Apuri, M.D. v. Parkview Health System, Inc. et al

Filing 53

OPINION AND ORDER granting 35 MOTION in Limine To Exclude And/Or Limit Plaintiff's Expert's Testimony. Signed by Chief Judge Theresa L Springmann on 2/5/18. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
BHAKTAVATSALA R. APURI. M.D.,
Plaintiff,
v.
PARKVIEW HEALTH SYSTEMS, INC.,
PARKVIEW HOSPITAL, INC., and
ROY ROBERTSON, M.D.,
Defendants.

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CAUSE NO.: 1:16-CV-363-TLS

OPINION AND ORDER
The Plaintiff, Dr. Bhaktavatsala R. Apuri, is a cardiologist of Indian descent. After his
privileges at Parkview Hospital were not renewed, he sued Parkview, alleging race
discrimination under 42 U.S.C. § 1981 and state law claims relating to the non-renewal of his
privileges. He also sued Dr. Roy Robertson for intentional interference with a business
relationship for the role Dr. Robertson had in the peer review process, which the Plaintiff
contends led to a tainted and biased review. Even before the discovery deadline passed, the
Defendants filed a Motion to Exclude [ECF No. 35], which centers on the expert witness report
of Dr. Jonathan Marmur.
Dr. Marmur assessed the Plaintiff’s competence as an interventional cardiologist by
reviewing nineteen of his cases. Based on his review, Dr. Marmur concluded that the Plaintiff
should have no restrictions in the domain of diagnostic cardiac catheterization. Additionally, he
believed, based on the stenting procedures performed in the cases he was given to review, that
the Plaintiff was independently capable of successfully performing percutaneous coronary
intervention in at least moderate to high risk scenarios. The Defendants’ Motion does not seek to
prevent Dr. Marmur from offering his opinions on these matters, including the medical care and

procedures the Plaintiff provided to specific patients. The Defendant’s Motion targets the matters
contained in the last three paragraphs of Dr. Marmur’s report.
In the paragraphs at issue, Dr. Marmur suggests reasons, other than incompetence or
inability, why the Plaintiff may have requested consultation and assistance from his colleagues
while providing treatment. Dr. Marmur also writes:
There is a reason that our concept of justice has as its foundation the notion of
innocent until proven guilty. There is a reason that the basis of clinical research is
the null hypothesis; that establishing causality requires vigorous standards and
meaningful data that is verifiable and reproducible. In my opinion, the basis upon
which very harsh measures were brought to bear upon Dr. Apuri’s practice of
medicine did not meet these standards.
(ECF No. 35-1 at 42.) In closing, Dr. Marmur states that “it should be noted that asking for help
is behavior that should be encouraged in the medical community,” and points to the safety
conscious aviation industry as a model to follow.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and
the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). See Lees v. Carthage, 714 F.3d 516, 521 (7th Cir. 2013) (explaining that Rule 702 has
superseded Daubert, but that its standard of review is still applicable). In analyzing the reliability
of proposed expert testimony, the role of the court is to determine whether the expert is qualified
in the relevant field and to examine the methodology the expert has used in reaching his
conclusions. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999). An expert may be
qualified by “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. “The
purpose of [the Daubert] inquiry is to vet the proposed testimony under Rule 702’s requirements
that it be ‘based on sufficient facts or data,’ use ‘reliable principles and methods,’ and ‘reliably
appl[y] the principles and methods to the facts of the case.’” Lapsley v. Xtek, Inc., 689 F.3d 802,
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804 (7th Cir. 2012) (quoting Fed. R. Evid. 702). In evaluating whether an expert’s proposed
testimony meets the Daubert standard, the court is to “scrutinize the proposed expert witness
testimony to determine if it has ‘the same level of intellectual rigor that characterizes the practice
of an expert in the relevant field’ so as to be deemed reliable enough to present to a jury.” Id. at
805 (quoting Kumho Tire, 526 U.S. at 152); see also United States v. Herrera, 704 F.3d 480, 486
(7th Cir. 2013) (noting that “expert evidence is not limited to ‘scientific’ evidence . . . [but]
includes any evidence created or validated by expert methods and presented by an expert witness
that is shown to be reliable”).
Whether to admit expert testimony rests within the discretion of the district court. See
Gen. Elec. v. Joiner, 522 U.S. 136, 142 (1997); Lapsley, 689 F.3d at 810 (“[W]e ‘give the district
court wide latitude in performing its gate-keeping function and determining both how to measure
the reliability of expert testimony and whether the testimony itself is reliable.’”) (quoting
Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)). “The proponent of the
expert bears the burden of demonstrating that the expert’s testimony would satisfy the Daubert
standard” by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698,
705 (7th Cir. 2009).
District courts apply the Daubert framework described above using a three-part analysis.
Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the court must determine
whether the proposed witness is qualified as an expert by knowledge, skill, experience, training,
or education. If so, the court must then decide whether the reasoning or methodology underlying
the expert’s testimony is reliable. If these two requirements are met, the court must assess
whether the expert’s proposed testimony will assist the trier of fact in understanding the evidence

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or to determine a factual issue. See id. (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,
904 (7th Cir. 2007)). Statements in an expert report that are not relevant to the issues to be tried,
will not be permitted. See Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 805–06 (7th Cir.
2013) (No matter the nature of the witness’s expertise, Rule 702 establishes not only a standard
of evidentiary reliability, it requires a valid connection to the pertinent inquiry as a precondition
to admissibility).
The Court, at this juncture, has limited facts about the litigation before it. The Motion to
Exclude was not filed in connection with a dispositive motion or an impending trial. Although
discovery has closed, motions to compel are still pending. This procedural posture, however
impacts only the relevance prong of the gatekeeping function. The Court need not reach the
relevance inquiry unless if first finds that the proposed testimony is reliable. To that end, the
Court has sufficient information to make a determination.
The Court agrees with the Defendant that the challenged portion of Dr. Marumur’s report
is not admissible as expert testimony, regardless of the legal claims the Plaintiff advances or the
facts that will ultimately be in dispute. For example, Dr. Marmur’s conjecture about what might
have prompted the Plaintiff to request consultation and assistance is not an appropriate subject
for expert testimony. It is not based on Dr. Marmur’s specialized knowledge, not based on
sufficient facts or data, not the product of reliable principles and methods or a reliable
application of those principles and methods to the facts of the case. Fed. R. Evid. 702. There was
no “intellectual rigor,” Kumho Tire, 526 U.S. at 152, involved in the speculation about the
Plaintiff’s potential motives. Thus, the following statement from Dr. Marmur’s report is not
admissible as expert testimony:

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The fact that Dr. Apuri requests consultation and assistance from his colleagues does
not constitute proof of inability nor incompetence. There may be other, totally
legitimate and appropriate reasons, for such behavior. Perhaps, Dr. Apuri is not
familiar with the equipment or precise operating procedure in that particular cath lab;
perhaps he is trying to establish new relationships with colleagues and wants to learn
from their experience; perhaps we [sic] had other urgent obligations and requested
that a colleague stand in for him.
(Report 16–17, ECF No 35-1 at 42.)
Likewise, Dr. Marmur’s statements about the fairness of the peer review process that was
applied to the Plaintiff is not a reliable expert opinion. In support of his conclusions about the
Plaintiff’s peer review, Dr. Marmur references standards from other contexts, such as
establishing guilt in a criminal case and causation in clinical research. He then opines that the
peer review process that was applied to the Plaintiff did not meet these unrelated standards. Dr.
Marmur’s training and experience in cardiac catheterization and interventional cardiology
qualify him to opine, based on his review of cases involving stenting procedures that the Plaintiff
had performed, whether the Plaintiff “appears to possess the skills needed to perform PCI
independently.” (Report 16.) His assessment of the peer review process, however, was not based
on reliable reasoning or methodology.
The peer review process, and what it entailed, is not even the subject of Dr. Marmur’s
report. His comments on the matter appear to be an add-on to an entirely separate analysis.
“Talking off the cuff—deploying neither data nor analysis—is not an acceptable methodology.”
Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000) (noting that the Seventh
Circuit has “[m]any times . . . emphasized that experts’ work is admissible only to the extent it is
reasoned, uses the methods of the discipline, and is founded on data” ). The Plaintiff’s Response
in opposition to the Motion to Exclude does not address these deficiencies. Rather, the Plaintiff’s

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position appears to be that, because Dr. Marmur has experience with medical peer reviews in his
role as Chief of Cardiology, he should be permitted to offer his opinion that “the basis upon
which very harsh measures were brought to bear upon Dr. Apuri’s practice of medicine did not
meet [criminal justice and clinical research] standards.” (Report 17.) Dr. Marmur’s experience
does not change the fact that his conclusion was not based on principles and methods that are
standard in the area of medical peer review. See Huey v. United Parcel Serv., Inc., 165 F.3d
1084, 1087 (7th Cir. 1999) (noting that proponent of an expert whose briefing “assume[d] that
anyone with ‘expertise” may testify as an expert” failed to meet requirement that experts provide
analysis to substantiate an opinion). Because Dr. Marmur did not follow a reliable methodology
in reaching his conclusions and reliably apply it to the specific facts of this case to arrive at his
conclusion about the application of the peer review process to the Plaintiff, the statements are not
admissible as expert testimony.

CONCLUSION
For the reasons stated above, the Court GRANTS the Defendant’s Motion to Exclude
[ECF No. 35]. The Plaintiff has requested, by way of his Response, that if the Court grants the
Motion he be permitted to “disclose another witness with expertise in the field of medical
credentialing/medical peer review.” (Resp. 2.) If the Plaintiff believes that an extension of the
deadline for expert disclosures is warranted, he must file the appropriate motion with the Court.
SO ORDERED on February 5, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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