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Bentley v. Highlands Hospital Corp.

United States District Court, E.D. Kentucky, Southern Division, Pikeville

December 27, 2016

HIGHLANDS HOSPITAL CORP., et al., Defendants.


          Amul R. Thapar, Judge

         Science, 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.



         In the 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.

         Sadly, 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.

         By the 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, [1] and 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; R. 356-7.


         A 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. 1-2.[2] 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.

         The 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.[3] So, the defendants say, Bentley cannot prove that PBH could have stopped the progression of her paralysis. See, e.g., R. 259 at 2.

         Second, 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.

         Anticipating 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.

         PBH has 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).


         First, 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.

         Bentley 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.

         Nevertheless, 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.


         The 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).

         In this 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).

         The 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.

         That 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 known.” Id.

         The 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 F.3d ...

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