Thornton v. Mitchell

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

LATISA THORNTON, as )

Administratrix of the Estate of )

MILDRED RILEY, deceased, )

)

Plaintiff, )

)

v. ) Case No. 3:16-cv-00829-RAH

) WO

JOHN W. MITCHELL, M.D., and )

THE HEART CENTER )

CARDIOLOGY, P.C., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. Introduction

On December 24, 2014, Mildred Riley (Riley) was found dead at her home in

LaGrange, Georgia, having passed away in her sleep. At the time, Riley, a 71-year

old woman with a number of comorbidities, was under the care and treatment of

John W. Mitchell, M.D. (Mitchell), and his medical practice, The Heart Center

Cardiology, P.C. (Heart Center) (collectively, medical defendants). Because no

autopsy was performed, Riley’s precise cause of death was never medically

determined.

Even so, Lisa Thornton (Thornton), as the administratrix of Riley’s estate

(estate or plaintiff),1 filed this suit under Alabama’s Wrongful Death Statute, ALA.

CODE (1975) § 6-5-410,2 and the Alabama Medical Liability Act (AMLA), ALA.

CODE (1975) § 6-5-480, et seq., claiming that Riley had died due to a myocardial

infarction that would have been prevented had the medical defendants performed an

interventional cardiac procedure in the weeks preceding Riley’s death. Through its

two cardiologist experts—Dr. Bruce Davis Charash (Charash) and Dr. Winston

Gandy (Gandy)—the estate contends that, while Riley could have possibly died from

one of several other causes such as arrhythmia due to an electrolyte imbalance, sleep

apnea or a pulmonary thromboembolism, the true culprit was either a myocardial

infarction, according to one expert, or ischemia, according to another. Conversely,

the medical defendants point out that, due to comorbidities, any of a number of other

ailments unrelated to Riley’s cardiac condition could be the blame. After referral of

a bevy of motions to the United States Magistrate Judge (Docs. 79-83, 89-94, 96),

see 28 U.S.C. § 636(b), the Honorable David A. Baker (Magistrate Judge)

recommended that summary judgment be entered in the medical defendants’ favor.

(Doc. 108.) He did so “because Plaintiffs’ experts failed to sufficiently rule out

multiple other plausible explanations for Mrs. Riley’s death” and, therefore,

1 Although Thornton is technically this matter’s plaintiff, she sues solely in her capacity as a

representative of Riley’s estate. Consequently, this Court uses the terms “plaintiff” and “Riley’s

estate” interchangeably.

2 In this Memorandum Opinion and Order, any reference to “Section []” or “§ []” is to a part of the

Code of Alabama (1975).

“Plaintiff is unable to establish Defendants’ alleged negligence probably caused

Mrs. Riley’s injury under Alabama law.” (Id. at 19.) In the report setting forth this

recommendation (Report), the Magistrate Judge also concluded that the estate’s

medical experts, who were board-certified in internal medicine and cardiology, were

sufficiently qualified to testify against the medical defendants, including Mitchell, a

board-certified cardiologist practicing interventional cardiology. On July 23, 2018,

the parties challenged the Report in full or in part. The estate filed its Objection to

the Magistrate Judge’s Report and Recommendation (Objection), (Doc. 110), and

the medical defendants filed their Limited Objection to the Magistrate Judge’s

Report and Recommendation (Limited Objection), (Doc. 109).

Having carefully reviewed the record in this case, including the Report and

the parties’ objections thereto, the Court concludes the Objection is due to be

overruled and the Report adopted to the extent the Report concludes that the estate

failed to prove causation. See 28 U.S.C. § 636(b). The Court, however, sustains the

medical defendants’ Limited Objection to the extent it challenges the Magistrate

Judge’s conclusion that the estate’s two experts were sufficiently qualified to testify

to the standard of care allegedly breached by the medical defendants. In short, the

Court enters summary judgment in the medical defendants’ favor for two reasons –

the failures of the estate to create a question of fact on the issue of a breach of the

standard of care and to provide sufficient evidence of causation to satisfy the

applicable substantive and procedural standards.

II. Standard of Review

When a party objects to a magistrate judge’s report and recommendation, this

Court must review the disputed portions de novo. 28 U.S.C. § 636(b). It “may

accept, reject, or modify the recommended disposition; receive further evidence; or

resubmit the matter to the magistrate judge with instructions.” FED. R. CIV. P.

72(b)(3). De novo review requires the district court to independently consider

factual issues based on the overall record. Jeffrey S. ex rel. Ernest S. v. State Bd. of

Educ., 896 F.2d 507, 513 (11th Cir. 1990); see also United States v. Gopie, 347 F.

App’x 495, 499 n.1 (11th Cir. 2009) (explicating standard).3 However, objections

to any report and recommendation must be sufficiently specific to warrant this kind

of rigorous review. See Macort v. Prem, Inc., 208 F. App’x 781, 783-85 (11th Cir.

2006) (applying relevant touchstone). Otherwise, a clear error standard applies. Id.

III. Summary Judgment Facts

On either December 23 or 24, 2014, Riley died in her sleep. (Doc. 88-8 ¶ 8;

see also Doc. 79 at 15-16; Doc. 79-1.) According to the police report, her husband

found her “dead on the bed” in the morning of December 24, 2014. (Doc. 110-1 at

1.) He soon thereafter called Thornton, Riley’s daughter (and his stepdaughter), who

3 Although unpublished opinions, generally denominated by a cite to the Federal Appendix or

some electronic medium, “are not considered binding precedent . . . , they may be cited as

persuasive authority.” 11th Cir. R. 36-2. The Court treats them as such here and elsewhere.

promptly called 911. (Id.) By her husband’s reckoning, Riley had gone to bed

around 10:00 p.m. on December 23, 2014. (Id.) When she had spoken to her

daughter earlier that day, she had “appeared to be fine.” (Id.)

Unfortunately, controversy hangs over Riley’s death certificate. As written,

this legal document identified her cause of death as “cardiovascular disease due to

or as a consequence of a myocardial infarction.” (Doc. 79-6 ¶ 7.) Purportedly, Gary

R. Solt, M.D. (Solt), Riley’s primary care doctor, prepared this document. (See Doc.

79-1; Doc. 88 at 25-27.) In subsequent testimony, however, Solt admitted that he

“did not pronounce . . . [her] death” or “prepare or sign her death certificate” and

instead regarded Riley as “at risk for sudden death from other etiologies, including

arrhythmia and pulmonary embolus.” (Doc. 79-6 ¶ 7; see also Doc. 99.) In Solt’s

opinion, “because no autopsy was conducted,” Riley’s death should thus have been

“attributed . . . . . simply to ‘cardiovascular arrest’” brought on by an unknown cause.

(Doc. 79-6 ¶ 7.)

In fact, based on the available records, at the time of her passing, Riley’s

health was, at best, precarious and embattled. She suffered from numerous medical

debilities, including morbid obesity, coronary artery disease, high cholesterol,

hypertension, peripheral arterial disease, sleep disorder, and thyroid disease. (Doc.

79-1; see also Doc. 79-4 at 13-14.) She simultaneously exhibited many other risk

factors, such as her gender (female), seventy-one years (greater than 55), atherogenic

diet, sedentary lifestyle, family history of heart disease, prior history of myocardial

infarction, documented atherosclerotic cardiovascular disease, and noncompliance

with CPAP, short for continuous positive airway pressure therapy. (Doc. 79-1; see

also Doc. 79-4 at 13-15; Doc. 79-7.) Solt’s files, among others, attest to these myriad

problems. (See Doc. 79-7; see also Doc. 79-4 at 13-16, 37-38, 41, 47; Doc. 79-6 ¶

7.)

Over a period of six years beginning in 2008, Riley had been under the cardiac

care of Mitchell, an interventional cardiologist in Auburn, Alabama. (See Doc. 79-

4 at 15-34.) She had undergone coronary artery bypass surgery in 2009 and recurrent

disease with percutaneous intervention in 2011. (Doc. 79-4 at 42-43.) Because

Riley complained of chest pain and tightness on October 30, 2014, Mitchell

scheduled and Riley underwent a stress echocardiogram on November 4, 2014.

(Doc. 79-4 at 37-47.) Mitchell interpreted this test as being positive/abnormal,

thereby suggesting a worsening of an underlying ischemic disease. (Doc. 79-1 at

78-81; Doc. 79-4 at 16-19, 48-50.) As a result, Mitchell recommended Riley

undergo a catheterization with possible percutaneous intervention (for example,

balloon angioplasty with stenting). (Doc. 79-4 at 17-19.)

The procedure initially was scheduled for December 5, 2014, but was

rescheduled for December 12, 2014 and then again for January 12, 2015. (Doc. 79-

1 at 34, 54, 78.) According to Mitchell’s medical assistant, Tim Parker (Parker), the

catherization was set for December at Riley’s request, and then shifted to January,

again at her request, so that Mitchell personally could perform the procedure. (Doc.

79-5 at 138-39, 153, 198, 201, 204.) Notably, Riley did not describe or reveal any

cardiac symptoms during any phone calls with Parker regarding her procedure. (Id.

at 35, 39, 50-51.) As such, when Riley was discovered deceased on the morning of

December 24, 2014, the interventional procedure had not yet been performed.

IV. Discussion

This “Medical Malpractice Death Case” implicates two distinct bodies of law.

(Doc. 44.) Alabama state law, as codified in the AMLA and construed by this state’s

courts, creates the underlying rights and duties for whose vindication and violation

the estate has sued the medical defendants. (See, e.g., id. at 10-12.) Because the

estate opted to file in this Court (Doc. 1), federal law governs evidence, pleading,

and procedure. E.g., S. Pac. Transp. Co. v. Smith Material Co., 616 F.2d 111 (5th

Cir. 1980); Johnson v. William C. Ellis & Sons Iron Works, Inc., 604 F.2d 950 (5th

Cir. 1980); see also, e.g., Ass’n of Am. R.Rs. v. Interstate Commerce Comm’n, 600

F.2d 989, 995-96 (D.C. Cir. 1979) (expounding as to relevant distinction). For these

reasons, in considering the Report’s merits, this Court will first look to the

admissibility standard for expert testimony set forth in the Federal Rules of

Evidence,4 specifically Evidence Rules 401, 403, 702, and 703, and then consider

the substantive limitations imposed by Alabama law, all evaluated in light of the

touchstone for summary judgment set forth in Civil Rule 56. This distinction should

not obscure an interrelationship between these bodies of law: if the estate has failed

to provide enough admissible evidence, as defined by the Evidence Rules, to meet

its burden under Alabama law for purposes of Civil Rule 56, the medical defendants

must win.

A. Causation Issues

Like most medical malpractice actions, this litigation centers upon the

competency of the parties’ expert witnesses and the opinions that they may or may

not give. Naturally, therefore, both the estate and the medical defendants at one

point moved to strike each other’s expert witnesses and limit or altogether exclude

their testimony. (Docs. 79, 80, 81, 82, 83.) The parties’ objections to the Report

challenge the Magistrate Judge’s rulings on these issues.

In the Report, the Magistrate Judge concluded the “Plaintiff’s experts have

not adequately supported their causation opinions, particularly given the lack of an

autopsy.” (Doc. 108 at 17.) As the Report explains, the experts’ opinions that Riley,

somewhere, had a blockage of a coronary artery which, in their medical opinion,

4 In this Memorandum Opinion and Order, any reference to “Evidence Rule []” or “Evidence

Rules” is to one or more provisions of this evidentiary compendium, and any reference to “Civil

Rule []” or “Civil Rules” is to one or more of the Federal Rules of Civil Procedure.

caused her death either by a myocardial infarction (Charash) or cardiac dysrhythmia

(Gandy) was speculative in the absence of an autopsy to establish her actual cause

of death to the exclusion of all other possibilities. (Id. at 17-18.) The latter failure

rendered their testimony unreliable and unhelpful to the jury and thus required that

it be excluded. (Id. at 18-19.) With no competent testimony regarding proximate

causation and death available, the Magistrate Judge concluded the estate had not met

its burden of proof on causation, entitling the medical defendants to summary

judgment. (Id. at 19.)

The Objection faults the Magistrate Judge for misconstruing the medical

testimony in two ways. First, it points to the cause of death set forth in the death

certificate. (Doc. 110 at 16.) Second, the estate denies that its experts ever stated

there was an “equal probability” that Riley’s death was due to one of the other

possible causes. (Doc. 88 at 53-68.)

Unsurprisingly, the medical defendants champion the Magistrate Judge’s

reasoning. In their view, as the Report already persuasively explains, Riley’s cause

of death was never medically determined through autopsy, and there were multiple

possible causes for Riley’s sudden, unexpected death, especially given her

comorbidities. Based on these incontrovertible facts, the estate’s experts’ opinion

testimony was speculative and conjectural. Consequently, it could not and did not

meet the requirements of Evidence Rule 702, as explained through Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the substantive law

for expert testimony under AMLA.

By its terms, Rule 702 compels trial courts to “act as ‘gatekeepers’ to ensure

that speculative, unreliable expert testimony does not reach the jury.” Kilpatrick v.

Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (citing Daubert, 509 U.S. at 597 n.

13). In this role, a court 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.” McClain v.

Metabolife Int’l, Inc., 401 F.3d 1233, 1237-38 (11th Cir. 2005) (citing Daubert, 509

U.S. at 593-94). The proposed testimony must derive from the scientific method or

a process similar in analytical rigor; “good grounds and appropriate validation must

support it.” Id. at 1237 (citing Daubert, 509 U.S. at 590). “In short, the requirement

that an expert's testimony pertain to ‘scientific knowledge’ establishes a standard of

evidentiary reliability.” Id. at 1238. “The court must consider the testimony with

the understanding that ‘[t]he burden of establishing qualification, reliability, and

helpfulness rests on the proponent of the expert opinion . . . .’” Id. (citing United

States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)).

“The ‘gatekeeping’ function inherently requires the trial court to conduct an

exacting analysis of the foundations of expert opinions to ensure they meet the

standards for admissibility under Rule 702.” United States v. Masferrer, 367 F.

Supp. 2d 1365, 1371 (S.D. Fla. 2005) (citing McCorvey v. Baxter Healthcare Corp.,

298 F.3d 1253, 1257 (11th Cir. 2002)). After all, an “expert’s opinion can be both

powerful and quite misleading because of the difficulty in evaluating it.” Id. “[N]o

other kind of witness is free to opine about a complicated matter without any

firsthand knowledge of the facts in the case, and based upon otherwise inadmissible

hearsay if the facts or data are ‘of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the subject.’” Frazier, 387

F.3d at 1260 (quoting Evidence Rule 703).

A Daubert analysis consists of a two-pronged test: (1) whether the expert’s

testimony is reliable, being grounded in scientific knowledge; and (2) whether the

testimony is relevant, thereby assisting the trier of fact to evaluate the issues in the

case. McDowell v. Brown, 392 F.3d 1283, 1298-99 (11th Cir. 2004).

As to the first prong, Daubert itself lists four non-exhaustive factors: whether

the theory or technique “can be (and has been) tested”; “the known or potential rate

of error”; “whether the theory or technique has been subject to peer review and

publication”; and whether the scientific theory or technique has gained “general

acceptance” in the relevant scientific community. Daubert, 509 U.S. at 593-94.

Other factors that a court may consider are “reliance on anecdotal evidence (as in

case reports), temporal proximity, and improper extrapolation (as in animal

studies).” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999). A

court must always focus on the purported expert’s principles and methodology, “not

on the conclusions they generate.” McDowell, 392 F.3d at 1298.

The key to analyzing the second prong of Daubert is determining whether the

expert's testimony could assist the trier of fact. McDowell, 392 F.3d at 1299 (citing

Fed. R. Evid. 702). Logically, this “inquiry must be ‘tied to the facts’ of a particular

‘case.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (citing Daubert,

509 U.S. at 591). In other words, “[t]he relationship must be an appropriate ‘fit’

with respect to the offered opinion and the facts of the case. . . .[T]here is no fit

where a large analytical leap must be made between the facts and the opinion.”

McDowell, 392 F.3d at 1299.

In this Circuit, “[a]n expert opinion is inadmissible when the only connection

between the conclusion and existing data is the expert's own assertions.” Id. at 1300;

see Ex parte Diversey Corp., 742 So. 2d 1250, 1254 (Ala. 1999) (“Proof which goes

no further than to show an injury could have occurred in an alleged way, does not

warrant the conclusion that it did so occur, where from the same proof the injury can

with equal probability be attributed to some other cause.”) (internal citation omitted).

Upon de novo review and using the framework outlined above, the Court

concludes the Magistrate Judge correctly applied Rule 702, as explained by Daubert

and its progeny, in recommending the exclusion of testimony from Charash and

Gandy. As to reliability, both experts' testimony about the cause of Riley’s death

and its possible connection to the lack of a percutaneous interventional procedure of

an undetermined type of an undetermined coronary artery lacks the appropriate

scientific foundation and is too speculative and unreliable in nature to be considered

“scientific knowledge,” which the Daubert standard demands. Moreover, the Court

agrees with the Magistrate Judge that these experts’ opinions would not be helpful

to the jury due to this incontestable uncertainty, and so it would be excluded as

irrelevant under the Evidence Rules.

In light of this case’s record, two reasons prompt this Court to conclude that

the estate has run afoul of Daubert.

First, as all the parties concede, the lack of an autopsy makes it objectively

impossible to ever medically determine Riley’s actual cause of death, rendering the

opinion of any expert, including plaintiff’s duo, no more than an educated guess, at

best, or wild conjecture, at worst.5 By definition, an autopsy is a detailed medical

examination of a person’s body and organs after death so as to ascertain its cause.

See PAUL C. GIANNELLI, EDWARD J. IMWINKELRIED, ANDREA ROTH & JANE

CAMPBELL MORIARTY, SCIENTIFIC EVIDENCE § 19.03 (5th ed. 2020) (discussing

pathology); cf. Williams v. Illinois, 567 U.S. 50, 98 (2012) (Breyer, J., concurring)

(“Autopsies are typically conducted soon after death.”). Autopsies can even be

described as “the most important parts of forensic pathology, where establishing the

5 Whether an autopsy would be admissible is a different question altogether.

exact cause and manner of death has important medical–legal implications,” Louis

M. Buja, et al., The Importance of the Autopsy in Medicine: Perspectives of

Pathology Colleagues, 6 ACADEMIC PATHOLOGY 1, 1 (2019), for it is only via such

an analysis that the cause and manner of death can ever be specified with any degree

of confidence, GIANNELLI ET AL., SCIENTIFIC EVIDENCE § 19.03.

