Mettias v. United States of America

Filing 130

ORDER DENYING PLAINTIFFS' MOTION TO EXCLUDE AND DEFENDANT'S MOTION IN LIMINE, AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE re 101 , 107 , 109 - Signed by JUDGE ALAN C KAY on 1/15/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

CHRISTINA METTIAS, individually
and as next friend of her minor
son N.M.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

) Civ. No. 12-00527 ACK-KSC
)
)
)
)
)
)
)
)
)
)
)

ORDER DENYING PLAINTIFFS’ MOTION TO EXCLUDE AND DEFENDANT’S
MOTION IN LIMINE, AND GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO STRIKE
For the following reasons, the Court hereby DENIES the
Plaintiffs’ Motion to Exclude Expert Testimony, GRANTS IN PART
AND DENIES IN PART Plaintiffs’ Motion to Strike, and DENIES the
Government’s Motion in Limine.
BACKGROUND1/
This case involves claims brought by Plaintiff
Christina Mettias, individually and on behalf of her minor son
N.M., (together, “Plaintiffs”) for injuries Christina suffered
after undergoing Roux-en Y Gastric Bypass (“RYGB”) surgery at
Tripler Army Medical Center on September 27, 2010. (FAC ¶ 1.) On

1/

The facts as recited in this Order are for the purpose of
disposing of the current motions and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.

March 30, 2010, Christina voluntarily enrolled in the Tripler
Bariatric Surgery Program. At the time, she weighed 221 pounds
and had a Body Mass Index (“BMI”) of 41.78. In association with
her enrollment, Christina participated in the LEAN Healthy
Lifestyle Program. Over the six months she spent in the LEAN
program, Christina lost approximately 34 pounds. On September 14,
2010, Christina met with Dr. John Payne of Tripler’s Bariatric
Surgery Program to be evaluated as a candidate for RYGB surgery.
On the date of this meeting, she weighed 193.9 pounds and had a
BMI of 36.2/ In consultation with Dr. Payne, Christina decided to
opt for the surgery, which was performed on September 27, 2010.
Christina suffered numerous complications as a result
of the surgery, and this lawsuit ensued. Plaintiffs filed their
First Amended Complaint on April 1, 2014, asserting claims
against the United States of America (“the Government”) for
medical negligence3/ as to Plaintiff Christina, and negligent

2/

It appears there was some confusion as to Christina’s
actual BMI on this date: because of an error in the recordation
of Christina’s height, the medical records on the date of the
preoperative visit indicate a BMI of 34.4. When her actual height
is used to calculate her BMI, it appears it was closer to 36 on
the date of her preoperative visit. (Pl.’s Opp’n at 23-24.)
Regardless, the parties agree that it was below 40 both at the
time of her preoperative visit, and on the day of her surgery.
(Def.’s Mot. at 4; Pl.’s Opp’n at 23-24.)
3/

In its October 14, 2014 Order Denying Defendant’s Motion
to Dismiss as to Plaintiff’s Informed Consent Claim, the Court
concluded that Plaintiff adequately exhausted administrative
remedies as to the aspect of her negligence claim based upon a
(continued...)
2

infliction of emotional distress and loss of consortium as to
Plaintiff N.M. (Doc. No. (“FAC”) ¶¶ 26-33.) As is relevant to the
instant dispute, Plaintiffs claim that, because Christina was
able to lose weight and lower her BMI prior to surgery, she was
not a proper candidate for the Roux-en Y procedure.
On October 6, 2014, Plaintiffs filed a Motion to
Exclude Expert Testimony of Dr. Daniel Jones, along with several
supporting exhibits. (Doc. No. 101.) On October 15, 2014, the
Government filed its Motion in Limine to Exclude Testimony or
Disqualify Plaintiffs’ Expert Dr. I. Michael Leitman, also
supported by a number of exhibits. (Doc. No. 107.) On October 28,
2014, Plaintiffs filed a Motion to Strike certain declarations in
support of the Government’s Motion in Limine. (Doc. No. 109). On
December 23, 2014, the parties filed their respective memoranda
in opposition to the motions, (Doc. Nos. 117, 118, 119,) and on
December 30, 2014, both parties filed replies.4/ (Doc. Nos. 120,
121.) A hearing on all three motions was held on January 13,

3/

(...continued)
lack of informed consent. (Doc. No. 106.)
4/

The Court notes that, in their reply, Plaintiffs appear
to ask the Court to make a ruling as a matter of law as to
liability in this case. (See Pl.’s Reply at 4-5.) Leaving aside
the fact that the dispositive motions deadline has long since
passed, it should go without saying that such a request is
entirely inappropriate in a reply memorandum, especially one
filed in support of a motion to exclude a witness. Thus, to the
extent Plaintiffs seek summary judgment as to the issue of
liability in this case, any such motion is denied.
3

