Sine v. Sheren

Filing 30

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE DKT. NO. 26 AND DENYING THE DEFENDANTS MOTION TO EXCLUDE TESTIMONY OF JOHN H. LECKY, M.D. DKT. NO. 16 . Signed by District Judge Irene M. Keeley on 4/24/2015. (Copy counsel of record)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WILLIAM SINE, as Administrator
of the Estate of Regina Lou Sine,
Decedent
Plaintiff,
v.

CIVIL ACTION NO. 1:14CV143
(Judge Keeley)

LORNE SHEREN, MD,
Defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
On February 12, 2015, the defendant, Lorne Sheren, M.D. (“Dr.
Sheren”) filed a motion to exclude the testimony of John H. Lecky,
M.D., the expert of the plaintiff, William Sine, Administrator of
the Estate of Regina Lou Sine, Decedent (“Mr. Sine”) (Dkt. No. 16).
The Court referred the motion to the Honorable John S. Kaull,
United

States

Magistrate

Judge,

who

issued

a

report

and

recommendation (“R&R”) on April 3, 2015, recommending that the
Court deny Dr. Sheren’s motion (Dkt. No. 26). For the reasons that
follow, the Court ADOPTS the R&R in its entirety and DENIES Dr.
Sheren’s motion to exclude.
BACKGROUND
On September 14, 2013, Regina Lou Sine (“Mrs. Sine”), the
spouse of Mr. Sine, was admitted to Fairmont General Hospital
complaining of severe abdominal pain (Dkt. No. 1-1 at 5). Upon
admission, she was diagnosed with a gastro-intestinal perforation,

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
which

required

immediate

surgery.

Id.

Dr.

Sheren,

an

anesthesiologist, provided anesthesia services during Mrs. Sine’s
successful surgery. Id. at 5-6. Dr. Sheren extubated Mrs. Sine in
the operating room, and staff transported her to the intensive care
unit (“ICU”).

Id. at 6.

Upon her arrival in the ICU, Mrs. Sine

was “visibly cyanotic, cold to the touch, pale, and appeared to be
apneic.”

Id.

Mrs. Sine ultimately went into respiratory and

cardiac arrest, and died on September 22, 2013.

Id.

Mr. Sine filed suit in the Circuit Court of Marion County on
July

24,

2014,

alleging

two

counts

of

medical

professional

liability pursuant to W. Va. Code § 55-7B-1, and wrongful death
pursuant to W. Va. Code § 55-7-6 (Dkt. No. 1 at 1-2).

Dr. Sheren

allegedly prematurely extubated Mrs. Sine when she was still in
unstable condition in the operating room, and failed to monitor her
respiratory status, leading to her eventual wrongful death (Dkt.
No. 1-1 at 6).

On August 25, 2014, Dr. Sheren removed the case to

this Court based on diversity jurisdiction (Dkt. No. 1 at 1).
On February 12, 2015, Dr. Sheren filed a motion to exclude the
testimony of Mr. Sine’s expert, Dr. John H. Lecky (“Dr. Lecky”),
arguing that Dr. Lecky is neither competent under the West Virginia
Medical Professional Liability Act (“MPLA”), nor qualified under

2

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 588-89, 113
S.Ct. 2786 (1993), to offer expert testimony regarding the care
Mrs. Sine received (Dkt. No. 16 at 9-12).

Dr. Sheren also argued

that, under Federal Rule of Evidence 403, the potential prejudice
or confusion to the jury resulting from Dr. Lecky’s testimony would
outweigh its probative value.

Id.

On February 20, 2015, Mr. Sine

responded, opposing Dr. Sheren’s motion (Dkt. No. 17). On February
27, 2015, Dr. Sheren filed a reply (Dkt. No. 18), and, on March 4,
2015, with leave of Court, Mr. Sine filed a surreply (Dkt. No. 21).
On March 24, 2015, the Court referred the motion to Magistrate
Judge Kaull (Dkt. No. 23), who held a motion hearing on March 31,
2015.

On April 3, 2015, Magistrate Judge Kaull entered a R&R,

recommending that the Court deny Dr. Sheren’s motion to exclude
(Dkt. No. 26).

