Harris v. Wexford Health Sources, Inc. et al
Filing
239
MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 3/30/2021. Mailed notice (dal, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KNIEAKAY T. HARRIS, as independent
administrator of the estate of GERALD
ANDRE GREEN,
)
)
)
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Plaintiff,
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v.
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WEXFORD HEALTH SOURCES, INC., et al., )
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Defendants.
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No. 15-cv-10936
Judge Andrea R. Wood
MEMORANDUM OPINION AND ORDER
Plaintiff Knieakay T. Harris filed this civil rights suit as the independent administrator of
the estate of Gerald Andre Green. In March 2014, two days before Green was scheduled to be
released from custody at Stateville Correctional Center (“Stateville”), an ambulance transported
him to Presence St. Joseph Medical Center (“St. Joseph”) in Joliet, Illinois. Green died at St.
Joseph several days later, due to various complications from renal failure and hypertension. Harris
has brought several claims under 42 U.S.C. § 1983 and Illinois state law against the following
Stateville officials and healthcare providers: Wexford Health Sources, Inc. (“Wexford”), Randy
Pfister, Michael Magana, Bernadette Ononiwu, R.N., Ghaliah Obaisi as independent executor of
the estate of Dr. Saleh Obaisi, and Tunji Alausa, M.D. (collectively, “Defendants”) (Fourth Am.
Compl., Dkt. No. 113.). Defendants retained two expert physicians who provided reports opining
that Defendants were not at fault for Green’s death. (See Pl.’s Mot. to Bar Defs.’ Expert Witnesses
Drs. Tubbs & Leehey Pursuant to Daubert v. Merrell Dow (“Daubert Mot.”), Ex. A, Dkt. No. 2141; id., Ex. B., Dkt. No. 214-2.) Harris now moves pursuant to Federal Rule of Civil Procedure
26(a), Federal Rule of Evidence 702, and Daubert v. Merrell Dow Pharmacy, Inc., 509 U.S. 579
(1993), to exclude certain statements contained in the physicians’ reports. (Daubert Mot., Dkt. No.
214.) For the reasons provided below, the motion is denied.
BACKGROUND
Harris alleges that in the early morning of March 19, 2014, an unknown Wexford nurse
took Green to Nurse Ononiwu because he was having chest pain and difficulty breathing. (Fourth
Am. Compl. ¶ 21.) Nurse Ononiwu called Dr. Obaisi, who was then the medical director at
Stateville. (See Daubert Mot., Ex. C, Dep. of Bernadette Ononiwu, R.N. (“Ononiwu Dep.”)
151:10–152:11, Dkt. No. 214-3.) When Dr. Obaisi did not answer, Nurse Ononiwu called another
doctor, who told her to send Green to St. Joseph. (Id.) According to Harris, Nurse Ononiwu then
started Green on a saline infusion by intravenous drip (“IV”). (Fourth Am. Compl. ¶ 23.) Nurse
Ononiwu disputes that she administered Green’s IV (Ononiwu Dep. 159:8–15), but she
acknowledges that she took notes on Green’s vitals while waiting for his ambulance to arrive,
including a note that his IV was infusing liquids. (Id. 175:9–21.) At 2:50 a.m.—approximately 45
to 50 minutes after Green’s IV started—an ambulance transported him to St. Joseph. (Fourth Am.
Compl. ¶ 25.) Green arrived at the hospital unconscious and in cardiac arrest, and St. Joseph
medical professionals were never able to revive him. (Id. ¶ 26.) He died five days later, on March
24, 2014. (Id. ¶ 14.) The Will County Medical Examiner listed anoxic brain damage, cardiac
arrest, and pulmonary edema—or excess fluid in the lungs—as his causes of death. (Id. ¶ 15.)
Green had suffered from serious renal failure and hypertension since at least 2012. (Id. ¶ 16.) But
Harris alleges that Nurse Ononiwu’s saline infusion exacerbated his underlying medical issues and
ultimately led to his death. (Id. ¶ 37.)
To rebut Harris’s medical expert, Anis Rauf, D.O., Defendants have disclosed expert
reports from Dr. Kennon Tubbs, M.D., CCHP-P, and Dr. David J. Leehey, M.D., who reviewed
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the underlying medical records and determined that Defendants acted reasonably in treating Green
and were not responsible for his death. (See Daubert Mot., Ex. A, Expert Report of Kennon
Tubbs, M.D., CCHP-P (“Tubbs Report”), Dkt. No. 214-1; id., Ex. B, Expert Report of David J.
Leehey, M.D. (“Leehey Report”), Dkt. No. 214-2.) Dr. Tubbs is a family practice physician who
has worked at the Utah State Prison for 15 years and currently serves as the medical director for
eleven county jails in Utah and Wyoming. (Tubbs Report at 1.) Dr. Leehey is a Professor of
Medicine and Nephrology at Loyola University of Chicago Medical Center who has practiced in
the area of nephrology for nearly 40 years. (Leehey Report at 1–2.) Harris elected not to depose
Dr. Tubbs or Dr. Leehey. (Daubert Mot. at 1.)
Harris seeks to exclude certain opinions of Defendants’ experts, claiming that they failed
to comply with the disclosure requirements of Federal Rule of Civil Procedure 26(a)(2) and based
their opinions on unreliable science. Specifically, Harris challenges the following four opinions:
(1) Dr. Tubbs’s opinion that Green outlived his life expectancy by two years; (2) Dr. Tubbs’s and
Dr. Leehey’s estimates on the amount of saline solution infused into Green by IV before an
ambulance transported him to St. Joseph; (3) Dr. Tubbs’s statement that Nurse Ononiwu did not
place the IV into Green; and (4) Dr. Tubbs’s opinion that a heart attack may have been the
ultimate cause of Green’s death.
DISCUSSION
Under Federal Rule of Civil Procedure 26(a)(2)(B), retained experts such as Dr. Tubbs and
Dr. Leehey must disclose to the opposing party complete statements of the opinions to which they
intend to testify and the facts or data upon which they relied in forming their opinions. See also
Fed. R. Civ. P. 26(a)(2)(B) advisory committee’s notes to 1993 amendment (requiring that an
expert provide a “detailed and complete written report,” and noting that before the amendment, an
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expert’s disclosure “was frequently so sketchy and vague that it rarely dispensed with the need to
depose the expert”). “A complete report must include the substance of the testimony which an
expert is expected to give on direct examination together with the reasons therefor.” Ciomber v.
Coop. Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008) (quoting Salgado v. Gen. Motors Corp., 150
F.3d 735, 741 n.6 (7th Cir. 1998)). Such reports should also offer and cite any data or publications
upon which the expert bases their opinions. Cent. States, Se. & Sw. Areas Health & Welfare Fund
v. Haynes, No. 17 C 6275, 2018 WL 8265243, at *2 (N.D. Ill. Oct. 24, 2018).
“The admission of expert testimony is governed by Federal Rule of Evidence 702 and the
principles outlined in Daubert.” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir.
2011). Under the Daubert standard, the district court acts as a gatekeeper to “ensure the reliability
and relevancy of expert testimony.” Naeem v. McKesson Drug Co., 444 F.3d 593, 607 (7th Cir.
2006) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999)). In addition, Rule
702 provides that a qualified expert may testify as to his opinion if his specialized knowledge will
help the trier of fact to determine a fact in issue, his testimony is based on sufficient facts or data
and is the product of reliable methods, and the expert has reliably applied those methods to the
facts of the case. Fed. R. Evid. 702. Accordingly, the district court engages in a three-step analysis
before admitting expert testimony. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010).
“It must determine whether the witness is qualified; whether the expert’s methodology is
scientifically reliable; and whether the testimony will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Id. (internal quotation marks and citation omitted). But
this gatekeeping responsibility “does not render the district court the trier of all facts relating to
expert testimony. . . . The jury must still be allowed to play its essential role as the arbiter of the
weight and credibility of expert testimony.” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771,
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780 (7th Cir. 2017) (quoting Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013)).
While “‘shaky’ expert testimony may be admissible, subject to attack on cross-examination,” the
district court has an obligation to exclude any testimony that crosses the line from shaky to
unreliable. Bielskis, 663 F.3d at 894 (citation omitted).
Courts look at several factors to determine whether experts’ principles and methods are
reliable, such as whether the methods can be and have been tested, whether they have been subject
to peer review, whether they have a known error rate, and whether they are generally accepted in
the relevant scientific community. Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir.
2013) (citing Daubert, 509 U.S. at 593–94). The advisory committee’s notes to the 2000
amendment of Rule 702 suggests a few additional factors to consider, including “[w]hether the
expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and
“[w]hether the expert has adequately accounted for obvious alternative explanations.” See also
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“A court may conclude that there is simply
too great an analytical gap between the data and the opinion proffered.”). Finally, an expert must
“substantiate his opinion; providing only an ultimate conclusion with no analysis is meaningless.”
Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1087 (7th Cir. 1999) (citation omitted).
I.
Dr. Tubbs’s Opinion Regarding Green’s Life Expectancy
In his report, Dr. Tubbs opines, in relevant part:
According to the United States Renal Data System (USRDS) 2009 report the
expected survival of a 55-year-old person on dialysis is only 5 years. The mean
survival for all people in America who start dialysis is 3 years. Mr. Green survived
seven years on hemodialysis. It is reasonable to assume that he was able to survive
so long due to the excellent dialysis care he received while incarcerated.
(Tubbs Report at 4.) Dr. Tubbs goes on to remark that, according to one study, nocturnal dialysis
is associated with significantly lower mortality rates, which “could presumably be why Mr. Green
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underwent dialysis at 2 am rather than during the daytime hours.” (Id.) Dr. Tubbs concludes that
Green “outlived his life expectancy by two years.” (Id.)
Harris first argues that Dr. Tubbs is not qualified under Rule 702 to offer opinions on the
life expectancy of individuals receiving nephrological care because he is a general family
physician. (Daubert Mot. at 7.) “Whether a witness is qualified as an expert can only be
determined by comparing the area in which the witness has superior knowledge, skill, experience,
or education with the subject matter of the witness’s testimony.” Gayton v. McCoy, 593 F.3d 610,
616 (7th Cir. 2010) (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990)). A
medical degree is not sufficient to deem a witness “qualified to opine on all medical subjects.” Id.
at 617. But “courts often find that a physician in general practice is competent to testify about
problems that a medical specialist typically treats.” Id. (reversing the district court’s finding that a
physician without cardiac-specific training was unqualified “to testify as an expert in a case
involving a heart-related death”). As the Seventh Circuit noted in Gayton, “[t]he question we must
ask is not whether an expert witness is qualified in general, but whether his qualifications provide
a foundation for him to answer a specific question.” Id. (internal quotation marks, alterations, and
citations omitted). Though Dr. Tubbs is a general physician, he has worked in the jail system for
more than 15 years, and it is likely he has significant experience with medical issues common
among the general population, including kidney disease. Thus, the Court finds that Dr. Tubbs is
sufficiently qualified to serve as an expert witness.
Next, Harris argues that the Court should exclude Dr. Tubbs’s references to the 2009
USRDS report and the study concerning nocturnal dialysis pursuant to Federal Rule of Civil
Procedure 26(a)(2)(B) because Dr. Tubbs did not include the full reports in his disclosures. But
Rule 26(a)(2)(B) does not require “that the expert attach to his report every publication he cites.”
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Kesse v. Ford Motor Co., No. 14-cv-6265, 2020 WL 832363, at *6 (N.D. Ill. Feb. 20, 2020). “The
purpose of the report is to provide adequate notice of the substance of the expert’s forthcoming
testimony and to give the opposing party time to prepare for a response.” Meyers v. Nat’l R.R.
Passenger Corp. (Amtrak), 619 F.3d 729, 734 (7th Cir. 2010) (citations omitted). As to the
USRDS report, Dr. Tubbs provides the source and year of publication (Tubbs Report at 4), which
is sufficient for Harris’s counsel to obtain their own copy of the report and prepare for crossexamination.1 Additionally, there is a full citation to the study concerning nocturnal dialysis
included on the final page of Dr. Tubbs’s report, below his signature. (See id. at 6 (citing John B.
Stokes, M.D., Consequences of Frequent Hemodialysis: Comparison to Conventional
Hemodialysis and Transplantation, 122 Transactions Am. Clinical & Climatological Ass’n 124–
36 (2011)).) The Court finds that Dr. Tubbs’s references to these two studies provide Harris
sufficient notice of their contents and thus comply with Rule 26.
