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Ellison v. United States

November 10, 2010

CHERYL A. ELLISON AS GUARDIAN OF THE ESTATE AND THE PERSON OF CHRISTOPHER D. ELLISON, AN INCAPACITATED PERSON
v.
UNITED STATES



The opinion of the court was delivered by: Yohn, J.

MEMORANDUM

Plaintiff, Cheryl Anne Ellison, individually and as guardian of her husband, Christopher David Ellison, brings this medical malpractice action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1), to recover for personal injuries resulting from a massive stroke her husband suffered after receiving dental care at the Philadelphia Veterans' Administration ("VA") Medical Center. The United States, the defendant in the action, has filed motions pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), to exclude from trial the proposed testimony of Stuart Super, D.M.D., and Scott Kasner, M.D., plaintiff's experts regarding standard of care and causation, respectively. The United States also moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the bases that if either expert is excluded, plaintiff cannot prove an essential element of her case, and that even if both experts are allowed to testify, their testimony is still insufficient. As set forth herein, I conclude that the testimony of neither expert witness should be excluded from trial and that the motions for summary judgment should be denied.

I. Factual and Procedural Background

A. Facts*fn1

This case arises out of a stroke suffered by Christopher Ellison (Ellison) on September 11, 2007. (Def.'s Super Statement ¶ 1; Pl.'s Super Resp. ¶ 1.) That morning, Ellison presented to the VA Medical Center to have eight teeth extracted as part of a treatment plan for periodontal disease. (Def.'s Super Statement ¶¶ 2-3; Pl.'s Super Resp. ¶¶ 2-3.) Ellison previously had had three teeth extracted on August 7, 2007. (Def.'s Super Statement ¶ 3; Pl.'s Super Resp. ¶ 3.) Dr. Mark Abel, a resident in oral and maxillofacial surgery at the Hospital of the University of Pennsylvania, performed the extractions assisted by Christine Bender,*fn2 who was then a dental student at the University of Pennsylvania School of Dental Medicine. (Def.'s Super Statement

¶¶ 4, 9; Pl.'s Super Resp. ¶¶ 4, 9.)

On the day of the extractions, Dr. Abel and Dr. Bender obtained Ellison's written consent for the procedure, reviewed his medical history, and measured his vital signs.*fn3 (Pl.'s Super Resp. Ex. B ["Abel Dep."] 108; Pl.'s Super Resp. Ex. C ["Bender Dep."] 40.) Ellison, who was forty-nine years old on the date of the procedure, had a history of hypertension, hyperlipidemia, smoking, diabetes, and obesity. (See, e.g., Pl.'s Kasner Opp'n Ex. E ["Kasner Dep."] 21-24.)

Dr. Abel was aware that Ellison had a history of diabetes and hypertension and that he had been taking aspirin and Feldene*fn4 but had stopped taking both drugs prior to the procedure. (Abel Dep. 77-78, 82; see also Pl.'s Super Resp. Ex. A at 4.) Preoperatively, Ellison's blood pressure was 120/70, his pulse was 72, and his oxygen saturation was 99 percent. (Pl.'s Super Ex. A at 3; Abel Dep. 90.)

Dr. Abel testified that he began administering local anesthetic,*fn5 and that, at around the fifth injection, Ellison said that he felt a little nauseous. (Id. at 108.) Dr. Abel then cycled the blood pressure cuff and received a reading of "70s over 40s." (Id.) He also noticed that Ellison was diaphoretic, or sweaty, and placed a cool cloth on his forehead. (Id. at 117.) Dr. Abel then reclined Ellison back in the chair, recycled the blood pressure cuff, and got a reading in the range of "70s to 80s over 40s to 50s." (Id. at 109.) Within a minute, Ellison's blood pressure "had come back up towards . . . 100s to 110s over 70s," but he continued to feel nauseous. (Id. at 109-10.) Although Ellison said he was feeling better after about five minutes, Dr. Abel kept him in the reclined position for a total of about ten minutes, and then asked him whether he was still feeling fine and whether he wanted to continue with the injections or stop the procedure. (Id. at 110-11.)

After Ellison said that he was "fine to continue," Dr. Abel brought the chair up to its prior position and continued administering the remaining local anesthetic, a total of fifteen to twenty more injections. (Def.'s Super Statement ¶ 18; Pl.'s Super Resp. ¶ 20-38; Abel Dep. at 111.) Upon completion of the injections, Dr. Abel noticed a second low blood pressure reading in the 50s over 20s range. (Def.'s Super Statement ¶ 20; Pl.'s Super Resp. ¶ 20-38; Abel Dep. at 111.) Dr. Abel asked Ellison whether he was feeling any nausea or light-headedness, and Ellison responded that he was not. (Id. at 112.) Dr. Abel then laid Ellison back in the chair to a flat position, and his blood pressure "slowly came back up," reaching 100s to 110s over 70s "in less than a minute." (Id. at 112-13.) Dr. Abel again asked Ellison whether he was comfortable continuing, and he said that he was. (Id. at 113, 118.) Because Ellison's blood pressure had "rebounded quickly" and because he said he wanted to continue, Dr. Abel sat Ellison back up and proceeded with the extractions. (Id. at 117-18.)

At some point during the extractions, Ellison said that he was feeling a little nauseous again, and Dr. Abel reclined him a third time. (Id. at 118-19.) Dr. Abel testified that Ellison "may have had some hypotension," or low blood pressure, at the time but that it was not "significant enough that [Dr. Abel] felt the need to write it down." (Id.) Although Ellison said that his nausea had gotten better within a minute of being reclined, Dr. Abel kept him reclined for three to five minutes before asking him whether he wanted to continue. (Id. at 119.) When Ellison said that he did want to continue, Dr. Abel brought him back up and proceeded with the rest of the extractions. (Id.) Around the last extraction, Dr. Abel noticed a fourth blood pressure reading in the 60/30 range and again reclined Ellison, who was not complaining of nausea at the time. (Id.) Within a minute, his blood pressure came back up to 100s to 110s over 70s, but Dr. Abel nevertheless kept him reclined for three to five minutes. (Id. at 119, 121.) He then asked Ellison whether he was fine with having the final tooth extracted, and Ellison said yes. (Id. at 121.) Dr. Abel then completed the last tooth extraction with Ellison reclined "a little bit more" than he had been for the previous extractions. (Id.)

At the conclusion of the procedure, Dr. Abel kept Ellison reclined for ten to fifteen minutes, gradually bringing the chair back up over that time period. (Id. at 121-22.) Dr. Abel then spent a few minutes going over the postoperative instructions with Ellison, who remained seated, after which he had Ellison stand up, confirmed that he felt steady on his feet, and discharged him at around 10:30 a.m. with a prescription for Tylenol with codeine. (Id. at 122-23; Def.'s Super Ex. D.) Dr. Abel testified that he observed Ellison for about fifteen to twenty minutes in all. (Abel Dep. 124-25.) According to Dr. Bender, this was about five to ten minutes longer than a normal patient would be observed. (Bender Dep. 76-77.) Dr. Abel testified that Ellison "was moving his arms and legs and looked fine" when he left. (Abel Dep. 123.)*fn6

According to VA pharmacy records, Ellison was counseled by a staff pharmacist at the VA at around 11:34 a.m. (Pl.'s Super Resp. Ex. G ["Partlowe Dep."] 18, 20, 24-25.) The pharmacist who counseled Ellison has no recollection of him; however, she testified that if a patient had reported feeling dizzy or nauseous, or if she noticed a patient with facial droop, slurred or abnormal speech, or abnormal gait, she would have questioned the patient as to whether he had conveyed that information to his doctor, and, if the patient continued to have a problem, she would have called someone to assist him. (Id. at 22, 29-30.) Although there is no record of precisely what time Ellison picked up his prescription after being counseled, the average wait time on the day in question was twenty-three minutes. (Id. at 20, 25.)*fn7 The pharmacist who counseled Ellison would have had no further contact with Ellison after counseling him. (Id. at 19.)

After leaving the pharmacy, Ellison went to the garage at the VA Medical Center, obtained his car, and attempted to drive himself home. (Def.'s Super Statement ¶ 43; Pl.'s Super Resp. ¶ 43-44.) A tow truck driver later found Ellison in his car, which was pulled over to the right side of the street at the curb, a short distance from the VA Medical Center and called 911.*fn8

(Pl.'s Super Resp. Ex. H ("Nelson Dep.") 10-12, 48.) The driver testified that construction workers across the street told him that Ellison's car had been there for "a while." (See id. at 12-16.)

