blais's written

report and deposition. (Doc. 198, Attach. 1 at 6.) The Court is
not persuaded. First, Federal Rule of Evidence 403 does permit a
court to "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

10

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 11 of 23

jury,

undue

delay,

wasting

time,

or

needlessly

presenting

cumulative evidence." Corizon Defendants claim that ^'unnecessarily

similar and cumulative expert testimony may create a risk that the

jury will resolve differences in expert opinion by focusing on the
quantities of each opinion rather than by giving fair consideration
to the quality and credibility of each opinion." (Doc. 198, Attach.
1 at 7.) However, at this stage in the case, the parties have
presented various motions for summary judgment and the concern

that a jury may weigh expert opinions by the quantity of the
opinions, rather than the quality, is premature. Additionally, the
case cited by Corizon Defendants in support of this argument. Royal
Bahamian Ass'n, Inc. v. QBE Ins. Corp., No. 10-21511-CIV, 2010 WL
4225947, at *2 (S.D. Fla. Oct. 21, 2010), concerned the situation

in

which numerous experts testify on the same topic, not the

situation here where the expert filed an affidavit on the same

opinions that he stated in his Rule 26 report and deposition.
Ultimately, the Court does not find that it needs to exclude Dr.
Blais's affidavit as needlessly cumulative. Corizon Defendant's
Motion to Strike (Doc. 198) is GRANTED IN PART and DENIED IN PART.

Dr. Blais may still testify about when the ischemic event began

and the progression of tissue death, to the extent permitted below,
but Dr. Blais cannot offer an opinion that the total occlusion
occurred at 8:30 p.m.

11

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 12 of 23

II.

CORIZON DEFENDANTS^

MOTION TO EXCLUDE THE TESTIMONY OF ROBERT

BLAIS, M.D.

Corizon Defendants also seek to exclude the testimony of Dr.

Blais. (Doc. 127.) According to Dr. Blais's expert report, he is
a practicing vascular surgeon in Delray Beach, Florida who has

been practicing vascular surgery since 1976. {Doc. 79, Attach. 2
at 2.) Dr. Blais offers a number of opinions in this case, however,

Corizon Defendants primarily take issue with his opinions that
Defendants Augustin, Dambach, and Neisler breached the standard of
care in their treatment of Alexander and his opinions regarding
the standard of care for licensed practical nurses and correctional

health providers. (Doc. 127, Attach. 1 at 10-11.) Plaintiffs have
responded in opposition. (Doc. 171.)
A.

Dr.

Blais^s

Standard

of

Care

Opinion

for

Licensed

Practical Nurses

Corizon Defendants argue that Dr. Blais does not meet the

requirements under Georgia law to testify regarding the standard
of care applicable to licensed practical nurses C'LPNs"). (Doc.
127, Attach. 1 at 14-15.) In response. Plaintiffs generally contend

that Dr. Blais is able to provide a LPN standard of care opinion,

that the inability of Dr. Blais to opine as to the ^'LPN scope of
care is not surprising," because ^^Blais is not a lawyer," and that
if Dr. Blais is excluded. Dr. Reese must be similarly excluded.
(Doc. 171 at 16-18.)

12

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 13 of 23

The Court finds that Dr. Blais is not qualified to opine on
the

standard

of

care

for

LPNs.

Pursuant

to

O.C.G.A.

§

24-7-

702(c)(2)(D),

an expert who is a physician and, as a result of having,
during at least three of the last five years immediately
preceding the time the act or omission is alleged to
have occurred, supervised, taught, or instructed nurses,
nurse
practitioners,
certified
registered
nurse
anesthetists, nurse midwives, physician assistants,
physical therapists, occupational therapists, or medical
support staff, has knowledge of the standard of care of
that health care provider under the circumstances at
issue shall be competent to testify as to the standard
of that health care provider.
Dr.

Blais

testified

that

he

did

not

know

a

lot

about

the

training for LPNs other than what he had seen in his clinical
practice, that in his clinical practice, he had minimal interaction
with LPNs, and that he does not know whether LPNs are legally able

to reach a nursing diagnosis. (Doc. 79 at 28, 29.) Dr. Blais
testified as follows:

Q. And in your experience, how much of your practice was
spent in or acting with LPNs?

A. Pretty minimal because they are at the lower end of
the hierarchy for nursing. And most of my actual
interaction would be with the registered nurse at the
time.

Q. Between 2011 and 2016, can you tell us what percentage

of your professional time, either in the office or the
facility setting, was spent interacting with and working
with LPNs?

