274 F.R.D. 41 (D.Me. 2011), 1:09-cv-00656-JAW, Samaan v. St. Joseph Hosp.

Docket Nº:1:09-cv-00656-JAW.
Citation:274 F.R.D. 41
Opinion Judge:JOHN A. WOODCOCK, JR., Chief Judge.
Party Name:Anton K. SAMAAN, Plaintiff, v. ST. JOSEPH HOSPITAL, et al., Defendants.
Attorney:John P. Flynn, III, Daniel G. Lilley Law Offices, P.A., Portland, ME, for Plaintiff. James F. Martemucci, Germani Martemucci Riggle & Hill, Portland, ME, L. John Topchik, Germani Martemucci, Riggle & Hill, Portland, ME, Jeffrey D. Russell, Lambert Coffin, Portland, ME, Thomas V. Laprade, Lambert ...
Case Date:April 01, 2011
Court:United States District Courts, 1st Circuit, District of Maine
 
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274 F.R.D. 41 (D.Me. 2011)

Anton K. SAMAAN, Plaintiff,

v.

ST. JOSEPH HOSPITAL, et al., Defendants.

No. 1:09-cv-00656-JAW.

United States District Court, D. Maine.

April 1, 2011

Page 42

John P. Flynn, III, Daniel G. Lilley Law Offices, P.A., Portland, ME, for Plaintiff.

James F. Martemucci, Germani Martemucci Riggle & Hill, Portland, ME, L. John Topchik, Germani Martemucci, Riggle & Hill, Portland, ME, Jeffrey D. Russell, Lambert Coffin, Portland, ME, Thomas V. Laprade, Lambert Coffin Haenn, Portland, ME, for Defendant.

ORDER ON MOTION IN LIMINE AND TO RECONSIDER RULING ON MOTIONS FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

The Court grants the Defendants' motion to exclude the expert testimony of Drs. Maryann Walsh and Elsayed Hussein concerning the consequences of the failure to administer tissue plasminogen activator (t-PA) to Anton K. Samaan upon his presentation at St. Joseph Hospital with symptoms of ischemic stroke. Because this leaves Mr. Samaan without a causation expert, the Court grants the Defendants' motion to reconsider the Court's order denying summary judgment and orders judgment entered in favor of the Defendants.

I. STATEMENT OF FACTS

1. Mr. Samaan's Stroke and Treatment at St. Joseph

On January 14, 2006, Anton K. Samaan boarded a flight in Milan, Italy to return to New York, New York after visiting his family in Egypt for the holidays. During the flight, Mr. Samaan got up from his seat and headed toward the plane's galley for a cup of tea. When Mr. Samaan reached the galley, " he was confronted by a flight attendant who told him that he appeared sick." Notice of Removal at Attach 2 ¶ 9 (Docket # 1), Compl. The flight attendant called for doctors on the plane, and at approximately 11:30 a.m., a doctor diagnosed him with " a likely stroke in progress." Id. ¶ 10. In accordance with the doctor's instructions, the pilot diverted the plane to the nearest airport. Id.

The plane landed in Bangor, Maine and Mr. Samaan reached the emergency department at St. Joseph Hospital not later than 12:40 p.m., where he was treated by emergency room physician David Kaplan, M.D. Id. ¶ ¶ 11, 15. Dr. Kaplan did not administer t-PA. Id. ¶ 11. Mr. Samaan has suffered " severe deficits as a result of the ischemic stroke he suffered on 01/14/06." Id. ¶ 13. He filed this suit against St. Joseph and Dr. Kaplan, alleging that Dr. Kaplan's failure to

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administer t-PA violated the standard of medical care and caused him severe damages. Id. ¶ 22.

2. Procedural History

On December 21, 2010, after an extensive Daubert hearing, the Court barred the testimony of Mr. Samaan's causation expert, Dr. Ravi Tikoo, M.D. Order on Daubert Hr'g. (Docket # 91) (Daubert Order ); See also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). On December 23, 2010, Dr. David Kaplan and St. Joseph Hospital (the Defendants) moved for reconsideration of the Court's October 14, 2010 order denying the Defendants' motion for summary judgment. Defs. St. Joseph Hosp.'s and David Kaplan, M.D.'s Mot. for Recons. of the Court's Order on Mots. for Summ. J. (Docket # 94) ( Defs.' First Mot for Recons. ). On February 10, 2011, the Court issued an order denying Defendants' motion for reconsideration. Order Denying Mot. for Recons. (Docket # 106) ( Recons. Order ). In doing so, it found that the statements of Mr. Samaan's proposed causation experts were " on their face sufficient to withstand summary judgment." Id. at 16. The Court noted that " [i]f there are other reasons to exclude their testimony, these have not been raised and are not properly addressed in the context of the pending motion for summary judgment." Id. at 16 n. 4.

On February 25, 2011, the Defendants filed a motion in limine, seeking to exclude the experts' testimony, together with a motion for reconsideration. Defs.' Joint Mot. in Limine to Exclude Test. of Maryann Walsh, M.D. and/or Elsayed Hussein, M.D., and to Recons. Ruling on Mots. for Summ. J. (Docket # 117) ( Defs.' Mot. ). Mr. Samaan responded on March 3, 2011. Pl.'s Mem. in Opp'n. to Defs.' Joint Mot. in Limine to Exclude Test. of Maryann Walsh, M.D. and/or Elsayed Hussein, M.D., and to Recons. Ruling on Mots. for Summ. J. (Docket # 121) ( Pl.'s Opp'n. ). The Defendants replied on March 10, 2011. Defs.' Joint Reply in Supp. of Defs.' Mot. in Limine to Exclude Test. of Maryann Walsh, M.D. and/or Elsayed Hussein, M.D. and to Recons. Ruling on Mots. for Summ. J. (Docket # 123) ( Defs.' Reply ).

II. MOTION IN LIMINE

A. The Defendants' Contentions

The Defendants move to exclude expert opinion testimony from Maryann Walsh, M.D. and Elsayed Hussein, M.D., on the issue of causation on both procedural and substantive grounds.

1. Procedural Grounds for Exclusion

The Defendants argue that allowing Drs. Walsh and Hussein to testify would violate both the procedures established by the Court during this litigation and Federal Rule 26(a)(2)(A). Id. at 2-5 (citing FED.R.CIV.P. 26(a)(2)(A)). They assert that the Court " imposed in this case a rule that each party would be limited to one expert per issue." Id. at 2. They observe that Mr. Samaan specifically designated Dr. Tikoo as his causation expert and argue that when the Court excluded Dr. Tikoo, " it excluded the only witness the plaintiff was allowed by Court Order to have offer expert testimony on the issue of causation." Id. at 2-3. They argue that it would be highly prejudicial to allow Mr. Samaan to name new causation experts on the eve of trial. Id. at 3. The Defendants further note that Mr. Samaan never designated Drs. Walsh or Hussein " as expert witnesses with professional medical opinions on proximate cause." Id. at 3-5. They assert that both Rule 26 and the Court's Scheduling Order require such a designation and that Mr. Samaan's failure to do so precluded the Defendants from objecting to the designations and preparing for the testimony. Id.

2. Substantive Grounds for Exclusion

Substantively, the Defendants argue that Mr. Samaan cannot establish a foundation to qualify Drs. Walsh or Hussein as expert witnesses on the Efficacy of t-PA in this case. Id. at 6-8. The Defendants draw the Court's attention to Dr. Walsh's affidavit to support their assertion that she is not qualified to testify as to the efficacy of t-PA. Defs.' Mot. at 7. She states in her affidavit she is not a neurologist, that she calls a qualified neurologist if she ever " entertain[s]

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the idea of using t-PA," that she has never administered t-PA to a patient suffering from a cerebral vascular accident, that she is not professionally qualified to offer opinions on the likelihood of benefits to a patient receiving t-PA,1 that she does not have a professional medical opinion on the percentage of likelihood of improvement for Mr. Samaan had he received t-PA, and that she is " not qualified professionally to offer opinions on causation and/or damages in Mr. Samaan's case." Defs.' Mot. Attach 3 ( Walsh Aff. ).

The Defendants then argue that " the [Mr. Samaan] has never produced any information to lay a proper foundation that Dr. Hussein is qualified to testify about the efficacy of t-PA." Def.'s Mot. at 7-8. They note that Mr. Samaan has produced medical records that seem to establish " that Dr. Hussein is not a neurologist and that he has a private internal medicine practice at his office in Brooklyn, NY." Id. at 7. From that information they conclude that it is unlikely Dr. Hussein has sufficient familiarity with t-PA to dispute the conclusions the " Court has relied on in excluding Dr. Tikoo based on the conclusions of the NINDS Study." Id. at 8.

B. Mr. Samaan's Opposition

1. Procedural Grounds

Mr. Samaan disputes the Defendants' procedural arguments. Pl.'s Opp'n. at 4-8. He argues that " [c]ontrary to the defendants' assertion, this court has never imposed in this case a rule that each party would be limited to one expert per issue.' " Id. at 4 (quoting Defs.' Mot. at 2). He admits to proposing such a rule earlier in the litigation, but says that the Court never adopted that proposal. Id.

Mr. Samaan further argues that he provided the Defendants with a reasonable opportunity to prepare for Drs. Walsh and Hussein's testimony, in compliance with Rule 26. Id. at 6. He contends that Rule 26(a)(2)(B)'s requirement to provide " summary reports and other information related to expert testimony applies only to those expert witnesses retained or specially employed to provide expert testimony in the case.' " Id. (quoting FED.R.CIV.P. 26(a)(2)(B)). He asserts that the requirement does not apply because neither Dr. Hussein nor Dr. Walsh are so retained or employed. Id. Mr. Samaan argues that he provided sufficient notice of their testimony by indicating " that treating physicians may be called to testify consistent with their treatment reports, and concerning the extent of injury or disability." Id. Furthermore, he maintains the Defendants should have been prepared for Drs. Walsh and Hussein to testify on proximate cause because both doctors revealed during discovery that they had opinions on the efficacy of t-PA. Id. at 6-8.

2. Substantive Grounds

The rest of Mr. Samaan's opposition attempts to lay a foundation for expert testimony from Drs. Walsh and Hussein. Id. at 8-12. Mr. Samaan argues that both Drs. Hussein and Walsh " possess[ ] the relative criteria to offer opinion testimony concerning the efficacy of t-PA in the treatment of ischemic stroke." Id. at 9. He notes that Dr. Walsh is board certified in internal medicine and treats individuals who have suffered ischemic stroke. Id. He argues that the reason she does not...

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