Sanford v. Stewart et al

Filing 73

Memorandum Opinion and Order For the reasons set forth herein, the Court denies Defendants' Motion to Disqualify Plaintiff's Expert Report and Testimony (ECF No. 70 ). Judge Benita Y. Pearson on 7/12/2013. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CLARENCE SANFORD,
Plaintiff,
v.
LISA STEWART, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 5:11cv2360

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF No. 70]

Before the Court is the Motion to Disqualify Plaintiff’s Expert Report and Testimony
filed by Defendants Sandra Flood, Denise James, Suzanne Moore, Cheryl Richards, Lisa Stewart
and Adrienne Welfle (“Defendants”). ECF No. 70. Plaintiff opposes the motion.1 ECF No. 71.
Defendants filed a reply. The Court has been advised, having reviewed the record, the parties’
briefs and the applicable law. For the reasons that follow, the Court denies Defendants’ motion.
I. Background
Plaintiff brought this civil rights action alleging Eighth Amendment violations stemming
from the Defendants’ allegedly deliberate indifference to “serious, urgent medical needs.” ECF
No. 1 at 2. Plaintiff, at all times relevant to the facts alleged in the Complaint, was a juvenile
incarcerated at the Indian River Juvenile Correctional Facility (the “Facility”). ECF No. 1 at 3.
He alleges that Defendants, nurses employed by the Facility, “refused to provide timely and
urgent medical attention after receiving notice of Plaintiff’s symptoms, and as a result Plaintiff [ ]
1

Defendants’ reply, ECF No. 72, was untimely filed and offers no additional insight.
See Local Rule 7.1(e) (the moving party may serve and file a reply memorandum . . . in support
of any non-dispositive motion within seven (7) days after service of the memorandum in
opposition.”)

(5:11cv2360)
became septic, contracted pneumonia, had to be hospitalized and undergo surgery.”2 ECF No. 1
at 2.
Relevant to the instant matter, Defendants filed a Notice of Disclosure of Expert Witness,
identifying Dr. Barbara Volk as their expert. ECF No. 52. Thereafter, Defendants submitted Dr.
Volk’s report to Plaintiff. ECF Nos. 71 at 10; 61 at 5. Plaintiff in turn disclosed his expert, Dr.
Gina Suh, and submitted her expert report. ECF No. 70-2. Defendants thereafter moved the
Court to exclude Dr. Suh’s report on the basis that it was untimely (ECF No. 65), which the
Court denied (ECF No. 66).3
Defendants now argue that Plaintiff’s expert, Dr Suh, should be disqualified because she
is not qualified to testify to: 1) nursing standards of care; 2) the standards for health care in
correctional facilities or juvenile correctional facilities; or 3) Eighth Amendment deliberate
indifference claims. Defendants further allege Dr. Suh overly relied upon the Complaint when
forming her opinion and was not provided all medical records. ECF No. 70 at 2-7. Plaintiffs
maintain that Dr. Suh is qualified to offer expert testimony and her report complies with Fed. R.
Evid. 702. ECF No. 71 at 3.
II. Legal Standard
Federal Rule of Evidence 702(a) provides,

2

Plaintiff suffered an undiagnosed pelvic fracture. ECF No. 71 at 2. The parties
disagree as to whether the fracture resulted in the septic infection.
3

Despite the Court’s Order, Defendants persist in referring to Plaintiff’s alleged
“unjustifiable and untimely disclosure” of the expert report, and seek “the costs incurred with
Plaintiff’s untimely disclosure.” ECF No. 70 at 1, 10. This request is denied.
2