On April 17, 2015, Dr. Sheren filed an objection.1

1

When
reviewing
a
magistrate
judge’s
report
and
recommendation made pursuant to 28 U.S.C. § 636, the court must
review de novo only the portion to which an objection is timely
made. 28 U.S.C. § 636(b)(1)(C).
As to those portions of a
recommendation to which no objection is made, a magistrate judge's
findings and recommendation will be upheld unless they are “clearly
erroneous.”
See Webb v. Califano, 458 F.Supp. 825 (E.D. Cal.
1979).
3

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
LEGAL STANDARD
A.

Competency of Dr. Lecky
Federal Rule of Evidence 601 provides that witnesses are

presumed to be competent unless another rule provides otherwise.
Fed. R. Evid. 601. In civil cases, however, “state law governs the
witness’s competency regarding a claim or defense for which state
law supplies the rule of decision.”

Id.

In other words, in

federal diversity actions where the Court applies state substantive
law, Rule 601 mandates that parties comply with the competency
requirements in the MPLA.

Myers v. Reason, 2007 WL 704510 at *1

(N.D.W. Va. Feb. 12, 2007) (Stamp, J.).
Under the version of the MPLA in effect in September, 2013, a
plaintiff such as Mr. Sine must establish five elements to prove
that his expert witness is competent to testify.

These include:

(1)

the expert witness actually holds the opinion;

(2)

the expert witness can testify to the opinion “with reasonable
medical probability”;

(3)

the

expert

witness

“possesses

professional

knowledge

and

expertise coupled with knowledge of the applicable standard of
care

to

which

his

or

her

addressed”;

4

expert

opinion

testimony

is

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
(4)

the expert witness is currently licensed to practice medicine
“with the appropriate licensing authority” in any state, so
long as the expert witness’s license has not been revoked or
suspended in the past year in any state; and,

(5)

the expert witness “is engaged or qualified in a medical field
in which the practitioner has experience and/or training in
diagnosing or treating injuries or conditions similar to those
of

the

patient.

If

the

witness

meets

all

of

these

qualifications and devoted, at the time of the medical injury,
sixty percent of his or her professional time annually to the
active clinical practice in his or her medical field or
speciality, or to teaching in his or her medical field or
specialty in an accredited university, there shall be a
rebuttable presumption that the witness is qualified as an
expert.”
W. Va. Code § 55-7B-7(a)(emphasis added).2

Section 7 also provides

that “[n]othing contained in this section may be construed to limit
a trial court’s discretion to determine the competency or lack of

2

The MPLA was amended, effective March 9, 2015. As in the
R&R, however, the Court will use the version of W. Va. Code § 557B-7 in effect at the time of the incident.
5

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
competency of a witness on a ground not specifically enumerated in
this section.”

W. Va. Code § 55-7B-7(b).

Under the rebuttable presumption in the MPLA, an expert who
does not devote sixty percent or more of his time to clinical
practice or teaching is not barred from testifying; rather, if an
expert does devote sixty percent or more of his time to those
activities, the presumption will arise that he is competent.
Myers, 2007 WL 704510 at *2.

The Court must assess the competency

of a witness before determining whether or not he is qualified.
See Myers, 2007 WL 704510 at *2-3.
B.

Qualifications of Dr. Lecky
Under Fed. R. Evid. 702, an expert witness must be qualified

by “knowledge, skill, experience, training, or education.” If that
threshold is satisfied, the expert may offer testimony in the form
of an opinion, but only if all of the following are true:
(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.
6

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
Fed. R. Evid. 702.
The current version of Rule 702, as amended in 2000 and 2011,
reflects the seminal decisions of the Supreme Court of the United
States in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113
S.Ct. 2786 (1993), and its progeny.

See Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).
Evid. 702 advisory committee’s note.

See also Fed. R.

Under Daubert, “the trial

judge must determine at the outset, pursuant to Rule 104(a),
whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or
determine a fact in issue.”
U.S.

at

147

(extending

509 U.S. at 592; see also Kumho, 526

Daubert’s

application

to

“all

expert

testimony”).
The

mechanism

by

which

courts

perform

this

gatekeeping

function is found in Fed. R. Evid. 104(a), which requires courts to
decide

“any

preliminary

question

about

whether

a

witness

qualified, a privilege exists, or evidence is admissible.”

is
The

proponent of the testimony bears the burden of proving the expert’s
qualifications

and

the

reliability

preponderance of the evidence.

of

the

opinions

by

a

See Daubert, 509 U.S. at 592 n.10

7

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
(citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987));
Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001).
C.

Potential for Prejudice or Confusion
Under Rule 403, the Court “may exclude relevant evidence if

its probative value is substantially outweighed by a danger of . .
. unfair prejudice, confusing the issues, [or] misleading the jury
. . . .”

Fed. R. Evid. 403.

“The prejudice which [Rule 403] is

designed to prevent is jury emotionalism or irrationality.” United
States v. Fernandez, 981 F.2d 1252 at *2 (4th Cir. 1992) (quoting
United States v. Greenwood, 796 F.2d 49, 53 (4th Cir. 1986)).

The

admission of evidence causes unfair prejudice under Rule 403 when
it may “lead the jury ‘to make a decision on the basis of a factor
unrelated to the issues properly before it.’” United States v.
McKenzie, 983 F.2d 1058 at *2 (4th Cir. 1993) (quoting Mullen v.
Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1134 (4th Cir.
1988)). In contrast, damage to the defendant’s case is not a valid
basis for excluding probative evidence under Rule 403 because
“[e]vidence that is highly probative invariably will be prejudicial
to the defense.” United States v. Grimmond, 137 F.3d 823, 833 (4th
Cir. 1998).

8

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
The decision whether to exclude otherwise relevant evidence
under Rule 403 “rests within the sound discretion of the district
court and will be disturbed only in exceptional circumstances
showing abuse of discretion.”

United States v. Johnson, 998 F.2d

1011 at *2 (4th Cir. 1992) (citing United States v. Simpson, 910
F.2d 154, 157 (4th Cir. 1990)).
ANALYSIS
A.

Competency of Dr. Lecky
Dr. Sheren argues that Mr. Sine has not established that Dr.

Lecky is competent to address, to a reasonable medical probability,
the standard of care and any deviation from that standard at the
time of Mrs. Sine’s death, because he “had not engaged in any
clinical

practice,

teaching,

or

research

in

the

field

of

anesthesiology, or any other known field, for nearly ten (10) years
. . . .” (Dkt. No. 16 at 9).
Dr.

Lecky

(1)

cannot

Specifically, Dr. Sheren asserts that

establish

the

statutory

presumption

of

competency; (2) cannot testify to his opinion with reasonable
medical probability; (3) does not possess professional knowledge
and expertise of the applicable standard of care; and, (4) lacks a
current medical license (Dkt. No. 18 at 2).

9

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
According to Dr. Lecky’s CV, he retired from teaching in
February, 2006, and from providing care in an emergency or hospital
setting in 2002.

Id. at 10.

Although Dr. Lecky has been involved

in projects to raise awareness about substance abuse problems among
anesthesiologists, Dr. Sheren argues that “this activity would not
relate in any way to patient care generally, the patient care at
issue, or the medical issues in this case.”

Id.

In response, Mr. Sine argues that he has not asserted the 60%
statutory rebuttable presumption, and is prepared to prove Dr.
Lecky’s qualifications ab initio, based on his CV (Dkt. No. 17 at
2).

He also asserts that, under current West Virginia law, the

“determination of expert qualifications is the exclusive function
of the Court,” and that “statutory provisions to the contrary are
of no effect.”

Id.

Magistrate Judge Kaull found that Dr. Sheren misinterpreted
the rebuttable presumption contained in the MPLA, and found that he
“presented no evidence that Dr. Lecky does not meet any of the five
(5) criteria set forth [in the MPLA].” (Dkt. No. 26 at 4-5).

Dr.

Sheren objected to this conclusion, reiterating that Mr. Sine bears
the burden of establishing Dr. Lecky’s competency (Dkt. No. 28 at
1).

10

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
The Court agrees that Dr. Lecky is not entitled to the
rebuttable presumption because, at the time of the incident, he did
not devote more than 60% of his time to active clinical practice or
teaching.