In its absence, therefore, all that is and can be definitely known is the

following: that Riley had sundry medical problems, some of which could lead to

sudden, unexpected death; that she had been scheduled and then rescheduled at her

request for a heart catheterization with possible percutaneous intervention; and that

she died in her sleep at home before ever undergoing that procedure. That is

certainly not enough to regard the kind of causes hypothesized by plaintiff’s experts

for a person whose physical health was as compromised as Riley’s in December

2014 as both sufficiently objective under Daubert and sufficiently reasonable to

create a genuine issue of material fact under Civil Rule 56.

That the death certificate listed the cause of death as a myocardial infarction,

the estate’s first basis for objection, is without consequence because the death

certificate was not only unsupported by any medical testimony but was, in fact,

discredited by the testimony of Solt, its purported author. That, plus the fact that

death certificates generally are deemed unreliable as to cause of death if

contradicted, renders Riley’s death certificate void of reliability. See Bradberry v.

Dir., Office of Workers’ Comp. Programs, 117 F.3d 1361, 1367 (11th Cir. 1997)

(sustaining an objection on this basis, but conceding that an unsupported certificate

contradicted by its author could be disregarded in certain circumstances); Pickens v.

Equitable Life Assur. Soc., 413 F.2d 1390, 1395 (5th Cir. 1969) (finding that a death

certificate rebutted by its author and speculative to constitute more than adequate

rebuttal)6; Dudash v. Dir., 165 F. App’x 238, 241 (3d Cir. 2006) (“We have held that

death certificates on their own, without supporting testimony or documentary or

physical evidence derived from an autopsy, do not constitute reliable evidence on

the question whether pneumoconiosis played a role in the death.”); see also Liberty

Nat’l Life Ins. Co. v. Tellis, 146 So. 616, 616 (Ala. 1933) ([Death certificates] “are

to be taken as prima facie true . . . unless contradicted or avoided by competent

evidence . . . .”) (emphasis added). In point of fact, as two doctors recently observed,

“[t]he level of certainty required when opining about manner of death [in the typical

death certificate] is ‘more likely than not’,” rarely, if ever, more. Evan W. Matches

& Sam W. Anders, Autopsy as a “Dying Art”, THE CHAMPION, Mar. 2018, at 32, 35.

Second, to add to the uncertainty of Riley’s cause of death, the estate’s two

experts somewhat disagree as to Riley’s cause of death, with Charash blaming a

myocardial infarction and Gandy pegging cardiac dysrhythmia (ischemic

6 Under Bonner v. City of Pritchard, the Eleventh Circuit adopted as binding precedent all

former Fifth Circuit decisions rendered before October 1, 1981. 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

arrhythmia). (Doc. 79-11 at 28-29; Doc. 79-12 at 37.) When your own experts

squabble, the case for finding fault in another’s treatment of a woman racked with

dangerous ills grows increasingly untenable. Cf. Sommer v. United States, Case No.

09cv2093-CAB (BGS), 2013 U.S. Dist. LEXIS 203627 (S.D. Cal. Dec. 5, 2013)

(opining that, when experts disagree, insufficient evidence to raise a genuine issue

of material fact over the accuracy of a prior death determination exists). Put

differently, the words of plaintiff’s own experts, on top of her inconclusive medical

file, leaves it impossible to deem their testimony to be either rigorous or defensible

enough to meet Daubert’s minimum.

These weaknesses offend more than just Daubert. To prove causation in a

medical-malpractice case under Alabama law, as attempted here, a plaintiff or her

appointed representative must demonstrate “that the alleged negligence probably

caused, rather than only possibly caused, the plaintiff’s injury.” Bradley v. Miller,

878 So. 2d 262, 266 (Ala. 2003). When your experts provide only speculation, and

no objective evidence can be found to differentiate amongst a panoply of maybes

and could-bes, a plaintiff’s action must fall. And so must this one.

Fittingly, in adopting the Magistrate Judge’s Report on this issue, the Court

notes that the almost identical issue was persuasively considered by the Supreme

Court of Alabama in Shanes v. Kizer. 729 So. 2d 319, 320 (Ala. 1999). There, an

estate brought a wrongful death suit under the AMLA after the decedent was found

dead on the couch in her home. Id. at 320. The certificate of death listed the cause

as an acute myocardial infarction, but no autopsy was performed and therefore no

cause of death was medically determined. Id. The day before her death, the decedent

had visited the emergency room with complaints of cramping and chest pain, and an

EKG test came back abnormal. Id. The estate claimed the decedent died of a heart

attack that could have been prevented had the emergency room doctor properly

diagnosed and treated her heart-related problems. Id.

Like the instant case, the estate’s expert witness opined that the decedent died

from a heart attack, not because an autopsy had been performed and had confirmed

it, but because of statistical probabilities, the decedent’s medical history, and the

symptoms the decedent was experiencing the day before she died. Id. at 322. The

expert, however, also acknowledged the possibility that three other non-heart-related

conditions – a stroke, pulmonary embolus or a ruptured aortic aneurysm – could

have resulted in the decedent’s sudden death. Id. Because multiple possibilities

could not be absolutely ruled out, the expert conceded that the actual cause of death

ultimately was a matter of speculation and conjecture, but that it was his professional

opinion the cause of death was a myocardial infarction. Id. at 323. The Supreme

Court of Alabama, interpreting Alabama law in medical malpractice cases under

AMLA, concluded that “the failure medically to determine the actual cause of

Moore’s death is fatal to this action.” Id. at 324.

The causation logic, as interpreted under AMLA in Shanes, is equally

applicable to the instant matter. Here, like in Shanes, Riley was found dead in her

home after a recent medical visit, and no autopsy was undertaken so as to medically

determine Riley’s actual cause of death. And, here, like in Shanes, the estate claims

Riley died from a myocardial infarction even though Riley had many comorbidities

that could have caused her sudden, unexpected death.

Since (1) there was no autopsy and therefore no actual cause of death

determination and (2) the parties’ medical experts acknowledge the many possible

causes of death (although of varying degrees of possibility), any factfinder ultimately

would be forced to, just like in Shanes, speculate as to exactly why Riley died. Under

Daubert, as under the AMLA, a medical malpractice wrongful death case cannot be

premised upon such speculation and conjecture. See Johnson v. Cracker Barrel Old

Country Store, Inc., Case No. 4:05-CV-1603-RDP, 2007 WL 9711527, at *10 (N.D.

Ala. Apr. 2, 2007) (granting summary judgment where the plaintiff’s estate failed,

among other things, to present evidence of the decedent’s actual cause of death);

Nat’l Life & Acc. Ins. Co. v. Allen, 234 So. 2d 567, 572 (Ala. 1970) (“Verdicts may

not be rested upon pure supposition or speculation, and the jury will not be permitted

to merely guess as between a number of causes, where there is no satisfactory

foundation in the testimony for the conclusion which they have reached.”(citing

Colonial Life & Acc Ins. Co. v. Collins, 194 So. 2d 532, 537 (Ala. 1967)); cf. Fu v.

Wells Fargo Home Mortg., Case No. 2:13-CV-01271-AKK, 2014 WL 4681543, at

*4, 2014 U.S. Dist. LEXIS 127864 (N.D. Ala. Sept. 12, 2014) (expounding upon

causation in a fraud action). As such, the Magistrate Judge’s decision to exclude the

testimony of the estate’s experts on the issue of Riley’s cause of death was

appropriate, and the Objection is due to be overruled. Therefore, summary judgment

must be entered due to the estate’s inability to meet its burden of proof on proximate

causation.

B. Similarly Situated Healthcare Provider

Although the Magistrate Judge recommended summary judgment be entered

in favor of the medical defendants as to causation, the medical defendants’ Limited

Objection nevertheless challenges the Magistrate Judge’s conclusion that the estate’s

two experts were similarly situated healthcare providers to the medical defendants

under AMLA. (See Doc. 79 at 18-23.) According to the medical defendants, the

Magistrate Judge erred because Charash and Gandy, as internists who practice

general cardiology, could not testify to the standard of care breached by Mitchell, an

interventional cardiologist. (Id.) The Court agrees with the medical defendants, and

therefore the Limited Objection is sustained.

Usually, a plaintiff under the AMLA must present expert testimony from a

similarity-situated healthcare provider to illustrate (1) the appropriate standard of

care, (2) a deviation in the instant case from that standard of care, and (3) that the

deviation proximately caused the injury in the case. See Breland ex rel. Breland v.

Rich, 69 So. 3d 803, 814 (Ala. 2011).

Pursuant to § 6-5-548(b), a non-specialist7 “similarly situated healthcare

provider” is one who:

(1) Is licensed by the appropriate regulatory board or agency of this or

some other state;

(2) Is trained and experienced in the same discipline or school of

practice; and

(3) Has practiced in the same discipline or school of practice during the

year preceding the date that the alleged breach of the standard of

care occurred.

ALA. CODE (1975) § 6-5-548(b). A plaintiff must present expert evidence to satisfy

each of the above elements, or her case must fail as a matter of law. E.g., Sherrer v.

Embry, 963 So. 2d 79, 82-83 (Ala. 2007); Ex parte Waddail, 827 So. 2d 789, 795-

96 (Ala. 2001); Medlin v. Crosby, 583 So. 2d 1290, 1292-96 (Ala. 1991).

As the basis of its claims of malpractice, the estate relies on a complicated

train of reasoning: that the medical defendants should have immediately scheduled

and performed a heart catheterization procedure with percutaneous intervention after

the November 4, 2014, stress echocardiogram and that, had they done so, the

7 Section 6-5-548(c) does not apply here because Mitchell is not board certified in interventional

cardiology (Doc. 79 at 28) and is thus not a specialist, as defined under AMLA. See Panayiotou

v. Johnson, 995 So. 2d 871, 878 (Ala. 2008) (discussing standard).

catheterization would have revealed a blocked artery (somewhere), which would

have required Mitchell to perform an interventional procedure (such as a balloon

angioplasty with stent placement), which would have prevented Riley’s myocardial

infarction (or cardiac dysrhythmia), which would have prevented Riley’s death. (See

supra Part II.).

The estate’s two experts advance a similar theory; that is, Mitchell breached

the standard of care by not urgently scheduling Riley for an interventional procedure

following her November 4, 2014, stress test. (Doc. 76-1 at 10-12; Doc. 76-3 at 10-

11.) As to Gandy, he goes on to opine that Mitchell and/or his office should have

informed Riley of the risks associated with delaying her interventional procedure

and that the medical practice failed to ensure that Riley’s health issues were

addressed during Mitchell’s absence. (Doc. 76-3 at 11-12.)

Unlike the Magistrate Judge, the Court concludes that neither Charash nor

Gandy are similarly situated to Mitchell and his medical practice under AMLA for

three reasons. First, Mitchell holds himself out as an interventional cardiologist and

practices interventional cardiology. Second, while some overlap between the

clinical practice of a general cardiologist and an interventional cardiologist exists,

the medical care at issue in this case specifically and solely concerns interventional

cardiology since the estate places fault on Mitchell’s alleged failure to expeditiously

perform an interventional procedure.8 Third, interventional cardiology is a

recognized school or discipline of practice distinct from cardiology under AMLA.

See Panayiotou, 995 So. 2d at 877 (concluding that physician board certified in

internal medicine and cardiovascular disease was not similarly situated to a

physician who was board certified in internal medicine, cardiovascular disease, and

interventional cardiology); see also Interventional Cardiology, AMERICAN MEDICAL

ASSOCIATION, https://www.ama-assn.org/specialty/interventional-cardiology (last

visited Mar. 18, 2020).

Charash and Gandy, however, are medical doctors practicing general

cardiology with board certifications in internal medicine and cardiovascular disease.

(Doc. 76-1 at 1; Doc 76-3 at 1; Doc. 79.) Neither doctor is board certified in

interventional cardiology, and neither doctor practices interventional cardiology.

They do not schedule and perform interventional procedures such as the one9 that

they criticize Mitchell for not performing.10

8 Although the estate argues that Charash and Gandy are similarly situated because all three doctors

are cardiologists and because the estate’s allegations against the medical defendants focus largely

on clinical cardiology, the estate misconstrues its own complaint’s allegations which focus on an

interventional procedure that Dr. Mitchell failed to timely perform. (Doc. 44 at 8-10.)

9 In addition to not establishing which of Riley’s coronary arteries were diseased, the estate also

fails to provide any evidence or testimony as to exactly which interventional procedure Mitchell

should have performed.

10 While, as a cardiologist, Gandy does perform catheterizations, (Doc. 88-2 at 4), he does not

perform cardiac interventions such as angioplasties and stent placement. (Doc. 79-12 at 13.) Even

more removed is Charash, who does not perform catheterizations as a part of his general cardiology

practice at all. (Doc. 79-11 at 4.)

In short, Charash and Gandy are not trained and experienced in the same

discipline or school of practice as Dr. Mitchell, and neither has practiced in the same

discipline or school of practice during the year preceding the date that the alleged

breach of the standard of care occurred. Therefore, neither doctor meets the similarly

situated healthcare provider requirement under AMLA.

Finally as to the experts’ opinions concerning the actions of Mitchell’s

medical practice and its medical assistant, although the estate’s allegations do

involve some degree of clinical practice in cardiology, the clinical setting at issue

here is, again, interventional cardiology.11 Also, neither of the estate’s experts

profess to have any expertise as a medical assistant, especially one working in an

interventional cardiology medical practice. As medical doctors, they cannot testify

to the standard of care applicable to a medical assistant in an interventional

cardiology practice, and cannot “testify down” in this case. See, e.g., Husby v. S.

