United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
case is a medical malpractice action alleging that Defendants
were negligent in their care of Plaintiff Debra Chesnut.
Pending before the Court are Defendant United States'
Motion to Exclude the testimony of one of Plaintiffs'
experts, J. Gregory Roberts, M.D, and the United States'
alternative Motion for Summary Judgment. For the reasons that
follow, these motions are DENIED.
diversity action, the substantive elements of a medical
malpractice suit are questions to be determined by state law.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Under
Kentucky law, a plaintiff must establish the following
elements in a medical malpractice case: standard of care,
breach of the standard of care, causation, and injury.
Clines v. Susan E. Janocik, M.D., PLLC, No.
2016-CA-000122-MR, 2017 WL 2705401, at *5 (Ky. Ct. App. June
23, 2017). As to the first element, to meet the standard of
care a physician must “use the degree of care and skill
expected of a competent practitioner of the same class and
under similar circumstances.” Grubbs ex rel. Grubbs
v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d
682, 687 (Ky. 2003). Notably, a plaintiff must generally
establish each of the four elements by way of expert
testimony. Clines, 2017 WL 2705401, at *5 (citing
Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010)).
Where a plaintiff fails to introduce evidence sufficient to
establish each element, then the defendants are entitled to
summary judgment as a matter of law. See, e.g.,
Blankenship, 302 S.W.3d at 668.
state law governs substantive claims in a diversity case,
federal law generally governs procedural and evidentiary
issues, including the admissibility of expert testimony.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993). Admissibility of expert testimony is governed
specifically by Federal Rule of Evidence 702, which states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The Sixth Circuit has identified three
specific Rule 702 requirements in deciding the admissibility
of proposed expert testimony. In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). First, the
proposed expert must have the requisite qualifications,
whether it be through “knowledge, skill, experience,
training, or education.” Id. at 529 (quoting
Fed.R.Evid. 702). Second, the testimony must be relevant,
meaning that it “will assist the trier of fact to
understand the evidence or to determine a fact in
issue.” Id. (quoting Fed.R.Evid. 702). Third,
the testimony must be reliable. Id.; see also
Daubert, 509 U.S. at 590.
the third requirement, Rule 702 provides a number of
standards by which a district court in its gatekeeper role is
to gauge reliability of expert testimony. A court should look
to whether the testimony is based upon “sufficient
facts or data;” whether it is the “product of
reliable principles and methods;” and whether the
expert “has applied these principles or methods
reliably to the facts of the case.” In re Scrap
Metal Antitrust Litig., 527 F.3d at 529 (quoting
Fed.R.Evid. 702). Additionally, in determining reliability, a
district court is to consider “such factors as testing,
peer review, publication, error rates, the existence and
maintenance of standards controlling the technique's
operation, and general acceptance in the relevant scientific
[or technical] community.” United States v.
Langan, 263 F.3d 613, 621 (6th Cir. 2001) (citing
Daubert, 509 U.S. at 593-94). The reliability
inquiry is a flexible one, and the above factors are not a
“definitive checklist or test.” Daubert,
509 U.S. at 593.
courts are given broad discretion in determining whether a
particular expert's testimony is reliable. See,
e.g., Tamraz v. Lincoln Elec. Co., 620 F.3d
665, 672 (6th Cir. 2010); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999) (“[T]he trial
judge must have considerable leeway in deciding in a
particular case how to go about determining whether
particular expert testimony is reliable.”). Notably, in
exercising this discretion, a court must be careful not
“to impinge on the role of the jury or opposing
counsel.” Burgett v. Troy-Bilt LLC, 579
Fed.Appx. 372, 377 (6th Cir. 2014). Instead, “vigorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at
indicate they intend to call Dr. J. Gregory Roberts to
testify, in relevant part, that Dr. Jared Madden deviated
from the accepted standard of care and that this deviation
was a proximate cause of Chesnut's injury. In turn, the
United States filed the present motion, asking the Court
to exclude Dr. Roberts' expert testimony on these issues
of standard of care and causation. [R. 221.] Specifically,
the United States argues that Dr. Roberts' statements in
both his written expert reports and his deposition testimony