W. Va. Code § 55-7B-7(a).

As such, Mr. Sine must

establish that Dr. Lecky is competent to testify as to both the
standard of care at the time of Mrs. Sine’s death, and whether Dr.
Sheren deviated from that standard.

Id.

First, Mr. Sine must show that Dr. Lecky actually holds the
purported opinion. W. Va. Code § 55-7B-7(a)(1). In his affidavit,
Dr. Lecky stated his opinion that Dr. Sheren “deviated from the
most basic Standards of Medical Care” by prematurely extubating and
failing to monitor Mrs. Sine on the way from the operating room to
the ICU (Dkt. No. 17-1 at 2).

Mr. Sine has adequately laid the

foundation for Dr. Lecky’s testimony as to the first requirement
under the MPLA.
Second, Mr. Sine must show that Dr. Lecky can testify to his
opinion with reasonable medical probability.
7(a)(2).

W. Va. Code § 55-7B-

Dr. Lecky has averred that he is “fully aware” of the

applicable standard of care in this case, and that the issues “are
very basic ones.”

(Dkt. No. 17-1 at 2).

He explained that Mrs.

Sine’s PCO2 levels and “markedly abnormal arterial Ph” indicated a

11

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
prolonged period of inadequate ventilation, directly refuting Dr.
Sheren’s statement that Mrs. Sine began to have difficulties just
as they were reaching the ICU.

Id.

Finally, Dr. Lecky stated that

Dr. Sheren failed to accomplish the “most basic tasks for an
anesthesiologist”

that

are

taught

“during

the

first

week

of

Anesthesia Residency,” including ensuring an airway, ensuring
adequate ventilation, monitoring the unconscious patient, and
preparing to intervene to reestablish an airway and ventilation.
Id. at 2-3.

It is clear that Dr. Lecky is capable of opining, to

a reasonable medical probability, as to the applicable standard of
care, that Dr. Sheren violated that standard, and the basis for his
opinion.

See Estate of Fout-Iser ex rel. Fout-Iser v. Hahn, 649

S.E.2d 246, 250-51 (W. Va. 2007) (finding that the expert witness
survived

summary

judgment

based

on

the

“reasonable

medical

probability” standard when he was able to state the standard of
care and why he believed the defendant violated that standard).
Third, Mr. Sine must establish that Dr. Lecky “possesses
professional knowledge and expertise coupled with knowledge of the
applicable standard of care to which [his] expert opinion testimony
is addressed.”

W. Va. Code § 55-7B-7(a)(3).

Dr. Lecky practiced

and taught in the specialty of anesthesiology for almost forty

12

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
years until his retirement from clinical practice in March, 2006
(Dkt. No. 16-1 at 1, 20).
After his residency and fellowship at the University of
Pennsylvania School of Medicine, Dr. Lecky joined the faculty,
where he remained as an Assistant, and then Associate, Professor
until 1988.

Id. at 1.

In 1988, Dr. Lecky joined the University of

Washington Medical School as a Professor of Anesthesiology, where
he remained until 2006, when he became an Emeritus Professor.

Id.

Dr. Lecky actively practiced in the field of anesthesiology
from 1972 until 2006, when he retired due to health concerns.
at 2, 20-21.
license,

and

Id.

Dr. Lecky still holds an active retired medical
maintains

his

continuing

requirements (Dkt. No. 17-1 at 2).

medical

education

He estimates that, during his

thirty-nine year career, he supervised and trained over 1,000
residents and “was active in the evaluation and recovery of
approximately 50,000 patients,” many of whom, as Mrs. Sine, had
multiple co-morbidities. Id. He averred that he has “never harmed
or killed a patient,” and has never been sued.

Id.

Although Dr. Lecky was not actively practicing medicine when
Mrs. Sine’s injury occurred in 2013, he possesses the requisite
knowledge and experience from his long career in the specialty of

13

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
anesthesiology, both as a practitioner and as an instructor.
MPLA

does

not

require

current

medical

practice

to

The

establish

competency; rather, it requires current medical practice to invoke
the rebuttable presumption, to which Dr. Lecky is not entitled for
the reasons already stated.

