Hamilton v. Pike County, Kentucky et al
MEMORANDUM OPINION & ORDER: Accordingly, it is ORDERED that the medical defendants motion in limine, R. 44 , is GRANTED. Madeline LaMarre may not testify about 1) whether Dr. Waldridge breached the standard of care and 2) whether the medical staff's actions caused a specific medical condition. Signed by Judge Amul R. Thapar on 12/17/2012. (TDA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil No. 11-99-ART
PIKE COUNTY, KENTUCKY, et al.,
*** *** *** ***
RAY D. HAMILTON,
Ray Hamilton hopes to introduce Madeleine LaMarre as an expert witness.
LaMarre’s expert report concludes, among other things, that Hamilton’s physician,
Dr. Waldridge, failed to provide Hamilton proper medical care and caused him
serious harm. Four defendants moved to exclude LaMarre’s testimony about Dr.
Waldridge’s standard of care and the medical cause of Hamilton’s injuries. As the
party seeking to admit LaMarre’s testimony, Hamilton bears the burden of proving
her testimony is admissible. See Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251
(6th Cir. 2001). Hamilton has not met his burden. So the defendants’ motion in
limine is granted.
Ray Hamilton alleges that during his incarceration at the Pike County
Detention Center the medical staff ignored his serious medical conditions. He asserts
that as a result of their indifference, his conditions worsened and he was rushed to the
Pike County Medical Center. There he almost died and developed a drug-resistant
infection. Compl., R. 1 at ¶¶ 9–11. Among other things, Hamilton claims that the
medical staff at the jail committed medical malpractice. Id. at ¶¶ 16–17. He seeks
both compensatory and punitive damages. Id. at ¶¶ 23–24.
To prove a medical malpractice claim in Kentucky, a plaintiff must establish
that: (1) his treatment fell below the standard of care a reasonably competent
professional would have provided, and (2) the failure to meet the standard of care
proximately caused his injury. See Grubbs ex rel. Grubbs v. Barbourville Family
Health Ctr., P.S.C., 120 S.W.3d 682, 688 (Ky. 2003).
Kentucky generally requires plaintiffs to establish both elements of a medical
malpractice claim through expert testimony. Blankenship v. Collier, 302 S.W.3d 665,
670 (Ky. 2010) (citation omitted). There are two exceptions. First, expert testimony
on causation is not required when a layperson can “conclude from common
experience” that the injury in question does not occur when the proper procedures are
followed (res ipsa loquitur). Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992).
Second, expert testimony is not required if the defendant physician makes admissions
“of a technical character” that show he did not meet the standard of care. See id.
(internal quotation marks omitted); see also Blankenship, 302 S.W.3d at 670.
Hamilton’s expert witness is Madeleine LaMarre, a nurse practitioner licensed
in Georgia with a master of nursing degree. R. 44-1 at 1, 5. Hamilton asked LaMarre
to provide her opinion on “whether health care services provided to [Hamilton] . . .
met the standard of care for his serious medical needs.” R. 44-2 at 1. LaMarre
reviewed Hamilton’s medical records, deposition testimony of Hamilton and his
sister, and the 2008 National Commission on Correctional Health Care Standards for
Health Care Services in Jails. Id. LaMarre concluded that “to a reasonable degree of
medical and/or nursing certainty . . . [the jail medical staff] failed to provide adequate
and timely medical care to Mr. Hamilton.” Id. at 9. She states that Dr. Waldridge,
the physician who treated Hamilton, “did not intervene in a timely manner” to ensure
Hamilton received treatment. Id. Finally, she states that the jail medical staff’s
actions “nearly cost [Hamilton] his life, and resulted in demonstrable harm and
avoidable pain and suffering . . . .” Id.
Four of the defendants—the jail’s health care services provider, Dr.
Waldridge, and two of the jail’s nurses—filed a motion in limine to limit LaMarre’s
They wish to exclude her testimony on two issues: 1) Dr.
Waldridge’s standard of care and 2) whether the medical staff’s actions caused
Hamilton to become ill and to require hospitalization. R. 44 at 1–3. They argue that
because LaMarre is a nurse, not a physician, she is not qualified to offer an opinion in
either area. See id. (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
When a party’s expert witness is challenged, the Court assumes the role of a
gatekeeper to ensure that the expert witness’s testimony is reliable and relevant. See
Daubert, 509 U.S. at 597. Under Federal Rule of Evidence 702, which codified the
Daubert standard, an expert may be qualified through “knowledge, skill, experience,
training, or education.” If qualified, the expert may testify so long as their knowledge
will aid the fact finder and their opinions are based on sufficient data, reliable
methods, and the facts of the case.
Fed. R. Evid. 702.
A district court has
“considerable leeway” in making this determination. See Meridia Prods. Liab. Litig.
v. Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006) (quoting Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999)).
A district court is not required to hold a Daubert hearing when neither party
requests one and the Court can perform its gatekeeping function on the basis of the
record. See Nelson, 243 F.3d at 251 (citing Greenwell v. Boatwright, 184 F.3d 492,
498 (6th Cir. 1999)); Jahn v. Equine Servs., PSC, 233 F.3d 382, 393 (6th Cir. 2000).
Neither party requested a hearing here, and the record is adequate to decide the
LaMarre may not testify about the standard of care applicable to Dr.
The Kentucky courts have not squarely addressed the general question of
whether a nurse is competent to testify as an expert on the standard of care for
physicians.1 See Legg v. Chopra, 286 F.3d 286, 289–92 (6th Cir. 2002) (explaining
that state witness competency rules are substantive and therefore controlling under the
Erie doctrine). One recent case declined to establish a “blanket rule” in the opposite
direction—that is, a rule prohibiting a doctor from testifying as to the standard of care
for a nurse. See Tapp v. Owensboro Med. Health Sys., Inc., 282 S.W.3d 336, 340
Some states courts bar such testimony. See Sullivan v. Edward Hosp., 806 N.E.2d 645, 660 (Ill.
2004) (holding that a doctor cannot testify to the standard of care for a nurse because, among other
reasons, a nurse cannot testify as to the standard of care of a doctor); Wooley v. State, 716 N.E.2d 919,
927 (Ind. 1999) (stating general rule that the standard of care for physicians must be established by
other physicians); Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 727 (Minn. 2005) (allowing
nurse to testify on the nursing standard of care but not the physician standard of care); see also Waatti
v. Marquette Gen. Hosp., Inc., 329 N.W.2d 526, 528 (Mich. Ct. App. 1982) (holding that a nurse was
not qualified to testify as to an emergency medicine physician’s standard of care). Some states forbid
such testimony by statute. See Ala. Code. § 6-5-548; Ohio R. Evid. 601(D); Tex. Civ. Prac. & Rem.
Code § 74.401. But at least one court has suggested nurses may be competent to offer such testimony.
See Avret v. McCormick, 271 S.E.2d 832, 833 (Ga. 1980).
(Ky. Ct. App. 2009). It did so at least in part because nurses serve at the direction of
physicians, so the “physician’s area of expertise necessarily encompasses the standard
of care applicable to nurses.” Id. at 341 (quotation omitted). The same cannot be said
about nurses, who are usually not permitted to diagnose patients or treat them without
orders from a physician. See id. Even so, there is no clear per se rule in Kentucky
against nurses testifying as to a physician’s standard of care.
Because Kentucky law does not bar LaMarre’s testimony, the question
becomes whether she is qualified to testify about Dr. Waldridge’s standard of care in
this case. See Fed. R. Evid. 702 (an expert may be qualified through “knowledge,
skill, experience, training, or education”). LaMarre is a licensed nurse with a master
of nursing degree. R. 44-1 at 1, 5. She is a consultant to correctional agencies. In
that position, she helps those agencies develop strategies to comply with professional
standards and settlement agreements. Id. at 1. The last time she practiced nursing
was from 2005 to 2007, when she worked with female HIV-positive inmates. Id.
Before that, she was a nurse practitioner for the Georgia Department of Corrections
from 1984 to 1985. Id. at 2.
LaMarre is not qualified to offer an expert opinion on the standard of care
required in Hamilton’s case. Hamilton had a host of medical problems while at the
Pike County Detention Center including: alcohol dependency; high blood pressure;
hepatitis C; head, neck, and spinal injuries; chronic back pain; a removed spleen; and
R. 44-2 at 2.
It may be possible that a nurse could obtain the
“knowledge, skill, experience, training, or education” required to qualify as an expert
on the standard of care required of a doctor treating a patient with Hamilton’s
symptoms. Fed. R. Evid. 702. One can imagine a nurse who specializes in a field
(for example cardiology), reads the relevant literature, and works closely with doctors
to treat patients on a regular basis. Over time, the nurse might become as qualified to
opine on the standard of care her supervising physician must meet as that physician
himself. See, e.g., Savage v. Three Rivers Med. Ctr., ___ S.W.3d ___, 2012 WL
5274645, at *9 (Ky. Oct. 25, 2012) (exempting a nurse with “specialized and unique
training . . . from the usual rule that nurses will not normally be qualified to present
expert testimony requiring the interpretation of an x-ray”). But LaMarre is not that
nurse. First, she has not served as a nurse in a clinical setting for over five years, and
when she did she dealt with female HIV-positive inmates. It has been over eighteen
years since she served as a nurse in a more general setting where she might have
encountered patients like Hamilton. Second, Hamilton has a wide range of ailments,
and LaMarre has not spent a prolonged period of time specializing in any of them.
In response to the motion, Hamilton does not argue that LaMarre is qualified
to testify as to Dr. Waldridge’s standard of care.
Instead, he argues that Dr.
Waldridge admitted he violated the standard of care, so the second exception to the
requirement of an expert witness applies. R. 54 at 1–3. But the issue here is not
whether Hamilton needs an expert witness to establish the standard of care; it is
whether LaMarre is qualified to act as one. Hamilton’s silence as to LaMarre’s
qualifications speaks volumes. LaMarre is certainly qualified in the abstract sense of
She has worked in the field of medicine, either as a nurse or as a
consultant, for over thirty years. But she is not qualified in the specific sense required
here. See Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994) (“The issue with
regard to expert testimony is . . . whether [a witness’s] qualifications provide a
foundation for a witness to answer a specific question.”). She does not have the
“knowledge, skill, experience, training, or education” required to offer an expert
opinion on the standard of care required of a physician treating a patient in
Hamilton’s condition. Fed. R. Evid. 702. Therefore LaMarre’s testimony as to Dr.
Waldridge’s standard of care is inadmissible.
LaMarre may not testify about medical causation.
LaMarre’s report states that the medical staff’s actions “nearly cost [Hamilton]
his life, and resulted in demonstrable harm and avoidable pain and suffering . . . .”
R. 44-2 at 9.2 The defendants argue that as a nurse, LaMarre may not testify as an
expert to establish “causation of Plaintiff’s alleged medical conditions.” R. 44 at 2–3.
Hamilton responds that LaMarre’s report states only that the medical staff’s actions
harmed him and nearly cost him his life. The report, according to Hamilton, does not
state that the medical staff’s actions caused any specific medical condition. R. 54 at
3. The fact that LaMarre stated only the general effect of the defendants’ negligence
does not mean that she did offer an opinion regarding causation. Quite the opposite.
Her statement that the defendants’ conduct “nearly cost [Hamilton] his life and
resulted in demonstrable harm” is necessarily a claim that their negligence caused his
injuries. R. 44-2 at 9. The defendants could not have “cost” Hamilton anything if
they were not the cause of his suffering. So LaMarre’s opinion on “harm” is also an
opinion on causation.
LaMarre does not opine on whether the nurses’ actions alone caused Hamilton’s injuries, but instead
refers to the medical staff as a whole.
The Kentucky courts also have not directly addressed the question whether a
nurse is competent to testify as an expert on causation. One court noted “[a]s an
aside” that some courts have held “as a matter of law, that nurses are not qualified to
give expert opinion testimony regarding medical causation in medical negligence
case.” Rogers v. Integrity Healthcare Servs., Inc., 358 S.W.3d 507, 512 & n.4 (Ky.
Ct. App. 2012) (finding nurse not qualified to testify as an expert on other grounds).
In fact, “the majority rule [is] that nursing experts cannot opine as to medical
causation and are unable to establish . . . proximate cause.” Vaughn v. Miss. Baptist
Med. Ctr., 20 So. 3d 645, 652 (Miss. 2009) (citing cases from Tennessee,
Washington, Indiana, Alabama, and the Eastern District of Kentucky); see also
Gaines v. Comanche Cnty. Med. Hosp., 143 P.3d 203, 216 (Okla. 2006) (allowing a
nurse to testify as to the cause of bedsores but noting that the “nurse [was not] giving
expert testimony against a physician”). But see Freed v. Geisinger Med. Ctr., 971
A.2d 1202, 1212 (Pa. 2009) (“[A]n otherwise competent and properly qualified nurse
[may give] expert opinion testimony regarding medical causation . . . .”). The logic
behind the rule is that nurses generally are not licensed to diagnose patients. Because
nurses do not determine the medical cause of patients’ symptoms, they will not have
the required expertise to testify about causation.
But this Court does not need to resolve that question because even if Kentucky
law allows LaMarre to testify as to causation, she is not qualified to do so. Hamilton
was admitted to the Pikeville Medical Center and diagnosed with a series of problems
including: kidney failure, muscle deterioration, high blood sugar, hematomas, high
blood pressure, and an altered mental state. R. 44-2 at 6. LaMarre is not qualified to
testify as to the cause of these illnesses for the same reason she is not qualified to
testify as to the standard of care.
Hamilton has not established that she has
experience, remote or recent, diagnosing these specific illnesses. Therefore Hamilton
has not met—or even made any real effort to meet—his burden of proving that
LaMarre’s testimony as to causation is admissible.
Accordingly, it is ORDERED that the medical defendants’ motion in limine,
R. 44, is GRANTED. Madeline LaMarre may not testify about 1) whether Dr.
Waldridge breached the standard of care and 2) whether the medical staff’s actions
caused a specific medical condition.
This the 17th day of December, 2012.
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