A. Well, on the floor, they were there, and for 43 years,
I've
had
some
interaction
with
this
particular
specialty.

13

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 14 of 23

(Id. at 28.) When asked ''[s]o what did the standard of care for a

licensed practical nurse require [Defendant Dambach] to do that he
did not do?" Dr. Blais answered that

don't

know how to answer

a question in that exact form. It is too variable." (Doc. 79 at
32.) Additionally, he testified as follows:
Q. In your experience, what do you rely on the licensed
practical nurses to do?

A. I'm not really sure how to answer that. Because they
don't give medicines. They don't do injections. They are
generally not called upon to make clinical decisions in
a hospital setting. That is my only association. So I
know very little about that.

Q. So when you have LPNs on the floor seeing your
patients, what is your understanding of what they are
doing for those patients?
A. They take their blood pressure, they check their pulse
and almost just like a caretaker as much. It's very
little actual medical delivery by the LPN and almost
zero medical assessment by the LPN.
(Doc. 79 at 30.)

In

his

deposition.

Dr.

Blais stated

that

he

had little

experience working with LPNs, much less supervising them, and was
not aware of their scope of practice, e.g. whether they give
nursing diagnoses. Although Dr. Blais has had a long career as a
doctor and was able to generally describe what LPNs do, the Court
does not find this sufficient to demonstrate that for three of the

five years prior to the events at issue in this case. Dr. Blais
"supervised, taught, or instructed" LPNs.

See Bonds v. Nesbitt,

322 Ga. App. 852, 858, 747 S.E.2d 40, 46 (Ga. Ct. App. 2013)

14

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 15 of 23

^But a minimum level of knowledge in the area in which the
opinion is to be given is insufficient; instead, an expert must be
both

familiar

with

the

standard

of

care

at

issue

and

also

demonstrate specific experience in the relevant practice area.' "

(quoting Dawson v. Leder, 294 Ga. App. 717, 719, 669 S.E.2d 720
(Ga. Ct. App. 2008)); Anderson v. Mountain Mqmt. Servs., Inc., 306

Ga. App. 412, 417, 702 S.E.2d 462, 466 (Ga. Ct. App. 2010); Pendley
V. S. Reg'l Health Sys., Inc., 307 Ga. App. 82, 89, 704 S.E.2d
198, 203 (Ga. Ct. App. 2010).

Finally,

Plaintiffs

also

discuss

their

challenge

of

a

different expert. Dr. Reese, and contend that ^'if Blais is excluded
from providing testimony on the LPN standard of care, then Reese
must also be excluded" as ^^Reese is less qualified than Blais to

testify on the LPN standard of care." (Doc. 171 at 18.) This Court
does not rule on Daubert motions and motions to exclude by weighing

the comparative experience and qualifications of experts against
one

another

but,

instead,

by

examining

each

expert's

qualifications as challenged. Accordingly, for the reasons stated
above, Corizon Defendant's motion to exclude the standard of care
opinions by Dr. Blais for LPNs is GRANTED.
B.

Dr. Blais's Qualifications to Opine on the Standard of
Care Applicable to Healthcare Providers in a Correctional
Medicine Setting

Corizon

Defendants

next

contend

that

Dr.

Blais

is

not

qualified to testify as to the standard of care applicable to

15

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 16 of 23

healthcare providers in a correctional setting because he does not

have experience practicing medicine in a correctional setting.
(Doc. 127, Attach. 1 at 15.) In response. Plaintiffs argue that

Dr.

Blais's

lack

of

experience

in

a

correctional

setting

is

irrelevant because the community standard applies both generally
and at the CCDC. (Doc. 171 at 19.)

The Court is not persuaded that Dr. Blais is unqualified to
testify as to the standard of care of Defendants Augustin and
Corizon purely because he has not provided medical treatment in a
correctional facility. In McDowell v. Brown, 392 F.Sd 1283, 1296
(11th Cir. 2004), the defendant correctional healthcare provider

argued that the plaintiff's experts did ''not possess the education,

training, or experience that would qualify them to testify against
a jail nurse." The Eleventh Circuit disagreed and, after noting
that an expert's opinion stemmed from "a knowledge of medical care,

not jail policies," found that "[t]he standard of care applicable
to nurses is universal, and does not diminish when the setting is

a

jail

rather

Additionally,

than

a

a

court

hospital." McDowell,

in

this

district,

392

F.3d

after

at

1296.

considering

McDowell, remained "unpersuaded that correctional medicine is a
medical

specialty

thereby

requiring

the

exclusion

of

[the

expert.]" Anderson v. Columbia Cty., Ga., No. CV 112-031, 2014 WL
8103792, at *10 (S.D. Ga. Mar. 31, 2014). This Court agrees with

the reasoning set forth in Anderson on this point. See also Maley

16

Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 17 of 23

V. Corizon Health, Inc., No. CV416-060, 2018 WL 797441, at *2 (S.D.

Ga. Feb. 8, 2018). Accordingly, Corizon Defendants' motion on the

ground that Dr. Blais is unqualified due to his lack of experience
in correctional medicine is DENIED.

