Vandervelden v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LISA VANDERVELDEN,

Plaintiff,

v. Case No. 3:18-CV-1333-NJR

SAINT LOUIS UNIVERSITY and

UNITED STATES OF AMERICA,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court are Daubert motions and motions in limine filed by

Defendants Saint Louis University (“SLU”) and the United States of America (“USA”).

(Docs. 125-129, 133-134). SLU also has filed a motion for summary judgment based on its

Daubert motion. (Doc. 130). SLU asks the Court to exclude the opinions and testimony of

the USA’s retained expert Dr. Barbara Murphy (Doc. 125), and both SLU and the USA

ask the Court to exclude the opinions and testimony of Plaintiff Lisa Vandervelden’s

retained expert Dr. Krzysztof Misiukiewicz (Docs. 126, 133).

FACTUAL BACKGROUND

On January 23, 2017, Plaintiff Lisa Vandervelden went to a federal health center

complaining of a blister under her tongue and facial swelling, which had been present

for two weeks. (Doc. 125-4 at p. 6). A physical exam, documented by a SLU resident

(supervised by a USA physician), showed an ulcer under her tongue where the lingual

frenulum and tongue join. (Id.). Vandervelden was prescribed mouth wash, instructed to

return if her symptoms persisted, and advised to follow up with a dental hygienist. (Id.).

Vandervelden did not see a dental hygienist as recommended, but she returned to

the federal health clinic—for a follow up concerning her oral ulcer and a wound on her

arm—on February 24, 2017. (Id.). On exam, a SLU resident found Vandervelden had an

aphthous ulcer (a canker sore) on the left base of her tongue, and she was advised to

continue using the mouth wash and oral lidocaine for pain. (Id.) She also was instructed

to return if her oral lesion worsened or increased in size. (Id.). Vandervelden had an

annual well visit scheduled at the health clinic for March 3, 2017, but she canceled the

appointment. (Doc. 125-1 at p. 2).

Four months passed before Vandervelden returned to the federal health clinic to

follow up on her oral ulcer. (Doc. 126-6 at p. 2). She reported no improvement despite

antibiotics and pain medication. (Id.). A physical exam by a SLU resident demonstrated

“no obvious wound” but noted the ulcer was “very tender to palp at base of left side of

tongue. No indurations, masses or flactance. No bleeding gums or abscess teeth noted.”

(Id.). Vandervelden was referred to an oral surgeon for evaluation, but when the doctor

was advised that no oral surgeon accepted Vandervelden’s insurance, the doctor advised

her to see a dentist. (Id.).

Less than a week later, on June 29, 2017, Vandervelden presented at the Emergency

Department at Memorial Hospital complaining of left-sided throat swelling and pain for

three months. A CT scan was performed, and a “14 x 8 mm low-attenuation, rim-

enhancing collection along the left tongue base with surrounding inflammatory

thickening/stranding” was found to be evidence of an abscess, although malignancy

could not be excluded. (Doc. 125-6 at p. 1). Vandervelden was advised to schedule an

appointment with Dr. George, an otolaryngologist (“ENT”), but she did not do so. (Id.).

The following day, Vandervelden saw her primary care physician, a SLU resident at the

health center, for a follow-up visit. (Doc. 125-1 at p. 4). Vandervelden reported no

improvement in symptoms with antibiotics. (Id.) The doctor reviewed the CT scan results

and referred her to an ENT at SLU. (Id.). An appointment with the ENT was scheduled

for September 2017. (Id.).

By July 31, 2017, Vandervelden had lost 20 pounds, and she was experiencing

worsening pain. An exam by her primary care physician revealed an ulcer on the base of

her tongue about one cm in diameter. (Id.). The doctor contacted an ENT at Washington

University in St. Louis to facilitate an earlier ENT appointment. (Id.).

On August 7, 2017, a doctor at Washington University reviewed the CT scan

performed on June 29, 2017, and found an “enhancing mass at the left aspect of the tongue

extending into the floor of the mouth measuring 3.3 x 1.8 centimeters.” (Doc. 125-7 at

p. 1). Two days later, a Washington University doctor examined Vandervelden and noted

her six-month history of oral pain, odynophagia, otalgia, difficulty swallowing, and

weight loss. The doctor found “a close to 4 cm tongue lesion that has a relatively

submucosal area close to 12 mm of depth. It does not go all the way to the midline.”

(Doc. 125-8 at p. 1). He found that it involved some portion of the tongue base as well.