Aside from any disclosure issues, Harris argues that Dr. Tubbs’s statement concerning
Green’s life expectancy should be excluded under Daubert and Rule 702 as lacking scientific
rigor. Specifically, Dr. Tubbs generalizes that because the average expected survival of a 55-year
old person on dialysis is five years, Green’s survival of seven years on dialysis shows that he
outlived his life expectancy by two years. As Harris points out, “Green was 42 years old and on
hemodialysis at the time of his death.” (Daubert Mot. at 7 (emphasis provided).) Essentially,
Harris argues that Dr. Tubbs’s estimation of Green’s life expectancy constitutes an unjustifiable
extrapolation from the study Dr. Tubbs cites. See advisory committee’s notes to the 2000
amendment of Federal Rule of Evidence 702. For instance, in C.W. ex rel. Wood v. Textron, Inc.,
the Seventh Circuit affirmed the exclusion of a doctor’s expert opinion that the plaintiffs’
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Moreover, if Harris’s counsel is nonetheless unable to obtain a copy of the report, the Court would
consider it reasonable for Harris’s counsel to ask Defendants’ counsel for access to the report and would
expect Defendants’ counsel to oblige.
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immunological and neurological issues were the result of their exposure as children to a toxic gas
released by the defendant’s nearby manufacturing plant. 807 F.3d 827, 836–38 (7th Cir. 2015).
The expert’s opinion relied on studies that showed how high doses of the gas could cause damage
to the immune and nervous systems. Id. at 832. However, the studies did not involve children
subjects or exposure levels similar to the plaintiffs’. Id. at 837. The court noted that though the
expert was not required to find a study of individuals at the exact age of the plaintiffs, exposed to
exact same amounts of the gas, he did need to “connect the dots from the studies to the illnesses
endured by the children” using a valid method of extrapolation. Id.; see also In re Zimmer Nexgen
Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 714 (N.D. Ill. 2016) (granting the
defendant’s motion to exclude a doctor’s expert testimony pursuant to Rule 702 and Daubert
because the doctor “provide[d] almost no explanation of how the sources he reviewed support his
conclusions.”).
In the present case, the differences between Green and the subjects of the USRDS study—
Green being thirteen years younger than those subjects and on hemodialysis rather than dialysis—
may be significant. See generally Stanley S.A. Fenton M.D. et al., Hemodialysis Versus
Peritoneal Dialysis: A Comparison of Adjusted Mortality Rates, 30 Am. J. Kidney Diseases 334–
42 (1997). And like the expert in C.W., Dr. Tubbs has not provided many details about how he
extrapolated Green’s life expectancy from the subjects of the USRDS study. However, the Court
is reluctant to exclude Dr. Tubbs’s opinion without more information on his methodology,
particularly since he has not had the opportunity to testify in a deposition (which would be the
most direct way for Harris to test the connection between the study and Dr. Tubbs’s conclusions
or expose the lack thereof). It may be that the apparent gap between Dr. Tubbs’s research and
Green can be remedied via rigorous cross-examination. See Bielskis, 663 F.3d at 894.
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Accordingly, the Court will deny Harr’s motion to exclude Dr. Tubbs’s opinion based on the
current record and instead require that Dr. Tubbs provide a more detailed disclosure of the
methodology he used to estimate Green’s life expectancy.
II.
Dr. Tubbs’ and Dr. Leehey’s Opinions Regarding the Volume of Green’s
Saline Solution Infusion
Dr. Tubbs and Dr. Leehey both offer opinions regarding the amount of fluid that Nurse
Ononiwu, or another healthcare official, infused into Green via an IV. Dr. Tubbs writes:
Records show that an IV was placed and that it was “infusing.” This is more likely
that the writer of the note was indicating that the IV was open and available if
needed for this life saving medications. In most code situations once IV access is
obtained the IV is ran at “TKO” to keep open status. The standard drip rate for a
TKO IV line is one that flows between 25 and 50 cc/hr. Given that the IV was
placed at 0207 and he was transported at 0250 a reasonable guess would be that
Green received approximately 30 ml of saline solution. This correlates to less than
one ounce of fluid. In addition the care was so reasonable that the ambulance
required use of the IV when Green underwent a cardiac arrest in the ambulance.