C.

Dr. Blais's Causation Opinions

Corizon Defendants finally argue that Dr. Blais's causation

opinion is a basic ^^earlier treatment is better" opinion that is
inadmissible. (Doc.

127,

Attach.

1

at

16.) Corizon

Defendants

contend that Dr. Blais's opinion only offers ^^the vague opinion
that the delay was

^a cause' or

^contributed' to the outcome."

(Id. at 17.) In response. Plaintiffs argue that Defendant Corizon's

equation of Dr. Blais's opinion with the inadmissible ^'the earlier
the better" opinion barred in McDowell is in error because Dr.
Blais cites to medical evidence that supports a conclusion that
treatment for acute ischemic leg is time sensitive and that earlier

treatment is necessary to prevent tissue death. (Doc. 171 at 20.)
The Court finds that Dr. Blais's causation opinion is not an

inadmissible ^'the earlier the better" opinion. In McDowell, the
Eleventh Circuit affirmed the exclusion of three experts' opinions

on the grounds that their theories were inadmissible ^'the earlier,
the better," opinions. 392 F. 3d at 1299.

First, in McDowell, Dr. Merinkangas held the opinions that

"early treatment of a patient with spinal epidural abscess reduced
neurological damage," and that the four-hour delay by the Grady

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defendants caused the plaintiff's injuries. 392 F.3d at 1299. He
based these theories on common sense and the universal axiom that

expedited treatment is preferable to delayed treatment. Id. As to
the first opinion, the Eleventh Circuit agreed with the district
court's exclusion

because a

general

understanding that earlier

treatment is better would be within the knowledge of jurors and

has nothing to do with causation. Thus, a theory that earlier
treatment is better ^^adds nothing absent some testimony connecting

the delay to the causation or aggravation of an injury." Id. at
1300. As to the second opinion, the Eleventh Circuit also agreed
that the opinion failed the Daubert analysis because the expert

could not identify any empirical data, survey, study, or literature
to support his theory save one study that discussed the delay that
was nearly double the delay at issue in the case. Id. Thus, because

the expert would have to ^^leap" from the study's conclusions to
his own theory, the opinion

was

unreliable. Id.

Finally, the

Eleventh Circuit noted that Dr. Merinkangas ''simply made a blanket

statement that the delay caused the paralysis, but gave no opinion
as to whether the sum of the delays compounded [the plaintiff's]

injuries, or if just one delay created the damage" and, therefore,
"it [was] impossible to mete out whether the initial delay at the
Jail contributed to the cause at all." Id.

The

Eleventh

Circuit

also

affirmed

the

exclusion

of

Dr.

Darouiche's opinion that the plaintiff would have suffered less

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Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 19 of 23

injury had he been treated earlier. Id. at 1301. Dr. Darouiche's

theory was based on his past experience and training with spinal
patients and his observation that a more rapid progression of
neurological damage
successful.

Id.

at

indicated
1300.

that earlier treatment
Eleventh

The

would
that

Circuit

noted

be
Dr.

Darouiche ^'frequently explained that his causation theory lacked
empirical evidence or scientific support, and he acknowledged an
absence of studies which assess surgery at the four, eight, twelve,

eighteen, or twenty-four hour time intervals," and instead relied

upon "medical logic." Id. at 1300-01. Dr. Darouiche's opinions
were excluded because they were "more of a guess than a scientific

theory" and that, while Daubert permits experts to draw conclusions
from existing data, there was no existing data upon which to draw.
Id. at 1301. Finally, Dr. Gower's opinion that the plaintiff would
have

recovered

faster

had

he

received

earlier

treatment

was

properly excluded because Dr. Gower could not point to scientific
studies or reports to support this theory and the facts of case
did not even fit his own theory. Id.

Defendants argue that "Dr. Blais only offers the vague opinion
that the delay was 'a cause' or 'contributed' to the outcome. Dr.
Blais

could

not

specify

which

delay

contributed,

how

it

contributed, in what quantity, or how Mr. Alexander's specific
outcome after surgery would

have been different." (Doc. 127,

Attach. 1 at 17.) The Court disagrees. The situation in McDowell

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is not present here. Dr. Blais provides specific support for his
opinion and is able to tie the existing data to his conclusions
about the delay.
First, the Court finds that Dr. Blais does state ''which delay"

and how that delay contributed to Alexander's outcome. Dr. Blais
states in his Rule 26 report that "[t]he delay of 20.5 hours was

a significant cause of the severe condition of Alexander's right
leg . . . during such an extended period of time, an ischemic lower
extremity will suffer severe tissue injury." (Doc. 208, Attach. 1
at 3.) He further explains that the lack of blood flow causes

tissue to

die thereby increasing

acid

and

potassium that can

contribute to cardiac arrest, that with a total occlusion, the
time could be as short as 5-6 hours before permanent damage occurs,

and cites to peer reviewed articles that discuss the progression
and severity of acute limb ischemia. (Id.) Thus, unlike the experts
in McDowell, Dr. Blais has not simply opined that Alexander should
have been treated earlier but, through his testimony, "connect[ed]

the delay to the causation or aggravation of an injury." Id. at
1300.

Further,

Dr.

Blais

relies

on

and cites to

peer

reviewed

sources that affirm that the urgency of acute limb ischemia. In
"Acute Limb Ischemia," by Mark A. Creager, John A. Kaufman, and
Michael S. Conte, the authors state that "[u]rgent recognition [of

acute limb ischemia] with prompt revascularization is required to

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Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 21 of 23

preserve limb viability in most circumstances." (Doc. 171, Attach.
3 at 1.) The authors also discuss the appropriate treatments and

how that relates to the stages of acute limb ischemia. (Id. at 3.)
An article in the Journal of Vascular Surgery also discusses the
clinical classification of acute limb ischemia and three stages or

levels of severity. (Doc. 171, Attach. 4 at 2.) The article states

that ^'rapid diagnosis of the severity of acute limb ischemia and

its probable cause is an urgent matter. Time to diagnosis and
successful outcome of treatment are inversely related." (Id. at

3.) Another article, written by Jamie R. Santistevan and published
in Emergency Medicine Clinics of North America, states that acute
limb ischemia '^is a time-sensitive condition, in which a diagnosis
"

and definitive management are necessary to ^^prevent loss of life
or limb." (Doc. 171, Attach. 5 at 2.) Thus, unlike the experts in
McDowell, who based their causation opinions on ^'logic" and ''common

knowledge," Dr. Blais's opinion-that delay in diagnosing acute
limb ischemia and receiving medical treatment caused unnecessary
tissue injury—is supported by these articles.
Moreover, Dr. Blais connects his causation opinion to the

facts and

opinion.

uses the existing data to support and develop his

Dr. Blais discusses

when Alexander began exhibiting

symptoms of acute limb ischemia, how and why tissue suffers injury
due to a delay in treatment, what treatments may be provided to
address acute limb ischemia, and that the severity of the acute

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Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 22 of 23

limb ischemia impacts the patient's prognosis. (Doc. 79, Attach.

2 at 4-5.) Thus, unlike the experts in McDowell,

Dr. Blais's

causation testimony is significantly more developed and supported
and is not a vague ^'the earlier, the better" causation opinion.
See

Chesnut

v.

United

States,

No.

617CV00079GFVTHAI,

2019

WL

6879739, at *5 (E.D. Ky. Dec. 17, 2019) (declining to exclude an

expert's causation opinion concerning an ischemic lower extremity
as an improper ^^the earlier, the better" causation opinion under
McDowell because the expert was not engaging in pure speculation

but ^'giving his opinion, based on personal practical experience
and relevant medical literature, that the condition worsens over

time such that diagnosis of the condition even a day earlier can
materially change the ultimate outcome."); Beltran v. NCL Corp.,
Ltd., No. 13-24566-CIV, 2017 WL 4270618, at *5 (S.D. Fla. Sept.

26, 2017) (distinguishing McDowell and finding that the experts'

causation opinions were supported by medical literature and were
connected to the existing data); Drake v. United States, No. 5:07CV-707-VEH, 2009 WL 10703258, at *10 (N.D. Ala. Feb. 6, 2009);
Presley v. City of Blackshear, No. CV507-094, 2008 WL 11417553, at
*3 (S.D. Ga. Nov. 20, 2008) (distinguishing McDowell and finding

that the expert's testimony was ^""more than simply stating that
earlier

treatment"

because

the

testimony

linked

the

alleged

negligent treatment to the injury suffered). Accordingly, Corizon

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Case 4:18-cv-00099-WTM-CLR Document 224 Filed 08/06/20 Page 23 of 23

Defendants' motion on this ground is DENIED. Dr. Blais's causation
opinion is not excluded.
CONCLUSION

For

the

foregoing

reasons,

Corizon

Defendants'

Motion to

Strike the Affidavit of Robert Blais, M.D. (Doc. 198) is DENIED IN
PART and GRANTED IN PART and Corizon Defendants' Motion to Exclude

Testimony of Robert Blais (Doc. 127) is DENIED IN PART and GRANTED
IN PART.

SO ORDERED this ^day of August 2020.
WILLIAM T. MOORE, JBT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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