NAYAK v. ST. VINCENT HOSPITAL AND HEALTH CARE CENTER, INC.
Filing
139
ORDER granting in part and denying in part 112 Motion to Exclude Plaintiff's Expert Testimony.. Signed by Judge Richard L. Young on 9/30/2014. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SEEMA NAYAK M.D.,
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Plaintiff,
vs.
ST. VINCENT HOSPITAL AND
HEALTH CARE CENTER, INC.,
Defendant.
1:12-cv-00817-RLY-DML
ENTRY ON DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S EXPERT
TESTIMONY
This case arises out of St. Vincent Hospital and Health Care Center, Inc.’s
decision to terminate the residency contract of Seema Nayak, M.D., following her
extended medical leave. This matter is set for trial on November 17, 2014, for a jury to
finally resolve Plaintiff’s claims alleging that St. Vincent’s decision was not the result of
her poor performance, but was instead the product of gender and disability discrimination
and retaliation. St. Vincent now moves to exclude Plaintiff’s non-retained experts,
Angela Stevens, M.D. and Kelly Manahan, M.D., for Plaintiff’s alleged failure to
disclose a sufficient summary of their expected testimony consistent with Federal Rule of
Civil Procedure 26(a)(2)(C). St. Vincent also moves to exclude the testimony of
Plaintiff’s retained expert, Suja Mathew, M.D., who opines on various personnel
decisions made by St. Vincent, on grounds that Dr. Mathew is not qualified to render
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such opinions, and her opinions are unreliable. For the reasons set forth below, St.
Vincent’s motion is GRANTED in part and DENIED in part.
I.
Rule 26(a)(2)(C)
Federal Rule of Civil Procedure 26(a)(2)(A), as amended in 2010, requires that
expert witnesses provide certain disclosures to the opposing party. Non-retained experts,
like Dr. Stevens and Dr. Manahan, must provide a summary disclosure in compliance
with Rule 26(a)(2)(C). Ballinger v. Casey’s General Store, Inc., 1:10-cv-1439, 2012 WL
1099823, at *3 (S.D. Ind. March 29, 2012) (citing the committee’s notes to the Rule).
The disclosure must include:
(i) the subject matter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to
testify.
Fed. R. Civ. P. 26(a)(2)(C). The advisory committee’s notes state that “[t]his disclosure
is considerably less extensive than the report required by Rule 26(a)(2)(B)” for retained
experts. Notwithstanding the minimal requirements imposed by the Rule, St. Vincent
claims the disclosures submitted by Dr. Stevens and Dr. Manahan were deficient and
should be excluded.
A.
Dr. Stevens
Dr. Stevens is an OB/GYN at St. Vincent, and was Plaintiff’s treating physician
from 2008 to 2010. Plaintiff’s disclosure explains that Dr. Stevens is “expected to testify
regarding her treatment and observations of [Plaintiff] during both of her pregnancies,
miscarriages and post-partum periods.” (Filing No. 113-2 at 1, ¶ 3). She is also
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“expected to testify concerning the serious medical complications that arose during and
subsequent to [Plaintiff’s] second pregnancy, including her decision to place [Plaintiff]
on bed rest in May 2010 and to extend [Plaintiff’s] post-partum leave from six (6) to
eight (8) weeks in December 2010.” (Id. ¶ 4). The disclosure indicates that a copy of Dr.
Stevens’ deposition was attached; St. Vincent claims it was not.
St. Vincent argues that Plaintiff’s disclosure of Dr. Stevens’ expected trial
testimony is inadequate and analogous to the disclosure stricken in Nicastle v. Adams
Cnty. Sheriff’s Office, No. 10-cv-00816-REB-KMT, 2011 U.S. Dist. LEXIS 46567 (D.
Colo. Apr. 29, 2011). In Nicastle, the district court found the plaintiff’s disclosure of his
non-retained experts insufficient where the disclosures stated that each of the witnesses
will testify as an expert “consistent with all matters raised in his . . . deposition.” Id. at
*7. The depositions of each of the witnesses were taken before the witnesses were
designated as experts, and “the designations gave no indication of what topics addressed
in the day-long depositions of each of the witnesses might be the subject of purported
expert testimony.” Id. at *7-8.
Nicastle does not compel the court to exclude her testimony. Dr. Stevens’
deposition lasted three hours, and Plaintiff specifically disclosed the topics upon which
she will testify, as noted above. Instead, Dr. Stevens’ disclosure is similar to the one
discussed in Nagle v. Mink, No. 10-cv-01935-PAB-MEH, 2011 U.S. Dist. LEXIS 97781
(D. Colo. Aug. 29, 2010). There, the district court found plaintiff’s Rule 26(a)(2)(C)
disclosure sufficient where his non-retained treating physicians were expected to
“provide an opinion on Plaintiff’s diagnosis of diabetes . . . , how diabetes affects a
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person’s major life activity, specifically one’s ability to work,” and “how diabetes has
affected the Plaintiff.” Id. at *2. In addition, the disclosure stated that their testimony
was based on a review of Plaintiff’s medical history, specific conversation with the
Plaintiff and their own experience as treating physicians who diagnose and treat diabetes.
Id. at *3.
Similarly here, Dr. Stevens is expected to give testimony regarding her treatment
and observations of Plaintiff while under her medical care and the reason why she
decided to place Plaintiff on bed rest and to extend her medical leave from 6 to 8 weeks.
The court finds Plaintiff’s disclosure of Dr. Stevens’ testimony meets the minimal
requirements of Rule 26(a)(2)(C).
Even if Plaintiff’s disclosure was inadequate, the court finds the lack of disclosure
is harmless. Fed. R. Civ. P. 37(c)(1) (an inadequate disclosure does not compel the
exclusion of the witness’s testimony if the “failure is substantially justified or harmless”).
Plaintiff represents that, during Dr. Stevens’ deposition, she informed St. Vincent that Dr.
Stevens would likely be named an expert because she was Plaintiff’s treating physician.
A copy of her deposition should be in the possession of St. Vincent, as it cited Dr.
Stevens’ deposition in its Reply in support of its Motion for Summary Judgment. Her
expected testimony should be no surprise to St. Vincent. Accordingly, St. Vincent’s
motion to exclude Dr. Stevens’ testimony is DENIED.
B.
Dr. Manahan
Between 2003 and 2008, Dr. Manahan served as a teaching faculty member at St.
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Vincent’s OB/GYN Residency Program under Dr. Strand 1, and currently serves as the
Residency Program Director for the University of Toledo’s OB/GYN Program. Dr.
Manahan’s Rule 26(a)(2)(C) disclosure states that she “is expected to testify regarding
[Plaintiff’s] acceptable performance as a resident at the University of Toledo” and her
“observations of the deficiencies in St. Vincent’s OB/GYN Residency Program under Dr.
Strand.” (Filing No. 113-2 at 2, ¶ 11).
St. Vincent moves to exclude Dr. Manahan’s testimony because: (1) Plaintiff’s
disclosure fails to disclose the facts or data on which Dr. Manahan bases her conclusion
that there are “deficiencies” in St. Vincent’s OB/GYN Residency Program; (2) Plaintiff’s
disclosure fails to explain the facts in support of Dr. Manahan’s opinion that Plaintiff’s
performance was “acceptable”; and (3) Dr. Manahan’s expected testimony regarding
Plaintiff’s performance at the University of Toledo is irrelevant.
Although the disclosure regarding Dr. Manahan’s expected testimony is brief, it is
not so scant as to warrant the exclusion of her testimony. Both Plaintiff and St. Vincent
(in its Reply) agree that she is offering only fact testimony. To the extent St. Vincent
seeks additional details regarding her expected testimony, it could easily depose her.
In an additional effort to strike her testimony (now as a fact witness), St. Vincent
accuses Plaintiff of “impermissibly trying to sneak in a ‘fact’ witness that was not
disclosed during discovery under the guise of an ‘expert.’” (Filing No. 131 at 3). St.
Vincent then notes that Plaintiff did not file her Final Witness list until February 14,
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Dr. Strand ran the OB/GYN Residency Program at the time Plaintiff was employed at St.
Vincent.
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2014, well after the September 12, 2013 discovery cutoff date. The court checked the
docket in this case, and discovered that St. Vincent also filed its Final Exhibit List on
February 14, 2014, consistent with the Magistrate Judge’s Order dated December 17,
2013, extending the deadline for filing final witness and exhibit lists from January 15,
2014 to and including February 14, 2014. (Filing No. 74). It does not appear to the court
that Plaintiff was engaging in any trickery. Dr. Manahan may testify as to any alleged
deficiencies in St. Vincent’s OB/GYN Residency Program that she observed while
employed at St. Vincent.
The court further finds, however, that Dr. Manahan’s expected testimony
regarding Plaintiff’s performance, while employed at the University of Toledo’s
OB/GYN Residency Program, is not relevant. Whether Plaintiff had acceptable
performance under Dr. Manahan during Plaintiff’s time at the University of Toledo is not
indicative of her performance at St. Vincent, and has nothing to do with whether St.
Vincent discriminated against Plaintiff on the basis of her gender, alleged disability, or
alleged protected activity. Accordingly, St. Vincent’s motion to exclude her testimony is
GRANTED in part and DENIED in part.
II.
Daubert Challenge to Dr. Mathew’s Testimony
A.
Background
Dr. Mathew completed medical school at the Pritzker School of Medicine in June
1997 and residency at The University of Chicago Hospitals in 2000. (Filing No. 113-1 at
10). Since 2008, Dr. Mathew has served as Program Director for the Internal Medicine
Residency Program at the John H. Stroger, Jr. Hospital of Cook County in Chicago,
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Illinois. (Id. at 1). As Program Director of the one of the largest internal medicine
residency programs in the country, Dr. Mathew makes hiring, promotion, and
remediation decisions for all of her trainees, under the advisement of the program’s
Promotion Committee, and has “constructed remediation and probation plans for
residents who have experienced difficulty in ACGME (Accreditation Council for
Graduate Medical Education)-defined competencies.” (Id. at 1-2). She is “familiar with
the competencies required of residents and the standards they must attain to complete
their residencies.” (Id. at 2). She is also “familiar with the standards required of a
medical residency program and or a program director.” (Id.).
Dr. Mathew opines regarding the deficiencies of St. Vincent’s OB/GYN
Residency Program and the deficiencies in the way St. Vincent handled Plaintiff’s
probationary period and termination. More specifically, she opines that:
· Dr. Strand’s actions during Plaintiff’s medical leave were inappropriate and an
improper exercise of authority. As examples, she cites to Dr. Strand’s visits to
Plaintiff’s hospital room following the death of her fetus, in which he asked her if
she would be willing to return to work. Dr. Mathew found Dr. Strand’s conduct
inappropriate, against the standard practice of a residency program director, and
indicative of animus.
· Dr. Strand’s decision to place Plaintiff on a night float rotation reserved for third
year residents when she returned from her 7.5 month medical leave was
inappropriate under the circumstances. St. Vincent had previously informed her
that she was returning as a second-year resident, “so it was grossly improper for
St. Vincent to assign [Plaintiff] to perform work it had determined she was
incapable of doing and evaluate her under the standards of a third-year resident.”
· Dr. Strand did not have a sufficient basis to place Plaintiff on probation only two
weeks after returning from an extended medical leave because his decision was
based solely on the feedback from a resident with whom she had had difficulties in
the past. His failure to get feedback from a neutral third party was against the
usual and recommended practice of a residency program when conflict between
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residents is known. In addition, Dr. Strand’s criticism of Plaintiff for appearing
“distracted, sad, and tearful” was “grossly inappropriate,” especially since there
was no evidence that patient care had been compromised.
· St. Vincent’s failure to appoint an advisor for Plaintiff during her probation is
contrary to the standard practices of residency programs.
· Dr. Strand’s failure to conduct regular meetings with Plaintiff during her fivemonth probation, and instead meeting with her only once or twice, was “highly
unusual” and “shows animus.”
· St. Vincent’s decision not to renew Plaintiff’s contract was “grossly inappropriate”
because: (1) Plaintiff’s probation was conducted without sufficient process and
without providing Plaintiff with crucial feedback; (2) St. Vincent gave Plaintiff
only 60 days’ notice of its decision not to renew her contract, and thus failed to
comply with ACGME recommended protocol that requires a resident be given 120
days’ notice of nonrenewal – a decision she found showed animus; and (3) Dr.
Strand admitted in a letter that Plaintiff’s termination was caused by “a medically
complicated pregnancy.”
B.
Standards Governing Expert Testimony
The admissibility of expert testimony is governed by Rule 702 of the Federal
Rules of Evidence and the principles announced in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, a court “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.” Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir.
2010) (internal quotation marks omitted).
The court serves a “gatekeeping” function to “ensur[e] that an expert’s testimony
both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S.
at 597. “‘The rejection of expert testimony is the exception rather than the rule, and the
trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary
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system.’” Hershey v. Pac. Inv. Mgmt. Co. LLC, 697 F. Supp. 2d 945, 949 (N.D. Ill.
2010) (quoting Bullock v. Sheahan, 519 F. Supp. 2d 760, 761 (N.D. Ill. 2007)).
Moreover, the question of whether the expert is credible or whether the theories being
applied by the expert are correct, is a “factual one that is left for the jury to determine
after opposing counsel has been provided the opportunity to cross-examine the expert
regarding his conclusions and the facts on which they are based.” Smith v. Ford Motor
Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Walker v. Soo Line R.R., 208 F.3d 581,
589-90 (7th Cir. 2000)). As the proponent of the expert testimony at issue, Plaintiff has
the burden of demonstrating its admissibility. Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 705 (7th Cir. 2009).
C.
Merits of the Motion
St. Vincent argues Dr. Mathew’s testimony regarding the propriety of St.
Vincent’s personnel decisions must be excluded because she is not qualified to give such
an opinion, and her proposed testimony is unreliable.
An expert may be qualified by “knowledge, skill, experience, training, or
education.” FED. R. EVID. 702. Dr. Mathew has specialized knowledge and experience
in the operation and affairs of residency programs. Dr. Mathew served as the Course
Director of Pathophysiology for 7 years at Rush University, and served as the Program
Director for Internal Medicine Training for 7 years, and the Associate Chair of Education
in the Department of Medicine for 5 years at the Stroger Hospital of Cook County.
(Filing No. 113-1 at 10). As noted above, she has experience in “hiring, firing, and
remediation decisions” as well as “construct[ing] remediation and probation plans.” (Id.
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at 2). She is familiar with the standards required of a medical residency program and a
program director, and based her opinion on the standard of care, ACGME guidelines, and
St. Vincent’s own guidelines. (Id. at 2, 10, and Ex. B). The court finds Dr. Mathew is
qualified to give an opinion as to these subjects.
St. Vincent also objects that many of the personnel decisions made by St. Vincent
(Dr. Strand) were “inappropriate” and exhibited “animus” toward Plaintiff. The court
agrees that opinions on these issues should be excluded. Whether an action is
“inappropriate” or exhibited “animus” is for the jury to determine. She may, however,
testify as to whether Dr. Strand’s actions were against the standard practice of a residency
program director and whether St. Vincent’s personnel decisions were against the standard
practices of residency programs. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156
(1999) (noting that an expert may “draw a conclusion from a set of observations based on
extensive and specialized experience”). St. Vincent’s motion to exclude her testimony is
DENIED.
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III.
Conclusion
St. Vincent’s Motion to Exclude Plaintiff’s Expert Testimony (Filing No. 112) is
GRANTED in part, and DENIED in part. St. Vincent’s Motion is DENIED with
respect to Dr. Stevens’ and Dr. Mathew’s expected testimony; DENIED with respect to
Dr. Manahan’s expected testimony regarding her observations of St. Vincent’s Residency
Program; and GRANTED with respect to Dr. Manahan’s testimony regarding Plaintiff’s
performance as a resident at the University of Toledo.
SO ORDERED this 30th day of September 2014.
s/__________________________________
Richard L. Young________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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