(5:11cv2360)
A witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise if (a) the
expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to 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. Evid. 702. The court acts as a “gatekeep[er]” and “must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable....” Daubert v. Merrell Dow
Pharms., 509 U.S. 579, 589,597 (1993). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999). “The issue with regard to expert testimony is not the qualifications of a witness in
the abstract, but whether those qualifications provide a foundation for a witness to answer a
specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994); In re
Commercial Money Center, Inc., 737 F.Supp.2d 815, 821 (N.D.Ohio 2010). “The rejection of
expert testimony is the exception rather than the rule....” Id. (quoting Fed. R. Evid. 702, Adv.
Comm. Notes (2000)). Applying these principles, the Court considers the parties’ arguments.
III. Analysis
A. Whether Dr. Suh is Qualified to Testify to the Relevant Standards
1. Nursing Standards
Defendants in this action are nurses—they allege that nursing standards of care and
training are “distinctly different from those of physicians.” ECF No. 70 at 3. Thus, Defendants
argue, Dr. Suh, a physician, may not provide an expert opinion on nursing standards of care.
ECF No. 70 at 3. Plaintiff contends that Defendants’ argument “reflect[s] a mischaracterization
of Dr. Suh’s opinion and the issues her opinion seeks to address.” ECF No. 71 at 5. Plaintiff

3

(5:11cv2360)
states that Dr. Suh’s opinion is intended to explain when basic medical standards require nurses
to report patient symptoms to a physician, “a subject on which a physician . . . is qualified to
offer an expert opinion.” ECF No. 71 at 5. To this end, Plaintiff asserts,
Dr. Gina Suh is a medical doctor with extensive training and experience in the
diagnoses and treatment of sepsis, with particular expertise in the area of bone and
joint infections. Dr. Suh has provided an expert opinion as to what symptoms a
physician must be informed of by frontline medical staff, including when these
symptoms must be reported – a matter of central relevance to this case. As a
practicing physician in internal medicine and infectious disease with extensive
experience working with and relying on a “care team” consisting of frontline
nursing staff, Dr. Suh is eminently qualified to testify as to what patient symptoms
must be reported by nursing staff to a physician, including when that information
must be conveyed. Such expert testimony is precisely the sort contemplated by
Fed. Evid. R. 702 as “specialized knowledge” which would assist the trier of fact
to understand a central factual issue of this case – whether and when Mr. Sanford
manifested symptoms which a physician must be informed of by frontline medical
staff, and whether Mr. Sanford’s life would have been jeopardized had a doctor
been timely informed of these symptoms.
ECF No. 71 at 3.
A review of the Complaint confirms that Plaintiff’s theory of the case is that the
Defendants failed to properly notify the attending physician of Plaintiff’s symptoms. ECF No. 1
at 6-11. Dr. Suh’s expert report focuses on three items: 1) whether the underlying cause of
Plaintiff’s sepsis was his pelvic fracture; 2) whether Plaintiff’s symptoms were such that the
nurses should have notified a physician; and 3) whether, had Plaintiff seen a physician, his
fracture and infection would most likely have been diagnosed and timely treatment would have
prevented Plaintiff from going into septic shock. ECF No. 70-2 at 2-6.
As an initial matter, the Court notes that a review of Defendants’ expert report completed
by Dr. Volk reveals that she, too, appears to opine as to what Defendants refer to as “nursing

4

(5:11cv2360)
standards of care.” Dr. Volk’s report states,
Opinion: . . . . Further, the nursing personnel assessed him in a timely manner and
provided appropriate treatment coinciding with Mr. Sanford’s complaints.
In summary, Mr. Sanford’s records show that he was promptly and thoroughly
evaluated and appropriately treated by nursing health care professionals whenever
he requested care and/or complained of pain. . . . Furthermore, there is no
reasonable expectation that, given his lack of subjective and objective
signs and symptoms, nursing personnel could have anticipated an internal
infection. Lastly, the Defendant nurses’ actions demonstrate they were never
dilatory, negligent or indifferent in their care of Mr. Sanford. To the contrary, the
nurses’ actions played a significant role in Mr. Sanford’s ultimate recovery, and
accordingly, rather than being condemned, they should be praised.
ECF No. 68-2 at 3, 5. Defendants do not explain why their own physician expert witness
seemingly waded into the “nursing standard of care” waters nor, given Defendants’
categorization of Plaintiff’s expert report as a rebuttal, how a report responsive to Dr. Volk’s
report would not likewise dampen from the same water.
Nevertheless, Plaintiff maintains that Dr. Suh’s opinion addresses a more nuanced
issue— not whether the nurses conformed to a nursing standard of care, but “what the medically
appropriate interactions should be between frontline nursing staff and a physician, and what the
medical standards require of those interactions.” ECF No. 71 at 6 (emphasis in original). A
review of Dr. Suh’s report supports Plaintiff’s argument — the bulk of Dr. Suh’s report contains
an opinion as to when the line is drawn between what a nurse is required to do and what a
physician is required to do. See e.g., ECF No. 71-1 (“It is not appropriate for a nurse to make a
diagnosis; that is the exclusive responsibility of a physician.”). If a physician is not permitted to
testify as to the relationship between nurses and physicians because it involves an opinion about
nurses, then a nurse would not be permitted to testify as to that same relationship because it
5

(5:11cv2360)
involves an opinion about physicians, resulting in a black hole of forbidden testimony. Because
Plaintiff’s allegations rest on the interplay of the duties of nurses and physicians, the Court
concludes that Dr. Suh’s specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue. See Fed. R. Evid. 702. Thus, Dr. Suh may testify
insofar as it involves the relationship of the duties between physicians and nurses.
2. Correctional Standards
Defendants also contend that “[h]ealth care standards in correctional facilities and
juvenile facilities can be conspicuously different from standards of care provided at a medical
facility like the Stanford University School of Medicine where Dr. Suh is employed.” ECF No.
70 at 4. Defendants further assert that there are “national organizations, such as the National
Commission on Correctional Health Care, that provide guidelines to assist correctional health
professionals with the treatment of their patients.” ECF No. 70 at 4. Therefore, Defendants
argue, Dr. Suh is unqualified to testify as an expert because she does not have training or
experience in the area of correctional health care. ECF No. 70 at 4. Plaintiff argues that this
argument is relevant in determining the weight a jury might give her testimony but “has no
bearing on whether her opinion is admissible pursuant to Rule 702. ECF No. 71 at 8.
The Sixth Circuit instructs that,
Rule 702 should be broadly interpreted on the basis of whether the use of expert
testimony will assist the trier of fact. The fact that a proffered expert may be
unfamiliar with pertinent statutory definitions or standards is not grounds for
disqualification. Such lack of familiarity affects the witness’ credibility, not his
qualifications to testify.
Morales v. American Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir. 1998) quoting Davis v.

6

(5:11cv2360)
Combustion Eng’g, Inc., 742 F.2d 916, 919 (6th Cir. 1984); see also Brewer v. Cuyahoga Valley
Ry. Co., 2004 WL 5508630, at *1 (N.D.Ohio Oct. 14, 2004). Defendants do not cite legal
authority in support of their argument that Plaintiff’s expert is required to be familiar with
correctional standards and the Court is unable to locate such authority. Accordingly, the lack of
familiarity with correctional standards may be raised by Defendants to attack the credibility of
Dr. Suh, but will not disqualify her from the instant case. See Daubert, 509 U.S. at 597
(“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”).
3. Eighth Amendment Standards
Defendants argue that Dr. Suh “has no experience or understanding in civil rights
litigation or what constitutes deliberate indifference to serious medical needs under an Eighth
Amendment claim” and, thus, is not qualified as an expert. ECF No. 70 at 4. Defendants cite no
legal authority to support their contention and the Court is unable to locate any on its own. For
the reasons explained, supra, the Court denies Defendants’ motion to disqualify Dr. Suh based
upon her inexperience in civil rights litigation.
B. Whether Dr. Suh Relied On Proper Materials
Defendants argue that “Dr. Suh overly relied on Plaintiff’s Complaint when forming her
opinion and was not provided all relevant medical records.” ECF No. 70 at 5. In support,
Defendants cite to Dr. Suh’s deposition wherein she referred to Plaintiff being “carried by two
other people,” a description referenced in the Complaint but not, allegedly, in the medical

7

(5:11cv2360)
records, and her statements in her deposition that she never got the x-ray report and her inability
to locate the “telephone order.” ECF No. 70 at 7.
Plaintiff asserts that the records were provided and reviewed by Dr. Suh, who was
deposed via telephone, and that “her deposition statements [indicating she did not have records]
were likely the product of confusion created by having to sort throughout a 1,200 page file during
a deposition in which the exhibit document was not directly presented to her.” ECF No. 71 at 9.
Defendants do not respond to this argument.
The record does not clearly reflect whether Dr. Suh was unable to locate the telephone
order or if she never received it. See ECF No. 70-1 at 17. Without more, the Court cannot
conclude that Dr. Suh did not receive or review the telephone order, and the same will not be
grounds for disqualification. The x-ray report exchange is as follows:
Q:
A.
Q.
A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.
A.
Q.

Then the x-ray was done. It was your understanding that the x-ray was
completed that night?
Yes.
Were you able to read the x-ray report?
I never got the report.
You never got a copy of the report?
I never got a copy of that report, no.
You indicated on page 7 that you reviewed all the medical records Bate
labeled MED1 to Bate label number 886. Is that correct?
Ah, yes, but I never -- I don’t think I ever found an x-ray report. I -- There
were indications all over that -- that the x-ray was negative, but I never got
a copy of the actual report.
I have a Bate label numbered MED000336, -Okay.
-- which was obtained -336? Okay. One second.
....
Okay. I’m not finding 336 in -- in the file that I have here.
Well, then, we’ll just go with that, that you did not read that x-ray report.

8

(5:11cv2360)
ECF No. 70-1 at 15-16.
Although Plaintiff asserts that Dr. Suh was not presented with the document during her
deposition, resulting in “confusion,” the Court notes that Dr. Suh clearly states in her deposition,
“I never got a copy of the actual report.” ECF No. 70-1 at 16. This alone, however, does not
disqualify Dr. Suh as an expert. Dr. Suh also stated that “I don’t think I ever found an x-ray
report. I— there were indications all over that— that the x-ray was negative, but I never got a
copy of the actual report.” ECF No. 70-1 at 16. Because there were numerous indications that
the x-ray was negative, and Dr. Suh relies upon the fact of a negative x-ray, and not
interpretations of the x-ray itself or conclusions drawn in the x-ray report, Dr. Suh’s opinion is
not “[in]complete” or “[in]accurate” as Defendants contend (ECF No. 70 at 7). See ECF No. 702 at 4-5 (Dr. Suh’s report generally discussing the ramifications of a negative x-ray).
Finally, although Dr. Suh, in her deposition, referred to factual allegations in the
Complaint, she did not refer to these allegations in her expert report. See ECF Nos. 70-1 at 1314 (Dr. Suh’s deposition testimony indicating that on November 28, 2007 “ . . . at 3 or 5 p.m.
when he was having severe pain and pain that was bad enough that he needed to be carried by
two other people. . . .”); 70-2 at 2 (Dr. Suh’s expert report referencing medical records
documenting “multiple pain complaints . . . on November 28, 2007, including an entry a 5:15 pm
on that date documenting that Mr. Sanford was brought to the medical clinic from recreation with
‘severe left hip pain.’”). Thus, it cannot be said that Dr. Suh is unreliable because “her medical
opinion, in part, [is based] on unsupported allegations presented in the Complaint rather than
based upon a thorough review of Plaintiff’s medical records,” as Defendants allege. Defendant’s

9

(5:11cv2360)
motion to disqualify Dr. Suh is, therefore, denied.
IV. Conclusion
For the reasons stated above, the Court denies Defendants’ Motion to Disqualify
Plaintiff’s Expert Report and Testimony (ECF No. 70).

IT IS SO ORDERED.

July 12, 2013
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

10