W. Va. Code § 55-7B-7(a)(5).

For

those reasons, the Court finds that Mr. Sine has met his burden of
establishing that Dr. Lecky provides professional knowledge and
expertise, coupled with knowledge of the applicable standard of
care.
Fourth, Mr. Sine must establish that Dr. Lecky “maintains a
current license to practice medicine with the appropriate licensing
authority of any state of the United States: Provided, That the
expert witness’ license has not been revoked or suspended in the
past year in any state.”
original).

W. Va. Code § 55-7B-7(a)(4) (emphasis in

Dr. Lecky maintains an active retired medical license

in the State of Washington, which limits him to practice ninety
days per year if he so desires (Dkt. No. 17-1 at 2).

Although the

exact issue of whether an “active retired” license qualifies as
“current” under the MPLA is one of first impression in this state,
it would be manifestly unfair to preclude Dr. Lecky from testifying
on that basis.

The status of his license is still active.

14

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
Therefore, the Court, in its discretion, finds that Dr. Lecky does
maintain a “current license” because he can still engage in the
practice of medicine, and is still required to undergo continuing
medical education.
Finally, Mr. Sine must show that Dr. Lecky “is engaged or
qualified

in

a

medical

field

in

which

the

practitioner

has

experience and/or training in diagnosing or treating injuries or
conditions similar to those of the patient.”
7(a)(5).

W. Va. Code § 55-7B-

Dr. Lecky is qualified in the field of anesthesiology,

and, as previously discussed, has adequate experience in diagnosing
and treating injuries similar to those suffered by Mrs. Sine (Dkt.
No. 16-2; Dkt. No. 17-1).
Mr. Sine has established the foundation for Dr. Lecky’s
testimony under the MPLA, despite the inapplicability of the
rebuttable presumption.

W. Va. Code § 55-7B-7(a).

For all of

these reasons, therefore, the Court DENIES Dr. Sheren’s motion to
exclude Dr. Lecky’s testimony under the MPLA, and turns next to
whether Dr. Lecky is qualified under Rule 702 and Daubert.
B.

Qualifications of Dr. Lecky
Dr. Sheren argues that Dr. Lecky’s opinions are conjectural

and unreliable “due to his lack of clinical and teaching in the

15

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
field of anesthesiology over the prior seven (7) and a half years,
and his lack of practice in an emergency hospital setting for over
ten (10) years.”

(Dkt. No. 16 at 11).

For his part, Mr. Sine

argues that “Dr. Lecky will testify as to the known standard of
care with respect to the timing of extubation,” and will not
testify as to anything unscientific or unproven (Dkt. No. 17 at 4).
In his R&R, Magistrate Judge Kaull found that Dr. Sheren
“failed to present the Court with any evidence that the science
upon which Dr. Lecky intends to testify is unreliable ‘junk
science’” requiring exclusion under Daubert (Dkt. No. 26 at 7). As
in Myers, 2007 WL 704510 at *3, Dr. Sheren’s disputes with Dr.
Lecky’s testimony can be remedied through trial tactics such as
cross-examination and the presentation of evidence.

Id.

In his objections, Dr. Sheren argues that the Court should
look to whether Dr. Lecky’s testimony will be reliable and helpful,
and

not

simply

science.”

as

to

whether

(Dkt. No. 28 at 3).

his

theories

constitute

“junk

Here, Dr. Sheren asserts, Dr.

Lecky’s testimony would be based upon speculation and conjecture
because

of

his

lack

of

recent

clinical

practice,

therefore not be reliable or assist the jury.

16

and

Id. at 4.

would

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
First, the Court must assess whether Dr. Lecky is qualified as
an expert by “knowledge, skill, experience, training, or education
. . . .”

Fed. R. Evid. 702.

For all of the reasons previously

discussed, the Court finds that Dr. Lecky’s long career as a
practitioner and an instructor of anesthesiology qualify him as an
expert.
Next, Dr. Lecky may offer his opinion if (1) his scientific,
technical, or other specialized knowledge will help the trier of
fact understand the evidence or determine a fact in issue; (2) his
testimony is based on sufficient facts or data; (3) his testimony
is the product of reliable principles and methods; and, (4) he has
reliably applied the principles and methods to the facts of the
case.

Fed. R. Evid. 702(a)-(d).
At base, Dr. Sheren argues that Dr. Lecky should not be

permitted to opine because his knowledge will not help the trier of
fact, and is unreliable solely due to his lack of recent clinical
or instructional practice.