Had this IV not been kept open and flowing it is likely that Mr. Green could have
died in the ambulance having not been able to receive resuscitative medication
through the IV.
(Tubbs Report at 4.) Dr. Leehey opines:
From my reading of the record, the purpose of infusing 0.9% saline was to keep the
line open for possible intravenous medication administration and not to administer
fluids to the patient. The documentation does not indicate how much saline was
infused into Mr. Green, but in my opinion it is likely that only a small amount of
saline was given in the 50 minutes that the patient was in the prison emergency
room. Thus I believe that it is more likely than not that any saline infused under the
care of Nurse Ononiwu did not contribute to the death of Mr. Green, and she did
not otherwise contribute to the death of the patient.
(Leehey Report at 2.)2 Both experts offer essentially the same three opinions: (1) that Green’s IV
was not started in order to transfer liquids but simply to keep his vein open; (2) that a small
amount of liquid—around one ounce—was infused into Green before he was transported to St.
2
Harris does not contest that, as an experienced nephrologist, Dr. Leehey is qualified to offer an expert
opinion under Rule 702.
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Joseph; and (3) that the volume of liquid infused into Green did not contribute to his death and
may have actually prevented his earlier death.
Harris argues that Dr. Tubbs’s and Dr. Leehey’s opinions inexcusably overlook facts in
the record. First, Nurse Ononiwu testified that she believed infusing saline solution into a patient
like Green, who was suffering from very high blood pressure, would help the patient by lowering
his blood pressure. (See Ononiwu Dep. 193:9–21.) Thus, Harris contends that it is likely Nurse
Ononiwu or a member of her staff infused Green’s IV in order to administer liquids, and not
merely to keep the line open. Second, Nurse Ononiwu testified that she could not remember the
rate of the IV transfusion into Green. (Id. 201:20–202:3.)
In determining whether expert testimony is sufficiently reliable, courts should consider
“[w]hether the expert has adequately accounted for obvious alternative explanations.” Fed R.
Evid. 702 advisory committee’s note to 2000 amendment; see also Gopalratnam, 877 F.3d at 787
(affirming district court’s exclusion of expert testimony, in part because the expert “failed to
account for other possible explanations in arriving at his conclusion”). A court may decide to
exclude expert evidence that is simply inconsistent with the factual record. See Second
Amendment Arms v. City of Chicago, No. 10-cv-4257, 2020 WL 1157347, at *9 (N.D. Ill. Mar.
10, 2020) (excluding an expert report concerning lost profits that “was based on implausibly
optimistic assumptions” and was undermined by the facts before the court).
The Court finds that Dr. Tubbs’s and Dr. Leehey’s intended testimonies about the purpose
and volume of the liquid administered to Green are sufficiently reliable to proceed before the
factfinder. As Harris points out, there are facts in the record inconsistent with Defendants’ expert
testimony. Nurse Ononiwu’s deposition testimony and her handwritten note that an IV was
infusing liquids could support a finding that Green’s IV was started specifically to administer
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fluids, and not merely to keep his vein open for emergency responders. But the record on that
point is not so clear that Dr. Tubbs’s and Dr. Leehey’s testimony should be excluded out of hand
as unreliable. As physicians who have reviewed Green’s medical record and the notes of
Stateville’s medical staff, they can provide testimony based on their experience about common
notetaking and IV transfusion practices in their profession.
As to the experts’ second point—that only a small amount of liquid was transfused to
Green—their testimonies are not necessarily inconsistent with the factual record. It is true that
Nurse Ononiwu testified she did not know the IV’s transmission rate or volume of liquid.
However, the record shows that the IV was in place from approximately 2:07 to 2:50 am. Thus, it
is likely that an expert familiar with typical transmission rates and the ordinary standard of care
for such situations would be able to provide a fair estimate of the amount of liquid transferred,
based on the length of time the IV was in place. Accordingly, Harris’s motion to exclude the
expert testimony of Dr. Tubbs and Dr. Leehey is denied with respect to their opinions concerning
Green’s IV infusion.
III.
Dr. Tubbs’s Statement Regarding Who Administered Green’s IV
Harris also seeks to bar the following statement, included in Dr. Tubbs’s report: “Nurse
Ononiwu did not place the IV per her deposition. An IV was placed by the resuscitation team in
the event it was needed.” (Tubbs Report at 4.) Harris disputes Nurse Ononiwu’s claim that she did
not administer Green’s IV. (See Daubert Mot. at 13.)
District courts are required to bar experts’ subjective beliefs, see Clark v. Takata Corp.,
192 F.3d 750, 757 (7th Cir. 1999), which would include their beliefs about the credibility of fact
witnesses. But by specifying that “per her deposition,” Nurse Ononiwu did not administer Green’s
IV, Dr. Tubbs avoids any prejudice to Harris. Rather, he is simply providing the basis for the
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conclusions he has reached. And, at trial, Dr. Tubbs may readily be cross examined regarding the
reliability of a party’s testimony as the basis for his opinions. Similarly, in United States v.
Diekhoff, the Seventh Circuit found that the district court did not abuse its discretion by allowing
an expert psychologist to repeat the criminal defendant’s statement “I knew it was wrong” when
she opined on his mental state. 535 F.3d 611, 620 (7th Cir. 2008). The court concluded that the
expert’s testimony was not unduly prejudicial, because she provided “no embellishment to the
statement indicating whether [she] thought this showed sanity or insanity.” Id. The Court trusts
that here the factfinder will interpret Dr. Tubbs’s statement as a simple recounting of Ononiwu’s
position. Presumably, Nurse Ononiwu will testify at trial consistent with her deposition testimony
and the jury will hear the same statement directly from her. If that turns out not to be the case,
Harris may request an appropriate ruling limiting the introduction of Nurse Ononiwu’s out-ofcourt statement through Dr. Tubbs at that time. Accordingly, the motion to exclude is denied as to
Dr. Tubbs’s statement concerning whether Ononiwu administered Green’s IV.
IV.
Dr. Tubbs’s Opinion that Green May Have Suffered a Heart Attack
Lastly, Harris challenges Dr. Tubbs’s assertion that Green may have suffered a heart attack
at the end of his life. The relevant section of Dr. Tubbs’s expert report provides:
Mr. Green presented in hypertensive crisis with blood pressure of 260/140. He had
accompanying complaints of vomiting, chest pain, shortness of breath and low
oxygen saturations. It is possible that Mr. Green was suffering a heart attack
despite evidence of coronary artery occlusion on autopsy. Mr. Green has
significant risk factors for heart disease and this cannot be excluded as the cause of
his death. It is certainly incumbent upon the nursing team and nurse Ononiwu to
consider heart attack as a possibility and obtain IV access in preparation for
transport in case of an acute arrest.
(Tubbs Report at 5.) Harris argues that by proposing that Green may have died of a heart attack,
Dr. Tubbs ignores the relevant medical evidence showing that Green’s death was caused by a
pulmonary edema and “makes a stab in the dark opining without any supporting facts.” (Daubert
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Mot. at 14.) But Dr. Tubbs’s report points directly to the facts upon which he bases his opinion,
including Green’s blood pressure, vomiting, chest pain, shortness of breath, and oxygen levels.
Additionally, this is not a case where the expert’s opinion fails to account for other obvious
explanations. See Fed R. Evid. 702 advisory committee’s note to 2000 amendment; Gopalratnam,
877 F.3d at 787. To the contrary, Dr. Tubbs’s report acknowledges that Green was suffering from
an acute pulmonary edema when he was transferred to St. Joseph. (Tubbs Report at 5.) Still, Dr.
Tubbs proposes that based on Green’s symptoms, he may ultimately have died of a heart attack. If
Harris disagrees with how Dr. Tubbs has applied his medical knowledge to the facts of the case,
she may address that on cross-examination. The motion to exclude is denied as to Dr. Tubbs’s
opinion regarding Green’s cause of death.
CONCLUSION
For the reasons provided above, Harris’s Daubert motion to exclude expert testimony from
Dr. Tubbs and Dr. Leehey (Dkt. No. 214.) is denied. However, the Court directs that by April 20,
2021, Dr. Tubbs shall supplement his report to explain how he estimated Green’s life expectancy
on hemodialysis based on the studies cited.
ENTERED:
Dated: March 30, 2021
__________________________
Andrea R. Wood
United States District Judge
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