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Hurd v. Yaeger

August 13, 2009


The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)


Before the court, in this medical malpractice action, is the defendants' motion to preclude plaintiffs' expert reports under Rule 26 and Rule 37 of the Federal Rules of Civil Procedure, Rule 702 of the Federal Rules of Evidence, and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendants move to strike nine expert reports and exclude those experts from offering into evidence any testimony, reports, or opinions in subsequent proceedings. Having been fully briefed, this matter is ripe for disposition. For the reasons below, this motion is denied as to all experts.


Plaintiff Katrina Engle presented to a physician at defendant Guthrie Clinic Sayre ("Clinic") on March 13, 2006. She was approximately twenty-eight weeks pregnant at the time. (Amended Complaint (Doc. 72) at ¶ 13) (hereinafter "Am. Complt."). She complained of abdominal discomfort, cramping, and feeling "like her fetus's head was pushing down." Plaintiff Engle was diagnosed with a urinary tract infection and sent home. (Id.). Later that day, Plaintiff Engle telephoned the Clinic and spoke to a nurse regarding further cramping and vaginal bleeding, but she was told that these symptoms were consistent with a urinary tract infection. (Id. at ¶ 14).

That same evening, Plaintiff Engle visited defendant Robert Packer Hospital ("Hospital") complaining of similar symptoms during an evaluation by defendant Dr. Bambi Petrinic, M.D. (Id. at ¶ 15-18). By telephone, Defendant Petrinic consulted the attending physician on call, Defendant Dr. Thomas A. Yaeger, M.D. (Id. at ¶ 20). Defendant Yaeger relied on Defendant Petrinic's report at the time and did not personally examine Plaintiff Engle. (Id. at ¶¶ 21-22). Plaintiff Engle was subsequently discharged from the Hospital at 7:30 PM. (Id. at ¶ 23).

At approximately 12:30 AM on March 14, 2006, Plaintiff Engle presented to Arnot Ogden Medical Center in Elmira, New York, again with complaints of sharp abdominal pain and vaginal bleeding. (Id. at ¶ 24). Upon examination, Plaintiff Engle's cervix was found to be fully dilated. Shortly thereafter, Plaintiff Engle went into early labor. (Id.). Minor-Plaintiff Hurd was born early that morning with a host of physical and mental conditions related to his premature birth, including several heart and lung ailments and various developmental deficits. (Id. at ¶¶ 12, 26).

Plaintiffs allege medical malpractice against the defendants for failure of to meet the standard of care in treating Plaintiff Engle and Minor-Plaintiff Hurd. According to the plaintiffs, the defendants specifically failed to recognize the risk factors and symptoms of Plaintiff Engle's pre-term labor and dispense tocolytics, or labor-delaying drugs,*fn1 so that Minor-Plaintiff Hurd could develop further in utero through the administration of steroid treatments. (Plaintiffs' Memorandum in Opposition to Defendant's Motion to Preclude Plaintiffs' Expert Reports and Opinions (Doc. 142) at 6-10) (hereinafter "Memo. in Opposition").

This case was commenced on September 28, 2006 by way of Complaint. (Doc. 1). On March 24, 2008, Plaintiffs filed an Amended Complaint and added a new party, Defendant Petrinic. (Doc. 72). Defendants now move to preclude the plaintiffs' use of nine expert opinions and testimony, in whole or in part, pursuant to Rule 26 and Rule 37 of the Federal Rules of Civil Procedure, Rule 702 of the Federal Rules of Evidence, and Daubert. (Defendants' Motion to Preclude Plaintiffs' Expert Reports and Opinions (Doc. 122)). These experts include: (1) Dr. Albert George Thomas, Jr., M.D, M.S., OB-GYN; (2) Dr. Harlan Giles, M.D., OB-GYN; (3) Dr. Marcus Hermansen M.D., neonatologist; (4) Dr. Steven Kugler, M.D., pediatric neurologist; (5) Dr. Thomas Rugino, M.D., neurodevelopmental physician; (6) David L. Hopkins, ASA, actuary; (7) B.A. McGettigan, R.N., life-care planner; (8) Dr. Michael Steinhardt, Psy. D, psychologist; and (9) Brenda Bugbee, R.N., neonatal pain expert. (Defendant's Memorandum of Law in Support of Their Motion to Preclude Plaintiffs' Expert Reports and Opinions (Doc. 123) at 5) (hereinafter "Memo. in Support").


Minor-Plaintiff Hurd, Plaintiff Engle, and Plaintiff Bryan Hurd are citizens of New York. (Am. Cmplt. at ¶ 1-3). Defendants Yaeger and Petrinic are citizens of Pennsylvania. (Id. at ¶ ¶ 4-5). Defendants Robert Packer Hospital, Guthrie Clinic Sayre, and Guthrie Health Care System are corporations or legal entities organized and existing under the laws of Pennsylvania. (Id. at 6-8). The amount in controversy exceeds $75,000. (Id. at ¶ 10). This court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. The substantive law of Pennsylvania shall apply to the case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).


The admissibility of expert testimony is a question of law governed by Rule 702 of the Federal Rules of Evidence ("Rule 702"), Daubert, and its progeny. Rule 702 provides:

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.

FED. R. EVID. 702.

Rule 702 has largely evolved from Daubertand later Supreme Court cases that have clarified or extended its holding. As a "gatekeeper," the trial judge "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589. The "trial judge's general 'gatekeeping' obligation -- applies...also to testimony based on 'technical' and other 'specialized' knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).

The Third Circuit has interpreted Rule 702, Daubert, and its progeny as imposing three restrictions on the admission of expert testimony: qualifications, reliability, and fit. In re Paoli R.R. Yard PCB Litig., 35 F. 3d 717, 741-43 (3d Cir. 1994) cert. denied, 513 U.S. 1190 (1995) ("Paoli II"); Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). The party that wishes to introduce expert testimony bears the burden of demonstrating that the testimony is admissible by a preponderance of the evidence. Daubert, 509 U.S. at 593 (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); In re TMI Litig., 193 F.3d 613, 663 (3d Cir.1999).

First, an expert must be qualified. A qualified expert is required to have specialized knowledge in her area of testimony, which may be based in practical experience as well as academic training and credentials. Elcock, 233 F. 3d at 741. The specialized knowledge requirement has been interpreted liberally in the substantive as well as the formal qualification of experts; "'at a minimum, a proffered expert witness...must possess skill or ...

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