Words v. United States of America et al

Filing 66

ORDER Granting 57 Motion to Strike Expert Testimony of David A. Libert - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN PATRICK WORDS,
Plaintiff,
vs.

CIVIL ACTION NO. 11-14261
DISTRICT JUDGE STEPHEN J MURPHY III
MAGISTRATE JUDGE MONA K. MAJZOUB

UNITED STATES OF AMERICA, et al.,
Defendants.
___________________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE THE
EXPERT TESTIMONY OF DAVID A. LIBERT [65]
Plaintiff Kevin Words, formerly a prisoner with Federal Bureau of Prisons, filed this claim
against the United States of America and William Malatinsky (Clinical Director at the Federal
Corrections Institute in Milan, Michigan (FCI Milan)) under the Federal Tort Claims Act and
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
alleging that Defendants’ failure to provide constitutionally adequate medical care resulted in the
unnecessary amputation of his leg. (See docket no. 33.) Before the Court is Defendants’ Motion
to Strike the Expert Testimony of David A. Libert, Plaintiff’s proposed expert with regard to his
FTCA claim. (Docket no. 57.) Plaintiff filed a Response (docket no. 63), and Defendants filed a
Reply (docket no. 65). The Motion has been referred to the undersigned for consideration.
(Docket no. 59). The Court dispenses with oral argument pursuant to E.D. Mich. LR 7.1(e). The
Motion is now ready for ruling.
I.

Background
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Plaintiff’s claims arise out of the time he served at FCI Milan. Plaintiff alleges that he
reported to FCI Milan on July 22, 2009, and during his intake screening, he informed the prison
staff that he suffered from diabetes, the treatment of which required the use of insulin. While
incarcerated at FCI Milan, Plaintiff’s care was coordinated by Defendant Malatinsky, with whom
Plaintiff met on several occasions. Plaintiff claims that he was initially denied his insulin and that
as early as July 28, 2009, the first time he met with Dr. Malatinsky, he had no feeling in his left big
toe, but Dr. Malatinsky determined that the toe was ok. By August 20, 2009, Plaintiff had blisters
and sores on his feet. Through all of this, though, Dr. Malatinsky (and the other staff at FCI
Milan) refused to change Plaintiff’s work detail or the requirement that he wear steel-toe boots
during detail hours.
By September of 2009, Plaintiff had a significant amount of drainage in his toe, and he was
given an open-toe shoe, a pair of TED hose, an extra pillow, Acetaminophen, a debridement, and a
dressing on his wound. And on September 17, 2009, Plaintiff reported that he had a high fever,
chills, sweats, light headedness, and intense pain; he was given an oral antibiotic and crutches.
On September 28, Plaintiff was taken to the hospital where his left big toe was amputated. Two
years later, Plaintiff’s leg was amputated from the knee down for an infection “that had originated
in his left big toe.”
Plaintiff now offers the testimony of Dr. David A. Libert, M.D., with regard to his FTCA
claims. Defendants challenge Dr. Libert’s testimony, arguing that he lacks competency under
MCLA 600.2169 and that his causation testimony lacks the appropriate qualifications under Fed.
R. Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
II.

Governing Law

2

A.

Procedural Application of Fed. R. Evid. 601 and 702

In federal diversity actions[1], state law governs substantive issues and
federal law governs procedural issues. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58
S.Ct. 817, 82 L.Ed. 1188 (1938). Rules of evidence are deemed rules of procedure,
19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, § 4512 (2d
ed.1996); Salas by Salas v. Wang, 846 F.2d 897, 905–06 (3d Cir.1988), and
therefore, the Federal Rules of Evidence, rather than state evidentiary laws, are held
to apply in federal diversity proceedings. Barnes v. Owens–Corning Fiberglas
Corp., 201 F.3d 815, 829 (6th Cir.2000); Grossheim v. Freightliner Corp., 974
F.2d 745, 754 (6th Cir.1992); *290 Laney v. Celotex Corp., 901 F.2d 1319, 1320
(6th Cir.1990) Indeed, the federal rules themselves provide that they “apply
generally to civil actions and proceedings.” Fed.R.Evid. 1101(b). Further, this
Court has categorically stated that “[t]he admissibility of expert testimony is a
matter of federal, rather than state, procedure.” Brooks v. Am. Broad. Cos., 999
F.2d 167, 173 (6th Cir.1993).
However, some state evidentiary rules have substantive aspects, thereby
defying the substance-procedure distinction and creating a potential Erie conflict.
See, e.g., CMI–Trading, Inc. v. Quantum Air, Inc., 98 F.3d 887, 891 (6th Cir.1996)
(holding that although the parol evidence rule relates to trial procedure, it is
substantive in nature); see also Ungerleider v. Gordon, 214 F.3d 1279, 1282 (11th
Cir.2000) (same). State witness competency rules are often intimately intertwined
with a state substantive rule. This is especially true with medical malpractice
statutes, because expert testimony is usually required to establish the standard of
care. See Peck v. Tegtmeyer, 834 F.Supp. 903, 909 (W.D.Va.1992) (“In other
words, under the statutory scheme, the standard of care is that which is testified to
by an expert qualified under the statute.”), aff’d, 4 F.3d 985 (4th Cir.1993)
(unpublished per curiam). The Federal Rules of Evidence resolve this potential
conflict between state and federal law on the issue of witness competency. See
generally Joseph M. McLaughlin, 3 WEINSTEIN’S EVIDENCE ¶ 601[05]
(2001). Rule 601 incorporates the Erie mandate by expressly providing that “State
law supplies the rule of decision, the competency of a witness shall be determined
in accordance with State law.” Fed.R.Evid. 601; cf. Fed.R.Evid. 302 (state law
applies in questions of presumption); Fed.R.Evid. 501 (questions of privilege “shall
be determined in accordance with State law”).
Legg v. Chopra, 286 F.3d 286, 289-90 (6th Cir. 2002) (footnote omitted). The Sixth Circuit has
further addressed the two-step inquiry necessary in such matters:
1

As Defendants note, while the matter before the Court is not a diversity action, the FTCA
requires the Court to apply state substantive law. (See docket no. 57 at 11 n.2 (citing Mann v.
United States, 2012 WL 273690 (D. Ariz. 2012)).)
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First, we consider witness competency—which “is ‘intimately intertwined’ with
the [state] substantive law”—a substantive consideration under Rule 601. Legg v.
Chopra, 286 F.3d 286, 291 (6th Cir.2002). Second, we consider the witness’s
qualification, a “procedural” gatekeeping consideration under Rule 702 and
Daubert. Id. at 291–92. (“We therefore find no conflict between Tenn.Code Ann. §
29–26–115(b) and Fed.R.Evid. 702, since the first is directed at establishing the
substantive issue in the case, and the second is a gatekeeping measure designed to
ensure “fairness in administration” of the case.”). . . . [T]he former inquiry . . .
“reflects the intimate relationship between the standard of care and the qualification
requirements of the medical expert who will establish that standard.” Id. at 291. . . .
[T]he latter . . . is “directed at the science and methodology behind the witness’s
testimony,” [and is] a question of scientific qualification. Ibid.
Bock v. Univ. of Tennessee Med. Grp., Inc., 471 F. App’x 459, 461-62 (6th Cir. 2012) (applying
this analysis in considering Tenn.Code Ann. § 29-26-115(b)).
B.

Medical Expert Testimony in Michigan – MCLA §§ 600.2169, 600.2912a

(1) In an action alleging medical malpractice, a person shall not give expert
testimony on the appropriate standard of practice or care unless the person is
licensed as a health professional in this state or another state and meets the
following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is
a specialist, specializes at the time of the occurrence that is the basis for the
action in the same specialty as the party against whom or on whose behalf
the testimony is offered. However, if the party against whom or on whose
behalf the testimony is offered is a specialist who is board certified, the
expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the
date of the occurrence that is the basis for the claim or action, devoted a
majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in
which the party against whom or on whose behalf the testimony is
offered is licensed and, if that party is a specialist, the active clinical
practice of that specialty.
(ii) The instruction of students in an accredited health professional
school or accredited residency or clinical research program in the
same health profession in which the party against whom or on
whose behalf the testimony is offered is licensed and, if that party is
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a specialist, an accredited health professional school or accredited
residency or clinical research program in the same specialty.
(c) If the party against whom or on whose behalf the testimony is offered is
a general practitioner, the expert witness, during the year immediately
preceding the date of the occurrence that is the basis for the claim or action,
devoted a majority of his or her professional time to either or both of the
following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional
school or accredited residency or clinical research program in the
same health profession in which the party against whom or on
whose behalf the testimony is offered is licensed.
Mich. Comp. Laws Ann. § 600.2169 (West).
Plaintiff has the burden of proving that “The defendant, if a general practitioner, failed to
provide the plaintiff the recognized standard of acceptable professional practice or care in the
community in which the defendant practices or in a similar community, and that as a proximate
result of the defendant failing to provide that standard, the plaintiff suffered an injury.” Mich.
Comp. Laws Ann. § 600.2912a (West). Moreover, a party proposing to call an expert has the
burden of establishing the expert’s qualifications. Gay v. Select Specialty Hospital, 295 Mich. Ct.
App. 284, 293 (2012).
C.

Fed. R. Evid. 702 and Daubert

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony
and embodies a liberal policy of admissibility. United States v. Stone, No. 10-20123, 2012 WL
219435, at *1 (E.D. Mich. Jan. 25, 2012) (citing Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d
777, 780 (3d Cir. 1996)). Under Rule 702, a qualified expert witness may testify if: (a) the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to

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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. Fed. R. Civ. P. 702. All
doubts as to the usefulness of an expert’s testimony should be resolved in favor of admissibility.
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006).
Courts should consider the following factors when determining the admissibility of
scientific expert testimony: (1) whether the expert’s theory or technique can be, and has been,
tested; (2) whether the theory or technique has been subjected to peer review and publication; (3)
the known or potential rate of error; (4) the existence and maintenance of standards controlling the
technique’s operation; and (5) whether the theory or technique is generally accepted in the relevant
scientific community. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993).
Again, the party proposing the expert has the burden of establishing the expert’s qualifications.
Id. at 592 n.10. But the Daubert standard is flexible and is only intended to “strike a balance
between a liberal admissibility standard for relevant evidence on the one hand and the need to
exclude misleading ‘junk science’ on the other.” Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171,
176-77 (6th Cir. 2009) (citation omitted).
III.

Analysis
Defendants assert that Dr. Libert fails to meet the requirements of MCLA 600.2169

because regardless of his area of specialty and regardless of his current practice, Plaintiff has failed
to show that “during the year immediately preceding the date of the occurrence that is the basis for
the claim or action” Dr. Libert “devoted a majority of his or her professional time” to active
clinical practice or the instruction of students. (Docket no. 57 at 15-16.) To the contrary,

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Defendants assert, Dr. Libert’s deposition testimony and his curriculum vitae confirm that he spent
a majority of his time “performing medical legal work, such as being an expert witness” and that
he “spent only five hours per week performing actual family practice.” (Id.) Plaintiff contends
that Defendants misconstrue the record and that Dr. Libert has been a “practicing physician” for
the last several decades. (Docket no. 63 at 6-7.)
Plaintiff’s alleged injuries occurred in September of 2009 and September of 2011; thus, the
relevant time periods with regard to Dr. Libert’s qualifications under MCLA 600.2169 are
September of 2008 through September of 2009 and September of 2010 through September of
2011. Dr. Libert’s CV and his associated deposition testimony are illustrative:


From October 1994 to the present, Dr. Libert has been employed with First Choice
Medical Center as an “owner and practicing physician.” (Docket no. 57-2 at 5.) He
spends 40% of his time performing “medical legal work, such as being an expert
witness in a case like this” and 60% of his time “doing independent medical
evaluations for insurance companies.” (Docket no. 57-3 at 10:18-24.)



From February 2009 to the present, Dr. Libert has been employed at WeCare TLC,
LLC, as a “medical director/physician.” (Docket no. 57-2 at 5.) WeCare is a “private
family medical practice where the employees of a company called MedWatch are the
exclusive patient population of the clinic.” (Docket no. 57-3 at 12:1-4.) Dr. Libert
worked at WeCare for “five hours per week.” (Id. at 12:10.)



Beginning in July 2011, Dr. Libert began working for Matrix Medical Network as a
“collaborating physician.” (Docket no. 57-2 at 5.) He “do[es] some peer review
looking at nurse practitioners” and “evaluations of Medicare participants.” (Docket
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no. 57-3 at 10:25-11:3.).


From October 2005 through December 2011, Dr. Libert was employed by MedWatch,
LLC, as a “medical director/consulting physician in medical review services.”
(Docket no. 57-2 at 5.) “Medwatch is a peer review company that does retrospective
reviews of hospital care, physical therapy.” (Docket no. 57-3 at 12:14-16.)



Dr. Libert currently works at Advantacare of Florida three days a week as a practicing
physician, with about 40% of his work on slip-and-fall accidents and the other 60% of
his work on “more traditional family medicine,” but Dr. Libert did not start at
Advantacare until November of 2011, approximately two months after Plaintiff’s
second amputation. (See docket no. 57-2 at 5; 57-3 at 10:9-17.)

As Defendant contends, during the relevant time periods, Dr. Libert only spent, at most,
five hours a week working in active clinical practice; the majority of his time was spent conducting
reviews, doing independent medical reviews for insurance companies, or performing medical legal
work.
[A]n expert devotes “a majority of his or her professional time” and is qualified
under the statute where he or she spends the bulk of their professional time, as
opposed to recreational or other personal time, engaged in either the active practice
of medicine or teaching. He or she may be qualified as an expert even if they are
professionally employed part time, provided they spend a majority of that
professional time either practicing medicine or teaching. In other words, a proposed
expert who spends a majority of their professional time engaged in other
professional pursuits, including testifying as an expert witness, would not be
qualified.
Gawel, Estate of, ex rel. Gawel v. Schatten, 109 F. Supp. 2d 719, 723-24 (E.D. Mich.
2000). Thus, regardless of the work Dr. Libert performs today, and regardless of the work Dr.
Libert performed before 2009, Plaintiff has failed to meet his burden of showing that Dr. Libert

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meets the requirements of MCLA 600.2169. Plaintiff has failed to address this deficiency. And
although the Court acknowledges that Dr. Libert has testified numerous times as an expert witness,
all of his testimony has been given in Seminole County, Florida, which does not require him to
meet Michigan statutory standards. (See docket no. 57-2 at 4.) Therefore, the Court will grant
Defendants’ Motion and strike Dr. Libert’s testimony in this matter.2
IT IS THEREFORE ORDERED that Defendant’s Motion to Strike the Expert
Testimony of David A. Libert [57] is GRANTED.

Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).

Dated: December 3, 2015

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Report and Recommendation was served on counsel of
record on this date.
Dated: December 3, 2015

s/ Lisa C. Bartlett
Case Manager

2

Because the Court finds that Defendants’ Motion should be granted for Plaintiff’s failure
to meet the requirements of MCLA § 600.2169, the Court need not address Defendants’ Rule 702
argument.
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