At around 1:22 p.m., the Philadelphia Fire EMS arrived at the scene and responded to Ellison, who was unconscious. (See Def.'s Super Ex. G (Philadelphia Fire EMS Report).) The EMTs transported Ellison to the Emergency Department of the Hospital of the University of Pennsylvania, where he was diagnoses as having suffered a left middle cerebral artery stroke and where he came under the care of Dr. Scott Kasner, a neurologist and the Director of the hospital's Comprehensive Stroke Center. (See Def.'s Kasner Ex. P (University of Pennsylvania Health System Discharge Summary).) In his November 18, 2008, report, Dr. Kasner states that a CT scan at the hospital "showed evidence of major early cerebral infarction in the left middle cerebral artery territory." (Pl.'s Kasner Opp'n Ex. B ["Kasner 11/18/08 report"] at 1.) Although the doctors treating Ellison explored the possibility of treating him with TPA, a drug used for thrombolysis, or dissolving a clot, Dr. Kasner concluded that "[t]hrombolysis was not an option because it was at least 3 hours since [Ellison] was last known to be normal and because of the very extensive early CT findings." (Kasner 11/18/08 report at 1; see also Kasner Dep. 18.)*fn9

Ellison "was hospitalized and had progressive brain swelling, requiring a left hemicraniectomy" on September 11, 2007. (Kasner 11/18/08 report at 1; see also Def.'s Kasner Ex. P.) After a protracted hospitalization, Ellison was discharged to rehabilitation, where he remained for many months, and eventually had his bone flap replaced. (Kasner 11/18/08 report at 1.)

B. Procedural History

On December 31, 2008, plaintiff, Cheryl Ellison, Ellison's wife and guardian, filed a malpractice complaint in the Philadelphia Court of Common Pleas against the Hospital of the University of Pennsylvania, the University of Pennsylvania Health System, the Trustees of the University of Pennsylvania, the University of Pennsylvania School of Dental Medicine, Mark Abel, D.M.D., Joseph Foote, D.M.D., Gerald A. Daly, D.D.S., and Roy Feldman, D.D.S. The following month, the United States removed the case to this court, certifying, pursuant to 28 U.S.C. § 2679(d), that the individual defendants were, at all times pertinent to the allegations of the complaint, acting as employees of the United States Veterans Administration Medical Center for purposes of the FTCA. The United States was thereafter substituted for the individual defendants, and plaintiff voluntarily dismissed the remaining defendants from the case. Following a period of discovery, the United States filed the instant motions to exclude proposed expert testimony and/or, in the alternative, for summary judgment. Plaintiff opposes the motions.

II. Legal Standards

A. Motion to Exclude

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 ("Rule 702"), 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 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. Consistent with "the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony,'" Daubert, 509 U.S. at 588 (citation omitted), the Third Circuit has characterized Rule 702 as reflecting "a liberal policy of admissibility," Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997).

The Third Circuit has "explained that Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit." Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003); see also In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994).

Qualification "refers to the requirement that the witness possess specialized expertise," which requirement the Third Circuit has interpreted liberally, holding that "'a broad range of knowledge, skills, and training qualify an expert.'" Schneider, 320 F.3d at 404 (quoting Paoli, 35 F.3d at 741).

An expert's opinion must also be reliable, or "based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation.'" Paoli, 35 F.3d at 742 (quoting Daubert, 509 U.S. at 590). In other words, "the expert must have 'good grounds' for his or her belief." Id. (quoting Daubert, 509 U.S. at 590). The Supreme Court and the Third Circuit have identified a number of factors that a district court should consider in determining whether proposed expert testimony is reliable:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Id. at 742 n.8 (citing Daubert, 509 U.S. at 593-94, and United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)). These factors, however, "are neither exhaustive nor applicable in every case." Kannankeril, 128 F.3d at 806-07; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (noting that "Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case"). Rather, "[t]he inquiry envisioned by Rule 702 is . . . a flexible one . . . focus[ed] . . . on principles and methodology, not on the conclusions they generate." Daubert, 509 U.S. at 594-95. The question is not whether the proponent of the expert has demonstrated that his or her opinion is correct or persuasive enough to meet the party's burden of proof, but whether the opinion is based on reliable methodology and reliably flows from that methodology and the facts at hand. Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) (noting that the Court in Daubert "[c]learly . . . envisioned cases in which expert testimony meets the Daubert standard yet is 'shaky'"); Paoli, 35 F.3d at 744 (noting that a judge "might think that there are good grounds for an expert's conclusion even if the judge thinks that there are better grounds for some alternative conclusion, and even if the judge thinks that a scientist's methodology has some flaws such that if they had been corrected, the scientist would have reached a different result").

Finally, an expert's testimony must fit the issues in the case by providing "a valid scientific connection to the pertinent inquiry" in the case. Id. at 591-92.

Under the Federal Rules of Evidence, the trial judge "acts as a gatekeeper, preventing opinion testimony that does not meet the requirements of qualification, reliability and fit from reaching the jury." Schneider, 320 F.3d at 404; see also Daubert, 509 U.S. at 589 ("[U]nder the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."). The burden is on the proponent of the evidence-here the plaintiff-to establish ...


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