Schulze v. United States

Filing 40

OPINION AND ORDER by Judge Gregory K Frizzell ; granting 24 Motion to Exclude (lah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
LERA SCHULZE,
Plaintiff,
v.

Case No. 18-CV-00130-GKF-JFJ

UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
Before the court is the Motion to Exclude, in Whole or Part, the Testimony of Dr. Gary A.
Rouse [Doc. 24] of defendant the United States of America. For the reasons set forth below, the
motion is granted.
I.

Background
This is a wrongful death case brought by plaintiff Lera Schulze against the United States

of America for the death of her husband, John G. Schulze. On June 8, 2017, John Schulze reported
suicidal thoughts to a nurse practitioner and was escorted to the Oklahoma City Veterans Affairs
Health Care System Medical Center (“VA Hospital”) by law enforcement. The VA Hospital
discharged John Schulze approximately two hours later. Two days later, on June 10, 2017, John
Schulze died of a self-inflicted gunshot wound. 1
In this lawsuit, plaintiff alleges defendant breached the standard of care by releasing John
Schulze on June 8, 2017, rather than admitting him for an extended mental health evaluation.
Plaintiff asserts a single claim for wrongful death pursuant to OKLA. STAT. tit. 12, § 1053.

1

Plaintiff alleges John Schulze died on June 9, 2017, the day after his release from the VA
Hospital. However, the State of Oklahoma Certificate of Death designates John Schulze’s time
and date of death as 7:18 on June 10, 2017. See [Doc. 22-29].

Plaintiff retained Dr. Gary A. Rouse, a licensed clinical psychologist, to opine as to whether
defendant’s evaluation and treatment of John Schulze on June 8, 2017, satisfied the applicable
standard of care. Dr. Rouse provided a two-page report opining, in relevant part,
The VA records show the Veteran was admitted at 13:05 and released at 15:03. In
my 36 years in private practice, I have never had a patient that I have requested
hospitalization/evaluation for suicidal ideation, and in particular transported by law
enforcement, “treated and released” in the same day, much less within a two hour
period. This Veteran killed himself the next day by shooting himself in the head.
His wife found him the following morning.
I strongly believe the VA failed in their treatment of this Veteran and should be
held responsible for this failure, which resulted in the Veteran taking his own life
due to his untreated severe psychological distress, which was reported directly to
the VA by his provider prior to his admission.
[Doc. 24-3, p. 2]. Defendant now seeks to exclude Dr. Rouse’s testimony, arguing Dr. Rouse’s
opinions fail to satisfy the Daubert standard’s reliability requirement.
II.

Daubert Analysis 2
Pursuant to Federal Rule of Evidence 702,
[a] witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify 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.

2

Neither party requested a formal Daubert hearing and, based on the evidence in the court’s record,
the court concludes a formal hearing is not necessary. See United States v. Charley, 189 F.3d
1251, 1266 (10th Cir. 1999) (“The trial judge is granted great latitude in deciding which factors to
use in evaluating the reliability of expert testimony, and in deciding whether to hold a formal
hearing.”).
2

Rule 702 imposes on the trial court an important gate-keeping obligation, “to ‘ensure that any and
all [expert] testimony . . . is not only relevant, but reliable.’” Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 147 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993)). Thus, “the trial judge must determine whether the testimony has ‘a reliable basis in the
knowledge and experience of [the relevant] discipline.’” Kumho Tire Co., Ltd., 526 U.S. at 149
(quoting Daubert, 509 U.S. at 592); see also FED. R. EVID. 702 advisory committee’s notes to 2000
amendments (“The trial judge in all cases of proffered expert testimony must find that it is properly
grounded, well-reasoned, and not speculative before it can be admitted.”).
To determine whether an expert’s opinion is admissible, the district court must generally
undertake a two-step analysis:

(1) first, to determine “whether the expert is qualified by

knowledge, skill, experience, training, or education to render an opinion,” and (2) second, to
determine “whether the expert’s opinion is reliable by assessing the underlying reasoning and
methodology[.]” Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1307 (10th Cir. 2015)
(internal quotations omitted). “The proponent of expert testimony bears the burden of showing
that its proffered expert’s testimony is admissible.” United States v. Nacchio, 555 F.3d 1234, 1241
(10th Cir. 2009). Defendant does not challenge Dr. Rouse’s qualifications. Accordingly, the court
limits its inquiry to whether Dr. Rouse’s opinion is reliable based on the underlying reasoning and
methodology.
In Daubert, the Court articulated four factors that bear on the reliability of expert
testimony:
[1] Whether a “theory or technique . . . can be (and has been) tested”; [2] Whether
it “has been subjected to peer review and publication”; [3] Whether, in respect to a
particular technique, there is a high “known or potential rate of error” and whether
there are “standards controlling the technique’s operation”; and [4] Whether the
theory or technique enjoys “general acceptance” within a “relevant scientific
community.”
3

Kumho Tire Co., Ltd., 526 U.S. at 149-50 (quoting Daubert, 509 U.S. at 592-94). However, the
factors are “helpful, not definitive.” Id. at 151. District courts have broad discretion to consider a
variety of factors. Id. at 152.
In his deposition, Dr. Rouse testified that he based his opinions on his experience as a
practicing clinical psychologist. [Doc. 24-2, pp. 41:8 to 42:10]. Plaintiff contends that Dr. Rouse’s
opinions are sufficiently reliable solely because Dr. Rouse has thirty-six years of experience as a
practicing clinical psychologist and providing disability opinions for veterans constitutes ninety
percent (90%) of his practice. [Doc. 32, p. 3].
“Where an expert testifies based on experience, the tribunal reviews the reliability of the
testimony with reference to ‘the nature of the issue, the expert’s particular expertise, and the
subject of [the] testimony.’” F & H Coatings, LLC v. Acosta, 900 F.3d 1214, 1222 (10th Cir.
2018) (quoting Kumho Tire Co., Ltd., 526 U.S. at 150). That is, “the witness must explain how
that experience leads to the conclusion reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the facts.” FED. R. EVID. 702 advisory
committee’s notes to 2000 amendments.
[N]othing in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence that is connected to existing data only by the ipse
dixit of the expert. A court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered.
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
As previously stated, Dr. Rouse opines that defendant “failed in their treatment of [John
Schulze]” because “[i]n [his] 36 years in private practice, [he] ha[d] never had a patient that [he]
ha[d] requested hospitalization/evaluation for suicidal ideation, and in particular transported by
law enforcement, ‘treated and released’ in the same day, much less within a two hour period.”

4

[Doc. 24-3, p. 2]; see also [Doc. 24-2, p. 39:1-5 (Q: Can you tell me what it is in your opinion
that the VA did that was – when Mr. Schulze came to the emergency room, what is it that the VA
did that resulted in Mr. Schulze taking his own life? A: They released him.”)]. When questioned
regarding this opinion, Dr. Rouse stated that defendant should have kept John Schulze for at least
thirty-six (36) hours and that the timeframe was “rather common knowledge.” [Doc. 24-2, p. 39:822]. Dr. Rouse testified the 36-hour period gives potentially suicidal individuals “a cooling down
period . . . to start thinking logically again.” [Doc. 24-2, pp. 43:24 to 44:6]; see also [Doc. 24-2,
pp. 39:23 to 40:7].
However, Dr. Rouse admitted that he was unaware of any emergency room standard for
how long a patient should be kept in the emergency room who is not expressing suicidal intent or
a plan and that he did not know if there was a majority view or a minority view of how long a
patient should be kept [Id. p. 43:17-23]. Further, Dr. Rouse stated that his opinion was not based
on any study or research and that he was unaware of any evidence supporting his opinions. [Id.
pp. 43:24 to 44:17]. Finally, Dr. Rouse testified that assessment of suicide risk is not an “exact
science” and that risk factors vary among individuals. [Id. 44:18-23].
Although “[e]xperience may provide the basis for qualification as an expert, . . . experience
is not a methodology.” Dean v. Thermwood Corp., No. 10-CV-433-CVE-PJC, 2012 WL 90442,
*7 (N.D. Okla. Jan. 11, 2012); see also Troudt v. Oracle Corp., — F. Supp. 3d —, 2019 WL
1398053, *2 (D. Colo. Jan. 31, 2019) (quoting Ho v. Michelin N. Am., Inc., 520 F. App’x 658, 664
(10th Cir. 2013) (“Yet ‘while experience may qualify an expert . . . credentials alone do not suffice’
to establish that the expert’s opinion has a reliable basis in fact.”) Dr. Rouse may be qualified to
opine regarding the appropriate standard of care and whether a breach occurred by virtue of his
experience. However, Dr. Rouse fails to explain how his experience led to his conclusions.

5

Although Dr. Rouse contends that a 36-hour hospital admission “cooling off” period is “common
knowledge,” plaintiff provides no information to establish a similarity between Dr. Rouse’s prior
experiences and John Schulze’s treatment. In fact, as previously stated, Dr. Rouse admits that
suicide risk is not an “exact science” and that risk factors vary among individuals. Thus, the court
is without the means to test Dr. Rouse’s assumptions or evaluate the basis of Dr. Rouse’s opinion.
Further, Dr. Rouse testified that his opinion was not based on study or research and he was unaware
of any standards supporting his opinions. Plaintiff offers no additional evidence to the contrary.
Thus, the opinions are based only on the ipse dixit of Dr. Rouse and are therefore inadmissible
under the Daubert standard. 3 See Graves v. Mazda Motor Corp., 405 F. App’x 296, 300 (10th Cir.
2010) (“[Our] precedent is clear and unequivocal that the ipse dixit of an expert, no matter how
qualified he may be, is never enough to guarantee him a ticket to admissibility.”).
III.

Conclusion
WHEREFORE, defendant the United States of America’s Motion to Exclude, in Whole or

Part, the Testimony of Dr. Gary A. Rouse [Doc. 24] is granted.
IT IS SO ORDERED this 1st day of April, 2019.

3

Plaintiff also argues that Dr. Rouse should nevertheless be permitted to testify because the
government will have the opportunity to cross-examine him. It is correct that the Daubert court
recognized that “[v]igorous 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.” Daubert, 509 U.S. at 596 (emphasis added). Here, plaintiff failed to satisfy
her burden to prove that Dr. Rouse’s opinions are admissible, albeit shaky. Cross-examination
cannot cure an expert’s failure to apply a reliable methodology and does not satisfy this court’s
gatekeeping function.
6