Salvani v. Corizon Health, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 17-24567-Civ-SCOLA/TORRES

CRAIG SALVANI,

Plaintiff,

v.

CORIZON HEALTH, INC. et al.,

Defendants.

___________________________________________/

ORDER ON DEFENDANTS’ DAUBERT MOTION

This matter is before the Court on Wexford Health Sources, Inc.’s (“Wexford”)

and Marta Castillo’s (“Ms. Castillo”) (collectively, “Defendants”) Daubert motion to

exclude the testimony of Craig Salvani’s (“Plaintiff”) experts, Dr. Chertoff and Dr.

Kern. [D.E. 118]. Plaintiff responded to Defendants’ motion on August 15, 2019

[D.E. 138] to which Defendants replied on August 22, 2019. [D.E. 145]. Therefore,

Defendants’ motion is now ripe for disposition. After careful consideration of the

motion, response, reply, relevant authority, and for the reasons discussed below,

Defendants’ motion is DENIED.1

I. BACKGROUND

Plaintiff is a former inmate at the Florida Department of Corrections

(“FDOC”) who filed this action on December 18, 2017 for a violation of his civil

rights. [D.E. 1]. Plaintiff entered the custody of the FDOC at the South Florida

1 On August 2, 2019, the Honorable Robert N. Scola referred Defendants’

Daubert motion to the undersigned Magistrate Judge for disposition. [D.E. 122].

Reception Center on February 6, 2014. Employees of Wexford Health Sources, Inc.

(“Wexford”) provided medical services at the prison. On February 12, 2014, a

urinalysis indicated that Plaintiff had an infection. A nurse ordered an x-ray and

another urinalysis was scheduled in seven days. The x-ray allegedly included a

granuloma in Plaintiff’s left lung and another x-ray was recommended. Plaintiff

claims, however, that the follow-up x-ray was never performed and that five days

later a nurse noticed that Plaintiff had an increased heart rate.

On February 20, 2014, prison officials transferred Plaintiff to the Regional

Medical Center – a hospital that FDOC owns and where Corizon Health, Inc.

(“Corizon”) provides medical services. Plaintiff alleges that he complained to

medical personnel during the next several days. At 1:14 a.m. on February 24, 2014,

Plaintiff claims that he suffered from hyperventilation and low blood pressure.

Plaintiff then alleges that Jorge Caraballo (“Dr. Caraballo”) examined him at 4:20

a.m. and that Dr. Caraballo ordered an IV and laboratory testing. Plaintiff was

transferred to an outside hospital later that morning and he was diagnosed with

sepsis, pneumonia, and endocarditis. Approximately two weeks later, Plaintiff’s

legs were amputated. Plaintiff alleges that he was injured because Corizon has a

policy of saving money at the expense of delivering quality medical care. Plaintiff

also claims that Dr. Caraballo could not treat him immediately because Dr.

Caraballo was required to get permission before he could send Plaintiff to the

hospital. Because Corizon failed to deliver quality healthcare and attempted to

save money at the cost of Plaintiff’s well-being, Plaintiff concludes that Corizon

violated his civil rights.

II. APPLICABLE PRINCIPLES AND LAW

The decision to admit or exclude expert testimony is within the trial court’s

discretion and the court enjoys “considerable leeway” when determining the

admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d

1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.

Evid. 702.2 The party offering the expert testimony carries the burden of laying the

proper foundation for its admission, and admissibility must be shown by a

preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300,

1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness

rests on the proponent of the expert opinion, whether the proponent is the plaintiff

or the defendant in a civil suit, or the government or the accused in a criminal

case.”).

2 Rule 702 states:

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.

“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which

admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The

purpose of this role is “to ensure that speculative, unreliable expert testimony does

not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256

(11th Cir. 2002). Also, in its role as Agatekeeper,@ its duty is not Ato make ultimate

conclusions as to the persuasiveness of the proffered evidence.@ Quiet Tech. DC-8,

Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)

To facilitate this process, district courts engage in a three-part inquiry to

determine the admissibility of expert testimony:

(1) the expert is qualified to testify competently regarding the matters

he intends to address; (2) the methodology by which the expert reaches

his conclusions is sufficiently reliable as determined by the sort of

inquiry mandated in Daubert; and (3) the testimony assists the trier of

fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The

Eleventh Circuit refers to the aforementioned requirements as the “qualification,”

“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;

“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing

Quiet Tech, 326 F.3d at 1341).

In determining the reliability of a scientific expert opinion, the Eleventh

Circuit also considers the following factors to the extent possible:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community. Notably, however, these factors do not exhaust the

universe of considerations that may bear on the reliability of a given

expert opinion, and a federal court should consider any additional

factors that may advance its Rule 702 analysis.

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are

not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in

case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,

1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on

principles and methodology, not on conclusions that they generate.” Daubert, 509

U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role

under Daubert ‘is not intended to supplant the adversary system or the role of the

jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666

(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;

see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.

2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must

do a preliminary assessment of 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.’”) (quoting Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010)).

“[T]he objective of [the gatekeeping role] is to ensure the reliability and

relevancy of expert testimony. It is to make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999). The district court’s role is especially significant since the expert’s opinion

“can be both powerful and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal

Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

III. ANALYSIS

Defendants’ motion seeks to exclude the following evidence: (1) Dr. Chertoff’s

opinion that prisoners with sepsis have a higher mortality and rate than non-

prisoners with sepsis, (2) Dr. Chertoff’s and Dr. Kern’s opinion that Wexford was

deliberately indifferent in failing to have a custom, policy, or practice to provide

necessary medical care, and (3) Dr. Kern’s opinion on causation. Plaintiff opposes

Defendants’ motion because it is conclusory, ignores the record presented, and

misstates the testimony expected at trial. We will discuss the arguments presented

in turn.

We begin with Defendants’ challenge to Dr. Chertoff’s opinion that prisoners

with sepsis have a higher mortality rate than non-prisoners with sepsis:

The suboptimal outcome that Mr. Salvani and other prisoners

experience from sepsis is unfortunately not uncommon and has been

documented in the medical literature. In fact, a retrospective study of

8,568 patients treated for sepsis at the University of Florida, using

data from October 1, 2013, to November 30, 2016, showed that the risk

of death among prisoners with sepsis was 2.8 times that of

nonprisoners. Although these results should be confirmed in larger

case-control studies, the researchers speculated that their study

suggests a direct association between incarceration and sepsis

morbidity and mortality.

[D.E. 118] (internal citations omitted). Defendants take issue with Dr. Chertoff’s

opinion because it relies on a prior article that Dr. Chertoff authored and therefore

fails meet any of the three Daubert requirements. That is, Defendants contend that

Dr. Chertoff is unqualified, that his opinion is unreliable, and that he will be

unhelpful to the jury. For these reasons, Defendants conclude that Dr. Chertoff’s

opinion as it relates to the mortality rate of prisoners vis-à-vis non-prisoners must

be excluded.

Defendants’ argument is entirely unpersuasive because it contains no

substantive reasons as to why Dr. Chertoff’s opinion should be excluded.3

Defendants merely claim that Dr. Chertoff is unqualified, unreliable, and unhelpful

and then Defendants summarily conclude that he violates Daubert. Defendants

provide no other reasons in support of their position. Instead, Defendants leave it

to the Court to determine if Defendants’ arguments have merit, but we have no

duty to do the work that Defendants should have done in the first place. See, e.g.,

Gottstein v. Flying J, Inc., 2001 WL 36102297, at *1 (N.D. Ala. Aug. 22, 2001) (“The

burden is on the moving party to demonstrate a ‘threshold level of unreliability in

3 Even if we considered Defendants’ argument on the merits, the disposition of

Dr. Chertoff’s opinion and testimony would remain the same. Dr. Chertoff is a

licensed physician to practice medicine in New York, Ohio, and Florida with

specialties in pulmonary, critical care, and internal medicine. He is also a board-

certified diplomat and his opinion is tied to his work in the medical and surgical

care units of sepsis patients. While Dr. Chertoff references his prior work on the

mortality rate of sepsis patients, that alone does not lead to a conclusion that he is

unqualified, unreliable, or unhelpful. Therefore, there is nothing in the record to

show that Dr. Chertoff’s opinion on sepsis patients violates Daubert.

order to ‘trigger’ the [Court’s Daubert] gatekeeping obligation.’”) (citation omitted).

Defendants’ motion is also completely devoid of any legal authority or references to

undermine Dr. Chertoff’s opinions. Accordingly, Defendants’ motion to exclude Dr.

Chertoff’s opinion as to the mortality rate of prisoners with sepsis is DENIED

because it is conclusory and fails to provide any reasons in support thereof.

Defendants’ next argument is that Dr. Chertoff and Dr. Kern should be

excluded from offering any opinion or testimony on whether Wexford was

deliberately indifferent in failing to have a custom, policy, or practice to provide

necessary medical care. While the doctors were not asked to opine on Wexford’s

indifference and their expert reports are mute on the matter, Defendants speculate

that Plaintiff will attempt to question these doctors on these issues at trial. As

such, Defendants request that the Court preclude any testimony on this topic as it

relates to Plaintiff’s experts.

Defendants miss the mark because, as Plaintiff states in his response,

Plaintiff does not intend to use either doctor to opine on whether Wexford was

deliberately indifferent. Plaintiff posits, for example, that there is “[n]o statement

of such intention . . . in the record,” and that Plaintiff does not intend to rely on

either doctor to opine on Wexford’s custom or practices. [D.E. 138]. Because

Plaintiff represents that neither doctor will offer any testimony or evidence on

whether Wexford was deliberately indifferent with respect to its policies,

Defendants’ motion is DENIED as moot.

The final issue is whether Dr. Kern should be permitted to testify on

causation. Defendants argue that Plaintiff intends to introduce evidence that

“because of . . . substandard care, [the] infection in Mr. Salvani was allowed to

progress to sepsis with subsequent severe complications including cardiac arrest

and amputation.” [D.E. 118-3 at 6]. Defendants claim that Dr. Kern lacks

sufficient facts to make this opinion and that, pursuant to Rule 702, Dr. Kern’s

opinion should be excluded.

Aside from being conclusory, Defendants’ argument is unpersuasive because

there are a plethora of facts and data to support Dr. Kern’s conclusion that

substandard care was, in part, the cause of Plaintiff’s complications. Dr. Kern

reviewed, for instance, the medical records of Wexford’s healthcare providers, the

underlying laboratory reports, Plaintiff’s vital signs, blood tests, x-rays, and other

physical examinations.

Based on these records, Dr. Kern opined that Plaintiff had several abnormal

findings in his medical record – including a lung lesion, elevated white blood cell

count, and low platelets – and that even a lay person would have recognized that a

patient with Plaintiff’s ailments needed medical attention. Dr. Kern then opined

that, if healthcare providers had noticed the abnormalities, quick action could have

been taken to avoid a more serious underlying condition. Given the voluminous

data that Dr. Kern relied upon for his opinion, there is an abundance of support for

his conclusion that substandard care was, in part, a cause of Plaintiff’s injuries.

Accordingly, Defendants’ Daubert motion to exclude Dr. Kern because he failed to

rely on sufficient facts or data is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Daubert motion [D.E. 118] to exclude

the testimony and opinions of Dr. Chertoff and Dr. Kern is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of

August, 2019.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge