Musser v. Gentiva Health Services

Decision Date28 January 2004
Docket NumberNo. 03-1312.,03-1312.
Citation356 F.3d 751
PartiesMischelle MUSSER and Michael Musser, Plaintiffs-Appellants, v. GENTIVA HEALTH SERVICES, f/k/a Olsten Health Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Daniel A. Roby (argued), Roby & Hood, Fort Wayne, IN, for Plaintiffs-Appellants.

Garrett V. Conover (argued), Kopka, Landau & Pinkus, Crown Point, IN, for Defendant-Appellee.

Before POSNER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Plaintiffs Mischelle and Michael Musser, parents of the deceased Maverick Musser, appeal the district court's grant of summary judgment in favor of the defendant, Gentiva Health Services, in this medical malpractice case. Because the expert medical testimony proffered by the Mussers in response to the motion for summary judgment was properly excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1), and because under Indiana law a prima facie case in medical malpractice cannot be established without expert medical testimony, we affirm.

I. History

Maverick Musser was born prematurely on January 10, 1998, at a gestational age of approximately twenty-two weeks. Maverick's premature birth led to serious health problems. He suffered from a condition known as bronchopulmonary dysplasia, a chronic lung disease commonly associated with premature birth. Tragically, Maverick spent his entire life either hospitalized or under twenty-four hour nursing care at his home. Maverick died on August 18, 1999.

Along with constant nursing attention, Maverick's family relied upon various medical devices to sustain his life. Maverick was dependent on a type of ventilator called a CPAP, which provided "continuous positive airway pressure" to Maverick's lungs. The CPAP machine was connected to Maverick by plastic air hosing attached to a tracheotomy tube, a plastic tube inserted through an opening in the neck that provides a superior airway to the lungs. The tracheotomy tube was secured by velcro ties placed around his neck that prevented "decannulation," the accidental removal of the tube.

In addition, three monitors — a pulse oximeter, an apnea monitor, and a low pressure alarm attached to the CPAP machine — were used to measure Maverick's pulse rate and breathing. The pulse oximeter measured oxygen saturation and heart rate; if the measurements fell below or exceeded set parameters, an alarm audible throughout the first level of the Musser home would sound. The low pressure alarm monitored air pressure in the CPAP circuit; if pressure outside the parameters occurred or if Maverick decannulated, an alarm audible throughout the house would sound. The apnea monitor measured Maverick's heart rate, respiration rate, and the size and depth of the breaths he took; an alarm audible throughout the house would sound if his vital signs fell below or exceeded the proper parameters.

The present appeal arises out of a medical malpractice action brought under Indiana law against the nursing service, Gentiva, that provided care for Maverick.1 Maverick's mother, Mischelle Musser, a registered nurse, provided some care to Maverick, but Gentiva provided most of the nursing service. Three Gentiva employees monitored Maverick on alternating twelve-hour shifts: registered nurses Jodi Inskeep and Johanna Marshall, and licensed practical nurse Dawn Kinzer.

On the evening of August 18, 1999, Kinzer began her shift at 6:00 p.m. Deposition testimony favorable to the Mussers establishes that Kinzer appeared to be ill and was taking medication, leading to the inference that she was not as alert as she might have been in monitoring Maverick. Furthermore, Kinzer testified at her deposition that Maverick's physical condition was "good" when she arrived for her shift.

Kinzer did not have the apnea monitor attached to Maverick during her shift. She did not observe any movement from Maverick for more than five minutes before realizing that there was a problem. At approximately 7:35 p.m., Kinzer recognized that Maverick was in distress. Kinzer asserts that the pulse oximeter alerted her to this fact, but the Mussers stated in their depositions that they did not hear an alarm sound. The pulse oximeter registered zero and showed no pulse. Kinzer assessed Maverick, and recognized that he had decannulated. Kinzer called for help from Mischelle Musser; after calling for help, Kinzer unsuccessfully attempted to reinsert the tracheotomy tube that had fallen out. Mischelle successfully inserted a different emergency tracheotomy tube. Both women performed CPR on Maverick, but Mischelle testified at her deposition that she corrected Kinzer's technique. Mischelle could not immediately find a needle to inject Maverick with epinephrine. Emergency personnel arrived and took Maverick to the hospital, where he was pronounced dead.

The Mussers filed their malpractice complaint against Gentiva in the Northern District of Indiana on February 20, 2001, properly invoking diversity jurisdiction. In due course, as the case was pending, depositions of the witnesses previously disclosed by the Mussers were taken — though none of those witnesses had been identified as experts. During a hearing on April 22, 2002, deadlines were established for the parties to "make their expert disclosures." The deadline for the Mussers was set at June 1, 2002. Despite this deadline, the Mussers did not disclose or identify any witness as an expert nor did they ever exchange or file expert reports.

Gentiva moved for summary judgment on October 15, 2002, arguing that the Mussers could not present any competent evidence on breach of duty. The Mussers, in response on November 19, 2002, presented the deposition testimony of nurses Mischelle Musser, Dawn Kinzer, Jodi Inskeep, Johanna Marshall, and Barbara Cromer (Gentiva's highest ranking employee in the Fort Wayne branch), as well as the deposition testimony of William Smits, M.D. (Maverick's treating doctor), Harvey Bieler, M.D. (a doctor who had treated Maverick during a stay at the hospital), and Kevin Hinton (an Apria Healthcare employee). The Mussers assert that, in the aggregate, the fact and opinion testimony expressed by these witnesses raises a genuine issue of material fact as to whether Kinzer breached her duty of care through inattention to Maverick prior to his death and incompetence in attempting to revive him.

Countering the Mussers' response, Gentiva sought to strike the expert testimony of those witnesses. Gentiva pointed out that the Mussers had not identified as medical experts any of the witnesses previously deposed. The district court agreed, granted the motion to strike, and upon the Mussers' inability to show breach of duty, entered summary judgment in favor of Gentiva.

II. Analysis

Federal courts sitting in diversity cases such as this apply the Federal Rules of Civil Procedure in procedural matters and the state substantive law that applies to the cause of action. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir.2001). Therefore, the first step here is to assess whether, under the Federal Rules of Civil Procedure, the district court properly excluded the expert testimony of witnesses proffered by the Mussers. Only then can we analyze how, under Indiana law, the lack of expert medical testimony affects the Mussers' claims.

A. The Exclusion of Expert Testimony

For failure to disclose any of their witnesses as experts, the district court sanctioned the Mussers by disallowing any expert testimony to counter the motion for summary judgment. We review a trial court's discovery determinations, including the decision to exclude expert testimony, under an abuse of discretion standard. Miksis v. Howard, 106 F.3d 754, 758 (7th Cir.1997). "A court does not abuse its discretion unless ... (1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary." Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.2000) (quotations omitted).

Our first inquiry will be to assess the district court's application of Rule 26 regarding expert witnesses. The district court must apply the correct legal standards and not reach an erroneous conclusion of law in forming the basis for the sanction of exclusion. Salgado v. General Motors Corp., 150 F.3d 735, 739 n. 4 (7th Cir.1998) ("A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.") (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). If the district court incorrectly found a violation of the rules by the Mussers, then excluding the evidence would necessarily be an abuse of discretion.

The other three inquiries under the abuse of discretion standard are guided by Federal Rule of Civil Procedure 37(c)(1), the rule relied upon by the district court in excluding the expert testimony. This rule states in pertinent part:

A party that without substantial justification fails to disclose information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.

Fed.R.Civ.P. 37(c)(1) (emphasis added). Thus, the text of Rule 37(c)(1) guides our inquiry into whether the exclusion decision lacked evidence in the record, was based on clearly erroneous factual findings, or was arbitrary. The rule asks whether the sanctioned party had "substantial justification" for the failure to comply with discovery rules...

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