# Petition for Writ of Certiorari — Rosser v. Dickenson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1315%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 961

## Text

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

ere no attnsanesenaunnuandannsenanaenonnadionmnatensnentniptemiaasiihenpaienansammmaneaatiiesioanenae nesiiinaaianatannnenmaaataaae
SF ALE LATEI LI ELLIE CELLED DELLE LE LAL D AL SELLE LES ALLLAE ALLA SA LEELA PEE BEE RRR SS

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

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

SEI EIIIETIT ictesleiactesisicecslventaahinisiadlinhcnnntuhasienineiionsitanieiies
1» APPENDICES

A. Opinion of the United States Court of Appeals
for the Sixth Circuit, decided and filed October
a TTT aiiasehsiasadiibedusodesiipeaceisbiciaiceicliteaaenshaiuigaldaccias la

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
GT Fis Bie annskcthnceehcssacetnisnissentadnnnatensionaasenin 20a

Judgment of the United States Court of
Appeals for the Sixth Circuit filed October 25,
IED seniiisnrsnnciensiniibiaciennadaniniapinaseoubniesniatcibildibaen 2la

Vv ,
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
Be rs © Fae ecscetisdeinischinabincdincesinnieiiiaiiiglace l
Be es 1 EE ietatcncsideictineiesacadeacieedand an 2
RULES
FA hs UN Fee ssetisinisiinteneenedaieanimasnbanaidahaliasan seesee Passi
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1315%3A1. Public record. Not legal advice.