(Id. at p. 2). Given his high suspicion of carcinoma, the Washington University doctor

performed a biopsy, which confirmed invasive, mildly differentiated squamous cell

carcinoma, keratinizing type. (Doc. 126-7 at p. 3). Vandervelden was clinically staged as

a “T3N0M0.” Surgery was recommended, followed by radiation therapy. (Id. at p. 5).

Surgeons removed the mass on August 22, 2017. (Doc. 126-8 at p. 1). The surgeon

found a “very large tumor, measuring approximately 8 to 9 cm.” (Id.). The tumor

“appeared to be arising from the left oral tongue with extension into the left floor of

mouth” and crossed the midline into the right base of the tongue, as well as into the floor

of the mouth. (Id. at pp. 1-2). Her stage was determined to be T4N0M0. (Doc. 140-2 at

p. 4). A total glossectomy was performed, meaning Vandervelden’s entire tongue was

removed. (Id. at p. 2). She then underwent adjuvant radiation and, later, a tongue

reconstruction procedure. (Doc. 126-2 at p. 5).

LEGAL STANDARD

“A district court’s decision to exclude expert testimony is governed by Federal

Rules of Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).” Brown v. Burlington

Northern Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014); see also Lewis v. Citgo Petroleum

Corp., 561 F.3d 698, 705 (7th Cir. 2009). The Daubert standard applies to all expert

testimony, whether based on scientific competence or other specialized or technical

expertise. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Kumho Tire Co.,

Ltd. v. Carmichael, 526 U.S.137, 141 (1999)).

Federal Rule of Evidence 702 provides that expert testimony is admissible 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. Under this rule, an expert witness may testify about a scientific issue in

contention if the testimony is based on sufficient data and is the product of a reliable

methodology correctly applied to the facts of the case. Lyons v. United States, No. 120-CV-

01120-JMS-DLP, 2021 WL 3076482, at *1 (S.D. Ind. July 21, 2021) (citing Gayton v. McCoy,

593 F.3d 610, 616 (7th Cir. 2010)).

The district court is the gatekeeper with respect to the screening of expert

testimony in ensuring it is both relevant and sufficiently reliable. C.W. ex rel. Wood v.

Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). The district court “must engage in a three-

step analysis before admitting expert testimony.” Gopalratnam v. Hewlett-Packard Co., 877

F.3d 771, 779 (7th Cir. 2017). The Court must determine whether: (1) the witness is

qualified; (2) the expert’s methodology is scientifically reliable; and (3) the testimony will

assist the trier of fact in understanding the evidence or determining a fact in issue. Id.

The “key to the gate is not the ultimate correctness of the expert’s conclusions.

Instead, it is the soundness and care with which the expert arrived at her opinion; the

inquiry must ‘focus . . . solely on principles and methodology, not on the conclusions they

generate.’” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013) (citing

Daubert, 509 U.S. at 595). “So long as the principles and methodology reflect reliable

scientific practice, “[v]igorous cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.” Id. (quoting Daubert, 509 U.S. at 596).

Finally, an expert must explain the methodologies and principles that support his

or her opinion; he or she cannot simply assert a “bottom line” or ipse dixit conclusion.

Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (quoting Minix v.

Canarecci, 597 F.3d 824, 835 (7th Cir. 2010)). “[W]here such testimony’s factual basis, data,

principles, methods, or their application are called sufficiently into question . . . the trial

judge must determine whether the testimony has ‘a reliable basis in the knowledge and

experience of [the relevant] discipline.’” Kumho, 526 U.S. at 149 (quoting Daubert, 509 U.S.

at 592). The district court possesses “great latitude in determining not only how to

measure the reliability of the proposed expert testimony but also whether the testimony

is, in fact, reliable.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (citing Jenkins

v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007)). “The critical inquiry is whether there is a

connection between the data employed and the opinion offered.” Gopalratnam, 877 F.3d

at 781 (quotation omitted).

DISCUSSION

I. SLU’s Daubert Motion and Motion in Limine to Exclude the Opinions of Dr.

Barbara Murphy (Docs. 125, 128)

USA expert Dr. Barbara Murphy is a physician licensed to practice in Tennessee

and board certified in Medical Oncology. (Doc. 125-1). She is an attending physician in

the Division of Hematology and Oncology at Vanderbilt University Medical Center. (Id.).

Since 1993, Dr. Murphy has served in various capacities in the head and neck cancer

program at the Vanderbilt Ingram Cancer Center, including Leader of the Head and Neck

Clinical Team, Leader of the Head and Neck Cancer Research Team, and Director of the

Head and Neck Supportive Care Program. (Id.).

SLU moves to bar the following opinions provided by Dr. Murphy, arguing the

opinions fail to meet the standard for admissibility required by Federal Rule of Evidence

702 and Daubert because her methodology is invalid:

• in June 2017, Vandervelden’s cancer would have been at Stage 1 or 2;

• her oral squamous cell carcinoma “exploded” in size in July 2017 and “exploded”

in size in August 2017;

• the tumor grew very rapidly between the end of June and August;

• “had the patient followed up with ENT in June as directed, earlier treatment at

this time may possibly have been initiated, which may possibly have resulted in

avoiding a total glossectomy...” and that a diagnosis in June would have given her

a better chance to have avoided a total glossectomy; and

• a work-up in June or July would have possibly given her a better chance for a

better outcome.

A. Opinions Regarding Tumor Growth Rate and Staging

With regard to Dr. Murphy’s opinions about the tumor growth rate between June

and August 2017, SLU argues that Dr. Murphy was merely “guesstimating” and, thus,

her opinions are unreliable. SLU also asserts Dr. Murphy based her opinions on an

invalid methodology, which involved stringing together disparate clinical and imaging

data with the surgical data from Vandervelden’s glossectomy. SLU claims this

methodology is not recognized science and cannot support Dr. Murphy’s opinions to a

reasonable degree of medical certainty. SLU then uses its own experts’ observations that

no standard growth rate of an oral tongue cancer has ever been established, tested, or

subjected to peer review; thus, it is impossible to know when the oral tongue cancer was

present or to retrospectively stage the tumor. And, SLU argues, the data between January

and August 2017 itself is unreliable for establishing tumor size and growth.

In response, the USA submits that Dr. Murphy’s specialized training and

experience in the field of head and neck cancer provide a sufficient basis for her opinions

under Daubert. (Doc. 149). The USA argues Dr. Murphy reached her opinions by taking

facts about Vandervelden’s condition and applying her experience and research in the

field to make observations about Vandervelden’s tumor, its rarity, its aggressiveness, its

manifestation, and its size upon removal as contrasted with clinical observations and

imaging in the weeks before it was removed.

Upon reviewing the evidence, the Court disagrees with SLU’s assessment of

Dr. Murphy’s methodology. Dr. Murphy reviewed Vandervelden’s medical records,

depositions of the treating physicians, imaging studies, the surgical report, PET scan,

pathology report, and other records, and she applied her experience and research in the

field in reaching her conclusions. This is a sound methodology. See Walker v. Soo Line R.

Co., 208 F.3d 581, 591 (7th Cir. 2000) (finding expert’s testimony admissible when he

applied his experience to the medical records). While SLU’s experts disagree with Dr.

Murphy, “[t]hat two different experts reach opposing conclusions from the same

information does not render their opinions inadmissible.” Id. at 589. Dr. Murphy’s

methodology is reliable, and SLU can challenge her opinions on cross-examination.

SLU further argues Dr. Murphy’s opinion about the tumor growth rate is based

on a misreading of the medical records. SLU contends that Dr. Murphy believed the

tumor was 14 x 8 mm based on her reading of the June 29, 2017 CT scan, when the

radiology report actually showed a 14 x 8 mm “rim enhancing collection” thought to be

an abscess. When doctors at Washington University re-read the June 29, 2017 CT scan,

they found a mass measuring 3.3 x 1.8 cm—more than double in size. Because Dr.

Murphy based her opinion regarding tumor grown rate on an incorrect measurement of

the tumor, SLU argues, it must be excluded.

This argument goes to the weight, not the admissibility, of Dr. Murphy’s opinion.

SLU’s claim that Dr. Murphy based her tumor staging on an incorrect reading of the June

29, 2017 CT scan can be explored on cross-examination. See Schwarz v. Nat’l Van Lines,

No. 03 C 7096, 2005 WL 8177605, at *1 (N.D. Ill. Sept. 22, 2005) (holding that expert’s

miscalculation went to the weight, not admissibility, of his testimony); Traharne v. Wayne

Scott Fetzer Co., 156 F. Supp. 2d 717, 723 (N.D. Ill. 2001) (“[f]actual inaccuracies [in an

expert opinion] are to be explored through cross-examination and go toward the weight

and credibility of the evidence not admissibility”); Schultz, 721 F.3d at 431 (noting the

court is not concerned with the ultimate correctness of the expert’s opinion as long as the

methodology is sound). The Court further notes that Dr. Murphy did not testify that the

tumor “exploded” in size both in July 2017 and August 2017. Dr. Murphy clearly

corrected herself when she testified: “I think it became evident in June, and I think it

exploded in July. . . . I mean, not July. In August.” (Doc. 125-2 at p. 7). Thus, Dr. Murphy’s

opinion regarding the tumor growth rate will be allowed.

