United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
R. Thapar, Judge
like life, knows few certainties. So doctors who wish to
offer expert testimony at trial “need not be purveyors
of ultimate truth in order to be allowed on the stand.”
Jahn v. Equine Servs., PSC, 233 F.3d 382, 393 (6th
Cir. 2000). But before they may share their opinions with a
jury, the Court must be convinced that the doctors'
qualifications are in order and that their testimony is
relevant and reliable. Fed.R.Evid. 702. In aid of her
medical-malpractice suit, Robyn Bentley offers the testimony
of several expert witnesses; among them, Drs. Carlos
Pardo-Villamizar, Robert DeLorenzo, and Christopher Betz. The
defendants, though, insist these three doctors cannot
reliably opine about how a certain treatment or particular
medications might have affected Bentley. So the Court must
now determine for itself whether their testimony has a
reliable foundation, reliably applied to the facts at hand.
early morning hours of July 29, 2013, Robyn Bentley checked
into the emergency room at Paul B. Hall Regional Medical
Center (“PBH”). Bentley was nauseated, suffering
from back pain, and having difficulty urinating. Pain and a
tingling sensation, too, radiated throughout her legs, which
felt sapped of their usual strength. Concerned that
Bentley's spinal column might have been compromised,
emergency physician Dr. Thomas Styer sent her for a CT scan.
But that scan showed no problems. So Dr. Styer diagnosed
Bentley with acute back pain, prescribed pain medication, and
discharged her around 5:00 a.m. with instructions to follow
up with her family doctor. See R. 110 at 6-8; R.
356-2 at 7-8, 11-15.
Bentley's condition deteriorated rather quickly after
that. By 9:30 a.m., she had lost control of her left foot and
her reflexes were severely diminished, so her family
physician, Dr. Burchett, sent her for an MRI at Highlands
Regional Medical Center (“Highlands”). When
Highlands performed the scan early that afternoon, its
radiologist reported no signs of trouble. Unfortunately,
there was a shadow in the images of Bentley's spinal
cord-the radiologist just missed it. Meanwhile, Bentley's
symptoms continued unabated, the loss of motor control and
sensation ascending into to her abdomen. Troubled by
Bentley's worsening symptoms, Dr. Burchett decided to
send her to Central Baptist Hospital, a couple hours away in
Lexington, Kentucky. See R. 110 at 8-9; R. 356-2 at
15-21; R. 352-3 at 13-14; R. 356-3 at 2-6.
time she arrived at Central Baptist, Bentley had lost motor
control in both legs. She now felt, too, that her symptoms
were moving into her diaphragm, making it harder for her to
breathe. Doctors at Central Baptist decided to run another
MRI. This time, they spotted inflammation in Bentley's
spinal cord, surmised it might be Devic's disease,
started her on intravenous steroids. By morning,
Bentley's symptoms had stopped progressing, her ease of
breath had returned, and her pain had abated. But sadly,
neither steroids, plasmapheresis, immuno-suppressants, nor
months of therapy ever returned the motor control that
Bentley had already lost by the time she reached Central
Baptist. She remains paralyzed from the chest down.
See R. 110 at 9; R. 356-3 at 7-12; R. 356-6 at 2-3;
little over two years later, Bentley filed suit against PBH,
Dr. Styer, and Whitaker National Corporation, the company
that hired Dr. Styer out to the hospital. R.
Bentley alleges that PBH and Dr. Styer negligently failed to
diagnose and treat her emerging neurological condition.
According to Bentley, her range of symptoms suggested that
the culprit was not her spinal column, but her spinal cord.
If Dr. Styer had recognized as much, she says he would have
ordered an MRI instead of a CT scan. And that MRI, read
properly, would have revealed her spinal cord inflammation
and prompted Dr. Styer to initiate steroids at a time when
the treatment could have halted her paralysis in its tracks.
See R. 110 at 6-11.
defendants have offered several defenses to Bentley's
claims. For one, they argue that there is no evidence that
steroids are effective in combatting the type of spinal cord
inflammation from which Bentley was suffering. So, the
defendants say, Bentley cannot prove that PBH could have
stopped the progression of her paralysis. See, e.g.,
R. 259 at 2.
PBH says that Bentley previously signed a release waiving her
claims against the hospital in exchange for PBH canceling her
medical bill. See, e.g., R. 257 at 1-2; R. 266 at 2.
these defenses, Bentley has retained the services of three
experts. Dr. Carlos Pardo-Villamizar and Dr. Robert
DeLorenzo, both neurologists, are prepared to testify that
PBH could have stopped (or even reversed) the progression of
Bentley's paralysis if it had administered steroids when
she still had motor control and sensation in her legs.
See R. 389; R. 238-1. Dr. DeLorenzo and Dr.
Christopher Betz, meanwhile, have each opined that Bentley
was cognitively impaired when she signed PBH's release
because she was on central nervous system (“CNS”)
depressants and an opioid painkiller at the time.
See R. 442-3; R. 442-2.
now moved to exclude each of these opinions pursuant to
Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). See
R. 441; R. 443; R. 444. PBH argues that the doctors'
opinions are unreliable because there is insufficient proof
that either the steroids or Bentley's prescription
medications would have had the effects the doctors now claim.
As the party seeking to admit the doctors' opinions at
trial, Bentley bears the burden of proving, by a
preponderance of the evidence, that their testimony is
admissible. See Nelson v. Tenn. Gas Pipeline Co.,
243 F.3d 244, 251 (6th Cir. 2001).
a housekeeping matter. Technically, no defendant remaining in
this case has yet moved to exclude Dr. Pardo's
steroid/causation testimony. Only Highlands challenged its
admissibility initially. See R. 377. But Highlands
recently reached a settlement with Bentley and notified the
Court that it wished to withdraw its summary judgment and
Daubert motions. See R. 477. Upon learning
of this settlement, PBH, Dr. Styer, and Whitaker moved to
join in Highlands's Daubert challenge to Dr.
Pardo. R. 478. Bentley swiftly objected. R. 481.
is correct that the defendants' request comes rather
late. The scheduling order in this case instructed the
parties to notify the Court in advance of the Pre-Motion
Post-Discovery Conference of any anticipated Daubert
challenges. R. 107 at 4-5. And as Bentley notes, Highlands
filed notice of its intent to challenge the causation
testimony of both Dr. Pardo and Dr. DeLorenzo, see
R. 275; R. 276, but PBH mentioned only the latter,
see R. 259.
the defendants may join in Highlands's motion. Dr. Pardo
and Dr. DeLorenzo's causation opinions, and the grounds
for excluding them, overlap each other. See R. 438
at 4-5. Bentley has had a full opportunity to brief the
admissibility of both. See R. 447. And for its part,
PBH has actively participated in the briefing and hearings
concerning the doctors' shared theory that earlier
steroid intervention would have minimized Bentley's
paralysis. See, e.g., R. 374; R. 404; R. 422; R.
438; R. 443; R. 450. So Bentley has been on notice that the
defendants (including PBH) were challenging the reliability
of her experts' opinions. And with no risk of unfair
surprise, economy and consistency suggest the better course
is to address the admissibility both opinions now, rather
than wait until trial for the defendants to object anew on
Rule 702/Daubert grounds.
Federal Rules of Evidence take a liberal approach toward the
admissibility of opinion testimony-including from expert
witnesses. Glaser v. Thompson Med. Co., 32 F.3d 969,
971-72 (6th Cir. 1994). But that does not relieve the Court
of the difficult task of drawing “the often-elusive
line between admissible opinion and inadmissible
speculation.” Tamraz v. Lincoln Elec. Co., 620
F.3d 665, 667 (6th Cir. 2010). Not all “experts”
are truly expert, and not all “expert opinions”
are really worth the label. So when a party challenges
another's expert witness, the Court assumes a gatekeeping
role to ensure that the jury is not exposed to “junk
science” masquerading as expert testimony. See
Daubert, 509 U.S. at 597; Best v. Lowe's Home
Ctrs., Inc., 563 F.3d 171, 176-77 (6th Cir. 2009). Only
if an expert opinion is relevant, reliable, and rendered by a
genuine expert will it be admissible at trial. See
Fed. R. Evid. 702; In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 529 (6th Cir. 2008).
case, expertise is hardly an issue. In fact, the defendants
concede that Drs. Pardo, DeLorenzo, and Betz are qualified to
offer their respective opinions. See R. 377 at 8;
374 at 7. And it is easy to see why. If anyone is in a
position to discuss the cause and treatment of Bentley's
condition, it is Dr. Pardo, a renowned neurologist and the
head of Johns Hopkins's Transverse Myelitis Center.
See R. 388-3. Dr. Betz is a registered pharmacist
and a doctor and professor of pharmacology. See R.
392-1. And remarkably, Dr. DeLorenzo has expertise spanning
both fields: he has a medical degree as well as a
neuropharmacology Ph.D., and he is a tenured professor of
both neurology and pharmacology at Virginia Commonwealth
University. See R. 383-1; R. 438 at 2. All three
doctors, meanwhile, have extensive clinical experience
treating spinal cord disorders (in the case of Drs. Pardo and
DeLorenzo) and monitoring prescription drug interactions (in
the case of Drs. DeLorenzo and Betz).
doctors' opinions will also help the jury
“understand the evidence or determine a fact in
issue.” Fed.R.Evid. 702(a). Dr. Pardo and Dr.
DeLorenzo's testimony regarding the palliative effects of
steroids on spinal cord inflammation is a key link in
Bentley's claim that the defendants contributed to her
paralysis. And Bentley will rely heavily on Dr. DeLorenzo and
Dr. Betz when she argues that her medication significantly
impaired her cognitive function at the time she signed
PBH's release in February 2014. If true, the release
likely has no legal effect and thus cannot bar Bentley's
suit. The doctors' opinions are thus central to
Bentley's affirmative and rebuttal cases. Not only that,
but how these medications interact with the body and combat
or cause certain symptoms is a technical subject outside the
ordinary understanding of a lay juror. So, a bit of expert
testimony on the subject will do the jury some good.
leaves reliability. To be reliable within the meaning of Rule
702, expert testimony must be grounded in “scientific
knowledge.” Daubert, 509 U.S. at 589-90. In
other words, a witness may testify in the form of an expert
opinion only if his testimony is “ground[ed] in the
methods and procedures of science, ” and more than just
“subjective belief or unsupported speculation.”
Id. at 590. But the subject of an expert's
testimony does not have to be “‘known' to a
certainty”-“arguably, there are no certainties in
science.” Id. Instead, an expert may testify
as to an “inference” he has drawn provided it is
“derived by the scientific method”- i.e.
“supported by appropriate validation” or
“‘good grounds, ' based on what is
reliability inquiry is flexible one. See Id . at
594-95. The Supreme Court has provided a list of questions to
aid district courts when assessing the reliability of expert
testimony under Rule 702, including whether the expert's
theory has been tested, peer-reviewed, or generally accepted.
See id. at 591-95; Glaser, 32 F.3d at 972.
But that list is not exhaustive, nor any one factor
dispositive. In re Scrap Metal, 527 F.3d at 528-29.
District courts are permitted “considerable leeway in
deciding in a particular case how to go about determining
whether particular expert testimony is reliable.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). The goal is simply to ensure that a witness's
expert testimony has a “reliable basis in the knowledge
and experience of [his] discipline.” Jahn, 233
F.3d at 388; see also Rosen v. Ciba-Geigy Corp., 78