Morris v. Rhode Island Hospital et al

Filing 70

MEMORANDUM AND ORDER ORDER: DENYING Defendants' 43 Motion to Exclude the Expert Testimony of Cecristal Umeugo; GRANTING Defendants' 44 Motion to Exclude the Expert Testimony of Dr. William Pogue pursuant to "Daubert", both with respect to cause of death and standard of nursing care. So Ordered by Judge Mary M. Lisi on 7/7/2014. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

MONIQUE MORRIS AS ADMINISTRATRIX
OF THE ESTATE OF LISA HELENE MORRIS,
Plaintiff

v.

C.A. No. 13-304-ML

RHODE ISLAND HOSPITAL and
LUCIALINA M. GOMES, R.N.,
Defendants

MEMORANDUM AND ORDER
The plaintiff, Monique Morris (“Morris”), as administratrix
of the estate of Lisa Helene Morris (“Mrs. Morris”), Morris’s
deceased mother, has brought claims of medical malpractice and
wrongful

death

against

the

defendants

Rhode

Island

Hospital

(“RIH”) and Lucialina M. Gomes, RN (“Nurse Gomes,” together with
RIH, the “Defendants”), the nurse who attended Mrs. Morris while
she was hospitalized at RIH. Complaint (Dkt. No. 1). The case is
before the Court on the Defendants’ motions to exclude (1) expert
testimony of Morris’s expert William Pogue, MD (Dkt. No. 44), and
(2) expert testimony of Morris’s nursing expert Cecristal Umeugo,
RN, BSN, JD.(Dkt. No. 43).
I.

Factual Background and Procedural History
The decedent, Mrs. Morris, suffered from Stage IV mucinous
1

adenocarcinoma of the appendix, a cancer that was both recurring
and

terminal.

Mrs.

Morris

underwent

a

number

of

extensive

surgeries for the cancer, as well as chemotherapy; she had also
been

diagnosed

with

a

number

of

other

serious

co-occurring

conditions. On January 3, 2011, Mrs. Morris was admitted to RIH
for elective surgery to remove a large abdominal tumor. Complaint
¶¶ 7, 9. According to the Complaint, Mrs. Morris had tolerated
the two-hour procedure and was recovering well as an inpatient at
RIH. Complaint ¶ 9.
On January 8, 2011, at 11:00 a.m., Mrs. Morris spilled water
on her bed and operated the call button for the nurse. Complaint
¶ 10. The Complaint alleges that Nurse Gomes responded to the
call; placed Mrs. Morris in a seated position on the edge of the
bed; and left her unattended while Nurse Gomes fetched a new bed
sheet and/or disposed of towels she had used to mop water off the
floor. Id. According to the Complaint, Mrs. Morris then fell and
hit her head on a rolling metal table. Id. Mrs. Morris was found
by the returning Nurse Gomes as the patient was lying face-down
on the floor with a cut on her forehead. Id. At first, Mrs.
Morris was able to verbalize that she was nauseated, then she
became

unresponsive.

Complaint

¶

13.

Advanced

cardiac

life

support was initiated, but Mrs. Morris was pronounced dead at
approximately 12:00 p.m. Complaint ¶ 11.
2

On October 4, 2012, Morris filed suit against RIH and Gomes
in the U.S. District Court for the District of Connecticut.1 The
Complaint alleges that the Defendants were careless in leaving
Mrs. Morris unattended and that the care she received “deviated
from the degree of care and skill exercised by medical providers
and nurses.” Complaint ¶ 19. According to the Complaint, Mrs.
Morris’s estate expended large sums for her funeral, related
travel expenses, and administration of the estate. Complaint ¶
27. It is also alleged that, prior to her death, Mrs. Morris
suffered pain and mental anguish from the onset of the symptoms
until the moment she became unconscious and subsequently expired.
Complaint ¶ 28.
On December 21, 2012, the Defendants sought dismissal of the
Complaint

on

the

ground

that

neither

of

the

Defendants

was

subject to personal jurisdiction in Connecticut. (Dkt. No. 12).
In the alternative, the Defendants requested that the case be
transferred

to

removal

the

of

this

Court.

case,

and

Morris
the

objected

parties

were

to

dismissal

advised

by

or
the

Connecticut District Court that, in any event, they were obliged
to conduct discovery. (Dkt. Entry January 7, 2013).

1

Morris resides in Connecticut; Mrs. Morris was a Connecticut
resident at the time of her death. RIH is a Rhode Island
corporation and Nurse Gomes is a resident of Rhode Island where she
is licensed to practice nursing. (Dkt. No. 13).
3

On April 12, 2013, the Defendants’ motion was granted and
the case was transferred to this Court. (Dkt. Entry April 12,
2013). Following a status conference and issuance of a pretrial
scheduling

order

by

this

Court

(Dkt.

No.

33),

the

parties

conducted discovery.
On May 5, 2014, the Defendants filed a motion to exclude the
expert testimony of Morris’s nursing expert Cecrystal Umeugo, RN,
BSN, JD

(“Umeugo”).

(Dkt.

No.

43).

The

Defendants

sought

to

exclude Umeugo’s testimony on the ground that Umeugo is precluded
from

serving

as

an

expert

because

Umeugo’s

compensation

is

contingent on the outcome in this case. Umeugo is a registered
nurse as well as a practicing attorney at Umeugo & Associates,
P.C., the law firm which is representing Morris and which is
owned by Umeugo’s father.
On the same date, the Defendants also sought exclusion of
Morris’s

other

expert

witness,

Dr.

William

Pogue,

MD

(“Dr.

Pogue”). (Dkt. No. 44). Dr. Pogue provided an opinion letter to
Morris, in which he states that leaving Mrs. Morris unattended
“even for the short time it took for the trip to the laundry
hamper, constituted a serious breach of the standard of care for
this patient.” (Dkt. No. 1, page 15 of 19). According to the
Defendants’ memorandum in support of their motion, Dr. Pogue is
not competent to provide an opinion as to the nursing standard of
4

care because he does not have the requisite training, education,
or experience. Defs.’ Mem. at 5.(Dkt. No. 44). Likewise, the
Defendants asserted that Dr. Pogue has no expertise in pathology
and that the cause of death opinion he has rendered does not
relate to hematology or oncology, which are Dr. Pogue’s areas of
expertise.
In

response

to

Defendants’

motion

to

preclude

Umeugo’s

expert testimony, Morris represented that Umeugo “did not agree
to a contingent stipulation as to the amount of payment that she
would

paid

[sic]

for

reviewing

the

file,

writing

an

expert

opinion, and testifying.” Pltf.’s Obj. at 3 (Dkt. No. 47-1).
According to Umeugo’s testimony at her March 13, 2014 deposition,
Umeugo “fully intend[ed] on billing the client, regardless of the
outcome,” and “her billing would occur when the case came to
fruition or ended.” Id. at 3-4; Depo. Tr. at 40-41 (Dkt. No. 472). Umeugo further explained that she intended to bill the client
when the

case

was

over and that

she

would bill out

of

the

proceeds of the case because the “Plaintiff may decide to pay out
of the Plaintiff’s recovery or from her personal savings or may
borrow money to pay for the said expert fees.” Id. at 4.
With respect to Defendants’ motion to preclude Dr. Pogue
from rendering an expert opinion, Morris suggested that Dr. Pogue
was qualified to render an opinion on nursing standards because,
5

inter alia, “he has spent extensive time in a hospital setting in
which he has observed nurses and the care they deliver.” Pltf.’s
Obj. at 4 (Dkt. No. 48-1).
As to the cause-of-death opinion, Morris explained that “Dr.
Pogue proposed to testify concerning the fact that the fall that
[Mrs. Morris] suffered due to the negligence of the Defendants
was caused

by

a

physiological

condition

and

that

the

actual

striking of the head on the floor precipitated the events that
caused the cardiopulmonary compromise and eventual death of [Mrs.
Morris].” Id. at 6. Morris further asserted that “Dr. Pogue’s
theory of causation is not based on unknown and novel scientific
findings,” and she pointed out that “[d]uring his deposition,
[Dr. Pogue] plainly stated that severe hypotension with acute
myocardial infarction could not be ruled in or out because [Mrs.
Morris’s] blood pressure was unknown at the time she fell.” Id.
On

June

3,

2014,

the

Court

conducted

a

final

pretrial

conference with the parties. (Docket Entry June 3, 2014). At the
conference,

Morris’s

counsel

acknowledged

that

Umeugo

had

rendered an expert opinion for which she had not yet billed
Morris. At that time, the Court advised the parties that it would
permit Defendants’ counsel to conduct a voir dire of Umeugo,
which would be conducted prior to trial. Because the Court also

6

deemed it appropriate to conduct a Daubert2 inquiry of Dr. Pogue
in advance of trial, a hearing on both matters was set for June
10, 2013.
As indicated by Defendants’ counsel during the June 3, 2014
conference,
Umeugo

&

the

Defendants

Associates,

P.C.