B. Opinions Regarding Chance of a Better Outcome

SLU next challenges Dr. Murphy’s opinion that had Vandervelden followed up

with an ENT in June 2017 as directed, earlier treatment may possibly have been initiated,

which may possibly have resulted in avoiding a total glossectomy. SLU argues that

causation must be proven to a reasonable degree of medical certainty, and a causal

connection cannot be made by testimony that an outcome is “possible.” Because

Dr. Murphy admitted in her deposition that she could not make this statement to a

reasonable degree of medical certainty, the Court agrees this opinion should be excluded.

Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (expert testimony

may not be based on subjective belief or speculation). Accordingly, Dr. Murphy’s opinion

that had Vandervelden followed up with an ENT in June as directed, she may possibly

have avoided a total glossectomy, as well as her opinion that a work-up in June or July

2017 would possibly have given her a better chance for a better outcome, will be excluded.

Finally, SLU asserts Dr. Murphy’s opinions should be excluded under Rule 403

because they are merely guesses that would mislead the jury as to fault and the amount

of damages, if any. Therefore, the probative value of her opinions is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, and misleading

the jury. The undersigned disagrees that Dr. Murphy’s opinions are merely guesses, but

reserves ruling on any objections under Rule 403 until trial.

II. SLU and the USA’s Daubert Motions and SLU’s Motion in Limine to Exclude

Testimony of Plaintiff’s Retained Expert Dr. Krzysztof Misiukiewicz (Docs. 126,

129, 133)

Dr. Krzystof Misiukiewicz is a physician licensed in New York and board certified

in Medical Oncology. (Doc. 133-2). Dr. Misiukiewicz is active in clinical practice and

treats patients with solid tumors in the head and neck at Mount Sinai Hospital, where he

also is an associate professor. (Doc. 133-1 at p. 3).

Both SLU and the USA ask the Court to exclude the following opinions of

Dr. Misiukiewicz:

e an earlier diagnosis of oral squamous cell carcinoma would have

allowed Vandervelden to avoid radiation therapy and her related

complications of xerostomia and osteoradionecrosis;

e if Vandervelden had a pathologically detectable tumor in February

2017, it would have been subject to definitive staging at stage T1; and

e the failure to diagnose Vandervelden earlier reduced her survival rate.

Additionally, the USA seeks to exclude Dr. Misiukiewicz’s opinion that the oral lesions

Vandervelden presented with on January 23, 2017, and February 24, 2017, were the same

lesion, as well as any testimony by Dr. Misiukiewicz regarding the standard of care for

supervising residents.

A. Causation Opinions

Defendants argue that Dr. Misiukiewicz’s causation opinions are unsupported

speculation and that his “methodology” consists solely of selectively reviewing medical

records and clinical notes, offering contrary assumptions, and formulating conclusions

that are devoid of any factual and scientific support. Defendants note that

Dr. Misiukiewicz does not explain why he believes the aphthous ulcer found in February

2017 was oral cancer when no oral lesions were visible in June 2017. Moreover, there is

no standard grown rate for tongue cancer, so his opinion that the cancer was stage I in

February 2017 is merely a guess. Because the information needed to determine stage,

“including pathologic confirmation of the disease,” does not exist, Defendants argue,

Dr. Misiukiewicz’s opinion regarding Vandervelden’s prognosis is invalid. Finally, as to

the reduction of Vandervelden’s survival rate, the USA notes that Dr. Misiukiewicz’s

opinion assumes that stage I oral squamous cell carcinoma was present in February 2017,

Page 11 of 15

but that Dr. Misiukiewicz does not base his opinion upon Vandervelden’s own individual

circumstances.

In response, Vandervelden again points out the paradox in Defendants’ argument

that the only acceptable method for diagnosing and staging oral cancer is via pathological

confirmation of the disease—i.e., a biopsy—yet, Defendants are the ones who failed to

perform or order a biopsy in January or February 2017. While Defendants claim Dr.

Misiukiewicz did not employ a reliable methodology, what they are really saying is he

lacked the data to accurately determine the cancer’s stage in February 2017.

As with Dr. Murphy, the Court finds Dr. Misiukiewicz’s causation opinions are

based on a sufficiently reliable methodology, and they will assist the trier of fact with

analyzing the issues in this case. Dr. Misiukiewicz developed his opinions by reviewing

Vandervelden’s medical records, clinical notes, and imaging, and he applied his medical

knowledge and experience to those records. Thus, there is a connection between the

available data and Dr. Misiukiewicz’s opinions. See Hall v. Flannery, 840 F.3d 922, 928 (7th

Cir. 2016) (expert’s opinions were based on sufficiently reliable methodology when he

based his conclusions on medical records, CT scans, medical notes, and deposition

testimony); Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (“An

expert’s testimony is not unreliable simply because it is founded on his experience rather

than on data; indeed, Rule 702 allows a witness to be “qualified as an expert by

knowledge, skill, experience, training, or education.”).

As noted by Vandervelden, whether the information in the medical records is

sufficient to support Dr. Misiukiewicz’s opinions is a matter to be determined by the trier

of fact, and Defendants can question the accuracy of those opinions on cross-examination.

Thus, Dr. Misiukiewicz’s testimony regarding Vandervelden’s oral lesions in January and

February 2017, the stage of Vandervelden’s tumor in February 2017, and her reduced

survival rate will be permitted.

B. Opinions Regarding Treatment Options

Both Defendants argue next that Dr. Misiukiewicz is unqualified to render an

opinion about Vandervelden’s treatment options when he is not an otolaryngologist,

radiation oncologist, or a surgeon.

The Court rejects this notion. While a doctor’s medical degree does not make him

qualified to opine on all medical subjects, the doctor need not be a specialist in a given

field as long as he has the knowledge, training, and education to reach his conclusions.

Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010). Dr. Misiukiewicz is a board-certified

oncologist and associate professor at Mount Sinai, where he treats head and neck cancer

patients. Dr. Misiukiewicz testified that his patients with head and neck cancer are treated

in a multidisciplinary fashion, so even though he does not perform radiation therapy, he

must be familiar with all treatments. (Doc. 126-13 at p. 2). The Court finds

Dr. Misiukiewicz’s experience undoubtedly gives him an adequate foundation to testify

as to Vandervelden’s treatment options, particularly considering his familiarity with

radiation therapy and its side effects on his own patients.

C. Testimony Regarding Supervision of Residents

Finally, the USA seeks to exclude any testimony by Dr. Misiukiewicz regarding

the education, training, and supervision of residents under Federal Rule of Evidence 403

when he confessed to lacking familiarity as to how family practice residents are

supervised, does not consider himself well versed in the Accreditation Council for

Graduate Medical Education (“ACGME”) guidelines, and has not reviewed the SLU

residency program manual.

SLU separately responded to the USA’s contention that Dr. Misiukiewicz should

be barred from testifying about residency programs and maintains that Rule 702 allows

an expert to be qualified on the basis of experience. SLU maintains that because

Dr. Misiukiewicz is an associate professor who oversees a residency program and

supervises residents, he is qualified to opine on how residency programs operate. The

Court generally agrees and finds that Dr. Misiukiewicz is qualified to offer his opinions

on the standard of care expected of residents. The Court reserves ruling, however, on the

USA’s motion with regard to any objections raised at trial under Federal Rule of Evidence

403.

CONCLUSION

For these reasons, Saint Louis University’s Daubert motion and motion in limine to

exclude the testimony of the United States of America’s retained expert Dr. Barbara

Murphy (Docs. 125, 128) is GRANTED in part and DENIED in part. The Court further

RESERVES RULING as to objections made under Rule 403.

Dr. Murphy is barred from testifying at trial that had Plaintiff Lisa Vandervelden

followed up with an ENT in June as directed, she may possibly have avoided a total

glossectomy. She is further barred from testifying that a work-up in June or July 2017

would possibly have given Vandervelden a better chance for a better outcome.

The Daubert motions and motion in limine filed by SLU and the USA to exclude the

testimony of Vandervelden’s retained expert Dr. Krzystof Misiukiewicz (Docs. 126, 129,

133) are DENIED in part. The Court RESERVES RULING on objections made under

Rule 403 as to Dr. Misiukiewicz’s testimony regarding the supervision of residents.

Because SLU’s Daubert motions are denied in part, its Motion for Summary

Judgment based on the lack of causation evidence (Doc. 130) is also DENIED.

Finally, the Court DENIES without prejudice SLU’s Motion in Limine No. 1

(Doc. 127) and the Motion in Limine filed by the USA (Doc. 134). In accordance with the

undersigned’s Case Management Procedures, a deadline for these routine motions in

limine will be set at the Final Pretrial Conference. The Court will address SLU’s Fourth

and Fifth Motions in Limine (Docs. 168, 172) by separate order.

IT IS SO ORDERED.

DATED: March 7, 2022

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

Page 15 of 15