Carrion v. United States Department of Veterans Affairs et al
Filing
83
ORDER. IT IS ORDERED that Defendant United States of America's 42 Motion in Limine is Denied. IT IS FURTHER ORDERED that Defendant William Dodge's 44 Motion for Summary Judgment is Denied. Signed by Judge Richard F. Boulware, II on 07/28/2016. (Copies have been distributed pursuant to the NEF - NEV)
1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
***
7
8
ROSA CARRION, as surviving spouse and
heir of JOSE CARRION, deceased,
Plaintiff,
9
10
11
Case No. 2:13-cv-00419-RFB-NJK
ORDER
v.
UNITED STATES OF AMERICA and
WILLIAM DODGE,
12
Defendants.
13
14
I.
INTRODUCTION
15
This is a wrongful death action brought by Plaintiff Rosa Carrion on behalf of her late
16
husband, Jose Carrion, in which Plaintiff seeks damages for the alleged medical malpractice that
17
led to Carrion’s death in April 2011. This case is before the Court on two motions filed by
18
Defendants United States of America and Dr. William Dodge: a Motion in Limine to exclude
19
causation opinions of Plaintiff’s experts (ECF No. 42) and a Motion for Summary Judgment (ECF
20
No. 44). For the reasons discussed below, the Court denies both motions.
21
22
II.
BACKGROUND
23
A. Undisputed Facts
24
After reviewing the parties’ motions and the admissible evidence on file, the Court finds
25
the following facts to be undisputed.
26
On January 14, 2010, Jose Carrion, a 39-year-old man, was examined at the VA Eastern
27
Colorado Health Care Services. At the visit, it was noted that Carrion 1 had a history of tophaceous
28
1
Unless otherwise noted, all references to “Carrion” are to Jose Carrion. The Court will refer to
1
gout and that he was being treated with Allopurinol and colchicine, with ibuprofen as needed for
2
acute flare-ups of pain. A blood test was ordered for Carrion at this visit. The results showed
3
elevated levels of creatine kinase, indicating potential muscle injury. Carrion was advised to stop
4
taking colchicine. In a follow-up appointment on March 25, 2010 at the VA Eastern Colorado, it
5
was noted that Carrion’s creatine kinase levels significantly decreased.
6
On approximately March 14, 2011, Carrion was examined at Michael O’Callaghan Federal
7
Hospital (MOFH) in southern Nevada by Dr. Jaya Prasad. Dr. Prasad diagnosed Carrion with
8
chronic tophaceous gout with recurrent attacks and persistent hyperuricemia. Dr. Prasad prescribed
9
the following medications: Allopurinol, Colchicine, Ibuprofen, and Probenecid. Probenecid is a
10
medication that prevents other medications from being eliminated from the body through the
11
kidneys. Dr. Prasad stated that she prescribed it because of Carrion’s high uric acid level. Carrion
12
was told to return for a follow-up appointment in two months and that he could come back sooner
13
if he experienced side effects or did not feel well.
14
On March 29, 2011, Carrion came to the emergency department at MOFH with complaints
15
of left ear pain, sweats, suspected fever, and headache. Dr. Patrick Hsieh diagnosed Carrion with
16
Serous Otitis Media (middle ear fluid) in the left ear, prescribed naproxen, Sudafed, Afrin, and
17
Lortab, and advised him to follow up with the VA clinic in two to three days. Naproxen is a non-
18
steroidal anti-inflammatory drug (NSAID). Its known possible side effects include, but are not
19
limited to, kidney failure, bleeding and ulcers in the stomach and intestine, liver failure, vomiting,
20
and nausea. The plasma half-life of naproxen in the body has been shown to have been significantly
21
extended when it is taken in combination with Probenecid.
22
On April 1, 2011, Carrion went to the emergency department at MOFH with complaints of
23
subjective fever, vomiting, and body aches. Dr. William Dodge examined Carrion, who reported
24
that he had recently started taking Probenecid. Dr. Dodge ordered blood work to assess Carrion’s
25
kidney function as well as a urine analysis, chest x-ray, and EKG. To treat Carrion’s symptoms,
26
Dr. Dodge ordered saline (for hydration), Toradol (an NSAID, to treat pain), Reglan (for nausea
27
and vomiting), Benadryl, and magnesium oxide. Carrion’s white blood cell, BUN, and creatinine
28
Rosa Carrion as “Plaintiff.”
-2-
1
levels were at normal or slightly elevated levels. 2 Carrion’s liver functioning tests indicated levels
2
slightly above normal. Carrion’s chest x-ray and EKG had normal results. Several hours later, Dr.
3
Dodge met again with Carrion and noted that his vital signs had returned closer to normal levels.
4
Dr. Dodge discharged Carrion that night with instructions to return to see him the following day if
5
vomiting continued, but to return sooner if his symptoms worsened. Dr. Dodge also instructed
6
Carrion to follow up with his primary care provider in three days to discuss his concerns regarding
7
Probenecid.
8
On April 3, 2011, Carrion returned to the emergency department at MOFH complaining of
9
swelling in his throat, fever, and chills. Carrion was examined by Dr. Christopher David, who
10
ordered an injection of Decadron, a corticosteroid for inflammation. Dr. David diagnosed Carrion
11
with acute pharyngitis, prescribed him doxycycline (an antibiotic) and instructed him to use honey,
12
and discharged him with instructions to return if his breathing or swallowing became problematic
13
or if new symptoms emerged.
14
On April 5, 2011, Carrion returned to the emergency department with complaints of nausea
15
and vomiting with a bright red color 7 to 8 times. Dr. Dodge examined Carrion and ordered blood
16
work and a CT scan of Carrion’s abdomen and pelvis. Dr. Dodge ordered saline (for hydration)
17
and Zofran (for nausea/vomiting). The lab results indicated that measures of Carrion’s kidney
18
function were within normal ranges, but that measures of his liver function had significantly
19
changed. Dr. Dodge admitted Carrion to the hospital for further monitoring and stopped all of
20
Carrion’s previously prescribed medications. Dr. Dodge did not see Carrion again.
21
Approximately four hours later, Carrion was examined by Dr. Teresita Harmon, who noted
22
Carrion’s lab and CT results and noted that he was to discontinue colchicine and receive Zofran,
23
ibuprofen, and morphine as needed. Carrion’s CT results revealed evidence of diverticulitis, but
24
that his lungs were clear (without pneumonia) and that his liver was normal in size and density
25
with no masses. The next day, Carrion’s condition was noted as “stable” and his kidney function
26
tests returned results in the normal range. Dr. Harmon decided to discharge Carrion given that his
27
28
2
BUN and creatinine levels are used to assess kidney functioning.
-3-
1
dehydration, nausea, and vomiting had resolved. Dr. Harmon prescribed hydrocodone for pain and
2
Phenergan for nausea and vomiting.
3
On April 10, 2011, Carrion returned to the emergency department with complaints of right
4
groin and leg pain, weakness, chills, and headache. He informed intake staff that he had taken
5
Probenecid earlier that day. Carrion was examined by Dr. Edward Hackie, Jr., who ordered lab
6
work and the administration of Toradol. Dr. Hackie noted that Carrion had elevated liver enzymes
7
and admitted him to the hospital.
8
Several hours later, Carrion was seen by Dr. Joe Juarez in the hospital. Carrion told Dr.
9
Juarez that he had experienced nausea, vomiting, fever, and ankle pain after initiating Probenecid
10
that day. Carrion also informed Dr. Juarez that he had not had any significant urine output that
11
day. Dr. Juarez noted that Carrion had febrile syndrome and that this could possibly be a reaction
12
to Probenecid. Later that day, at 9:30 p.m., Dr. Juarez noted that Carrion had not urinated since
13
the previous day. At 10:00 p.m., Dr. Juarez noted Carrion had urine output of 200 ml, dark amber
14
in color. At approximately 11:07 p.m., Dr. Eloise E. Guzman was called by nursing staff after
15
Plaintiff reported that Carrion had a 45-second episode of uncontrolled jerking of his extremities.
16
Carrion told Dr. Guzman he was unable to see her hand when asked but that he was able to see
17
light. Dr. Guzman ordered a brain MRI. At approximately 1:45 a.m. on April 11, 2011, Dr.
18
Guzman reviewed Carrion’s lab results and assessed that he had renal (kidney) failure/severe
19
metabolic acidosis. Dr. Guzman called in additional staff for intubation, and Carrion was then
20
transferred to the intensive care unit.
21
At approximately 8:00 a.m., Dr. Cherokoth Verghese took over Carrion’s care and
22
evaluated him. Dr. Verghese assessed him as having shock with multisystem organ failure. Dr.
23
Verghese ordered additional consultations to determine the cause of the shock. A nephrology
24
consultation note written by Dr. Reeta Thukral at 12:13 p.m. stated that she had spoken with
25
Plaintiff, who said that Carrion had been using colchicine, Probenecid, and ibuprofen for the past
26
four weeks. Dr. Thukral obtained consent from Plaintiff to perform dialysis on Carrion. At
27
approximately 4:00 p.m., Carrion was in renal failure and receiving dialysis.
28
-4-
1
At approximately midnight on April 12, 2011, Carrion went into repeated cardiac arrest.
2
He was pronounced dead at 1:50 a.m. Carrion’s autopsy was performed on April 13, 2011 at 10:00
3
a.m. The autopsy diagnosis included acute tubular necrosis in the kidneys, mild macrovesicular
4
steatosis in the lever, and hepatocyte necrosis.
5
6
B. Procedural History
7
Plaintiff filed her initial Complaint on March 12, 2013 and her Amended Complaint on
8
January 13, 2014. ECF Nos. 1, 22. Discovery, which was extended several times, closed on May
9
17, 2015. ECF No. 40. On June 15, 2015, Dr. Dodge filed a Motion to Strike Plaintiff’s Expert
10
Designation of Terrence Clauterie and Dr. John Palmer. ECF No. 41. Also on June 15, 2015, the
11
United States filed a Motion in Limine to Exclude the Causation Opinions of Plaintiff’s Medical
12
Experts. ECF No. 42. Plaintiff did not file a response to this motion, despite the Court granting her
13
additional time to do so. On June 16, 2015, Dr. Dodge filed a Motion for Sanctions based upon
14
Plaintiff’s alleged spoliation of evidence and a Motion for Summary Judgment. ECF Nos. 43, 44.
15
The United States filed joinders to Dr. Dodge’s motions, and Dr. Dodge similarly filed a joinder
16
to the United States’ motion. Plaintiff did not file a response to Dr. Dodge’s Motion for Summary
17
Judgment.
18
On March 9, 2016, the Court held a hearing at which it heard representations from
19
Plaintiff’s counsel regarding Plaintiff’s failure to file responses to the Motion in Limine and the
20
Motion for Summary Judgment. ECF No. 66. The Court directed Plaintiff to file a motion for leave
21
to file a late response to Defendants’ Motion in Limine and Motion for Summary Judgment. ECF
22
No. 66. After the filing of the motion, the Court granted Plaintiff an extension of time to file
23
oppositions to the Motion in Limine and Motion for Summary Judgment. ECF No. 70. The Court
24
also denied Defendants’ Motion for Sanctions and Motion to Strike Expert Designations, stating
25
that the motions may be reconsidered at Defendants’ request following the Court’s ruling on the
26
Motion for Summary Judgment. ECF No. 71.
27
///
28
///
-5-
1
On July 22, 2016, the Court held a hearing at which it informed the parties that the Motion
2
in Limine and Motion for Summary Judgment were denied and that a written order would follow.
3
This Order sets forth the Court’s reasoning for its rulings.
4
5
III.
LEGAL STANDARD
6
Summary judgment is appropriate when the pleadings, depositions, answers to
7
interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no
8
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
9
Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a
10
motion for summary judgment, the court views all facts and draws all inferences in the light most
11
favorable to the nonmoving party. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th
12
Cir. 2011).
13
Where the party seeking summary judgment does not have the ultimate burden of
14
persuasion at trial, it “has both the initial burden of production and the ultimate burden of
15
persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz
16
Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). “In order to carry its [initial] burden of
17
production, the moving party must either produce evidence negating an essential element of the
18
nonmoving party’s claim or defense or show that the nonmoving party does not have enough
19
evidence of an essential element to carry its ultimate burden of persuasion at trial.” Id. If it fails to
20
carry this initial burden, “the nonmoving party has no obligation to produce anything, even if the
21
nonmoving party would have the ultimate burden of persuasion at trial.” Id. at 1102-03. If the
22
movant has carried its initial burden, “the nonmoving party must produce evidence to support its
23
claim or defense.” Id. at 1103. In doing so, the nonmoving party “must do more than simply show
24
that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a
25
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
26
issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation
27
marks omitted). However, the ultimate burden of persuasion on a motion for summary judgment
28
-6-
1
rests with the moving party, who must convince the court that no genuine issue of material fact
2
exists. Nissan Fire, 210 F.3d at 1102.
3
4
IV.
DISCUSSION
5
Based on its review of the record in this case, the Court denies Defendants’ Motion in
6
Limine to exclude the causation opinions of Plaintiff’s expert doctors at this time. The Court also
7
denies Defendants’ Motion for Summary Judgment.
8
A. Motion In Limine (ECF No. 42)
9
In this motion, Defendants raise a Daubert challenge to the causation opinions of Ms.
10
Carrion’s medical experts, Dr. John D. Palmer and Dr. J. Marshall Anthony. For the reasons given
11
below, the Court denies Defendants’ motion.
12
1. Applicable Law
13
“Expert testimony is admissible pursuant to the Federal Rules of Evidence, primarily Rule
14
702. Under Daubert, the district court acts as a “gatekeeper,” ensuring that expert testimony meets
15
the standards of reliability required under Rule 702.” Domingo ex rel. Domingo v. T.K., 289 F.3d
16
600, 605 (9th Cir. 2002) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)).
17
Rule 702 “require[s] that expert testimony . . . be both relevant and reliable.” Estate of
18
Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (internal quotation marks
19
omitted). Scientific evidence is relevant if it “logically advance[s] a material aspect of the party’s
20
case.” Estate of Barabin, 740 F.3d at 463 (quoting Cooper v. Brown, 510 F.3d 870, 942 (9th Cir.
21
2007)). Scientific evidence is deemed reliable if the principles and methodology used by the expert
22
proffering it are grounded in the methods of science and if the methodology “properly can be
23
applied to the facts in issue.” Daubert, 509 U.S. at 592.
24
The reliability inquiry is “a flexible one” and is concerned “not with the correctness of the
25
expert’s conclusions but the soundness of his methodology.” Estate of Barabin, 740 F.3d at 463
26
(internal quotation marks omitted). District courts consider several factors in determining whether
27
scientific testimony meets the reliability requirements of Rule 702, including “(1) whether the
28
scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has
-7-
1
been subjected to peer review and publication; (3) whether there is a known or potential error rate;
2
and (4) whether the theory or technique is generally accepted in the relevant scientific community.”
3
Domingo, 289 F.3d at 605 (citing Daubert, 509 U.S. at 593-94). “[T]he test under Daubert is not
4
the correctness of the expert’s conclusions but the soundness of his methodology.” Daubert v.
5
Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (“Daubert II”).
6
Where an expert has not conducted pre-litigation research or subjected his research to peer
7
review, the party seeking to introduce expert scientific testimony can attempt to establish reliability
8
through testimony from the experts themselves. Id. at 1318-19. “For such a showing to be
9
sufficient, the experts must explain precisely how they went about reaching their conclusions and
10
point to some objective source—a learned treatise, the policy statement of a professional
11
association, a published article in a reputable scientific journal or the like—to show that they have
12
followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in
13
their field.” Id. at 1319. While it is common for experts to extrapolate from existing data, district
14
courts are not required “to admit opinion evidence that is connected to existing data only by the
15
ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap
16
between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
17
18
19
2. Plaintiff’s Experts’ Causation Opinions Are Not Excluded
Defendants argue that Dr. Palmer’s and Dr. Anthony’s opinions regarding causation should
be excluded on three separate grounds. The Court addresses each in turn.
20
First, Defendants argue that the causation opinions of Drs. Palmer and Marshall must be
21
excluded because they have not pointed to any evidence that Probenecid causes a fatally toxic
22
buildup in any of the NSAIDs prescribed to Mr. Carrion. But these experts need not point to a
23
study showing that probenecid causes a fatal buildup. Under Nevada law, medical causation can
24
be shown through expert testimony that a doctor’s “negligent act or omission caused the injuries
25
or reduced a substantial chance for a more favorable recovery.” Prabhu v. Levine, 930 P.2d 103,
26
107 (Nev. 1996). Here, Dr. Palmer cited to a study finding that Probenecid significantly lengthens
27
the amount of time that naproxen stays in the body and that naproxen can “precipitate overt renal
28
decompensation.” Dr. Palmer also relied on evidence showing that NSAIDs such as naproxen can
-8-
1
have severe side effects, including kidney failure. Similarly, Dr. Marshall also produced evidence
2
that Probenecid lengthens the time NSAIDs remain in the body and that NSAIDs have many
3
known side effects, including renal injury. Based on this evidence combined with the medical
4
records showing that Carrion experienced kidney failure before death, the Court finds that Dr.
5
Marshall and Dr. Palmer have presented competent testimony that by not instructing Carrion to
6
discontinue Probenecid or NSAIDs, Defendants reduced a substantial chance for a more favorable
7
recovery. As long as this testimony meets the standards of relevance and reliability, whether the
8
jury will credit it is not for the Court to decide at this stage.
9
Second, Defendants contend that the opinions of Dr. Palmer and Dr. Anthony should be
10
excluded because they failed to use a scientifically valid method, such as differential etiology, to
11
conclude that the interaction between probenecid and NSAIDs caused Mr. Carrion’s death. This
12
argument is also unavailing. While the Ninth Circuit has stated that “a reliable differential
13
diagnosis passes muster under Daubert,” see Clausen v. M/V New Carissa, 339 F.3d 1049, 1058
14
(9th Cir. 2003), 3 it has not required experts to use that method when reaching their conclusions.
15
Clausen does not state that an expert can never give opinion testimony if he or she has not first
16
done a differential diagnosis or etiology, and Defendants have provided no other binding case law
17
in support of such a principle. While differential diagnosis is one “universally accepted method”
18
for establishing medical causation in certain contexts, id. at 1056, a plaintiff can nonetheless
19
present expert medical testimony that does not include this method provided that it meets Rule
20
702’s threshold reliability requirement. As discussed above, the Court finds this standard to be met
21
here.
22
Third, Defendants argue that the doctors’ opinions are not factually grounded because they
23
did not know the quantity of medication Carrion had actually taken in the days leading up to his
24
death. Defendants continue to rely on the assumption that the experts must opine that Carrion’s
25
3
26
27
28
In order to be reliable, an expert conducting a differential diagnosis must first “rule in” potential
causes of an individual’s symptoms by determining “which of the competing causes are generally capable
of causing the patient's symptoms or mortality.” Id. at 1057-58. Then, the expert must “engage in a process
of elimination, eliminating hypotheses on the basis of a continuing examination of the evidence so as to
reach a conclusion as to the most likely cause of the findings in that particular case. A district court is
justified in excluding evidence if an expert utterly fails . . . to offer an explanation for why the proffered
alternative cause was ruled out.” Id. at 1058 (internal quotation marks omitted) (alteration in original).
-9-
1
NSAID level was fatally toxic in order for their testimony to be admissible as to causation. As
2
discussed above, however, under Nevada law the plaintiff must only prove that the negligent act
3
reduced a substantial chance for a more favorable recovery. See Prabhu, 930 P.2d at 107. There is
4
evidence in the record that Carrion took at least some amounts of Probenecid and NSAIDs in the
5
days leading up to his death, that Probenecid prolongs the duration of NSAIDs in the body, that
6
NSAIDs can cause kidney failure, that Carrion experienced kidney failure, and that the autopsy
7
revealed that Mr. Carrion suffered acute tubular necrosis in his kidneys. The Court therefore rejects
8
this argument and finds the testimony of Dr. Palmer and Dr. Anthony to be sufficiently reliable to
9
be admissible under Rule 702. Defendants’ Motion in Limine is denied.
10
11
B. Motion for Summary Judgment (ECF No. 44)
12
In this motion, which was filed by Dr. Dodge and joined by the United States, Defendants
13
seek summary judgment on the grounds that Plaintiff has failed to produce any evidence that their
14
actions fell below the standard of care or that Carrion’s death was caused by the interaction of
15
Probenecid and NSAIDs. For the reasons given below, the Court denies summary judgment.
16
1. Applicable Law
17
“To prevail in a medical malpractice action, the plaintiff must establish the following: (1)
18
that the doctor’s conduct departed from the accepted standard of medical care or practice; (2) that
19
the doctor’s conduct was both the actual and proximate cause of the plaintiff’s injury; and (3) that
20
the plaintiff suffered damages.” Prabhu, 930 P.2d at 107. To create a question of fact on causation
21
in a medical malpractice case, “the plaintiff must present evidence tending to show, to a reasonable
22
medical probability, that some negligent act or omission by health care providers reduced a
23
substantial chance of survival given appropriate medical care.” Perez v. Las Vegas Med. Ctr., 805
24
P.2d 589, 592 (Nev. 1991); Prabhu, 930 P.2d at 107. Further, “liability for personal injury or death
25
is not imposed upon any provider of health care based on alleged negligence in the performance
26
of that care unless evidence consisting of expert medical testimony, material from recognized
27
medical texts or treatises or the regulations of the licensed medical facility wherein the alleged
28
negligence occurred is presented to demonstrate the alleged deviation from the accepted standard
- 10 -
1
of care in the specific circumstances of the case and to prove causation of the alleged personal
2
injury or death.” N.R.S. 41A.100(1). “Expert medical testimony provided pursuant to subsection
3
1 may only be given by a provider of health care who practices or has practiced in an area that is
4
substantially similar to the type of practice engaged in at the time of the alleged negligence.”
5
N.R.S. 41A.100(2).
6
7
8
2. Summary Judgment Is Denied
Defendants raise three arguments in their Motion for Summary Judgment. Each is without
merit for the reasons stated below. Accordingly, the Court denies summary judgment.
9
First, Defendants argue that summary judgment should be granted because Plaintiff has not
10
produced an expert who has practiced in an area “substantially similar” to the type of practice
11
engaged in in this case, as required by Nevada law. See N.R.S. 41A.100(2). Defendants argue that
12
under this standard, Plaintiff was required to—and did not—present testimony by an expert with
13
experience in emergency medicine. Instead, Plaintiff relied on the testimony of Dr. J. Marshall
14
Anthony, who is certified in family medicine, an area which Defendants argue is not substantially
15
similar to emergency medicine. 4 The Court disagrees and finds that Dr. Anthony’s practice is
16
“substantially similar” to the practice of prescribing medications and monitoring their side effects,
17
which is the practice that allegedly led to the negligence in this case. Defendants do not dispute
18
that Dr. Anthony prescribes medication and is familiar with the interactions of different
19
medications, and they do not identify why Dr. Anthony would need a certification in emergency
20
medicine to be able to opine as to whether Defendants violated the standard of care by not
21
instructing Mr. Carrion to discontinue Probenecid or NSAIDs. See Borger v. Eighth Judicial Dist.
22
Court, 102 P.3d 600, 605 (Nev. 2004) (the “substantially similar” requirement “allows medical
23
experts to testify in medical malpractice cases where their present or former practice reasonably
24
relates to that engaged in by the defendant at the time of the alleged professional negligence. . . .
25
[T]he statute does not require that the affiant practice in the same area of medicine as the
26
defendant.”).
27
28
4
Defendants’ motion does not object to the testimony by Dr. Palmer regarding whether Defendants’
actions met the standard of care; therefore, the Court does not address this testimony.
- 11 -
1
Second, Defendants argue that Plaintiff cannot demonstrate that Carrion’s use of
2
Probenecid and NSAIDs caused his death because there is no evidence of how many pills Carrion
3
actually took and because Plaintiff disposed of her husband’s Probenecid pill bottles after his
4
death. The Court also rejects this argument. Plaintiff admits that after taking her husband’s
5
medications to her counsel’s office to be photographed, she disposed of some of the medications,
6
including Carrion’s Probenecid and ibuprofen. However, the Court finds that there is sufficient
7
evidence in the record—including Carrion’s medical records, Plaintiff’s deposition testimony, the
8
affidavit of Plaintiff’s counsel, and the pictures of certain pill bottles taken by Dr. Dodge’s
9
counsel—from which a reasonable jury could conclude that Carrion was taking his medications as
10
prescribed.
11
Finally, Defendants argue that Plaintiff cannot demonstrate through any scientifically valid
12
method that Carrion’s use of Probenecid and NSAIDs caused him harm. As discussed above, the
13
Court finds that Plaintiff has presented sufficient expert medical evidence to create a question of
14
fact as to whether Defendants’ actions breached the standard of care and reduced a substantial
15
chance of a more favorable recovery by Carrion.
Based on the foregoing analysis, the Court denies Defendants’ Motion for Summary
16
17
Judgment.
18
19
V.
CONCLUSION
20
For the reasons discussed above,
21
IT IS ORDERED that Defendant United States of America’s Motion in Limine (ECF No.
22
23
24
42) is DENIED.
IT IS FURTHER ORDERED that Defendant William Dodge’s Motion for Summary
Judgment (ECF No. 44) is DENIED.
25
26
DATED: July 28 2016.
____________________________
________________
RICHARD F BOULW
HARD F. BOULWARE, II
United States District Judge
27
28
- 12 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?