Petition for Writ of Certiorari — Rosser v. Dickenson

Supreme Court, y

()) FILED

No, O47 991 JAN 19 2005

E OF THE CLERK

IN THE

Supreme Court of the Anited States

ROBERT ROSSER, M.D..,

Petitioner,

Vv.

NANCY DICKENSON, CONSERVATOR FOR SANDRA ROBINSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD EDWARD LADD, JR. *

MARK E. FRYE

TARIQ A. ZAIDI

PENNSTUART

804 Anderson Street

Bristol, TN 37620

(423) 793-4800

* Counsel of Record Counsel for Petitioner

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QUESTIONS PRESENTED FOR REVIEW

1. Should the “gatekeeping” responsibilities mandated by

FED. R. Evip. 702, and Daubert v. Merrell Dow Pharma-

ceuticals, Inc., 509 U.S. 579 (1993), and its progeny, be

relaxed for “medical experts?”

2. Is the individual experience of a proffered expert deter-

minative on the issue of evidentiary reliability?

ii

PARTIES TO PROCEEDING AND

RULE 29.6 STATEMENT

The petitioner in this case is Robert A. Rosser, M.D., a

defendant in the case below.

The respondent in this case is Nancy Dickenson, Conserva-

tor for Sandra Robinson, the plaintiff in the case below.

Cardiac and Thoracic Surgery of Eastern Tennessee, P.C.

was also a defendant in the case below. Pursuant to Rule

12.6, it is the petitioner’s belief that Cardiac and Thoracic

Surgery of Eastern Tennessee, P.C. has no interest in the

outcome of this petition.

TABLE OF CONTENTS

Page |

QUESTIONS PRESENTED FOR REVIEW soeseccccocec j

PARTIES TO PROCEEDING AND RULE 29.6

STATINGBINT csccccccecccscssesseccssessaneossssocassecessee i

TABLE OF AUTHORITIES .:sscsscocsecossscssssssessssesoee v

OPINIONS BELOW .cccsssscssssssssesseseessssee ArH

JURISDICTION occccccsccosessssssssssssssssssseasssssssssnsesnne

INVOLVED RULE ooccescccsscccsscceccsssccssccssssssssssnssosnee 2

STATEMENT OF THE CASE oesscssscsssssssessssssesssesee 2

REASONS FOR GRANTING THE WRIT cesossccccceoe 3

I. THERE IS NO FACTUAL OR LEGAL

BASIS TO RELAX WELL-ESTABLISHED

GATEKEEPING RESPONSIBILITIES FOR

“MEDICAL EXPERTS” AND THUS

FRUSTRATE THE ULTIMATE GOAL OF

EVIDENTIARY RELIABILITY ...................... a

Il. IN EVALUATING THE RELIABILITY OF

MEDICAL EXPERT TESTIMONY, THE

REVIEWING COURT MUST CONSIDER

ALL APPLICABLE STANDARDB. ................. 6

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1» APPENDICES

A. Opinion of the United States Court of Appeals

for the Sixth Circuit, decided and filed October

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B. Opinion of the United States District Court for

the Eastern District of Tennessee filed March

iV

TABLE OF CONTENTS—Continued

Page

Judgment of the United States District Court

for the Eastern District of Tennessee filed

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Judgment of the United States Court of

Appeals for the Sixth Circuit filed October 25,

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TABLE OF AUTHORITIES

CASES Page

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

Pe SIs, PFI CeO hidaninickessidiisieininnaipaaiatniatians passim

Domingo v. T.K., 289 F.3d 600 (9th Cir. 2002)..... 3

McDowell v. Brown, 2004 U.S. App. LEXIS

Oe Cr ns, Be ieiheitacsaiisicinssicinitibieaiaanted 3

STATUTORY PROVISIONS

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Be es 1 EE ietatcncsideictineiesacadeacieedand an 2

RULES

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MISCELLANEOUS 5

FED. R. EVID. 702 advisory committee’s notes...... 7

IN THE

Supreme Court of the Anited States

No.

ROBERT ROSSER, M.D.,

Petitioner,

We

NANCY DICKENSON, CONSERVATOR FOR SANDRA ROBINSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Robert A. Rosser, M.D. respectfully petitions for a writ of

certiorari to review the judgment of the United States Court

) of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a) is reported at

388 F.3d 976 (6th Cir. 2004). The opinion of the district

court (App. 14a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 25, 2004. (App. la.) This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

2

INVOLVED RULE

FED. R. Evip. 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise, if (1)

the testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods -

reliably to the facts of the case.

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked under 28

U.S.C. § 1332, diversity of citizenship. The plaintiff, Sandra

Robinson (“Ms. Robinson”), was a citizen of the Com-

monwealth of Virginia. The defendants, Robert A. Rosser,

M.D. (“Dr. Rosser”), a pulmonologist, and Cardiac and

Thoracic Surgery of Eastern Tennessee, P.C. (“C&T”) were

citizens of the State of Tennessee. The amount in contro-

versy exceeded the sum of $75,000. Ms. Robinson asserted a

cause of action for medical malpractice, claiming that Dr.

Rosser deviated from the applicable standard of care by

prematurely extubating her following heart surgery, and that

such deviation caused her to sustain a permanent brain injury.

The only favorable expert (timely) identified by the plain-

tiff on the issues of standard of care, breach, and causation

was W. Dudley Johnson, M.D. (“Dr. Johnson”), a cardio-

thoracic surgeon. Following the discovery deposition of

Dr. Johnson, Dr. Rosser and C&T moved for the entry of

summary judgment in their favor. The district court, applying

FED. R. EviD. 702, and the principles announced by this Court

in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993) and its progeny (“Daubert, et al.”), excluded Dr.

ici AE lial eA ness et OP a ao

3

Johnson as an expert witness, and granted summary judgment

in favor of Dr. Rosser and C&T.

Nancy Dickenson (“Ms. Dickenson”) was appointed con-

servator for Ms. Robinson while the present case was pending

in the United States Court of Appeals for the Sixth Circuit

(“6th Circuit”). Following this appointment, the 6th Circuit

reversed the district court in granting summary judgment for

Dr. Rosser, based on its judgment that medical expert

testimony is inherently reliable. The 6th Circuit went so far

as to state that the exclusion of opinion testimony “is rarely

justified in cases involving medical experts as opposed to

supposed experts in the area of product liability. [Citation

omitted.].” (Emphasis added.) (App. 10a.)

REASONS FOR GRANTING THE WRIT

The 6th Circuit’s opinion that gatekeeping responsibilities

are relaxed for medical experts is without factual or legal

basis, and is in direct conflict with decisions reached in other

federal circuits. See Domingo v. T.K., 289 F.3d 600 (9th Cir.

2002); McDowell v. Brown, 2004 U.S. App. LEXIS 25183

(11th Cir. 2004). Failure to resolve the conflict now only

invites a host of inconsistent results in any number of

factually similar cases.

There is widespread debate in the United States about an

impending, even existing, “medical malpractice crisis,” due in

large part to the negative social and economic effects of

medical malpractice litigation. Any disparate treatment of

_ witnesses providing expert opinion testimony in medical

malpractice cases, as such relates to the underlying scientific

reliability of their opinions, is without factual or legal

justification. Relaxing the mandates of FED. R. EviD. 702 and

Daubert, et al., will only foster needless medical malpractice

litigation based upon unreliable scientific foundations.

Medicine is undisputedly a science. Thousands of generally

accepted medical treatises, textbooks, journals, peer reviewed

|

i

4

articles and controlled studies exist on seemingly endless

subjects. Far more relevant medical resources exist to test the

reliability of expert medical opinions than arguably any other

scientific field.

cad lh Si ei me Lube Se 17 he Tw

The opinions of a proffered expert are not validated by the

announced experience of the witness. FED R. EVID. 702 sets '

out multiple elements, all of which must be satisfied before a

witness is permitted to render an expert opinion. Experience 4

is but one part of one element. Considering only the ex-

perience of a witness, to the exclusion of the other applicable

factors, ignores the scientific reliability goals of the gov-

erning cases and rules, and invites the proliferation of ipse

. dixit testimony. The importance of this evidentiary issue is

not limited to the present case, or even to medical malpractice

cases in general. The appropriate determination of reliability

affects virtually ail expert testimony.

ARGUMENT

I. THERE IS NO FACTUAL OR LEGAL BASIS

TO RELAX WELL-ESTABLISHED GATE-

KEEPING RESPONSIBILITIES FOR “MEDI-

CAL EXPERTS” AND THUS FRUSTRATE THE

ULTIMATE GOAL OF EVIDENTIARY RELI-

ABILITY.

In reversing the judgment of the trial court granting

summary judgment for Dr. Rosser, the 6th Circuit incor-

porates the following pronouncement in its opinion: “[The

exclusion of testimony such as Dr. Johnson’s].. . is rarely

justified in cases involving medical experts-as opposed to

supposed experts in the area of product liability. [Citation

omitted.]” (App. 10a.) There is no basis for such distinction.

FED. R. EviD. 702 and Daubert, et al., do not exclude the

science of medicine from their scope; in fact, to do so would

be analytically unsound. Notwithstanding any applicable

geographical considerations, the “standard of care,” and/or

5

any deviation therefrom, naturally incorporates the scien-

tifically accepted means and methods of practicing medicine.

What a “prudent practitioner” should do (or should have

done) under the same or similar circumstances is necessarily

based on a standard of objective reasonableness founded upon

independent scientific inquiries, tests and conclusions. Like-

wise, expert opinions as to “causation,” i.e., did any deviation

proximately cause the injury complained of, are equally

subject to “reliability testing” by the courts. Without doubt,

medicine is one of the most critically and thoroughly

investigated sciences. In all but the most abstract medical

malpractice cases, an extensive library of generally accepted

scientific knowledge exists against which the opinions of a

proffered expert can be gauged.

Numerous and well-respected periodicals and newspapers

frequently decry an impending, or existing, medical malprac-

tice crisis in the United States. “Frivolous lawsuits” form the

core bases for medical malpractice tort reform efforts in all

levels and branches of government, state and federal.

Regardless of the validity of the claims, the perception of the

“evil” itself evinces a need for uniform application of evi-

dentiary standards as such pertain to the reliability of medical

expert opinions. More importantly, equity and justice

demand that the professional conduct of health care providers

be judged by generally accepted and, to the extent possible,

objective standards. The latter concept has equal application

to medical experts rendering opinions for the plaintiff, or for

the defendant.

The current inconsistency of positions among the federal

appeals courts is apparent. Any delay by this Court in

definitively addressing the issue, i.e. does FED R. Evip. 702

and Daubert, et al. apply with equal force to “medical

experts,” simply invites further confusion and inconsistency

in all cases in which a cause of action for medical malpractice

is asserted.

6

Il. IN EVALUATING THE RELIABILITY OF

MEDICAL EXPERT TESTIMONY, THE RE-

VIEWING COURT MUST CONSIDER ALL

APPLICABLE STANDARDS.

The 6th Circuit substituted its judgment for that of the

district court, holding that a cardiothoracic surgeon (Dr.

Johnson) was not qualified to render an opinion adverse to

a fellow cardiothoracic surgeon (C&T’s employee, Richard

Michalik, M.D. (“Dr. Michalik”)), but was qualified to criti-

cize the medical care and treatment provided by Dr. Rosser, a

pulmonologist. In reaching its conclusion as to the expert

testimony adverse to Dr. Rosser, the 6th Circuit focused

almost entirely on the experience of Dr. Johnson, to the

exclusion of the principles and methodology upon which his

opinions were based. (At the same time, the 6th Circuit held

that, despite his relevant experience, Dr. Johnson’s opinions

adverse to Dr. Michalik were unreliable. The 6th Circuit also

failed to address Dr. Johnson’s opinions, or lack thereof, on

the mandatory element of proximate causation.)

The text of FED. R. EviD. 702 requires that a witness be

“qualified as an expert by knowledge, skill, experience,

training or education. . . .” However, the evaluation of the

opinions of a proffered expert does not end there. The

testimony of the witness must “(1) . . . [be] based upon

sufficient facts or data, (2) . . . [be] the product of reliable

principles and methods,” and the witness must have applied

the principles and methods reliably to the facts of the case.

FED. R. Evip. 702. Any evaluation of evidentiary reliability

requires that a court look beyond the factors which may make

a witness qualified to render an expert opinion. The court

must also determine whether the opinions to be expressed

are properly grounded, well-reasoned, and not speculative

in nature.

The exclusive reliance on “experience” as the determina-

tive factor with regard to Dr. Johnson’s opinions adverse to

7

Dr. Rosser is manifested by the following statement by the

6th Circuit: “‘[T]he text of Rule 702 expressly contemplates

that an expert may be qualified on the basis of experience.’

FED. R. EviID. 702 advisory committee’s note (2000 Amend-

ments) (emphasis added).” (App. 7a-8a.) Undoubtedly, an

expert can be qualified on the basis of experience; however,

experience does not equate to or guarantee reliability. As

stated elsewhere in the advisory committee notes to FED.

R. Evip 702: “If the witness is relying solely or primarily on

experience, then the witness must explain how that experi-

ence leads to the conclusion reached, why that experience is a

sufficient basis for the opinion, and how that experience is

reliably applied to the facts. The trial court’s gatekeeping

function requires more than simply ‘taking the expert’s word

for it.”” FED. R. EviD. 702 advisory committee’s notes.

It is undisputed that Dr. Johnson has extensive experience

as a cardiothoracic surgeon; however, Dr. Rosser is a

pulmonologist. This case presents a classic example of why

courts must look beyond the experience of a proffered ex-

pert to evaluate the reliability of the bases underlying the

opinions expressed.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

RICHARD EDWARD LADD, JR. *

MARK E. FRYE

TARIQ A. ZAIDI

PENNSTUART

804 Anderson Street

Bristol, TN 37620

(423) 793-4800

* Counsel of Record Counsel for Petitioner

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT '

No. 03-5355

NANCY DICKENSON, Conservator for Sandra Robinson,

Plaintiff-Appellant,

V.

CARDIAC AND THORACIC SURGERY OF EASTERN

TENNESSEE, P.C. and ROBERT ROSSER, M.D.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 00-00405—Dennis H. Inman, Magistrate Judge.

Argued: September 22, 2004

Decided and Filed: October 25, 2004

Before: KEITH, MOORE, and GILMAN, Circuit Judges.

COUNSEL

ARGUED: Timothy W. McAfee, McAFEE LAW FIRM,

Norton, Virginia, for Appellant. Steven C. Rose, WEST &

ROSE, Kingsport, Tennessee, Tariq A. Zaidi, PENNSTUART,

Bristol, Tennessee, for Appellees.

ON BRIEF: Timothy W. McAfee, McAFEE LAW FIRM,

Norton, Virginia, for Appellant. M. Lacy West, Julia C. West,

WEST & ROSE, Kingsport, Tennessee, Tariq A. Zaidi,

Richard E. Ladd, Jr., PENNSTUART, Bristol, Tennessee, for

Appellees.

Oi

2a

OPINION

RONALD LEE GILMAN, Circuit Judge. Nancy Dickenson,

as the conservator for Sandra Robinson, appeals the grant of

summary judgment in favor of Cardiac and Thoracic Surgery

‘of Eastern Tennessee, P.C. (C&T) and Dr. Robert Rosser in |

this diversity action for medical malpractice. The issue on

appeal is whether the district court properly excluded the

proffered testimony of Dickenson’s medical experts. For the |

reasons set forth below, we AFFIRM the judgment of the :

district court with respect to C&T, REVERSE and REMAND

for further proceedings with respect to Dr. Rosser, and

VACATE the order excluding the testimony of Dr. John

Penek. :

I. BACKGROUND

Robinson underwent heart bypass surgery on November

10, 1998. The surgery was performed by Dr. Richard Michalik, |

a cardiac surgeon employed by C&T. Dr. Rosser, a pul-

monologist, was called upon by Dr. Michalik to provide

Robinson with postoperative respiratory care. Following the

removal of Robinson’s ventilation tube, she suffered brain

damage due to insufficient oxygen. The lawsuit brought on

Robinson’s behalf alleged that her injuries were caused by the

purportedly premature removal of her ventilation tube follow-

ing surgery.

By consent of the parties, the case was assigned to a magis-

trate judge for disposition. Summary judgment in favor of

both defendants was granted on the ground that no witness for

Robinson could competently testify concerning the standard

of care applicable to either C&T or Dr. Rosser. The plaintiff

argues on appeal that the district court erred by not allowing

cardiac surgeon W. Dudley Johnson, a practitioner from Wis-

consin, and pulmonologist John Penek, a practitioner from

New Jersey, to provide such testimony. This timely appeal

followed.

3a

II. ANALYSIS

A. Standard of review

The district court’s grant of summary judgment is reviewed

de novo. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d

623, 629 (6th Cir. 2002). Summary judgment is proper where

there exists no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). In considering a motion for summary judgment, the

district court must construe the evidence and draw all reason-

able inferences in favor of the nonmoving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The central issue is “whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986).

Summary judgment was granted in favor of the defendants

on the sole ground that the plaintiff failed to present admissi-

ble evidence concerning the standard of care applicable to

either C&T or Dr. Rosser. See Rodgers v. Monumental Life

Ins. Co., 289 F.3d 442, 448 (6th Cir. 2002) (“A complete

failure of proof concerning an essential element necessarily

renders all other factors immaterial.”). Whether the district

court’s grant of summary judgment was proper consequently

turns on the appropriateness of its decision to exclude the

testimony of the plaintiffs experts.

B. The district court abused its discretion by excluding the

testimony of Dr. Johnson regarding the alleged negli-

gence of Dr. Rosser

Dr. Johnson stated in his affidavit that he is “involved with

extubation decisions on almost a daily basis.” His curriculum

vitae indicates that he has practiced as a cardio-thoracic sur-

geon since 1965, and that he has performed thousands of

heart-related operations. He explained his familiarity with

ta

the standard of care for postoperative cardiac patients in Kings-

port, Tennessee as follows:

(1) The published literature that explains the medical

community; (2) Published information that describes the

community in general; (3) My own knowledge and

experience with the type of cardiac surgery being per-

formed and the management of the patient post opera-

tively; (4) Statements of Dr. Rosser and Dr. Michalik

contained in their depositions wherein they describe the

standard of care; (5) Statements of Dr. Rosser and Dr.

Michalik contained in their depositions wherein they

describe their educational background and training: and

(6) Reviewing the medical records of Sandra Robinson.

Dr. Johnson elaborated on his experience with extubating

postoperative patients in his deposition:

Q. Over the past three years, how many patients have you

managed that are on a ventilator that require in, in excess of a

three day stay on the ventilator?

A. The majority of my patients.

Q. Okay, how many would that be?

A. Maybe two hundred.

* * *

Q. ...[D]o you often request a pulmonary consult for

your patients?

A. Very commonly, yes.

Q. Okay. And at what point would you request a pulmo-

nary consult?

A. Sometimes even pre-operatively if they have a long

history of lung problems. I’ll ask them to see them and follow

with us together as we take care of the patients. And com-

monly afterwards. It could be anywhere. Right away or a day

or two later if the patients are still in respiratory difficulty.

Q. Okay. Who would make the decision to extubate a

patient?

Sa

A. Either can, and we haven’t always agreed. And I’ve

cancelled extubations on a number of occasions. And then

there has been a rare case where the patient needs to be

extubated and I do it. I don’t, I mean, it’s my patient and I can

do whatever I want, but, but I would discuss it with the

pulmonary person and we will discuss whether we think the

patient is ready to be extubated or not.

* * *

Q. Okay. Just take me through your process of determin-

ing . . . whether a patient can be extubated?

A. On my patients it’s rather uncommon to extubate them

at the day of surgery. Most of them, as I mentioned, are long,

difficult cases. I commonly spend ten to fourteen hours in

surgery on my patients. There’s so much to do with them.

Post-operatively, the next day if blood gases are normal, the

assist on the respirator is way down, he’s moving air in and

out well, his lung capacity is, very adequate on how much he

can take a deep breath and breathe, he obviously, he or she is

alert and neurologically intact. The cardiovascular system

would be stable. Normal heart function. Normal blood pres-

sure. Chest x-ray would certainly be satisfactory in terms of

no diffuse infiltrates and better than, certainly not worse than

what it had been before.

Despite Dr. Johnson’s extensive experience, the district

court did not allow him to testify regarding the medical ser-

vices rendered by Dr. Rosser on the ground that Dr. John-

son’s testimony was unreliable under the gatekeeping princi-

ples set forth in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993), and its progeny. The district court

elaborated on its reasons in the following two paragraphs of

its Opinion:

Dr. Johnson’s deposition testimony reveals that he is not

competent to testify concerning the standard of care

applicable to a pulmonologist at least as concerns extu-

6a

bation of a ventilation tube. Dr. Johnson, obviously, is a

cardiac thoracic surgeon, not a pulmonologist; and he is

not trained in pulmonology. He has never qualified as an

expert witness in a suit against a pulmonologist. Dr.

Johnson’s deposition revealed that he knows very little

about ventilating medical equipment or the settings to be

used. He has never written an article on pulmonology,

and could not identify any articles about pulmonology

which he has read. Looking to Daubert-type issues, there

was no peer review regarding his opinion regarding Dr.

Rosser’s negligence. He could not identify what journals

were authoritative that would be applicable to the facts

surrounding plaintiff's condition. More importantly, he

could not say what journals he read or considered in

atriving at his opinion and his methodology. Also, at

various points in his testimony he contradicted his affi-

davit. For example, he stated in his expert report that he

examined the plaintiffs chest x-ray in arriving at his

opinion. But during the deposition, he testified that he in

fact never looked at the plaintiff's x-ray.

In sum, under Daubert and its progeny, expert testimony

must meet a threshold requirement of reliability. There

simply must be more than Dr. Johnson’s bare assertion

to show that Dr. Rosser deviated from the standard of

care in Kingsport, Tennessee. The Court is not saying

that a cardiac surgeon can never be a reliable expert

when testifying in matters involving pulmonology, or

even anesthesiology or some other medical specialty.

However, the purported expert must demonstrate a fa-

miliarity with accepted medical literature or published

standards in these other areas of specialization in order

for his testimony to be reliable in the sense contemplated

by Federal Rule of Evidence 702. For these reasons, the

Motion for Summary Judgment of defendant Rosser

shall likewise be GRANTED.

Ta

The admissibility of expert testimony is governed by Rule

702 of the Federal Rules of Evidence, which provides as

follows:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or edu-

cation, may testify thereto in the form of an opinion or

otherwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied

the principles and methods reliably to the facts of the

case.

A district court’s exclusion of expert testimony will not be set

aside unless we determine that the court abused its discretion.

Gen'l Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997) (“[T]he

question of admissibility of expert testimony is . . . review-

able under the abuse-of-discretion standard.”). An abuse of

discretion is found where the reviewing court is “firmly

convinced that a mistake has been made.” Adcock-Ladd v.

Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (quota-

tion marks omitted) (defining the term “abuse of discretion”

to mean that “the lower court relie[d] on clearly erroneous

findings of fact, . . . improperly applie[d] the law[,] or use[d]

an erroneous legal standard”).

The district court appears to have relied most heavily upon

its supposition that a “purported expert must demonstrate

a familiarity with accepted medical literature or published

standards in these other areas of specialization in order for his

testimony to be reliable in the sense contemplated by Federal

Rule of Evidence 702.” T:1is is an erroneous statement of the

law. No authority was cited by the district court in support of

its above-quoted statement regarding Rule 702, nor have we

found any. In fact, “the text of Rule 702 expressly con-

templates that an expert may be qualified on the basis of

8a

experience.” Fed. R. Evid. 702 advisory committee’s note

(2000 Amendments) (emphasis added); see also Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999) (“[N]o one

denies that an expert might draw a conclusion from a set of

observations based on extensive and specialized experi-

ence.”); Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d

256, 267 (2d Cir. 2002) (“Where an expert otherwise reliably

utilizes scientific methods to reach a conclusion, lack of tex-

tual support may go to the weight, not the admissibility of the

expert’s testimony.”) (quotation marks omitted); Bonner v.

IS} Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (“There

is no requirement that a medical expert must always cite

published studies on general causation in order to reliably

conclude that a particular object caused a particular illness.”’)

(quotation marks omitted).

The district court also noted that “Dr. Johnson’s deposition

revealed that he knows very little about ventilating medical

equipment or the setting to be used.” Presumably, the district

court had in mind the following portion of Dr. Johnson’s

deposition testimony: :

Q. Okay. What type of ventilator do you use at your

hospital?

A. I don’t know that. I don’t generally run ventilators and

adjust them.

Q. Okay, and what mode of ventilation do you use on

your patients on average?

A. Intermsof.. 2

Q. In terms of what mode and how that ventilator is get-

ting oxygen to the patient?

A. Idon’t know the different ventilators that I use.

Q. Okay, well, I mean, are there no general modes of

ventilation depending on whether you buy Brand A, Brand B,

or Brand C?

A. On the different ventilators, I can’t tell you the differ-

ence in terms of ventilators.

Gs

Q. Well, just tell me in general. What different modes are

there to get oxygen to a patient?

A. You just put it in under high pressure. You know, you

have volume controls on the ventilators. You have gas con-

trol. Percentage of oxygen that you use to ventilate the

patients.

Q. What different modes of ventilation are there to get

oxygen to a patient?

A. You can intubate them, you can hook it up when

they’re ventilating that way on the ventilator. You can put a

mask over their face. Some kind of, some degree of positive

pressure on the mask.

The district court did not explain in its opinion how knowl-

edge of the brand of ventilator used or its settings would

affect the reliability of Dr. Johnson’s testimony regarding the

prematurity of the extubation, which is the issue in this case.

Dr. Johnson’s testimony regarding the timing of extubation,

based on his extensive experience in making those decisions

both with and without consultation from a pulmonologist, is

not made unreliable by virtue of his inability to recall the

mechanical details of the ventilator used in the operation. The

timing of extubation is a separate issue from the mechanics of

extubation.

As a further reason for its decision, the district court noted

that “at various points in his testimony [Dr. Johnson] contra-

dicted his affidavit.” The only example offered, however, is

that Dr. Johnson “stated in his expert report that he examined

the plaintiff's chest x-ray in arriving at his opinion. But

during the deposition, he testified that he in fact never looked

at the plaintiffs x-ray.” This apparent discrepancy is ex-

plained by the fact that although Dr. Johnson did not examine

the x-ray film itself, he reviewed the radiologist’s report, as

indicated by the following deposition testimony:

4

:

<

10a

A. I didn’t look at [the x-rays] because, as I’ve already

said, there’s staggering reasons not to extubate her, so I didn’t

need to go look for other reasons... .

Q. Okay, so you, you didn’t look at the films and con-

sider these films?

A. They were never sent to me.

* * *

Q. But you obviously considered the chest x-rays, did

you not?

A. Yeah, the reports.

Q. Okay. Well, what did you learn from the reports? |

A. Well, my impression on the reports, it was not a dra- |

matic change. There was something there, but certainly not |

catastrophic changes on the x-ray.

That Dr. Johnson reviewed the x-ray report rather than the x-

ray film itself may go to the weight of his testimony before a

jury, but it did not render Dr. Johnson’s testimony so unreli-

able that his testimony should have been excluded altogether.

In sum, Daubert’s role of “ensur[ing] that the courtroom

door remains closed to junk science,” Amorgianos v. Nat'l

R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002), is

not served by excluding testimony such as Dr. Johnson’s that

is supported by extensive relevant experience. Such exclusion

is rarely justified in cases involving medical experts as op-

posed to supposed experts in the area of product liability. See

generally Daniel W. Shuman, Expertise in Law, Medicine,

and Health Care, 26 J. Health Pol. Pol’y & L. 267 (2001)

(characterizing the effect of the Daubert and Kumho Tire

cases on claims of medical expertise as “[mJuch ado about

little,’ while noting that these cases have had a significant

effect on toxic tort and products liability litigation). We there-

fore conclude that the district court abused its discretion by

excluding Dr. Johnson’s testimony regarding the medical ser-

vices rendered by Dr. Rosser.

lla

C. The district court did not abuse its discretion by ex-

cluding the testimony of Dr. Johnson regarding the

alleged negligence of C&T

As the district court noted, “Dr. Johnson professed that he

relied upon the deposition testimony of Drs. Michalik and

Rosser to underpin his knowledge of the standard of care

applicable to cardiac surgeons [such as Dr. Michalik] in

Kingsport, Tennessee.” Nothing in those depositions, how-

ever, supports Dr. Johnson’s opinion that the cardiac surgeon

is responsible for the pulmonologist’s decision of when to

extubate a patient. At most, the deposition of Dr. Michalik

indicates that the cardiac surgeon often makes the decision to

extubate and that frequently such decisions are made collabo-

ratively with a pulmonologist. In this case, however, the

uncontroverted evidence establishes that Dr. Michalik called

upon Dr. Rosser to “assume that responsibility” and “it was

Dr. Rosser who ordered the extubation of the tube.”

The lack of support for Dr. Johnson’s opinion, coupled

with the affidavits of five Kingsport, Tennessee physicians

who explained that the practice in Kingsport is that “once a

pulmonology consult is obtained, the pulmonologist assumes

management of the patient’s ventilation and extubation,”

convinced the district court that Dr. Johnson’s opinion on this

issue was unreliable. In light of the lack of support for Dr.

Johnson’s opinion and the contrary evidence found in the

affidavits of the local physicians, we conclude that the district

court did not abuse its discretion by excluding this testimony.

See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152

(1999) (“[T]he trial judge must have considerable leeway in

deciding in a particular case how to go about determining

whether particular expert testimony is reliable.”).

12a

D. The basis for excluding the testimony of Dr. Penek under

Rule 37(c) of the Federal Rules of Civil Procedure is no

longer pertinent

In a March 5, 2003 order, the trial court excluded the

expert testimony of Dr. Penek under Rule 37(c)(1) of the

Federal Rules of Civil Procedure. “The Federal Rules of Civil

Procedure . . . apply to civil actions in the federal courts,

regardless of whether jurisdiction is. based on federal question

or diversity of citizenship.” Hayes v. Equitable Energy Res.

Co., 266 F.3d 560, 566 (6th Cir. 2001). Rule 37(c)(1) states

as follows:

A party that without substantial justification fails to dis-

close information required by Rule 26(a) or 26(e)(1), or

to amend a prior response to discovery as required by

Rule 26(e)(2), is not, unless such failure is harmless,

permitted to use as evidence at a trial, at a hearing, or on

a motion any witness or information not so disclosed.

We review the exclusion of expert testimony pursuant to

Rule 37(c)(1) under an abuse-of-discretion standard. Jahn v.

Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000).

“(Where exclusion necessarily entails dismissal of the case,

the sanction must be one that a reasonable jurist, apprised of

all the circumstances, would have chosen as proportionate to

the infraction.” Musser v. Gentiva Health Servs., 356 F.3d

751, 756 (7th Cir. 2004) (quotation marks omitted). “The ex-

clusion of non-disclosed evidence is automatic and manda-

tory under Rule 37(c)(1) unless non-disclosure was justified

or harmless.” Jd. at 758.

The district court refused to permit Dr. Penek to testify,

explaining as follows:

Serious prejudice would result if Dr. Penek were al-

lowed to testify now. . . . The Court neither faults nor

criticizes the efforts of plaintiffs counsel. But there is no

good cause for yet another extension of time against

these physicians. In the 1525 days between the plain-

SP Seth CFIA

13a

tiffs injury and the filing of the present Motion [to

waive the Tennessee locality rule (T.C.A. § 29-26-

115(b)) and permit the testimony of Dr. Penek], the

proof, if it exists, could and should have been marshaled.

Even though the trial date, which was only two months

away when the Motion was filed, has been moved, were

the Court to grant the Plaintiff's request it would be the

better part of another year for the defendants to finally

go to trial. Because the scheduling order must have some

meaning, particularly three years into a lawsuit, the

Motion is DENIED.

Because a new trial date will be set once this case is re-

manded to the district court, the district court’s conclusion

that harm would flow to Dr. Rosser by further delay in the

trial date if Dr. Penek were allowed to testify is no longer a

consideration. We therefore conclude that the order excluding

Dr. Penek’s testimony should be vacated.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM

the judgment of the district court with respect to C&T,

REVERSE and REMAND for further proceedings with re-

spect to Dr. Rosser, and VACATE the order excluding the

testimony of Dr. Penek.

14a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

[Filed Mar. 5, 2003]

No. 2:00-CV-405

SANDRA ROBINSON

Wi

CARDIAC AND THORACIC SURGERY OF EASTERN

TENNESSEE, P.C. and ROBERT A. ROSSER, M.D.

MEMORANDUM REGARDING MOTIONS

FOR SUMMARY JUDGMENT

The defendants Robert Rosser (“Rosser”) and Cardiac and

Thoracic Surgery of Eastern Tennessee (“C & T’’) have moved

for summary judgment.’ A hearing was held on February 25,

2003.

Summary judgment is proper only if the record reveals that

“there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c). The non-moving party must be indulged

with all possible favorable inferences from the facts. Plott v.

Gen. Motors Corp., 71 F.3d 1190 (6th Cir. 1995). Thus, if

there are contrary inferences which can be drawn from facts

otherwise undisputed, then summary judgment is precluded.

' Doc. 197, 223.

15a

Inasmuch as this is a medical malpractice action, whether

there exists contested issues of material facts must be deter-

mined in the context of T.C.A. § 29-26-115, Rule 703 of

the Federal Rules of Evidence, Daubert v. Merrell Dow

Pharmaceuticals,’ and Kumho Tire Co. v. Carmichael.

T.C.A. § 29-26-115 requires that a plaintiff in a medical

malpractice action prove (1) the standard of professional care

attributable to the defendants’ medical specialties in the

geographical are in which the defendants practice, (2) that the

defendants breached such standard(s) of care, and (3) that the

plaintiff suffered injuries as a proximate result of that breach.

Further, the expert witness must be licensed in Tennessee or

one of its eight contiguous states to practice the defendant’s

specialty.* Under Daubert, the trial court is to serve as a

“gatekeeper” and determine if the proffered testimony of an

expert witness is reliable. If it is not, the testimony should not

be admitted. And in the case of a medical malpractice action,

if the expert testimony is deemed unreliable and therefore not

admitted, the suit itself must fail due to the lack of an expert

witness as required by T.C.A. § 29-26-115.

C & T specializes in the practice of cardiac surgery. The

only expert medical witness offered by plaintiff to prove the

standard of care applicable to this defendant and the breach

thereof is the testimony of Dr. Dudley Johnson, a cardiac/

thoracic surgeon, who practices in Milwaukee, Wisconsin.

Plaintiff does not claim that her injuries resulted from the

cardiac surgery performed on her by Dr. Michalik of C.& T.

Rather, she claims that her injuries were the direct result of

a premature post-surgery extubation of a ventilation tube.

? 509 U.S. 579 (1993).

3 §26 U.S. 137 (1999).

* This provision can be wai-ed, as it was waived in this case with re- ~

spect to Dr. Dudley Johnson, plaintiff s expert witness.

l6a

After the cardiac surgery, and because plaintiff was mani-

festing respiratory problems, Dr. Michalik asked that Dr.

Rosser, a pulmonologist, participate in plaintiff's post-surgi-

cal care with respect to her respiratory condition. It was Dr.

Rosser of course who ordered the extubation of the tube.

Plaintiff's expert, Dr. Johnson, opines that Dr. Michalik,

as the operating surgeon, remained responsible to plain

tiff regarding her respiratory problems, notwithstanding that

he requested that Dr. Rosser, a pulmonologist, assume that

responsibility.

Dr. Rosser was not Dr. Michalik’s agent; he was an inde-

pendent contractor in every sense of that term. Thus, Dr.

Michalik cannot be vicariously liable for any negligent acts

by Dr. Rosser. If Michalik, i.e., C & T, is liable to plaintiff,

it must be for some breach of duty directly owing plaintiff by

C&T.

Absent a claim that Dr. Rosser was incompetent and Dr.

Michalik knew or should have known that he was incompe-

tent, or absent a claim that Dr. Michalik had actual knowl-

edge that the extubation was contra-indicated, Dr. Michalik

reasonably should be allowed to rely on the pulmonologist to

perform his job competently. Stated another way, Dr.

Michalik should not be charged with the duty of standing

over the pulmonologist and second-guessing every decision

made by him in the realm of the pulmonologist’s respon-

sibility. Otherwise, there would be little reason to request the

services of a pulmonologist. It is, after all, the area of the

pulmonologist’s specialty and is not within the expertise of a

cardiac surgeon. Dr. Johnson himself acknowledged that he

often requests pulmonary consultations in his cases, and only

rarely performs an extubation himself.

Dr. Johnson’s opinion simply is not reliable to the extent

that he maintains that Dr. Michalik should be responsible

for the premature extubation—if indeed it was premature—

performed by Dr. Rosser. Dr. Johnson professed that he relied

17a

upon the deposition testimony of Drs. Michalik and Rosser to

underpin his knowledge of the standard of care applicable to

cardiac surgeons in Kingsport, Tennessee. However, as evi-

denced by the affidavits of five physicians who actually

practice in the Kingsport area, it is clear that, at least in

Kingsport, Tennessee, once a pulmonology consult is ob-

tained, the pulmonologist assumes management of the pa-

tient’s ventilation and extubation.” In short, Dr. Johnson’s

opinion is not considered reliable in the sense contemplated

by Daubert and Khumo Tire. Moreover, Dr. Johnson could

not cite to any treatise or other learned work to support

his opinion. Dr. Johnson’s opinion is ipse dixit, and nothing

more.

Since Dr. Johnson’s evidence may not be received to es-

tablish the standard of care applicable to C & T or a breach

thereof, the Motion for Summary Judgment filed by C & T

shall be GRANTED.

> At first blush, it appears that the Court is weighing conflicting evi-

dence—Johnson’s opinion versus those of the five Kingsport physi-

cians—which normally the Court may not do while considering a motion

for summary judgment. But where the issue is the reliability of-expert

opinion under Daubert there necessarily is a modicum of “weighing the

evidence.” In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the

Supreme Court flatly held that the admissibility of expert testimony is

discretionary with the trial judge and is reviewable under the abuse-of-

discretion standard: “On a motion for summary judgment, disputed issues

of fact are resolved against the moving party... . But the question of

admissibility of expert testimony is not such an issue of fact, and is

reviewable under the abuse-of-discretion standard.” /d., at 143. Dr.

Johnson’s conclusion is founded solely upon his ipse dixit. The difference

between his conclusions and those of the five local physicians is stark

and diametrically opposed. The basis of Dr. Johnson’s opinion is, “it is

because I say it is,” and that simply cannot be determined to be reliable

in the face of five local physicians who actually practice medicine in

Kingsport, Tennessee, day in and day out.

18a

All that has been said with respect to the lack of reliability

of Dr. Johnson’s opinions regarding Dr. Michalik applies

with equal force to Dr. Rosser. Indeed, his opinion is even

less reliable with respect to Dr. Rosser. Dr. Johnson’s depo-

sition testimony reveals that he is not competent to testify

concerning the standard of care applicable to a pulmonolo-

gist at least as concerns extubation of a ventilation tube.

Dr. Johnson, obviously, is a cardiac thoracic surgeon, not a

pulmonologist; and he is not trained in pulmonology. He

has never qualified as an expert witness in a suit against a

pulmonologist. Dr. Johnson’s deposition revealed that he

knows very little about ventilating”: medical equipment or

the settings to be used. He has never written an article on

pulmonology, and he could not identify any articles about

pulmonology which he has read. Looking to Daubert-type

issues, there was no per review regarding his opinion

regarding Dr. Rosser’s negligence. He could not identify what

journals were authoritative that would be applicable to the

facts surrounding plaintiff's condition. More importantly, he

could not say what journals he read or considered in arriving

at his opinion and his methodology. Also, at various points in

his testimony he contradicted his affidavit. For example, he

stated in his expert report that he examined the plaintiff's

chest x-ray in arriving at his opinion. But during the deposi-

tion, he testified that he in fact never looked at the plaintiff's

X-ray.

In sum, under Daubert and its progeny, expert testimony

must meet a threshold requirement of reliability. There sim-

ply must be more than Dr. Johnson’s bare assertion to show

that Dr. Rosser deviated from the standard of care in

Kingsport, Tennessee. The Court is not saying that a cardiac

surgeon can never be a reliable expert when testifying in

matters involving pulmonology, or even anesthesiology or

some other medical specialty. However, the purported expert

must demonstrate a familiarity with accepted medical litera-

ture or published standards in these other areas of specializa-

19a

tion in order for his testimony to be reliable in the sense

contemplated by Federal Rule of Evidence 702. For these

reasons, the Motion for Summary Judgment of defendant

Rosser shall likewise be GRANTED.

ENTER:

/s/ DENNIS H. INMAN

DENNIS H. INMAN

UNITED STATES MAGISTRATE JUDGE

20a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

[Filed Mar. 5, 2003]

No. 2:00-CV-405

SANDRA ROBINSON

V.

CARDIAC AND THORACIC SURGERY OF EASTERN

TENNESSEE, P.C. and ROBERT A. ROSSER, M.D.

JUDGMENT

For the reasons set forth in the Memorandum filed this

day, the defendants’ Motions for Summary Judgment ° are

GRANTED, and this action is DISMISSED.

SO ORDERED:

/s/ DENNIS H. INMAN

DENNIS H. INMAN

UNITED STATES MAGISTRATE JUDGE

® Doc. 197, 223.

2la

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed Oct. 25, 2004]

—

No. 03-5355

NANCY DICKENSON, Conservator for Sandra Robinson,

Plaintiff-Appellant,

V.

CARDIAC AND THORACIC SURGERY OF EASTERN

TENNESSEE, P.C. and ROBERT ROSSER, M.D..,

Defendants-Appellees.

Before: KEITH, MOORE, and GILMAN, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

THIS CAUSE was heard on the record from the district

court and was argued by qounsel. ;

IN CONSIDERATION WHEREOF, it is ORDERED that

the judgment of the district court is AFFIRMED IN PART,

REVERSED and REMANDED IN PART, and VACATED

IN PART.

)

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN

Leonard Green, Clerk

22a

APPENDIX E

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to deter-

mine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may tes-

tify thereto in the form of an opinion or otherwise, if (1) the

testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods

reliably to the facts of the case.