2015.
STANDARD
Rule 702 of the Federal Rules of Evidence governs the
admission of expert testimony in the federal courts:
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.
Courts have interpreted Rule 702 to require that
“[e]xpert testimony . . . be both relevant and reliable.” Estate
of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir.)
cert. denied, 135 S. Ct. 55 (2014) (quoting United States v.
Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001)). Relevancy simply
requires that “[t]he evidence . . . logically advance a material
aspect of the party’s case.” Cooper v. Brown, 510 F.3d 870, 942
(9th Cir. 2007). Reliability addresses whether an expert’s
testimony has “a reliable basis in the knowledge and experience
of the relevant discipline.” Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 149 (1999) (citation and alterations omitted).
“[E]videntiary reliability [is] based upon scientific
validity.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590
n.9 (1993). Courts are concerned “not [with] the correctness of
4

the expert’s conclusions but the soundness of his methodology.”
Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (citations
and quotations omitted). The duty falls squarely upon the
district court to “act as a ‘gatekeeper’ to exclude junk science
that does not meet Federal Rule of Evidence 702’s reliability
standards.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982
(9th Cir. 2011).
The reliability inquiry is “a flexible one.” Kumho
Tire, 526 U.S. at 150. The Supreme Court has suggested several
factors that may be used to determine the reliability of expert
testimony: “1) whether a theory or technique can be tested; 2)
whether it has been subjected to peer review and publication; 3)
the known or potential error rate of the theory or technique; and
4) whether the theory or technique enjoys general acceptance
within the relevant scientific community.” United States v.
Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (citing Daubert, 509
U.S. at 592–94). However, whether these specific factors are
“reasonable measures of reliability in a particular case is a
matter that the law grants the trial judge broad latitude to
determine.” Kumho Tire, 526 U.S. at 153.
In cases of specialized, technical, or medical expert
testimony, “the relevant reliability concerns may focus upon
personal knowledge or experience.” Id. at 150. “Because medical
expert opinion testimony ‘is based on specialized as

5

distinguished from scientific knowledge, the Daubert factors are
not intended to be exhaustive or unduly restrictive.’” United
States v. Sandoval–Mendoza, 472 F.3d 645, 655 (9th Cir.
2006)(quoting Sullivan v. United States Dep’t of the Navy, 365
F.3d 827, 834 (9th Cir. 2004). Accordingly, the proper test in
evaluating medical expert testimony examines whether “physicians
would accept it as useful and reliable.” Id.
DISCUSSION
Here, both parties seek to exclude the testimony of
their opponents’ experts. Plaintiffs seek to exclude the
testimony of the Government’s expert on the basis of bias and
lack of reliability, while the Government seeks to exclude
Plaintiffs’ expert on the basis of lack of qualification and lack
of reliability.
I.

Plaintiffs’ Motion to Strike
As an initial matter, the Court addresses Plaintiffs’

Motion to Strike certain declarations in support of the
Government’s Motion in Limine. Plaintiffs argue that the
declarations of Dr. Paresh Chandrakant Shah and Dr. Daniel B.
Jones should both be stricken because they contain new and
previously undisclosed expert opinions that were not properly
disclosed in accordance with Rule 26 of the Federal Rules of
Civil Procedure and the Court’s Rule 16 Scheduling Order. (Pl.’s
Mot. to Strike at 5.) Additionally, Plaintiffs argue that the

6

declarations are inadmissible under Federal Rules of Evidence 402
and 403 because they are irrelevant and may confuse the issues.
(Id. at 14, 24.) The Government counters that both declarations
are used for impeachment and rebuttal purposes under Rule 607 of
the Federal Rules of Evidence and, thus, are properly attached to
the Government’s Motion. (Def.’s Opp’n to Mot. to Strike at 2,
8.)
Plaintiffs correctly note that, pursuant to the Court’s
most recent Rule 16 Scheduling Order, Plaintiffs’ expert
disclosures were due on May 6, 2014, and the Government’s expert
disclosures were due on June 6, 2014. (Doc. No. 82.) Thus, to the
extent the declarations, which were filed on October 15, 2014,
contain previously undisclosed expert opinions, they are
untimely.
First, as to the declaration of Dr. Shah, the Court
concludes that it is being offered for purposes of impeachment,
and not as additional expert evidence going to the standard of
care in this case. Specifically, with Dr. Shah’s declaration the
Government seeks to impeach Dr. Leitman’s statements regarding
his personal experiences and practice in assessing patient
eligibility for bariatric surgery when he worked at Lenox Hill
Hospital. An examination of Dr. Shah’s statements reveals that he
testifies exclusively as to the practices in use at Lenox Hill
Hospital for determining patient eligibility for bariatric

7

surgery at the time Dr. Leitman had hospital privileges there.
(See Def.’s Mot., Shah Decl.) He does not provide any additional
testimony as to the standard of care or patient eligibility
outside of that rebutting Dr. Leitman’s own assertions as to the
practices at Lenox Hill Hospital. To the extent that Dr. Shah’s
declaration contains only impeachment evidence, it is not subject
to the requirements regarding disclosure of expert testimony
under Federal Rule of Civil Procedure 26(a)(2). Moreover, the
general pre-trial witness disclosure requirements of Rule
26(a)(1)(A) expressly exempt from mandatory initial disclosure
information regarding a witness if that witness’s statements
“would be used solely for impeachment.” Plaintiffs’ argument that
the Government failed to timely disclose Dr. Shah as a witness is
therefore without merit.
Moreover, Dr. Shah’s impeachment testimony cannot be
characterized as irrelevant, as Plaintiffs claim. Dr. Shah was
the Chief of Laparoscopic Services and Program Director of the
General Surgery Residency at Lenox Hill Hospital at the time Dr.
Leitman was performing bariatric surgery there. (See id. at ¶ 1.)
As discussed above, Dr. Shah’s statements focus only on the
bariatric surgery program’s eligibility practices at the time Dr.
Leitman was performing surgery there and, thus, are properly
admitted to impeach Dr. Leitman’s statements as to those
practices.

8

The Court notes, however, that, in addition to his
testimony as to the practices at Lenox Hill Hospital, Dr. Shah
also opines in his declaration as to Dr. Leitman’s qualification
as an expert witness in this case. The Court will disregard these
statements as beyond the scope of impeachment evidence. The Court
therefore GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motion to
Strike as to the declaration of Dr. Shah.
As for the declaration of Dr. Jones, the Government
timely disclosed on June 6, 2014 the identity and written report
of Dr. Jones, the Government’s expert witness. With the
exceptions noted below, it appears that Dr. Jones merely
reiterates in his declaration the opinions he has previously
provided in his expert report and deposition. Plaintiffs assert,
however, that Dr. Jones’s declaration should nevertheless be
excluded because it is inadmissible under the Federal Rules of
Evidence. Specifically, Plaintiffs assert that Dr. Jones’s
declaration may be excluded under Rules 402 and 403 because it
contains statements that are “irrelevant, confuse the issues, and
will not assist the Court in determining a fact in issue.” (Pl.’s
Mot. to Strike at 24.) The Court disagrees.
The issue before the Court on the instant motions is
whether either of the parties’ experts should be precluded from
testifying at trial. In his declaration, Dr. Jones provides
rebuttal evidence as to Dr. Leitman’s previous statements

9

regarding patient eligibility for bariatric surgery. (See Def.’s
Mot., Jones Decl.) Dr. Jones’s statements are therefore highly
relevant to the issues before this Court.
Moreover, the Court is unconvinced that Plaintiffs will
suffer any prejudice from admission of Dr. Jones’s declaration.
As the Government points out, Plaintiffs had ample opportunity to
include with their memorandum in opposition to the Government’s
Motion rebuttal declarations challenging Dr. Jones’s statements.
Indeed, the Government’s Motion in Limine was filed on October
15, 2014, and Plaintiffs’ opposition was not due until December
23, 2014. Thus, Plaintiffs had just over two months during which
to prepare a response in rebuttal to Dr. Jones’s declaration.
Further, Plaintiffs have been aware of Dr. Jones’s identity and
the substance of his expert testimony since the Government’s
initial disclosure in June of 2014. The Court therefore finds no
prejudice in allowing his declaration in support of the
Government’s Motion in Limine here.
The Court notes, however, that Dr. Jones opines in his
declaration as to whether Dr. Leitman is qualified to provide
expert testimony as to the standard of care in this case. Because
this statement was not included in Dr. Jones’s Rule 26 expert
report, it constitutes new expert testimony not previously
disclosed to Plaintiffs; the Court will therefore disregard this
portion of the declaration. Plaintiffs’ Motion to Strike is

10

therefore GRANTED IN PART AND DENIED IN PART.
II.

Plaintiffs’ Motion to Exclude Expert Testimony of Daniel
Jones, M.D.
In their Motion to Exclude, Plaintiffs seek to exclude

at trial the testimony of Dr. Daniel Jones, the Government’s
liability expert. Plaintiffs argue that Dr. Jones’s testimony
should be excluded because (1) Dr. Jones has a conflict of
interest in this case and is biased in favor of the Government,
and (2) Dr. Jones’s opinion regarding the eligibility standard
for bariatric surgery is unsupported by any medical literature or
other authority, nor is it experience-based, and, thus, it is
unreliable.
A.

Whether Dr. Jones’s Testimony Should Be Excluded
Based on a Conflict of Interest
First, Plaintiffs assert that Dr. Jones’s testimony

should be excluded because he has a conflict of interest in
serving as an expert in this case. Specifically, Plaintiffs state
that Dr. Jones is a friend of Dr. Robert Lim, the physician who
headed the Tripler bariatric Surgery Program at the time of
Christina’s surgery. (Pl.’s Mot. to Exclude at 6.) Plaintiffs
note that Dr. Lim and Dr. Jones are “extremely close,” and that
Dr. Lim himself suggested Dr. Jones as an expert to the
Government’s counsel. (Id.) Plaintiffs further assert that Dr.
Lim was supervised by Dr. Jones during his clinical fellowship at
Beth Israel Deaconess Medical Center, that they currently serve
11

together on the Patient Safety Committee of the American Society
for Metabolic and Bariatric Surgery (“ASMBS”), that they have coauthored multiple articles and monographs, and that Dr. Jones is
currently assisting Dr. Lim with a book. (Id. (citing Ex. 1
(Jones Depo.) at 30-32).)
While Plaintiffs make many arguments as to Dr. Jones’s
bias and, therefore, lack of credibility, these arguments are not
appropriate for the Court’s consideration on the instant Motion
to Exclude. This Court has stated that an expert witness’s “bias
or credibility is an issue for jury and not an appropriate factor
on which the Court may decide whether to admit an expert’s
testimony.” McDevitt v. Guenther, 522 F. Supp. 2d 1272, 1295 (D.
Haw. 2007) (citing Slaughter v. Southern Talc Co., 919 F.2d 304,
306 n.2 (5th Cir. 1990) (“[A] district court may not base a
decision to admit expert testimony upon its assessment of the
credibility of the expert.”)). Thus, to the extent Plaintiffs
seek to exclude Dr. Jones’s testimony based on his alleged bias
or conflict of interest, their Motion to Exclude is DENIED.
B.

Whether Dr. Jones’s Testimony Should Be Excluded as
Unreliable
Plaintiffs next argue that Dr. Jones’s opinion

regarding the standard of care governing this case is unreliable
because it is not supported by scientific evidence.5/ Plaintiffs

5/

Plaintiffs do not assert that Dr. Jones is unqualified to
(continued...)
12

note that both their expert, Dr. I. Michael Leitman, and Dr.
Jones generally agree that the standard of care governing the
instant case is the patient eligibility standard for bariatric
surgery formulated by the National Institutes of Health (“NIH”)
in 1991. (See Pl.’s Mot. to Exclude, Ex. 1 (Jones Depo.) at 3335.) Under the NIH standard, “[p]atients whose BMI exceeds 40 are
potential candidates for surgery if they strongly desire
substantial weight loss, because obesity severely impairs the
quality of their lives.” (Id., Ex. 3 (Rule 26 Report of Dr.
Leitman) at 14-15; Def.’s Mot. at 10.) Patients with BMIs between
35 and 40 “may also be considered for surgery” if they have
“high-risk comorbid conditions[.]” (Id.) The American Society of
Metabolic and Bariatric Surgeons (“ASMBS”) has adopted the NIH
standard, formulating it as follows:
Qualifications for bariatric surgery in most areas include:
1.

BMI [greater than or equal to] 40, or more than 100
pounds overweight.

2.

BMI [greater than or equal to] 35 and at least two
obesity-related comorbidities such as type II
diabetes (T2DM), hypertension, sleep apnea and other
respiratory disorders, non-alcoholic fatty liver
disease, osteoarthritis, lipid abnormalities,
gastrointestinal disorders, or heart disease.

3.

Inability to achieve a healthy weight loss sustained
for a period of time with prior weight loss efforts.

5/

(...continued)
testify as an expert.
13

(Def.’s Mot. at 10.6/)
Plaintiffs argue that Dr. Jones, while acknowledging
that the NIH and ASMBS standards establish a standard of
eligibility for gastric bypass surgery, nevertheless
misinterprets them and thus gives expert testimony that is not
based on any accepted medical authority. Specifically, Plaintiffs
take issue with Dr. Jones’s opinion that it was within the
standard of care to perform bariatric surgery on Christina, even
though her BMI had fallen to 36 by the date of her surgery and
she had had some weight loss success in Tripler’s LEAN program.
In his Rule 26 expert report, Dr. Jones asserts that
the NIH and ASMBS standards are used to assess patient
eligibility for surgery at the time a patient enters a bariatric
surgery program, but are not used to disqualify patients from
surgery based on their BMI on the day the surgery is scheduled.
(Pl.’s Mot. to Exclude, Ex. 4 (Rule 26 Expert Report of Dr.
Jones) at 8-9.) Likewise, in his deposition testimony, Dr. Jones
states that the criteria for bariatric surgery involve a BMI of
40 or higher with no comorbid conditions “when you entered the

6/

See NIH Office of Disease Prevention, NIH Consensus
Development Program, Gastrointestinal Surgery for Severe Obesity:
NIH Consensus Development Conference Statement (March 1991),
available at
http://consensus.nih.gov/1991/1991gisurgeryobesity084html.htm;
ASMBS, Who is a Candidate for Bariatric Surgery, available at
https://asmbs.org/patients/who-is-a-candidate-for-bariatric-surge
ry.
14

bariatric progam[.]” (Id., Ex. 1 (Jones Depo.) at 64.)
As to pre-surgical weight loss, Dr. Jones states that
the standard of care simply requires that patients have tried and
failed to lose weight through diet prior to undergoing surgery,
but that there is no requirement that patients undergo a
“medically supervised weight loss program” (as Plaintiffs’ expert
contends). (Id. at 106.) Moreover, Dr. Jones states that “it is
not the standard of practice to deny weight loss surgery to
patients who are able to diet and exercise in preparation for
surgery,” and that many patients are placed on liquid diets
preoperatively. (Id., Ex. 4 at 5.) He also states that
preoperative weight loss often makes surgery safer and prepares
the patient to succeed in maintaining weight loss after surgery.
(Id. at 4, 8; Ex. 1 at 107, 120.) Dr. Jones asserts that all of
these statements are based on his knowledge of the aforementioned
NIH and ASMBS standards, as well as his professional experience
as current Vice Chairman of Surgery and Chief of Minimally
Invasive Surgical Services at Beth Israel Deaconess Medical
Center, former Director of the Bariatric Surgery Program at Beth
Israel, and as a member of numerous professional associations
focused on bariatric surgery. (Def.’s Opp’n, Jones Decl. at ¶ 1.)
The Supreme Court has made clear that courts are
entitled to broad discretion when discharging their gatekeeping
function under Rule 702. See Kumho Tire, 526 U.S. at 150-52.

15

Indeed, the Supreme Court has rejected any rigid interpretation
of Daubert that would require “a schematism that segregates
expertise by type while mapping certain kinds of questions to
certain kinds of experts.” Id. at 151. Thus, when considering the
admissibility of testimony based on some “other specialized
knowledge,” such as medical expert testimony, Rule 702 is
generally construed liberally, and courts are granted “latitude
in deciding how to test an expert’s reliability.” Hankey, 203
F.3d at 1168 (quoting Kumho Tire, 526 U.S. 153). The test for
reliability with respect to medical expert testimony is whether
“physicians would accept [the expert’s testimony] as useful.”
Sandoval-Mendoza, 472 F.3d at 655.
Here, Plaintiffs assert that Dr. Jones’s opinion
regarding the BMI and weight loss requirements for eligibility
for bariatric surgery lacks reliability because it is not based
on the articulated scientific standards. Importantly, however,
the NIH and ASMBS standards do not contain any specific language
regarding whether eligibility should be based upon BMI at the
time of entering a bariatric program or at the time of surgery or
the preoperative meeting (as Plaintiffs’ expert asserts), or
whether a previously unsuccessful weight loss attempt must be
“medically supervised” to support eligibility for surgery. (See
Def.’s Mot. at 9-10.) Rather, the eligibility criteria are set

16

forth in fairly broad language.7/ Thus, at issue here is how the
medical community generally interprets the relevant eligibility
standards.
In such a case, the reliability of Dr. Jones’s
testimony must depend heavily on his own knowledge and experience
as a bariatric surgeon and a member of the bariatric surgery
community, rather than on any specific methodology or scientific
theory. Hankey, 203 F.3d at 1169; see also Kumho Tire, 526 U.S.
at 150 (“Engineering testimony rests upon scientific foundations,
the reliability of which will be at issue in some cases . . . .
In other cases, the relevant reliability concerns may focus upon
personal knowledge or experience.”) (internal citations omitted);
Sullivan, 365 F.3d at 833-34 (reversing the district court’s
exclusion of medical expert testimony, stating that the surgeon’s
application of broad principles to the case at issue based on his
“experienc[e] in the field” was proper, and that the district
court abused its discretion in requiring medical texts to match
precisely the testimony of the medical expert).
As discussed above, Dr. Jones states that his opinions
are based on his knowledge of the NIH and ASBMS standards, as

7/

Indeed, both experts admit in deposition testimony that
there is no specific language in the relevant standards
establishing the timing of the BMI assessment, or the necessity
that previous weight loss efforts be medically supervised. (See
Pl.’s Mot. to Exclude, Ex. 1 at 64, 97-100; Def.’s Mot. at 1215.)
17

well as his experience as a bariatric surgeon and a member of
numerous bariatric surgery professional societies. In his Rule 26
report, Dr. Jones references his own personal experience as a
surgeon and chief of a bariatric surgery program when discussing
the eligibility criteria for bariatric surgery, including with
respect to the timing of the BMI assessment and the import of
pre-surgical weight loss. (See Pl.’s Mot. to Exclude, Ex. 4.)
Further, Dr. Jones also mentions information he has gathered from
attending national meetings of relevant professional societies.
(Id. at 6.) He specifically discusses the NIH standard in place
at the time of Christina’s surgery, and goes on to note recent
developments in the medical community’s views on the eligibility
criteria.8/ (Id. at 5-6.) While, as Plaintiffs point out, Dr.

8/

Plaintiffs attempt to make much of a reference Dr. Jones
makes in his Rule 26 report to the IFSO Position Statement on
Bariatric Surgery in Class I Obesity. Plaintiffs assert that Dr.
Jones’s testimony was based solely on this position paper and,
thus, is unreliable, as this single paper does not represent a
consensus in the medical community, and does not support Dr.
Jones’s assertions. (Pl.’s Mot. to Exclude at 12-21.) An
examination of Dr. Jones’s Rule 26 expert report reveals,
however, that Dr. Jones references this position paper only after
citing the NIH standard and discussing the ongoing debate in the
bariatric surgery community as to whether the BMI guidelines
should be altered. He does not, as Plaintiffs assert, base his
opinion as to the general standard for eligibility, or
Christina’s eligibility specifically, solely on the IFSO position
statement. Rather, it appears he cites the IFSO position
statement to bolster his assertions regarding common medical
practices. (See Pl.’s Mot. to Exclude, Ex. 4 at 7; see also Ex. 1
at 109 (Dr. Jones’s deposition testimony stating that his
“opinions were formulated long before [he read the IFSO Position
Statement],” and that he did not “rel[y] on it in formulating
(continued...)
18

Jones did state in his deposition that he had no “specific
recollection” of performing bariatric surgery on a patient with a
BMI of less than 40, this statement has little bearing upon the
basis of his opinion regarding the timing of the BMI assessment
in determining eligibility for bariatric surgery.9/
Likewise, Plaintiffs’ arguments regarding the practices
of third party payors in refusing reimbursement for bariatric
surgery under certain conditions (including in certain cases of
preoperative weight loss) do not undermine the basis for Dr.
Jones’s testimony. The choice by some (but not all) third party
payors to withhold coverage for bariatric surgery where there is
preoperative weight loss does not represent the generally
accepted practice of the medical community such that it
undermines the reliability of Dr. Jones’s testimony. (See Pl.’s
Mot. to Exclude, Ex. 1 at 107 (Dr. Jones’s deposition testimony
stating that “insurance requirements vary all over the place” and
are distinct from the medical community’s preoperative
standards).)
In sum, based upon Dr. Jones’s background and
experience and his explanation of the basis for his opinions, the

8/

(...continued)
[his] opinions.”).)
9/

This statement may, however, support Plaintiffs’ position
on the merits that it does not meet the standard of care to
perform surgery on a patient with a BMI of less than 40 and no
co-morbid conditions.
19

Court is satisfied that his testimony regarding the application
of the NIH and ASBMS standards is sufficiently reliable. See
Primiano, 598 F.3d at 567 (concluding that a medical expert’s
opinion was admissible based on his “background and experience,
and his explanation of his opinion,” and noting that “physicians
must use their knowledge and experience as a basis for weighing
known factors along with the inevitable uncertainties to make a
sound judgment” (alterations omitted)); Sandoval-Mendoza, 472
F.3d at 654 (stating that Rule 702 “does not preclude the
introduction of medical expert opinion testimony when medical
knowledge permits the assertion of a reasonable opinion”); see
also Kumho Tire, 526 U.S. at 149 (expert testimony is relevant
“if the knowledge underlying it has a reasonable basis in the
knowledge and experience of the relevant discipline” (alteration
omitted)). Plaintiffs’ Motion to Exclude is therefore DENIED.
III. Government’s Motion to Exclude Expert Testimony of
Dr. I. Michael Leitman
In its Motion in Limine, the Government argues that Dr.
Leitman’s expert testimony should be excluded because Dr. Leitman
is not qualified to testify as an expert in bariatric surgery,
and because Dr. Leitman’s testimony lacks reliability.
A.

Whether Dr. Leitman’s Testimony Should Be Excluded
for Lack of Qualification
First, the Court addresses Dr. Leitman’s qualifications

as an expert in the instant suit. The Government argues that Dr.
20

Leitman is unqualified to testify regarding medical negligence in
offering RYBG surgery because he is a general surgeon without
formal fellowship training in bariatric surgery, and is Chief of
Surgery in a hospital that has not offered bariatric surgery
since 2009. (Gvt.’s Mot. at 21.) Moreover, the Government notes,
Dr. Leitman has not himself performed bariatric surgery, or RYGB
surgery specifically, since “around 2009 or prior.” (Id. at 23.)
“Determining whether a witness is an expert is
ordinarily within the discretion of the trial court.” McClaran v.
Plastic Industries, Inc., 97 F.3d 347, 357 n.8 (9th Cir. 1996).
Rule 702 “contemplates a broad conception of expert
qualifications.” Thomas v. Newton Intern. Enterprises, 42 F.3d
1266, 1269 (9th Cir. 1994). As noted above, under Rule 702, an
expert may testify “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.” Fed. R. Evid. 702.
“A witness is qualified as an expert by knowledge, skill,
experience, training, or education.” Id.; see also McDevitt, 522
F. Supp. 2d at 1290-91.
Here, Dr. Leitman clearly has specialized knowledge in
the general field of surgery: he is a medical doctor licensed to
practice medicine in the State of New York since 1986. He has
been Board Certified in General Surgery since 1991, and in
Surgical Critical Care since 1992. He is a Fellow with the

21

American College of Surgeons, as well as a Professor of Clinical
Surgery and Chief of Graduate Medical Education at the Albert
Einstein College of Medicine at Yeshiva University in New York.
Since 2008, Dr. Leitman has been the Chair of the Committee on
Surgical Quality Assurance and on the Patient Safety Committee at
Beth Israel Medical Center, in addition to serving as the Chief
of the Division of General Surgery at that hospital. He is also a
Senior Attending Surgeon at Lenox Hill Hospital. (Pl.’s Opp’n,
Leitman Decl., Ex. A.)
As to Dr. Leitman’s qualification to testify regarding
bariatric surgery in particular, the Court notes that the Ninth
Circuit has stated that “an expert need not have official
credentials in the relevant subject matter to meet Rule 702’s
requirements.” United States v. Smith, 520 F.3d 1097, 1105 (9th
Cir. 2008) (citing United States v. Garcia, 7 F.3d 885, 889-90
(9th Cir.1993)). Rather, an expert’s lack of specific experience
in the subject matter at issue “goes to the weight of his
testimony, not to its admissibility.” U.S. v. Little, 753 F.2d
1420, 1445 (9th Cir. 1984).
Nevertheless, the Court is satisfied that Dr. Leitman
does, in fact, have sufficient expertise in the area of bariatric
surgery specifically. Dr. Leitman has stated that he specializes
in “complex and minimally invasive surgical procedures,” with a
“particular expertise in weight loss surgery, also known as

22

bariatric surgery, including surgical procedures such as the Roux
en Y gastric bypass surgery . . . .” (Pl.’s Opp’n, Leitman Decl.
¶ 2 & Ex. A.) While Dr. Leitman has not performed weight loss
surgery since 2009, he states that between 1992 and 2009 he
performed approximately 500 weight loss surgeries, including
“numerous” RYGP surgeries. (Id. ¶ 3.) Further, since 2009 he has
continued to treat complications arising from weight loss surgery
in his surgical practice, and to consult with patients
considering bariatric surgery. (Id. ¶¶ 4-5.) Dr. Leitman has also
published numerous scholarly articles related to weight loss
surgery, and serves on a number of editorial and review boards
for medical journals that publish in the area of weight loss
surgery. (Id. ¶¶ 8-9 & Ex. A.)
In light of Dr. Leitman’s extensive experience as a
surgeon generally, and with weight loss surgery specifically, the
Court is satisfied that he has sufficient scientific, technical,
or other specialized knowledge to qualify him to assist the trier
of fact in understanding the evidence or determining facts in
issue. See Fed. R. Evid. 702. Any argument as to his lack of
specific experience in the subject matter at issue “goes to the
weight of his testimony, not to its admissibility.” Little, 753
F.2d at 1445. Thus, to the extent the Government seeks to exclude
Dr. Leitman’s testimony on the basis of a lack of qualification,
its Motion in Limine is DENIED.

23

B.

Whether Dr. Leitman’s Testimony Should Be Excluded
As Unreliable
The Government also argues that, even if Dr. Leitman is

deemed qualified as an expert, his testimony should nevertheless
be excluded because it is unreliable and unsupported by the
relevant scientific evidence. The basis for the Government’s
reliability argument is essentially the same as that of the
Plaintiffs in seeking to exclude the testimony of Dr. Jones: the
Government argues that Dr. Leitman’s opinions are based upon his
unsupported interpretation of the NIH and ASMBS standards.
(Def.’s Mot. at 10-11.)
As discussed above, under the NIH standard, “[p]atients
whose BMI exceeds 40 are potential candidates for surgery if they
strongly desire substantial weight loss, because obesity severely
impairs the quality of their lives.” (Pl.’s Mot. to Exclude, Ex.
3 (Rule 26 Report of Dr. Leitman) at 14-15; Pl.’s Opp’n at 12;
Def.’s Mot. at 10.) Patients with BMIs between 35 and 40 “may
also be considered for surgery” if they have “high-risk comorbid
conditions[.]” (Id.) The ASMBS has articulated this standard as
follows:
Qualifications for bariatric surgery in most areas include:
1.

BMI [greater than or equal to] 40, or more than 100
pounds overweight.

2.

BMI [greater than or equal to] 35 and at least two
obesity-related comorbidities such as type II
diabetes (T2DM), hypertension, sleep apnea and other
respiratory disorders, non-alcoholic fatty liver
24

disease, osteoarthritis, lipid abnormalities,
gastrointestinal disorders, or heart disease.
3.

Inability to achieve a healthy weight loss sustained
for a period of time with prior weight loss efforts.10/

(Def.’s Mot. at 10.)
In his Rule 26 expert report, Dr. Leitman asserts that
these standards require that patients must be weighed and their
BMIs calculated “on the day of surgery” or “at the time of [the]
pre-operative meeting” in order to make a determination of
eligibility for bariatric surgery. (Pl.’s Mot. to Exclude, Ex. 3
at 12, 26-27.) Dr. Leitman also opines that the standards require
patients eligible for bariatric surgery to have “failed a
medically supervised weight loss program.” (Id. at 12,19-20.) The
Government argues that neither of these statements are supported
by the actual language of the NIH or ASMBS standards and, thus,
Dr. Leitman’s opinion is unsupported by the prevailing medical
authority.
As discussed above, neither the NIH nor the ASMBS
standard contains specific language detailing (1) whether the BMI
of a patient must be calculated on the day of surgery, or on the

10/

The Government spends much ink arguing that Dr. Leitman’s
formulation of this standard as a “two-pronged test” is
unsupported by the language of the NIH and the ASMBS.
Acknowledging that the NIH and ASMBS do not actually use the
phrase “two-pronged test,” clearly here there are at least two
relevant considerations (BMI and previous failed weight loss
attempts), or “prongs,” to the articulated standards. The Court
therefore finds the Government’s arguments against Dr. Leitman’s
short-hand phrase “two-pronged test” unpersuasive.
25

day of admission into the bariatric surgery program; or (2)
whether the patient must fail a “medically supervised” weight
loss program, or it is sufficient for the patient to have tried
and failed to lose weight prior to surgery. Indeed, the parties
do not dispute the actual language of the standards, and both
parties acknowledge in their motions that the standards do not
contain specific language regarding the timing of the BMI
calculation or the necessity for prior weight loss attempts to be
medically supervised. (See Def.’s Mot. at 10; Pl.’s Opp’n at 12;
Pl.’s Mot to Exclude at 11-12, 22-23.) Thus, as was the case for
Dr. Jones’s testimony, because the standards do not have language
specifically refuting or supporting Dr. Leitman’s contentions,
the reliability of his statements must depend heavily on his own
knowledge and experience as a surgeon, rather than any specific
methodology or theory. Hankey, 203 F.3d at 1169; Sullivan, 365
F.3d at 833-34.
As with Dr. Jones’s statements, Dr. Leitman states that
his opinion is based upon his knowledge of the aforementioned NIH
and ASMBS standards, as well as his professional experience as a
surgeon, a specialist in high risk surgery (including weight loss
surgery), a clinician experienced in addressing complications
from bariatric surgery, and a member of several editorial boards
for publications addressing issues regarding gastrointestinal
medicine. (Pl.’s Opp’n, Ex. A; Pl.’s Mot. to Exclude, Ex. 3 at

26

1.) In his Rule 26 report, Dr. Leitman includes an extensive
discussion of the history, evolution, and content of the various
relevant bariatric surgery standards. (Pl.’s Mot. to Exclude, Ex.
3 at 14-19.) His application of these standards to the facts of
the instant case, as informed by his professional experience, was
well within his role as a medical expert. See, e.g.,
Sandoval-Mendoza, 472 F.3d at 654 (“[Rule 702] does not preclude
the introduction of medical expert opinion testimony when medical
knowledge permits the assertion of a reasonable opinion.”).
In sum, based upon Dr. Leitman’s background and
experience and his explanation of the basis for his opinions, the
Court is satisfied that his testimony regarding the application
of the NIH and ASBMS standards is sufficiently reliable.11/ See

11/

This case is clearly distinguishable from the unpublished
Fifth Circuit opinion the Government cites to support its
assertion that Dr. Leitman’s testimony is unreliable. In that
case, Dr. Leitman asserted that a needle used in a biopsy had
penetrated through the plaintiff’s breast, causing cardiac
injury. This contention was not, however, supported by any
factual evidence: both the testimony of the parties involved and
the x-ray images conflicted with Dr. Leitman’s contention.
Further, Dr. Leitman admitted that he had not actually seen any
of the images taken during the procedure. Thus, the Fifth Circuit
concluded that the district court did not abuse its discretion in
determining that Dr. Leitman’s testimony was not reliable.
Matosky v. Manning, 428 Fed. Appx. 293, 298 (5th Cir. 2011) (per
curiam). Here, conversely, Dr. Leitman’s testimony is not
contradicted by the physical evidence, nor does it lack
foundation in the facts of the case or the relevant medical
literature; rather, his testimony consists of his application of
the medically accepted standards for bariatric surgery
eligibility to the facts of this case based on his professional
experience doing so.
27

Primiano, 598 F.3d at 567 (concluding that a medical expert’s
opinion was admissible based on his “background and experience,
and his explanation of his opinion”); Kumho Tire, 526 U.S. 149
(expert testimony is relevant “if the knowledge underlying it has
a reasonable basis in the knowledge and experience of the
relevant discipline” (alteration omitted)). The Court therefore
DENIES the Government’s Motion in Limine.
As a final matter, the Court notes that in reaching its
conclusion as to both of the instant motions it is ever mindful
that “Daubert makes the district court a gatekeeper, not a fact
finder.” Sandoval-Mendoza, 472 F.3d at 654. On a motion seeking
to exclude expert testimony, it is not for the Court to weigh
evidence or make a determination on the merits as between
conflicting expert opinions. Here, relying on the same medically
accepted standards, the two experts appear to reach opposing
conclusions as to whether the standard for surgery eligibility
was met in this case. On the motions before it, it is not for the
Court to make a determination as to which expert’s opinion it
finds more persuasive. See Daubert, 509 U.S. at 596 (“Vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”).
Rather, the Court’s role is simply to assess the reliability of
proposed testimony. As discussed above, expert testimony is

28

relevant “if the knowledge underlying it has a reasonable basis
in the knowledge and experience of the relevant discipline.” Id.
(quoting Kumho Tire, 526 U.S. at 149) (alteration omitted). Here,
for the reasons discussed above, the Court is satisfied that both
of the experts meet that test.
CONCLUSION
For the foregoing reasons, the Court DENIES the
Plaintiffs’ Motion to Exclude Expert Testimony, GRANTS IN PART
AND DENIES IN PART Plaintiffs’ Motion to Strike, and DENIES the
Government’s Motion in Limine.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, January 15, 2015

________________________________
Alan C. Kay
Senior United States District Judge

Mettias v. United States of America, Civ. No. 12-00527 ACK-KSC, Order Denying
Plaintiffs’ Motion to Exclude, Granting in Part and Denying in Part
Plaintiffs’ Motion to Strike, and Denying Defendant’s Motion in Limine

29