issued
on

a

the

subpoena
following

duces
day,

tecum

to

requesting

information related to charges by Umeugo for expert services
provided to another client represented by the firm. On June 9,
2014, Umeugo & Associates, P.C. filed a motion to quash the
subpoena, (Dkt. No. 60-1 at 2), on the grounds that (1) Umeugo
was not an attorney at the time she rendered those services, nor
was she an employee of her father’s firm; and (2) the firm “does
not

have

any

document

or

agreement

with

[Umeugo]

that

was

contingent and/or depended on the outcome of any case.” Id.
On June 10, 2014, the Court conducted an all-day hearing to
establish (1) whether Dr. Pogue qualified as an expert witness
under Daubert, and (2) whether Umeugo should be precluded from
testifying as an expert witness because her compensation was
contingent on the outcome of the case.
Within a week of the June 10, 2014 hearing, the Defendants
filed supplemental memoranda in support of their motions. (Dkt.

2

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993).
7

Nos. 66, 67). With regard to Umeugo’s proposed expert testimony,
the Defendants maintain that Umeugo’s compensation is contingent
upon the successful resolution of this case. Defs.’ Supp. Mem. at
3 (Dkt. No. 67). The Defendants also assert that Umeugo should be
precluded

from

testifying

because

doing

so

would

violate

conflict-of-interest rules. Id. 5-6. Regarding Dr. Pogue, the
Defendants reiterate that Dr. Pogue is not qualified to render an
opinion on the cause of Morris’s death, e.g.,

because he lacks

the requisite education, training, or experience in the field of
pathology. Defs.’ Supp. Mem. at 3 (Dkt. No. 66). The Defendants
also note
opinion

at

that
the

Dr.
June

Pogue
10,

did

not provide

2014

hearing,

a standard-of-care

and

that

he

has

no

education, training, or experience in nursing. Id. at 4.
On June 24, 2014, Morris filed supplemental responses to
Defendants’

motions.

Regarding

Dr. Pogue’s

qualifications and

ability to render opinions on the cause of Morris’s death and on
the standard of nursing care Mrs. Morris received at RIH, Morris
maintains that (1) Dr. Pogue need not be a pathologist or have
performed an autopsy to render an opinion on the cause of death,
Pltf.’s Supp. Mem at 3. (Dkt.

No. 68); and (2) Dr. Pogue’s

experience in fall risk and giving lectures to nurses qualifies
him to offer a standard of care opinion. Id. at 5.
With respect to Umeugo’s proposed testimony, Morris asserts
8

that (1) Umeugo’s fees are not contingent on the outcome of this
case—Umeugo has now billed Morris and has been paid for her work
performed thus far, Pltf.’s Supp. Mem. at 1-2; (2) Umeugo “is not
an attorney of the firm representing the Plaintiff,”3 id. at 1;
and (3) Umeugo’s testimony is not precluded by the rules of
professional conduct. Id. at 6.
II.

Standard of Review
The admissibility of expert testimony is governed by Rule

702 of the Federal Rules of Evidence, Fed. R. Evid. 702.4 The

3

Although Umeugo herself testified that she has been employed
by her father’s law firm as an attorney for the past three and a
half years, the supplemental memorandum more specifically asserts
that Umeugo is neither an owner or a partner in the firm, nor does
she represent Morris as an attorney. Id. at 5.
4

Rule 702 provides as follows:
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.
Fed. R. Evid. 702.
9

rule provides that a proposed expert witness must be sufficiently
qualified to assist the trier of fact, and that his or her expert
testimony must be both relevant and reliable. Accordingly, “it is
the responsibility of the trial judge to ensure that an expert is
sufficiently

qualified

to

provide

expert

testimony

that

is

relevant to the task at hand and to ensure that the testimony
rests on a reliable basis.” Beaudette v. Louisville Ladder, Inc.,
462 F.3d 22, 25 (1st Cir. 2006)(citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993); United States v. Díaz, 300 F.3d 66, 73 (1st Cir.2002)).
Following the directive in Daubert, trial courts perform a
gatekeeping role in regulating the admission of expert testimony
under Fed. R. Evid. 702. Daubert v. Merrell Dow Pharm., Inc., 509
U.S. at 589-95. That screening function includes a preliminary
evaluation of the proffered expert testimony for both reliability
and relevance. See Daubert, 509 U.S. at 591-595; Ruiz-Troche v.
Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 80 (1st
Cir.1998).

The

"flexible

trial

one,"

court’s

Daubert,

509

inquiry
U.S.

at

under
594,

Rule
and

702

there

is
is

a
no

particular procedure that the trial court is required to follow
in

executing

expert

its

testimony

gatekeeping
rests

on

an

function.
adequate

In

evaluating

foundation,

whether

the

trial

courts have been furnished by the Supreme Court with four general
10

guidelines:
(1) whether the theory or technique can be and has been
tested;
(2) whether the technique has been subject to peer
review and publication;
(3) the technique's known or potential rate of error;
and
(4) the level of the theory or technique's acceptance
within the relevant discipline.

United States v. Mooney, 315 F.3d 54, 62 (1st Cir.2002) (quoting
Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786). However, these
factors do not "constitute a definitive checklist or test," and
the question of admissibility "must be tied to the particular
facts” of a particular case. Kumho Tire Co. v. Carmichael, 526
U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999)
(internal quotation marks omitted).
In assessing whether proffered expert testimony is reliable,
the

trial

court

must

determine

"whether

the

reasoning

or

methodology underlying the testimony is scientifically valid and
of whether that reasoning or methodology properly can be applied
to the facts in issue." Daubert,

509 U.S. at 592-93. As to

relevancy, "expert testimony must be relevant not only in the
sense that all evidence must be relevant, see Fed. R. Evid. 402,
but also in the incremental sense that the expert's proposed
opinion, if admitted, likely would assist the trier of fact to
11

understand or determine a fact in issue." Ruiz-Troche, 161 F.3d
at 81 (citing Daubert, 509 U.S. at 591-92)).
Accordingly, the trial court's responsibility under Rule 702
and Daubert is limited to finding that the expert's conclusion
has "a reliable basis in the knowledge and experience of [the
expert's] discipline." U.S. v. Vargas, 471 F.3d 255, 265 (1st
Cir. 2006)(citing Daubert, 509 U.S. at 592, 113 S.Ct. 2786));
Ruiz-Troche, 161 F.3d at 85 ("[ Daubert ] demands only that the
proponent of the evidence show that the expert's conclusion has
been arrived at in a scientifically sound and methodologically
reliable fashion."). However, Daubert does not require that the
party who proffers expert testimony carry the burden of proving
to the judge that the expert's assessment of the situation is
correct. Ruiz-Troche, 161 F.3d at 85. Only if the trial court
deems the expert's methodology reliable, is the expert allowed to
testify as to the inferences and conclusions he draws from it.
United States v. Mooney, 315 F.3d at 63 (“We ... note that Rule
702

specifically

allows

qualified

experts

to

offer

their

opinions, a testimonial latitude generally unavailable to other
witnesses.”).
A

trial

court

has

broad

discretion

to

admit

or

exclude

expert testimony based on its determination as to the reliability
and relevance of the proffered expert testimony. Gen. Elec. Co.
12

v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508
(1997); Hochen v. Bobst Group, Inc., 290 F.3d 446, 452 (1st
Cir.2002).
III. Discussion
A. Dr. Pogue
In his report, Dr. Pogue offered two opinions, one regarding
the

cause

of

Mrs.

Morris’s

death,

and

a

separate

opinion

regarding the standard of nursing care provided by Nurse Gomes.
Pogue Report. Ex. 4 (Dkt. No. 1 at pages 15-17 of 19). With
respect to the latter, Dr. Pogue opined that leaving Mrs. Morris
unattended, albeit briefly, and/or without a restraining device,
constituted a serious breach of the standard of care. Id. at
Pages 16-17 of 19.
Regarding the cause of death, Dr. Pogue’s report listed a
number of “possibilities” that may have caused Mrs. Morris’s
death. Id. at 16 of 19. Although he acknowledges in his report
that Mrs. Morris’s “post-mortem examination did not establish a
cause of death,” Dr. Pogue then continues, “[in the absence of an
evident anatomic cause of death, the conclusion must be that an
abnormal physiological event caused her death.” Id. According to
Dr. Pogue, “[s]ome possibilities include severe hypotension with
acute myocardial infarction, cardiogenic dysrhythmia, electrolyte
imbalance causing arrhythmia ... hypoxia causing a cardiac event,
13

head trauma of the fall itself, and other possibilities.” Id. Dr.
Pogue also notes that “[t]he pathologist concluded on the basis
of

microscopic

cardiac

and

pulmonary

findings,

that:

‘Taken

together, these findings are most consistent with cardiopulmonary
failure

in

the

setting

of

long-standing

myocyte

injury,

cardiovascular disease and decreased pulmonary reserve secondary
to emphysematous changes and remote thromboembolic events.’” Id.
citing Autopsy Report, Defs.’ Ex. D at Page 2 of 6.
At the June 10, 2014 hearing, Dr. Pogue acknowledged that
the

focus

of

his

practice

was

hematology/oncology

and

that,

eventually, he devoted approximately 80 percent of his practice
to hematology. Tr. 38:22-24, 40:6-10. He also conceded that he
was not a forensic pathologist; that he was not board-certified
in the field; that he had never practiced as a pathologist; and
that he had never received any specific pathology training or
published in the field. Tr. 43:19-44:6.
Although Dr. Pogue had not conducted any medical literature
research in forming the opinions set forth in his report,5 he
asserted

at

the

June

10,

2014

hearing

that

he

had

done

so

afterwards; however, he did not submit an amended or supplemental
report. Tr. 49:4-12.
5

Dr. Pogue’s report was dated August 15, 2012; at the time of
his deposition on February 20, 2014, he had not yet conducted any
medical literature research on this case.
14

According

to

the

invoice

Dr.

Pogue

submitted

for

his

services, he spent fifteen minutes on reviewing what he believed
to

be

the

full

autopsy

report.

Tr.

66:8-11.

That

pathology

report, under Section VII. Central Nervous System, notes that the
brain showed “no external evidence of intra cranial bleed.” It
also

specifically

directs

the

reader

to

“[s]ee

separate

Neuropathology Procedure.” Autopsy Report, Defs.’ Ex. D at Page 1
of 6. Dr. Pogue conceded at the June 10, 2014 hearing that he did
not request the neuropathology procedure section to the report;
that his records do not reflect as to when he received that
section; and that his expert report makes no reference to it. Tr.
70:22-71:15. Dr. Pogue also agreed that he still held the same
opinion he formed when he thought he had reviewed the complete
autopsy report (which was missing the neuropathology procedure
section).
When questioned by Morris’s counsel at the June 10, 2014
hearing, Dr. Pogue asserted that Mrs. Morris had “an untoward
event, orthostatic hypotension, she fell striking her head, and
that proved to be a fatal injury,” which constituted an opinion
that was disclosed neither in Dr. Pogue’s expert report nor at
his deposition. Tr. 23:9-12. He also stated, for the first time,
that “[i]n reviewing the neural part of her autopsy report, there
is evidence of brain damage. There’s evidence of brain swelling.
15

I take that to represent the injury, the consequence of the
injury she had when she fell.” Tr. 4-8.
The discharge summery Dr. Pogue reviewed specified that “the
patient

was

found

to

have

suffered

a

presumptive

mechanical

fall.” Although there was no witness to that event, Dr. Pogue
disagreed with the statement, suggesting instead that Mrs. Morris
fell as the result of orthostatic hypotension. Tr. 31:6-14. He
offered no further explanation, however, how he arrived at that
conclusion. Dr. Pogue also acknowledged that there was nothing in
the records, on which he relied, that indicated the fall itself
produced a physical injury that was the precipitating

cause of

death. Tr. 81:9-19.
In essence, Dr. Pogue briefly reviewed the medical records
he was provided, including the incomplete autopsy report–which
referred to, but lacked, the neuropathology procedure section—and
fashioned a report in which he discussed a number of possible
causes of death. It is undisputed, however, that neither the
autopsy report, nor any of the other materials on which Dr. Pogue
relied,

established

an

anatomic

cause

of

death.

Dr.

Pogue

concedes in his report that there is “an absence of an evident
anatomic cause of death,” but he opines, nevertheless, that “the
conclusion must be that an abnormal physiologic event caused her
death.” Id. at page 16 of 19.
16

Dr. Pogue acknowledges in his report that “the possibility
of cardiogenic dysrhythmia or hypoxia could not be ruled in or
out

at

the

present

because

there

was

no

measure

of

her

oxygenation at the time of death.” Id. Nevertheless, Dr. Pogue
was prepared to opine that the cause of Mrs. Morris’s death was
head trauma as a result of her fall. Id. Regarding Dr. Pogue’s
qualifications

to

render

such

an

opinion,

Morris

generally

asserted that Dr. Pogue relied “on his experience as a medical
doctor and on the autopsy report.” Id. at 7. However, while it is
apparent

that

the

fall

chronologically

preceded

Mrs.

Morris’

death, Dr. Pogue did not establish which of the “possibilities”
listed in his report was the actual cause of death; nor did he
explain how he arrived at the opinions he offered. Likewise, his
new suggestion at the June 10, 2014 hearing that Mrs. Morris died
as a result of the fall because the neuropathology report shows
evidence of brain damage, is not contained in Dr. Pogue’s expert
report, nor is it supported by the neuropathology report itself.
More importantly, Dr. Pogue never explained the scientific
methodology

he

employed

that

would

allow

him

to

arrive

at

conclusions different from those presented in the autopsy report
and/or

other

materials

he

reviewed.

For

example,

Dr.

Pogue

disagreed with conclusions drawn by the pathologist, which were
based on the pathologist’s review of microscopic slides generated
17

in connection with the autopsy. Tr. 95:1-3. Dr. Pogue conceded,
however, that he was not competent to read the slides. Tr. 91:312. Dr. Pogue ultimately concluded that there was an “unknown
physiologic event” that let to Mrs. Morris’s death but, although
he maintained that opinion, he could not state, to a reasonable
degree of medical certainty, what the cause of that event was.
Tr. 100:24-101:6.
In sum, Dr. Pogue did not perform the research and analysis
that would allow him to render the conclusive opinion Morris
seeks to proffer in support of her claims. Instead, Dr. Pogue
conducted a cursory review of Morris’s medical record, including
the

incomplete

incomplete

and

autopsy
without

report

(not

requesting

realizing

the

missing

that

it

was

neuropathology

procedure section). He did not conduct any medical/scientific
literature research until after he had completed his report and
given his testimony at deposition and, although he now states
that such literature supports his conclusions, he failed to amend
or

supplement

his

report

accordingly.

Dr.

Pogue’s

ultimate

conclusion as to Mrs. Morris’s cause of death—which he concedes
he cannot assert with the requisite certainty—is a collection of
several possibilities, none of which are supported by detailed
explanations or reference to the autopsy report or Mrs. Morris’s
medical record overall. Accordingly, because the Daubert standard
18

has not been met in this case, the Defendants’ motion to preclude
Dr. Pogue from offering an expert opinion on the cause of Mrs.
Morris’s death is granted.
With respect to Dr. Pogue’s opinion about the standard of
nursing care Mrs. Morris received at RIH, no lengthy discussion
is warranted. In his report, Dr. Pogue generally opined that
Nurse Gomes was negligent in leaving Mrs. Morris unattended while
disposing

of wet

towels; that

this

breached

the

standard

of

medical care; and that RIH breached the standard of care by not
providing a medically safe environment for its patients. Pogue
Report at Page 17 of 19, (Dkt. No. 1), Pltf.’s Ex. 4.
Although it is not a requirement that an expert witness
practices in the area in which he or she seeks to offer an
opinion, the witness must have the appropriate “knowledge, skill,
experience, training, or education,” to qualify as an expert in
the field of the alleged malpractice. R.I. Gen. Laws §9-19-416;

6

R.I. Gen. Laws §9-19-41 provides as follows:
In any legal action based upon a cause of action arising on or
after January 1, 1987, for personal injury or wrongful death filed
against a licensed physician, hospital, clinic, health maintenance
organization, professional service corporation providing health
care services, dentists, or dental hygienist based on professional
negligence, only those persons who by knowledge, skill, experience,
training, or education qualify as experts in the field of the
alleged malpractice shall be permitted to give expert testimony as
to the alleged malpractice.
19

Foley v. St. Joseph Health Services of Rhode Island, 899 A.2d
1271, 1280

(R.I.

2006)(noting that

nothing

in

the

plain

and

unambiguous terms of R.I. Gen. Laws §9-19-41 “requires an expert
in a medical malpractice case to practice in the same specialty
as the defendant or have training in the same medical specialty
as the defendant.”). However, prior to rendering an opinion, the
expert “must still first demonstrate to the trial justice his or
her particular knowledge acquired through education or experience
in the field of alleged malpractice.” Debar v. Women and Infants
Hosp., 762 A.2d 1182, 1188 (R.I. 2000). Accordingly, “‘[m]ore
than a casual familiarity with the specialty of the defendant
physician is required,’” and the witness’s opinion as to the
conformity

of

the

defendant’s

conduct

must

be

based

on

“‘knowledge acquired from experience or study of the standards of
the

specialty

of

the

defendant

physician.’”

Id.

(quoting

Fitzmaurice v. Flynn, 356 A.2d 887, 892 (Ct. 1975)).
Here,

Dr.

Pogue

readily

acknowledged

that

he

has

never

worked as a nurse and that he has no education, training, or
experience in the field of nursing. Pogue Depo. Tr. (Feb. 20,
2014) at 41:2-6 (Dkt. No. 44-1). He also conceded that he had
never reviewed the RIH nursing policy related to fall protection
or fall risk assessment (or the policy of the Hospital of Central
Connecticut, where Dr. Pogue was employed from 2003 to 2010 and
20

for most of 2013). Id. at 46:18-47:13. Dr. Pogue did not conduct
any medical literature search in formulating his opinion, id. at
40:22-41:1, nor did he request or review the deposition testimony
of Nurse Gomes in this case. Id. at 43:10-17.
Dr.

Pogue’s

interaction

with

nurses

was

limited

to

“routinely” dealing with them in the course of caring for his
patients;

supervising

hematology/oncology

nurses

department

in

the
at

infusion

the

section

Connecticut

of

the

hospital;

employing nurses in his private practice; and giving individual
instructions to nurses who were caring for his patients. Tr. June
June 10, 2014 Hrg. Tr. at 10:17-24, 11:2-5, 11:10-14, 13:7-18.
In sum, Dr. Pogue had neither the expertise, training, and
experience to testify regarding the standard of nursing care
generally, nor did he perform any research or analysis to offer
an expert opinion on the nursing care provided by Nurse Gomes or
the policy and standards implemented by RIH. For those reasons,
the Defendants’ motion to preclude Dr. Pogue from testifying as
an expert witness on this issue is granted.
B. Umeugo
Umeugo, who has been working as a registered nurse since
2007 (Dkt. No. 47-2 at page 18 of 20), was sworn in as a member
of the Connecticut bar in 2010 and has since been employed as an
associate attorney in her father’s law firm on a part-time basis.
21

Id. According to her testimony at the June 10, 2014 hearing,
Umeugo did not perform the intake on Morris’s case, but she
reviewed the medical records to assess the nursing standard of
care. She then prepared a report dated October 3, 2012, the day
before Morris filed suit. (Dkt. No. 47-2 page 4 of 20). Umeugo
conceded that, at the time of her deposition on March 13, 2014,
she testified that had not been paid for her services and that
she intended to bill the matter

out of the proceeds of any

recovery “when the case [came] to fruition.” Tr. June 10, 2014 at
127:20-12:17. Umuego also acknowledged that the law firm had
taken Morris’s case on a contingency basis. Tr. at 139:9-15.
According

to

Umeugo,

on

June

3,

2014,

after

the

final

pretrial conference—at which the Defendants’ motion to exclude
her testimony was discussed in some detail—Umeugo prepared a bill
for her work on the case. Ex. G. Umeugo explained that, after
talking to her briefly about the Defendants’ motion to disqualify
her testimony, her father suggested to her that she should submit
a bill. Tr. 134:12-135:22. Umeugo testified that she prepared the
bill later that night on June 3, 2014, after which the bill was
mailed

to

Morris.

Tr.

139:18-25.

In

response,

(according

to

Umeugo, possibly on June 7, 2014), Umeugo received a money order
dated June 4, 2014. Ex. H. Tr. 136:4-18.
The Defendants seek to exclude Umeugo’s expert testimony
22

regarding

the

standard

of

nursing

care

on

the

ground

that

Umeugo’s compensation as an expert is contingent on the outcome
of the case. Relying on Crowe v. Bolduc, 334 F.3d 124 (1st Cir.
2003), the

Defendants

argue that

“an expert

witness

may

not

collect compensation which by agreement is contingent on the
outcome of a controversy,” Defs.’ Mot. at 3 (Dkt. No. 43). The
circumstances and timing of Umeugo’s invoice (mailed after Umeugo
prepared it late in the evening on June 3, 2014, following the
final pre-trial conference at which the matter was discussed at
length) and Morris’s subsequent payment for Umeugo’s services (by
money

order

Nevertheless,

dated
the

June
Court

4,
is

2014)
of

the

give

the

opinion

Court

that

the

pause.
proper

approach to ensure the veracity of this witness is not exclusion,
but rigorous cross-examination.
In Crowe v. Bolduc, a property transfer case, Crowe, the
transferor-plaintiff,

called

on

two

attorneys

(who

had

represented Crowe in the disputed transaction) to testify to the
intent

of

certain

agreements

between

the

parties.

Crowe

v.

Bolduc, 334 F.3d at 130. Crowe also requested that the trial
court prohibit cross-examination of the attorneys regarding the
contingent fee basis on which their firm represented Crowe. Id.
Crowe’s request was granted by the magistrate judge.
On

appeal,

although

the

magistrate
23

judge’s

decision

was

ultimately affirmed, based on the magistrate judge’s finding of
possible jury confusion, the First Circuit held that the two
other

stated

grounds

for

exclusion

of

testimony

on

cross-

examination were in error.7 In its opinion, the First Circuit
acknowledged that “[t]he majority rule in this country is that an
expert witness may not collect compensation which by agreement
was contingent on the outcome of a controversy,” id. at 132,
noting that “[t]hat rule was adopted precisely to avoid even
potential

bias.”

Id.

(listing

cases).

The

Crowe

Court

also

recognized that “Maine enforces this policy in part by a Bar Rule
which prohibits
basis.”

Id.;

the

Maine

hiring
Bar

of

Rule

witnesses
3.7(g)(3).

on

a

The

contingent

issue

in

fee

Crowe,

however, was not whether the attorneys should have been permitted
to testify at all—in fact they did and, although they were not
called as expert witnesses, they “gave what amounted to opinion
testimony...” Crowe v. Bolduc, 334 F.3d at 132. Instead, the
issue was “whether a restriction on cross-examination for bias as
evidenced by a contingent fee agreement on the ground that the
witnesses are attorneys is appropriate.” Id.
As

previously

explained

by

the

First

Circuit

in

United

7

The magistrate judge found that (1) there was no evidence that
the attorneys would color their testimony because of their firm’s
financial interest in the case; and (2) unlike other witnesses,
attorneys are ethically bound to testify truthfully.
Crowe v.
Bolduc, 334 F.3d at 131.
24

States v. Cresta, “[w]hile the risk of perjury is recognized,
courts have chosen to rely upon cross-examination to ferret out
any false testimony.” United States v. Cresta, 825 F.2d 538, 546
(1st

Cir.1987)(considering

testimony

of

opportunity

a

to

witness

the

paid

cross-examine,”

interaction
in

a

between

contingent

Crowe

at

“permitted

fee

basis

and

To

ensure

the

132).

veracity of the witness “the jury must be informed of the exact
nature of the contingency agreement; the defense counsel must be
permitted to cross-examine the witness about the agreement; and
the jury must be specifically instructed to weigh the witness'
testimony with care.” Crowe v. Bolduc, 334 F.3d at 133; but see
Gediman v. Sears, Roebuck & Co., Civ. A. No. 76-3456-Z(A), 484
F.Supp.

1244

(D.Mass.

Feb.

20,

1980)(stating

that

“[t]he

assistance a jury is to receive from expert opinion should not be
tempered by the need to speculate how much of a discount to allow
for personal interest . . . [a]n agreement to give an opinion on
a

contingent

basis

.

.

.

attacks

the

very

core

of

expert

testimony.”).
At her March 13, 2014 deposition, Umeugo stated that she had
not been paid for her services in this case (reviewing Mrs.
Morris’s medical file and issuing a report on October 3, 2012)
and that she had not yet presented a bill. Depo Tr. March 13,
2014 40:1-7. Umeugo explained that she intended to bill for her
25

time “[w]hen the case comes to fruition,” id. at 40:13-24, and
agreed that she intended “to bill out of the proceeds of any
recovery received in this case.” Id. at 40:25-41:2.
At the June 10, 2014 hearing, Umeugo further explained that
“what I meant was when the case was over, I would then bill.” Tr.
June 10, 2014 at 133:22-23. Umeugo maintained that she “wasn’t
told to prepare the bill,” but that she did so on her father’s
suggestion after the final pretrial conference8 that, perhaps,
she should

bill.

Id. at

134:12-18.

According

to

Umeugo,

her

father “went in very brief about the motion to disqualify about
billing, so he said, just bill,” after which she typed up the
bill. Id. at 135:13-22.
In light of Umeugo’s somewhat ambiguous statements regarding
her intentions to bill for her services and the fact that she now
has submitted an invoice and received payment from Morris, it has
not been clearly established that payment for Umeugo’s services
is contingent on the outcome of this case. On the other hand, it
is

undisputed

that

Umeugo

&

Associates,

P.C.

has

undertaken

Morris’s claims on a contingency basis and that the success of
8

Questions to Umeugo by Defendants’ counsel and statements in
Defendants’ supplemental memorandum (Dkt. No. 67) indicate
counsel’s understanding that the final pretrial conference took
place on June 4, 2014. As set forth on the Court’s docket, that
conference took place on June 3, 2014. According to Umeugo’s
testimony, she prepared the bill later in the day on June 3, 2014,
after the conference had taken place. Id. at 134:19-21.
26

the case depends, at least in part, on the expert testimony
proffered by Umeugo, who is also an associate in the law firm
representing Morris. Nevertheless, the Court is of the opinion
that, in the absence of a state regulation and/or controlling
case law to the contrary, the better approach is to explore the
potential of witness bias through vigorous cross-examination at
trial, rather than by complete exclusion. This determination is
not inconsistent with the holding in Crowe v. Bolduc, 334 F.3d at
133.

Accordingly,

the

Defendants’

motion

to

exclude

Umeugo’s

expert testimony is denied.
Conclusion
For the foregoing reasons, the Defendants’ motion to exclude
the expert testimony of Dr. Pogue pursuant to Daubert, both with
respect

to

cause

of

death

and

standard

of

nursing

care,

is

GRANTED. The Defendants’ motion to exclude the expert testimony
of Umeugo is DENIED.
SO ORDERED.

/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
July 7, 2014

27