Ala. Nursing Home, Inc., 712 So. 2d 750, 753 (Ala. 1998) (anesthesiologist medical

doctor could not testify in a nursing care case); Colville v. DiValentin, Case No. CV-

05-BE-1979-E, 2009 WL 10687828, at *9 (N.D. Ala. Aug. 14, 2009) (physician not

similarly situated health care provider to testify about standard of care for a medical

11 The estate does not contend that Parker was negligent or breached the standard of care. Instead,

the estate claims that Mitchell improperly allowed a medical assistant to reschedule or delay Riley

for an interventional procedure. (Doc. 111 at 6.)

assistant); Coward v. Volvo Grp. N. Am., Inc., No. 2:08-CV-744-WKW, 2009 WL

940381, at *5, 2009 U.S. Dist. LEXIS 28712 (M.D. Ala. Apr. 6, 2009) (board-

certified orthopedic hand surgeon not similarly situated to emergency medical

technician); Estate of Bradley v. Mariner Health, Inc., 315 F. Supp. 2d 1190, 1195-

97 (S.D. Ala. 2004) (concluding that medical doctor was not similarly situated

healthcare provider to a nurse who provided hands-on nursing care); cf. Hegarty v.

Hudson, 123 So. 3d 945, 951 (Ala. 2013) (board certified gynecologist not similarly

situated to family practice physician).

Because Charash and Gandy (and their practices) are similarly situated to

neither Mitchell nor his medical practice, the medical defendants’ motion to exclude

their standard of care testimony is due to be granted. Without their opinion

testimony, the estate has failed to establish a breach of the standard of care and

therefore to meet its burden of proof under AMLA on this prima facie element of its

medical malpractice case. This finding compels summary judgment in their favor.

See Panayiotou, 995 So. 2d at 880 (ordering summary judgment where the plaintiff

estate had failed to present testimony from a similarly situated healthcare provider);

Bradley, 315 F. Supp. 2d at 1197 (granting summary judgment because the plaintiff

estate had failed to present testimony from a similarly situated healthcare provider).

C. Other Motions

In its Report, the Magistrate Judge also denied the estate’s motions to exclude

or limit the testimony of defense experts Oscar Julian Booker, M.D. (Doc. 83), Alain

Bouchard, M.D. (Doc. 82) and Kevin Sublett, M.D. (Doc. 81). The Magistrate Judge

also granted in part and denied in part the estate’s motion to exclude the testimony

of Arthur Scott Westermeyer, M.D. (Doc. 80) and denied, as moot, the medical

defendants’ motion to strike or preclude the use of certain medical literature (Doc.

92).

Since no objections were filed to the Magistrate Judge’s rulings on these

motions and since this Court’s review reveals no plain error, the Court adopts the

Magistrate Judge’s recommendations concerning these motions. See Sheperd v.

Wilson, 663 F. App’x 813, 816 (11th Cir. 2016) (if no objections to a magistrate

judge’s report and recommendation are filed, the district court reviews legal

conclusions only for plain error and only if necessary in the interests of justice).

Accordingly, for the reasons as stated and for good cause, it is

ORDERED as follows:

1. The Plaintiff’s Motion to Exclude Opinion Testimony of Arthur Scott

Westermeyer, M.D. (Doc. 80) is GRANTED in part and DENIED in part, for the

reasons set forth in the Report and Recommendation of the Magistrate Judge (Doc.

108);

2. The Plaintiff’s Motion to Exclude Testimony and Opinions of Kevin Sublett,

M.D. (Doc. 81) is DENIED as moot, for the reasons set forth in the Report and

Recommendation of the Magistrate Judge (Doc. 108);

3. The Plaintiff’s Motion to Exclude Testimony and Opinions of Alain

Bouchard, M.D. (Doc. 82) is DENIED, for the reasons set forth in the Report and

Recommendation of the Magistrate Judge (Doc. 108);

4. The Plaintiff’s Motion to Exclude Testimony and Opinions of Oscar Julian

Booker, M.D. (Doc. 83) is DENIED, for the reasons set forth in the Report and

Recommendation of the Magistrate Judge (Doc. 108);

5. The Defendants’ Motion to Strike and Preclude Plaintiff’s Use of Medical

Literature (Doc. 92) is DENIED, for the reasons set forth in the Report and

Recommendation of the Magistrate Judge (Doc. 108);

6. The Report and Recommendation of the Magistrate Judge (Doc. 108) is

ADOPTED, as modified;

7. The Plaintiff’s Objection (Doc. 110) is OVERRULED;

8. The Defendants’ Limited Objection (Doc. 109) is SUSTAINED;

9. The Defendants’ motion to preclude Plaintiffs’ experts and motion for

summary judgment (Doc.79) is GRANTED; and

10. This case is DISMISSED with prejudice.

A final judgment will be entered.

DONE, this 5th day of May, 2020.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE