Bagheri v. Bailey, M.D. et al
Filing
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OPINION AND ORDER GRANTING in part and DENYING in part the plaintiffs Motion in Limine (ECF No. 59). The defendants Motion to Amend (ECF No. 63) is DENIED, and their Motion in Limine (ECF No. 51) is also DENIED. Signed by Judge James P. Jones on 11/6/2015. (lml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
KAREN TAYLOR BAGHERI,
ADMINISTRATOR OF THE ESTATE
OF SHAWN MATTHEW McKEE,
DECEASED,
Plaintiff,
v.
DWIGHT L. BAILEY, M.D., AND
APPALACHIAN EMERGENCY
PHYSICIANS,
Defendants.
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Case No. 1:14CV00077
OPINION AND ORDER
By: James P. Jones
United States District Judge
S.D. Roberts Moore, Anthony M. Russell, Benjamin D. Byrd, and Andrew M.
Bowman, Gentry Locke Rakes & Moore, LLP, Roanoke, Virginia, for Plaintiff;
James N.L. Humphreys, and Jimmie C. Miller, Hunter, Smith & Davis, LLP,
Kingsport, Tennessee for Defendants.
In this diversity action, the plaintiff, Karen Taylor Bagheri, Administrator of
the Estate of Shawn Matthew McKee, seeks recovery for the decedent’s death,
which she claims was caused by the medical malpractice of the defendant, Dwight
L. Bailey, M.D., employed by the defendant Appalachian Emergency Physicians.
The plaintiff has moved in limine to preclude the defendants from introducing any
argument, comment, or evidence at trial that would suggest that the decedent was
negligent in contributing to his death. Subsequent to the plaintiff’s Motion in
Limine, the defendants filed a Motion to Amend their Answer to include the
defense of contributory negligence based on Mr. McKee’s conduct on the night
before his death.
In addition, the defendants have filed a Motion in Limine
requesting that the plaintiff’s expert economist be prohibited from testifying at
trial. For the following reasons, the plaintiff’s Motion in Limine is granted in part
and denied in part, while the defendants’ Motion to Amend and Motion in Limine
are both denied.
II.
The following facts are taken from the Complaint and the deposition
excerpts submitted by the parties.
On June 7, 2013, Shawn Matthew McKee arrived at the Russell County
Medical Center Emergency Department in Russell County, Virginia. Mr. McKee
was suffering from, among other things, chest and back pain, shortness of breath,
nausea, and a fever. Defendant Dr. Bailey examined Mr. McKee while he was in
the emergency room. Dr. Bailey performed a number of diagnostic tests on Mr.
McKee, and eventually concluded that Mr. McKee was suffering from acute
bronchitis. Dr. Bailey released Mr. McKee from his care that night.
Shortly thereafter, Mr. McKee and his family moved to Post Falls, Idaho,
and moved in with Mr. McKee’s mother-in-law.
On the night of June 24, 2013, Mr. McKee began to suffer from shortness of
breath. Mr. McKee discussed with his wife and mother-in-law whether he should
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seek medical attention. At one point, this discussion became heated because Mr.
McKee’s mother-in-law felt strongly that he should go to the hospital. Ultimately,
Mr. McKee decided to wait until morning.
On the morning of June 25, 2013, Mr. McKee’s shortness of breath
worsened. Paramedics took Mr. McKee to a nearby hospital via ambulance, but
Mr. McKee became unresponsive around the time the ambulance arrived at the
hospital, and he died shortly thereafter. An autopsy revealed that Mr. McKee died
of a pulmonary artery thromboembolism and bilateral pulmonary infarcts. The
plaintiff believes that these conditions should have been detected by Dr. Bailey on
June 7th, and that both of the defendants are liable for Dr. Bailey’s failure to
diagnose.
III.
A. Plaintiff’s Motion in Limine.
The plaintiff has requested that the defendants be prohibited from
introducing any argument, comment, or evidence at trial that would suggest that
the decedent was negligent. The plaintiff’s motion is based on the fact that the
defendants did not plead the defenses of contributory negligence or failure to
mitigate damages in their Answer, and the argument that even if the defendants
had raised those defenses, they could not succeed as a matter of law. On the
second point, the plaintiff asserts that the defendants would only be able to
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establish a contributory negligence defense if Mr. McKee’s negligence was
contemporaneous with Dr. Bailey’s supposed negligence.
See Chandler v.
Graffeo, 604 S.E.2d 1, 5 (Va. 2004).
The plaintiffs have provided sufficient reason to exclude all arguments and
comments suggesting that Mr. McKee was negligent. Not only did the defendants
fail to allege such negligence in their original Answer, but there is no evidence that
Mr. McKee committed the kind of contemporaneous negligence necessary for a
contributory negligence defense under Virginia law. See id.
However, I cannot say that all of the evidence the plaintiff seeks to exclude
is categorically inadmissible, because some of that evidence could be relevant to
the issue of causation. A factual dispute in this case is whether Mr. McKee
suffered from a pulmonary embolism on June 7th, or developed this condition after
being examined by Dr. Bailey.
Evidence regarding Mr. McKee’s health and
activities from the time of June 7th until his eventual death could thus potentially
assist the jury in answering this question.
The plaintiff’s Motion in Limine was submitted, at least in part, in an effort
to prevent the defendants from referencing the events that occurred the night
before Mr. McKee’s death, when the decedent was encouraged to visit the hospital
by his wife and mother-in-law, but ultimately refused until paramedics were called
the next day. The plaintiff argues that even if the details from that night are
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relevant, the probative value of that information is outweighed by its prejudicial
effect, such that the evidence should be excluded pursuant to Rule 403 of the
Federal Rules of Evidence.
I cannot say, at this point, that the probative value of such evidence is
substantially outweighed by its prejudicial effect, as required by Rule 403. Thus, I
will deny the plaintiff’s request in limine to exclude the evidence in question, even
though I will preclude the defendants from arguing that the plaintiff’s case is
barred by the decedent’s contributory negligence.
B. Defendants’ Motion to Amend.
The defendants’ Motion to Amend requests that their original Answer be
amended so that they can argue that Mr. McKee was negligent on the night before
his death. The defendants argue that they did not originally plead this affirmative
defense because they were not aware of Mr. McKee’s negligence until late in the
litigation.
As previously discussed, the plaintiff’s Motion in Limine established that
the defendants will not be able to successfully argue contributory negligence in this
case because Mr. McKee’s supposed negligence, which occurred on the night
before his death, was not contemporaneous with the defendants’ alleged
negligence. See Chandler, 604 S.E.2d at 5. Therefore, allowing the defendants to
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amend their Answer to include the affirmative defense of contributory negligence
would serve no purpose, and the defendants’ Motion to Amend is denied.
C. Defendants’ Motion in Limine.
Lastly, the defendants’ have moved, in limine, for the plaintiff’s expert
economist, Larry A. Lynch, to be excluded from testifying at trial. The plaintiff
plans to use Dr. Lynch to calculate the value of the decedent’s lost income and lost
services, and to determine how much of that lost income would have gone to the
decedent’s statutory beneficiaries.
The defendants have moved to exclude Dr. Lynch’s testimony because (1)
he calculated the decedent’s consumption rate using Bureau of Labor statistical
data, not data individualized to the decedent, and (2) he calculated the value of lost
household services using the national average for such services, as opposed to
averages that are specific to the region where the decedent lived.
The Federal Rules of Evidence provide that
[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
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(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. “The scope of the court's gatekeeping inquiry will depend upon
the particular expert testimony and facts of the case.” EEOC v. Freeman, 778 F.3d
463, 466 (4th Cir. 2015). Expert testimony should be permitted if it “rests on a
reliable foundation and is relevant.” Id. (citations omitted).
Here, the defendants are effectively challenging one of the plaintiff’s
substantive claims for damages because the quantum of evidence necessary to
support a claim is outcome determinative. Thus, the defendants’ Motion in Limine
creates a substantive question that must be decided pursuant to Virginia law. See
Boyd v. Bulala, 877 F.2d 1191, 1199 (4th Cir. 1989) certified question answered,
389 S.E.2d 670 (Va. 1990).
Under Virginia law, every verdict in a wrongful death case shall include
compensation for the reasonably expected loss of the decedent’s income, along
with the loss of his “services, protection, care and assistance. . . .” Va. Code Ann.
§ 8.01-52.
Virginia law does not require “mathematical precision” in the
calculation of economic damages. Bulala v. Boyd, 389 S.E.2d 670, 677 (Va.
1990). Instead,
the plaintiff must furnish evidence of sufficient facts or circumstances
to permit at least an intelligent and probable estimate of damages.
Estimates of damages based entirely upon statistics and assumptions
are too remote and speculative to meet that test. In order to form a
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reliable basis for a calculation of lost future income or loss of earning
capacity, such evidence must be grounded upon facts specific to the
individual whose loss is being calculated.
Id. (internal quotation marks and citation omitted).
Dr. Lynch has provided projections that attempt to quantify both the loss of
support and household services that have been suffered in this case.
When
assessing lost support, Dr. Lynch analyzed Mr. McKee’s Social Security earnings
since 2003. After obtaining additional information from both personal interviews
and questionnaires, Dr. Lynch projected what the decedent’s income would have
been if he retired at age 67, and provided a second projection that used age 70 as
the retirement age.
He then subtracted the amount Mr. McKee would have
consumed from each year of projected income.
This projected personal
consumption deduction was calculated using U.S. Bureau of Labor statistics that
took into account the decedent’s family’s income and size.
The defendants
challenge the consumption projection for its use of U.S. Bureau of Labor statistics,
and argue that use of such general statistics cause Dr. Lynch’s opinion to be merely
speculative.
The defendants compare this matter to Birge ex rel. Mickens v. Dollar Gen.
Corp., No. 04-2531 B/P, 2006 WL 5175757, at *1 (W.D. Tenn. Sept. 25, 2006). In
that case, the decedent worked at B’s Quick Stop. An expert economist was asked
to evaluate what the decedent’s income would have been, but the economist was
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not given any information as to the decedent’s income history or net worth. As
such, the economist assumed that the decedent had been a manager at B’s Quick
Stop, and performed his calculation using the average income for food service
managers. The court held that this was speculative, and thus the economist’s
opinion was not based on sufficient facts or data.
Dr. Lynch determined Mr. McKee’s projected future income using roughly
ten years of the decedent’s earning history and conversations he had with the
decedent’s wife and mother.
While the personal consumption portion of Dr.
Lynch’s calculation may not be based entirely on individualized factors, his
analysis still considers the decedent’s projected income and family size, and then
applies those factors to the Bureau of Labor’s statistics. This is an accepted
method used when calculating the personal consumption deduction. See 5 David
L. Faigman, et al., Modern Scientific Evidence: The Law and Schience of Expert
Testimony § 45:75 (2014-15 ed.).
Dr. Lynch’s proposed testimony is different from that considered in Birge.
The economist in that case based his opinion almost entirely on generalized data.
The majority of Dr. Lynch’s analysis is based on facts that are particular to the
decedent. The portion that uses statistics to calculate consumption does so because
it would be difficult, if not impossible, to perform that calculation with
individualized data. As such, Dr. Lynch’s combination of personal and statistical
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data is appropriate in this case. See, e.g., Musick v. Dorel Juvenile Grp., Inc., 818
F. Supp. 2d 960, 963 (W.D. Va. 2011).
Dr. Lynch’s valuation of household services is also admissible. Dr. Lynch
determined the amount of household services lost in this case by speaking to both
Mr. McKee’s wife and mother, and asking them how much time Mr. McKee spent
doing household tasks. While Mr. McKee’s wife said that he performed roughly
30 hours of such tasks per week, Mr. McKee’s mother estimated that he performed
20 hours worth of those tasks per week, so Dr. Lynch used the lower number. He
then applied that amount of time to the national average rate for household
services.
The defendants argue that a particularized rate that is more specific to
Lebanon, Virginia, or Post Falls, Idaho, should have been used. The defendants
have provided no case authority suggesting that such a particularized rate must be
used, nor have they shown that a recognized rate for those areas even exists. Dr.
Lynch asserts that he has computed Mr. McKee’s household services using the best
data available. Certainly, this computation assists the trier of fact, and appears to
be the kind of analysis that would be performed by similar experts in the field.
Therefore, the defendant’s Motion in Limine will also be denied.
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IV.
For the foregoing reasons, it is ORDERED that the plaintiff’s Motion in
Limine (ECF No. 59) is GRANTED in part and DENIED in part. The defendants’
Motion to Amend (ECF No. 63) is DENIED, and their Motion in Limine (ECF No.
51) is also DENIED.
ENTER: November 6, 2015
/s/ James P. Jones
United States District Judge
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