“Opinions from Dr. Lecky regarding the

standard of care applicable to an emergency surgical situation in
September 2013 and any deviation therefrom, by necessity, would be
based upon speculation and conjecture due to his lack of clinical
practice and teaching in the field of anesthesiology over the prior

17

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
seven (7) years, and his lack of practice in an emergency hospital
setting for over ten (10) years.” (Dkt. No. 28 at 4).
Dr.

Sheren’s

argument

is

unpersuasive.

As

previously

discussed, Dr. Lecky has averred that he is familiar with the
standard of care, that the principles applicable to Mrs. Sine’s
case are basic, that Dr. Sheren violated the standard of care, and
the basis for his belief that Dr. Sheren did so.

Dr. Lecky’s

testimony will greatly help the trier of fact resolve the central
issue in the case–whether Dr. Sheren prematurely extubated Mrs.
Sine in violation of the applicable standard of care, causing her
wrongful death. Furthermore, it rejects Dr. Sheren’s argument that
Dr. Lecky’s testimony is unreliable simply due to the proximity of
his last professorship or active emergency room position. Rule 702
and Daubert do not require active clinical practice, and Dr.
Sheren’s argument to that effect fails for the same reasons
described earlier.

For all of these reasons, the Court DENIES Dr.

Sheren’s motion to exclude Dr. Lecky’s testimony under Rule 702 and
Daubert.3

3

Dr. Sheren objects to the recommendation in the R&R that the
Court deny his motion to exclude based on competency and
qualifications “with prejudice” (Dkt. No. 28 at 5).
He
“respectfully requests that any adverse ruling” preserve his right
to continue to question Dr. Lecky’s competence and qualifications
18

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
C.

Potential for Prejudice or Confusion
Finally, Dr. Sheren argues that Dr. Lecky’s testimony should

be excluded under Fed. R. Evid. 403 because its probative value is
substantially outweighed by the risk of prejudice or confusing the
jury (Dkt. No. 16 at 11-12).

He asserts that “Dr. Lecky has been

disclosed to offer speculation and conjecture under the guise of an
expert opinion, which neither is helpful nor the product of
reliable evidence.

His testimony, based on clinical practice and

teaching in the distant past, only will serve to confuse the issues
and confuse the jury.”
Magistrate

Judge

Id. at 12.
Kaull

found

that

insufficient

evidence

presently existed to find that Dr. Lecky’s testimony is based upon
speculation and conjecture (Dkt. No. 26 at 7).
recommended

denying

without

exclude based on Rule 403.

prejudice

Id. at 8.

Dr.

Therefore, he

Sheren’s

motion

to

Dr. Sheren objected to the

R&R, reiterating his original argument that Dr. Lecky’s testimony
would mislead the jury (Dkt. No. 28 at 4-5).

throughout discovery and trial. Id. It is axiomatic that “orders
that do not terminate the action by entry of judgment . . . are not
final.” Amar, et al., Federal Practice and Procedure, § 3914.1
Finality–Orders Prior to Trial–Pleadings, 15A Fed. Prac. & Proc.
Juris. § 3914.1 (2d ed. 2015).
19

SINE V. SHEREN

1:14CV141

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
JUDGE [DKT. NO. 26] AND DENYING THE DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF JOHN H. LECKY, M.D. [DKT. NO. 16]
After due consideration, the Court finds no cause to conclude
that

the

probative

value

of

Dr.

Lecky’s

testimony

would

be

substantially outweighed by a danger of prejudicing or confusing
the jury.
is

As the Court has already explained, Dr. Lecky’s opinion

reliable

under

Rule

702,

and

any

disagreements

with

his

testimony should be resolved at trial using cross-examination and
other trial techniques.

Daubert, 509 U.S. at 596.

Therefore, it

DENIES Dr. Sheren’s motion to exclude based on Rule 403.
CONCLUSION
For all of the reasons stated, the Court ADOPTS the R&R (Dkt.
No. 26) and DENIES Dr. Sheren’s motion to exclude Dr. Lecky’s
testimony (Dkt. No. 16).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED:

April 24, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

20