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 PLAINTIFF’S AMENDED DAUBERT MOTION

This matter is before the Court on Craig Salvani’s (“Plaintiff”) Daubert motion

to exclude the expert opinions of Dr. Zawitz, Dr. Stemer, and Dr. Fournier. [D.E.

124]. Wexford Health Sources, Inc.’s (“Wexford”) and Marta Castillo’s (“Ms. Castillo”)

(collectively, the “Wexford Defendants”) filed a response on August 15, 2019. [D.E.

130]. Corizon Health, Inc. (“Corizon”), Josue Jorge Caraballo, M.D. (“Mr. Caraballo”)

and Stephanie Loznicka, R.N. (“Ms. Loznicka”) (collectively, the “Corizon

Defendants”) filed a separate response on August 16, 2019. [D.E. 141]. Plaintiff did

not file a reply to either response and the time to do so has now passed. Therefore,

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

motion, response, relevant authority, and for the reasons discussed below, Plaintiff’s

Daubert motion is GRANTED in part and DENIED in part.1

1 On August 2, 2019, the Honorable Robert N. Scola referred Plaintiff’s Daubert

motion to the undersigned Magistrate Judge for disposition. [D.E. 125].

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 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

Plaintiff’s motion seeks to exclude three experts – Dr. Zawitz, Dr. Stemer, and

Dr. Fournier – because they are unreliable and unhelpful. Plaintiff also claims that

their opinions are conclusory, demonstrably false, confusing, and unhelpful.

Defendant opposes Plaintiff’s motion because Plaintiff has merely identified potential

weaknesses. We will discuss the parties’ arguments in turn.

We begin with Dr. Zawitz. Plaintiff contends that Dr. Zawitz’s opinions are

conclusory and artfully misleading. Plaintiff also criticizes Dr. Zawitz’s use of the

term – “deliberate indifference” – when he opines that (1) medical staff members were

not deliberately indifferent, and that (2) they did not breach their professional

standard of care. [D.E. 124-6] (“I find no evidence of deliberate indifference or

deviations of any standards of care”). Alternatively, Plaintiff suggests that Dr.

Zawitz’s opinions lack any probative value and that his opinions should be excluded

because he failed to consider any contradictory evidence. Plaintiff therefore concludes

that Dr. Zawitz must be excluded because he fails to meet the Daubert requirements

at every turn.

We agree, in part, that Dr. Zawitz’s expert report runs afoul of Daubert because

he repeatedly opines that there was “no evidence of deliberate indifference or a

deviation from any medical standards of care[.]” [D.E. 124-6 at 12. These legal

conclusions cannot stand because the Eleventh Circuit has made clear that legal

conclusions or statements instructing what conclusion the jury should reach are

impermissible under Daubert. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe

Cnty., Fla., 402 F.3d 1092, 1112 n.8 (11th Cir. 2005) (“[C]ourts must remain vigilant

against the admission of legal conclusions”) (citations & quotations omitted); see also

Montgomery, 898 F.2d 1541 (11th Cir. 1990) (“An expert may not . . . merely tell the

jury what result to reach.”). Indeed, “expert testimony is admissible if it concerns

matters that are beyond the understanding of the average lay person” and offers

something “more than what lawyers for the parties can argue in closing arguments.”

Frazier, 387 F.3d at 1262-63 (citations omitted). While “[a]n expert may testify as to

his opinions on an ultimate issue of fact . . . he ‘may not testify as to his opinion

regarding ultimate legal conclusions.’” Umana-Fowler v. NCL (Bahamas) Ltd., 49 F.

Supp. 3d 1120, 1122 (S.D. Fla. 2014) (quoting Delatorre, 308 F. App’x at 383). This

means that “merely telling the jury what result to reach is unhelpful and

inappropriate.” Umana-Fowler, 49 F. Supp. 3d at 1122 (citing Montgomery v. Aetna

Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)). Because Dr. Zawitz’s opinions

run afoul of this well-settled principle at several times in his expert report, Plaintiff’s

motion to exclude Dr. Zawitz’s legal conclusions is GRANTED.

As for the other relief that Plaintiff seeks – as it relates to Dr. Zawitz –

Plaintiff’s motion is unpersuasive because Plaintiff has merely identified potential

weaknesses in Dr. Zawitz’s expert report. Plaintiff argues, for instance, that Dr.

Zawitz failed to consider any contradictory authority when he reached his opinions.

While that may be a flaw for impeachment purposes at trial, this fails to show that

his opinion is unreliable under Daubert. Indeed, Dr. Zawitz could have considered a

broader depth of knowledge when he formed his opinions, but that flaw does not

render his opinions impermissible. This is not a situation, for example, where “the

only connection between the conclusion and the existing data is the expert’s own

assertions . . . .” Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1197 (11th Cir. 2002)

(“[T]he Supreme Court made it clear that testimony based solely on the experience of

an expert would not be admissible. The expert’s conclusions must be based on sound

scientific principles and the discipline itself must be a reliable one. The key

consideration is whether the expert ‘employs in the courtroom the same level of

intellectual rigor that characterizes the practice of an expert in the relevant field.’”).

Instead, Dr. Zawitz examined several hospital and consultation records and gave his

opinion on the level of care that Plaintiff received. While Plaintiff may be skeptical

of Dr. Zawitz and whether his opinions reached the right conclusion, that is not a

question to be decided on a Daubert motion. Accordingly, we cannot discredit Dr.

Zawitz’s opinions at this stage of the case.

The next issue is whether Dr. Stemer should be excluded. Plaintiff argues that

Dr. Stemer’s opinions are unreliable and unhelpful because they consist of nothing

more than conclusory statements without any factual support. Plaintiff also claims

that Dr. Stemer makes medical assertions but then fails to support them with any

supporting reasons. Making matters worse, Plaintiff suggests that Dr. Stemer’s

opinions lack any probative value and are confusing because Dr. Stemer suggests that

a patient with Plaintiff’s medical condition3 is commonly found to be an intravenous

drug user. Plaintiff takes offense with Dr. Stemer’s opinion because there is a high

degree of unfair prejudice if the jury is led to believe, without any factual support,

that Plaintiff is a drug user. For these reasons, Plaintiff concludes that Dr. Stemer’s

opinions must be excluded.

Plaintiff’s motion is unpersuasive because – while Dr. Stemer’s expert report

may be only three pages – it includes a sufficiently thorough review of the medical

record in this case. Not to be deterred, Plaintiff argues that there is not enough

factual background in the expert report. But, Dr. Stemer explicitly notes that he

reviewed several medical records and that Plaintiff was diagnosed with an infection.

Plaintiff then contends that Dr. Stemer’s opinion is inflammatory because it suggests

that Plaintiff is an intravenous drug user. Plaintiff’s characterization of the opinion

is misplaced, however, because Dr. Stemer merely notes that Plaintiff’s infection is

commonly found in intravenous drug users. Dr. Stemer noticeably did not opine that

Plaintiff is a drug user; Dr. Stemer only commented on where the infection is most

3 Plaintiff was diagnosed with pseudomonas aeruginosa – an infection that Dr.

Stemer opines to include a high rate of mortality. [D.E. 124-5].

prevalent. And Plaintiff’s contention that the opinion lacks probative value is

unavailing because it includes a synopsis of Plaintiff’s medical condition and how it

was diagnosed. Accordingly, Plaintiff’s motion to exclude Dr. Stemer is DENIED

because, although the expert report could have been more comprehensive, it is not

impermissible under Daubert.

The final issue is whether Dr. Fournier should be excluded. Plaintiff argues

that Dr. Fournier does not have a reliable methodology and that his expert report

contains nothing more than bare conclusions. Plaintiff also claims that his report

relies on erroneous facts, that it “diverge[s] from medical reality, and that it states

“untrue facts about the time and nature of care” that was provided to Plaintiff. [D.E.

124]. For these reasons, Plaintiff concludes that Dr. Fournier opinions are unreliable,

conclusory, confusing, and lack probative value.

Plaintiff’s arguments are misplaced for the same reasons set forth above

because, while Dr. Fournier’s expert report [D.E. 124-1] is brief, it contains a

sufficient review of the underlying record with a medical opinion as to the cause of

Plaintiff’s infection. Plaintiff then complains that Dr. Fournier failed to rely on a

reliable methodology, but his reasoning is arguably scientifically valid because he

relies on the record presented and his thirty-five years as a physician at Jackson

Memorial Hospital. Plaintiff also takes issue with the facts that Dr. Fournier

considered, but the facts are disputed as to the treatment Plaintiff received. If

Plaintiff believes that his set of facts are more accurate, he has ample opportunity to

cross-examine Dr. Fournier at trial to undermine Dr. Fournier’s opinion. However,

to do so on a Daubert motion would be inappropriate when there are several factual

disputes and an expert relies on one side of a story in determining a patient’s illness.

Accordingly, Plaintiff’s motion to exclude the opinions of Dr. Fournier is DENIED.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Daubert motion [D.E. 124] to exclude the

testimony and opinions of Dr. Zawitz, Dr. Stemer, and Dr. Fournier is GRANTED in

part and DENIED in part:

A. Plaintiff’s motion to exclude Dr. Zawitz’s legal conclusions is GRANTED.

As for any other relief as it relates to Dr. Zawitz, Plaintiff’s motion is

DENIED.

B. Plaintiff’s motion to exclude Dr. Stemer is DENIED.

C. Plaintiff’s motion to exclude Dr. Fournier is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of

August, 2019.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge