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Trout v. Milton S. Hershey Medical Center

September 17, 2008


The opinion of the court was delivered by: Judge Conner


Presently before the court is plaintiff's motion (Doc. 86) to exclude portions of the deposition of Dr. Robert Brumback ("Dr. Brumback") at trial.*fn1 Dr. Brumback is a treating physician of plaintiff Douglas Trout ("Trout") who assisted Trout with acquisition and fitting of a prosthetic leg following limb amputation. Dr. Brumback began treating Trout approximately two months following the allegedly negligent surgical procedure performed by defendant Dr. Reza Miraliakbari and the allegedly negligent treatment that Trout received at defendant Milton S. Hershey Medical Center (hereinafter "the Medical Center"). Dr. Brumback played no role in Trout's treatment while he was under the care of defendants.

Plaintiffs object to portions of Dr. Brumback's deposition pertaining to a patient's treatment and recovery following a limb salvage procedure, to Trout's ability to remodel his townhouse following injury, to Dr. Brumback's opinion regarding the medical qualifications of defendants' expert witness, and to Dr. Brumback's lack of knowledge regarding medical records maintained by the Medical Center. The court will address these objections seriatim.

A. Testimony Regarding Limb Salvage Treatment

Plaintiffs object to the introduction of Dr. Brumback's cross-examination testimony, during which he compared the general recovery experience of limb salvage patients with that of post-amputation patients.*fn2 Plaintiffs assert that it is improper expert testimony because defendants did not qualify Dr. Brumback as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and because his testimony does not account for the facts of Trout's injuries and treatment. They also contend that it exceeds the scope of Dr. Brumback's direct testimony, which consisted exclusively of questions regarding the post-amputation treatment he administered for Trout. Defendants assert that Dr. Brumback testified based upon his personal knowledge and therefore need not be qualified as an expert witness. They also assert that his testimony reasonably falls within the scope of direct examination.

As an initial matter, the cross-examination testimony to which plaintiffs object describes the treatment procedures and risks associated with limb salvage and amputation. The testimony is highly specialized and undoubtedly qualifies as expert testimony within the scope of Rule 702 of the Federal Rules of Evidence. See, e.g., Ditch v. Waynesboro Hosp., 917 A.2d 317, 324 (Pa. Super. Ct. 2007) (requiring expert testimony to describe symptoms and treatment of complex medical conditions); Caliendo v. Trump Taj Mahal Assocs., No. 2007 WL 1038854, at *2 n.1 (D.N.J. Mar. 29, 2007) (reiterating that court will treat physicians testifying about the cause of a particular condition or a prognosis as expert witnesses). The admissibility of expert testimony depends upon whether "(1) the testimony is based upon sufficient facts or data, (2) [whether] the testimony is the product of reliable principles and methods, and (3) [whether] the witness has applied the principles and methods reliably to the facts of the case." FED. R. EVID. 702; Perry v. Novartis Pharms., --- F. Supp. 2d ----, 2008 WL 2683047, at *3 (E.D. Pa. July 9, 2008).

Rule 702 requires that an expert witness's statements possess adequate factual support. See FED. R. EVID. 702(1). An expert who testifies primarily from experience must explain "how that experience 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." Suter v. Gen. Acc. Ins. Co. of Am., 424 F. Supp. 2d 781, 788 (D.N.J. 2006) (quoting FED. R. EVID. 702 advisory committee's note, 2000 amends.). In the instant matter, defendants questioned Dr. Brumback about his general expertise in treating amputation and limb salvage patients. This included his experience fighting contamination, preventing infection, preforming bone grafts, and aiding patients in regaining use of limbs. However, Dr. Brumback did not describe whether this experience affected the manner in which he outfitted Trout with a prosthetic limb or whether it was relevant to Trout's case in any way. He did not delineate the risks associated with Trout's post-amputation treatment or clarify how those risks would have varied had he elected limb salvage. Rather, defendants questioned Dr. Brumback about a variety of abstract medical risks without establishing whether Trout's amputation rendered him susceptible to these risks or whether he would have been susceptible to them had he elected undergo a limb salvage procedure. Without this direct link to Trout's case, Dr. Brumback's cross-examination testimony threatens to lead the jury into a thicket of medical issues whose relevancy to the instant matter has not been established. Hence, defendants' cross-examination of Dr. Brumback lacks the factual basis necessary to satisfy Rule 702.

Rule 702 also requires that expert testimony derive from reliable methods and "fit" the facts of the case in dispute, reflecting the facts in a manner that is helpful to the jury. FED. R. EVID. 702(2)-(3); see In re Paoli RR Yard PCB Litig., 35 F.3d 717, 742-43 (3d Cir. 1994) (stating that an expert's scientific knowledge may be excluded "if it is not scientific knowledge for purposes of the case"); Allstate Ins. Co. v. Hamilton Beach/Proctor-Silex, Inc., No. 2:06cv1186, 2008 WL 3891259, at *4 (W.D. Pa. Aug. 19, 2008) (stating that expert testimony must aid the jury in resolving disputed issues). Generalized expert testimony that is factually disconnected from the case is inadmissible because it does not assist the jury in rendering a verdict based on the material facts in issue. See Elcock v. Kmart Corp., 233 F.3d 734, 755 n.12 (3d Cir. 2000) (stating that expert testimony may be excluded if it is based upon unfounded assumption or is otherwise "not grounded in the facts of a case"); Mercedes-Benz, U.S.A. LLC v. Coast Auto. Group, No. Civ. A. 99-3121, 2006 WL 2830962, at *12 (D.N.J. Sept. 26, 2006) (quoting Elcock, 233 F.3d at 755) (describing expert testimony offered without an adequate factual basis as "a castle made of sand").

In the instant matter, defense counsel questioned Dr. Brumback about the general recovery of individuals who sustain severe leg injuries and opt for limb salvage rather than amputation. Dr. Brumback did not testify about Trout's condition, and he explained that his testimony does not accurately reflects Trout's particular medical issues. Dr. Brumback repeatedly testified that prognosis, risk, and recovery experience are dependent upon each patient's injury and that general principles cannot describe an individual patient's likely experience:

Q: Dr. Brumback, based on, on your experience, you wouldn't anticipate that somebody who underwent attempted salvage of their leg would be able to bear their full weight on that leg just a little over two months after having undergone the salvage procedure?

A: It's, it's entirely possible that that's true. It's also very likely that it's not true. You can't generalize like this. There are certain fractures that be fixed [sic] with certain devices that allow weight bearing in two months, and there are certain fractures that, with other certain devices that you can't, so I just can't generalize.

Q: . . . [B]ased on your experience in treating . . . injuries that Mr. Trout had, grade 3B open tibial fractures[,] . . . you wouldn't anticipate that somebody like that who underwent attempted salvage of their leg would be able to bear full weigh on that leg just two months after undergoing their salvage procedure, would you?

A: It would be unlikely, but depending upon the device use[d] and depending upon the individual fractures, it's not unheard of. So it's a very individualized thing. It can't be generalized.

Q: Were you basing any of th[e]se opinions specifically on your review of materials from Mr. Trout's treatment at York Hospital or Hershey Hospital in your review of his particular case, or were you giving ...

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