Nichols et al v. Tillman
Filing
125
ORDER denying 122 Defendant's Motion to Strike and striking certain lines of deposition testimony based on Plaintiffs' objections made during the course of the deposition. Signed by Honorable David C. Bramlette, III on 5/29/12 (PL)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CHERRIS NICHOLS, WIFE OF, INDIVIDUALLY
AND ON BEHALF OF THE DECEDENT
DONALD ALTON NICHOLS, AND JAMIE NICHOLS
V.
PLAINTIFFS
CASE NO. 5:11-cv-00010-DCB-JMR
BARRY TILLMAN, JR., M.D.
DEFENDANT
OPINION AND ORDER
This cause is before the Court on Defendant’s Motion to Strike
the Testimony of the Plaintiffs’ Expert Dr. Dan James Fintel
[docket entry. no. 122]. Therein, the Defendant makes three main
arguments as to why Dr. Fintel’s testimony should be stricken: (1)
he failed to articulate the applicable standard of care, (2) he
impermissibly elaborated on the information provided in his expert
report, and (3) his testimony was improperly led by Plaintiffs’
counsel.
Having
carefully
considered
these
arguments,
the
Plaintiffs’ response thereto, the deposition transcript in its
entirety, applicable statutory and case law, and being otherwise
fully advised in the premises, the Court finds and orders as
follows:
1. Standard of Care
Regarding the standard of care, there are no magical words
which must be used to define the applicable standard so long as the
expert gives sufficient testimony from which a judge and/or jury
could reasonably determine that the expert, in the course of his
testimony,
has
adequately
identified
the
standard
of
care
applicable to the doctor whose treatment is being questioned.
Vanlandingham v. Patton, 35 So. 3d 1242, 1249 (Miss. App. Ct. 2010)
(“The supreme court has held that there is no requirement that an
expert use magical language in his testimony, ‘as long as the
import of the testimony is apparent.’”). “Mississippi physicians
are bound by nationally-recognized standards of care; they have a
duty to employ ‘reasonable and ordinary care’ in their treatment of
patients.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So. 2d 1346,
1354 (Miss. 1990) (citations omitted). The Mississippi Supreme
Court defined this duty as:
[E]ach physician has a duty to use his or her knowledge
and therewith treat through maximum reasonable medical
recovery, each patient, with such reasonable diligence,
skill, competence, and prudence as are practiced by
minimally competent physicians in the same specialty or
general field of practice throughout the United States,
who have available to them the same general facilities,
services, equipment and options.
Id. “It is generally not required that an expert testifying in a
medical malpractice case be of the same specialty as the doctor
about whom the expert is testifying. ‘It is the scope of the
witness knowledge and not the artificial classification by title’
that should govern the threshold question of admissibility.’”
Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss. 2007).
At the outset of his deposition, Dr. Fintel, who, like the
Defendant,
is
a
board
certified
1
internist,1
sufficiently
There parties have engaged in considerable debate about the
purpose and function of a “hospitilist,” which, as the Plaintiffs
2
articulated the standard of care for a ‘hospitilist’ in response to
questioning from Plaintiff’s counsel:
BY MR. WISE: Q Okay. Now, when you talk about
defining the standard of care, you're not just putting
yourself in the shoes of the physician, you're looking at
the minimally qualified doctor in that community; isn't
that true?
. . . . (objection omitted)
THE WITNESS: I'm referring to what a trained
internist would do faced with the kind of problems that
we'll be discussing in today's deposition, a patient with
symptoms and signs of congestive heart failure,
arrhthymias, and significant systolic left ventricular
dysfunction. My answers specifically relate to the
actions of a board-trained internist working in the
hospital as a hospitalist in Mississippi or in Chicago or
in Alaska in dealing with those medical problems.
. . . . (objection omitted)
point out, is a relatively new designation. See Robert M. Watcher
& Lee Goldman, The Emerging Role of ‘Hospitalists’ in the American
Health Care System, N. Engl. J. Med. (1996) 335;514–17. Stedmans
Medical Dictionary (27th ed. 2000) defines hospitilist as:
1. A physician whose professional activities are
performed
chiefly
within
a
hospital,
e.g.,
anesthesiologists, emergency department physicians,
intensivists (intensive care specialists), pathologists,
and radiologists.
SYN: hospital-based physician.
2. A primary care physician (not a house officer)
who assumes responsibility for the observation and
treatment of hospitalized patients and returns them to
the care of their private physicians when they are
discharged from the hospital.
Citation on Westlaw may be found at STEDMANS 186430. According to
a 2007 article, approximately seventy-five percent of hospitilists
are general internists. Laurence F. McMahon, Jr., The Hospitilist
Movement–Time to Move On, N. Engl. J. Med. (2007) 357;2627-2629.
3
BY MR. WISE: Q Let me ask you just one last
question, sir. When you're testifying regarding -regarding the standard of care for a board-certified -excuse me –for a board-certified internist, is it or is
it not a national standard?
A What I'm going to be testifying to today reflects
the national standard of how one works up and treats a
patient who presents with fluid overload and evidence of
systolic left ventricular dysfunction. I'm speaking about
the national standard as would apply to any academic or
rural or community hospital.
Q And that applies to any doctor working in that
hospital, correct?
. . . . (objection omitted)
THE WITNESS: Any internist or specialist in
cardiology. I'm not speaking about what a surgeon would
do or what, for example, a radiologist would do, which is
different, different areas of specialty, but a patient
care physician trained in internal medicine.
BY MR. WISE: Q Okay. And then like you just said, is
it or it is -- based on those limitations, is it or is it
not a national standard?
. . . . (objection omitted)
THE WITNESS: It is a national standard.
BY MR. WISE: Q And that would apply everywhere,
including Mississippi?
A Yes, it would.
Fintel
Depo.
pgs.
19-21.
Again
towards
the
end
of
direct
examination, Dr. Fintel testified that the standard of care was
breached:
BY MR. WISE: Q Okay. Was there a breach of the
standard of care for a nominally capable internist acting
in the role as a hospitalist?
4
. . . . (objection omitted)
THE WITNESS: Yes, there was.
BY MR. WISE: Q Okay. And does that national standard
include a board-certified internist practicing in
Mississippi?
. . . . (objection omitted)
THE WITNESS: Yes, it did.
BY MR. WISE: Q Okay. To a degree of medical
probability, do you have an opinion as to whether that
failure to order a cardiologist on or after September
8th, 2008 to consult with Dr. Tillman and review Dr. -excuse me -- Mr. Nichols' case affected Mr. Nichols'
medical condition?
. . . . (objection omitted)
THE WITNESS: Yes, I do. And my opinion is that the
failure to promptly consult a cardiologist at Natchez
Hospital at the time of the diagnosis of an abnormal EKG,
cardiac arrhthymias, new onset congestive heart failure,
and severe systolic left ventricular dysfunction,
constituted a breach of the standard of care, a breach so
serious that Mr. Nichols was denied the lifesaving modern
cardiac treatments that include angioplasty or bypass
surgery and more powerful medications to help prevent the
myocardial infarction which killed him a month later.
. . . . (objection omitted)
BY MR. WISE: Q Okay. So all the other factors, his
high blood pressure, diabetes, and so on, would have been
addressed in the course of treatment after referral. Is
that true to a degree of medical certainty?
. . . . (objection omitted)
THE WITNESS: Yes.
BY MR. WISE: Q Based on your expertise and training?
A Yes, it would.
Taking the testimony as a whole, particularly in light of the
5
foregoing
statements,
the
Court
finds
that
Dr.
Fintel
has
sufficiently testified as to the applicable standard of care and
therefore denies the Defendant’s objections to his testimony on
this basis.
2. Dr. Fintel’s Rule 26(a)(2)(B) Report
Regarding the expert report, the court is aware that there is
some degree of variation between early disclosures during the
discovery process of the findings and projected testimony of Dr.
Fintel as compared with the video deposition testimony which was
given on May 10, 2012. Of particular concern to the Court is Dr.
Fintel’s possible reliance on testimony not disclosed in his expert
report, regardless of whether that testimony became available after
the expert report was issued. See Fintel Depo. at 22. The Defendant
has a continuing obligation to supplement his report. Fed. R. of
Civ. P. 26(e). The Court, however, finds that the purpose of the
disclosure requirement is not undermined by the Plaintiff’s failure
to supplement in this particular instance.
The primary purpose of discovery is to allow all parties to be
prepared
to
address
issues,
oral
testimony,
and
documentary
evidence to be produced at trial. Shelak v. White Motor Co., 581
F.2d 1155, 1159 (5th Cir. 1978) (“The rules are designed to narrow
and clarify the issues and to give the parties mutual knowledge of
all relevant facts, thereby preventing surprise.”). A core question
is
whether
the
report
of
the
6
expert,
the
response
to
interrogatories, as well as the deposition, has afforded the party
opposite an opportunity to investigate the basis of the opinion in
order to prepare a response. In this case, compositely, the report
of
Dr.
Fintel,
the
discovery
responses,
together
with
the
deposition testimony, has afforded the Defendant this opportunity.
Moreover, the vast majority of the Defendant’s objections to
Dr. Fintel’s testimony pertain to information and statements that
were included in the expert report, just not in the exact same
wording as stated in the deposition. See generally, Pl.s’ Resp. to
Def.’s Objections, Ex. A. (setting forth particular statements in
the report which could reasonably be interpreted to form the basis
for Dr. Fintel’s testimony). An expert is not required to read his
expert report and is allowed to explain the information contained
therein, which is exactly what Dr. Fintel did. See Thompson v.
Doane Pet Care Co., 470 F.3d 1201, 1204-05 (6th Cir. 2006). For
instance, the fact that Dr. Fintel stated in his deposition that
the Defendant should have referred the decedent to a cardiologist
within the hospital is a reasonable elaboration of the statement in
his expert report that the “proper course of therapy for Mr.
Nichols . . . was prompt referral to a cardiologist . . . on
9/08/08.” Fintel Report, Ex. 1, pg. 3, lines 1-3, docket entry no.
122-1.
Therefore,
all
Defendant’s
objections
related
to
Dr.
Fintel’s failure to disclose certain information in the expert
report are denied.
7
3. Leading Questions
There are some objections as to leading.
While it is true in
this case and in all other cases that there is some measure of
leading,
harmless.
the
Court
finds
that
any
leading
of
Dr.
Fintel
is
To say it another way, counsel did not suggest to the
witness an answer which the witness would not have made but for the
leading. Therefore, the deposition testimony will be allowed in its
entirety with the exception of the excerpts specified below.
4. Sustained Objections
Finally, in light of the Plaintiffs’ intention to introduce
Dr. Fintel’s video-deposition testimony at trial, the Court has
considered each individual objection made during the course of the
deposition. The following objections will be sustained and the
designated lines stricken from the deposition:
1.
Page 64.
Lines 5, 6, 7, 8, 9, 10, & 11.
2.
Page 65.
Lines 12, 13, 14, 15, 16, & 24.
3.
Page 66.
Lines 1, 2, 3, 4, 5, 6, & 7.
4.
Page 67.
Lines 16, 17, 18, 19, 20, 21, 22, 23 & 24.
5.
Page 68.
Lines 1 through 20.
6.
Page 70.
Lines 6 though 24.
7.
Page 71.
Lines 1 through 24.
8.
Page 90.
Lines 15, 16, 17, 18, 19, 20, 21, 22, 23 & 24.
9.
Page 91.
Lines 1, 2, 3, & 4.
10.
Page 93.
Lines 21, 22, 23, & 24.
8
11.
Page 94.
Lines 1, 2 & 3.
12.
Page 94.
Lines 9 through 24.
13.
Page 95.
Lines 1 through 24.
14.
Page 96.
Lines 1 through 7.
15.
Page 105.
Lines 11 through 24.
SO ORDERED, this the 29th day of May 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
9
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