670 F.3d 21 (1st Cir. 2012), 11-1480, Samaan v. St. Joseph Hospital

Docket Nº:11-1480.
Citation:670 F.3d 21
Opinion Judge:SELYA, Circuit Judge.
Party Name:Anton K. SAMAAN, Plaintiff, Appellant, v. ST. JOSEPH HOSPITAL and David Kaplan, M.D., Defendants, Appellees.
Attorney:John P. Flynn, III, with whom Richard D. Tucker and Tucker Law Group were on brief, for appellant. Elizabeth A. Germani, with whom James F. Martemucci and Germani Martemucci Riggle & Hill were on brief, for appellee St. Joseph Hospital. Teresa M. Cloutier, with whom Phillip M. Coffin III and Lamb...
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.
Case Date:January 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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670 F.3d 21 (1st Cir. 2012)

Anton K. SAMAAN, Plaintiff, Appellant,

v.

ST. JOSEPH HOSPITAL and David Kaplan, M.D., Defendants, Appellees.

No. 11-1480.

United States Court of Appeals, First Circuit.

January 9, 2012

Heard Dec. 6, 2011.

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John P. Flynn, III, with whom Richard D. Tucker and Tucker Law Group were on brief, for appellant.

Elizabeth A. Germani, with whom James F. Martemucci and Germani Martemucci Riggle & Hill were on brief, for appellee St. Joseph Hospital.

Teresa M. Cloutier, with whom Phillip M. Coffin III and Lambert Coffin were on brief, for appellee David Kaplan, M.D.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

After extensive motion practice, the district court ended this medical malpractice case by granting summary judgment for the defendants. The ensuing appeal requires us to unravel a jurisdictional tangle, clarify the status of Maine law concerning causation, and answer a series of questions regarding the admissibility of scientific evidence. Having run this gauntlet, we affirm the judgment.

I. BACKGROUND

Plaintiff-appellant Anton K. Samaan is an Egyptian native who resides in Brooklyn, New York. He enjoys dual citizenship in Egypt and the United States.

On January 14, 2006, the plaintiff flew from Cairo to Milan, where he boarded a connecting flight bound for New York. Toward the end of his journey, he repaired to the galley in search of a cup of tea. A flight attendant thought that he looked sick, sat him down, and recruited health-care professionals from among the passengers.

A second-year medical resident examined the plaintiff and concluded that he was probably experiencing an ischemic stroke or transient ischemic attack brought on by the stoppage of blood flow to part of his brain. The pilot detoured to the nearest airport: Bangor, Maine. An ambulance took the plaintiff to St. Joseph Hospital (the Hospital). In all, less than two hours elapsed between the time of the flight attendant's intervention and the plaintiff's arrival at the Hospital.

The record is sparse in regard to how the plaintiff was treated at the Hospital's

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emergency room. One thing is clear: no intravenous shot of tissue plasminogen activator (t-PA) was administered. The drug is a form of thrombolytic therapy that works by dissolving clots that are occluding arteries. Its efficacy in any given patient is uncertain but its goal is to reduce neurologic injury caused by a stroke.

Not every stroke patient is a candidate for t-PA. First, t-PA is not a panacea. Second, it has to be used within a relatively short period of time after the onset of symptoms (a three-hour window was generally regarded as appropriate at the time of the plaintiff's stroke). Third, t-PA has the potential to cause intracranial hemorrhaging, serious systemic bleeding, a new stroke, and sometimes death. Last— but far from least— accepted protocol dictates that it should be withheld in many circumstances, including but not limited to cases where the stroke is severe, the time of onset is unknown, the patient experienced a seizure at the onset, or the patient had another stroke or underwent major surgery in the preceding three months. If used when contraindicated, t-PA is not only likely to be ineffective but also may increase the chances of adverse effects.1

During his time at the Hospital, the plaintiff's condition deteriorated and then stabilized. When he did not improve, an ambulance transported him to an institution in New York. He went from there to a series of other rehabilitation facilities and eventually returned home (albeit still partially paralyzed and unable to work).

On December 16, 2009, the plaintiff sued the Hospital and his attending physician there, Dr. David Kaplan, in a Maine state court. His complaint alleged professional negligence (medical malpractice) and negligent infliction of emotional distress, both relating to a failure to administer t-PA. Fifteen days later Dr. Kaplan, citing the existence of diversity jurisdiction, removed the case to the United States District Court for the District of Maine. See 28 U.S.C. §§ 1332(a), 1441(a). The Hospital neither signed the removal papers nor otherwise manifested its written consent to the change in forum. Dr. Kaplan answered the complaint in the federal court on January 11, 2010, and the Hospital followed suit within the next couple of days.

The plaintiff moved to remand the action to the state court on the sole ground that the Hospital had failed to join the notice of removal. Finding that the Hospital had impliedly consented to removal, the district court denied the motion. Samaan v. St. Joseph Hosp. ( Samaan I ), 685 F.Supp.2d 163, 165-67 (D.Me.2010).

Near the conclusion of discovery, Dr. Kaplan filed both a motion to exclude the testimony of Dr. Ravi Tikoo and a motion for summary judgment. The plaintiff had designated Dr. Tikoo as his expert witness on causation (to establish that the negligence in failing to administer t-PA proximately caused the plaintiff's injuries).

The district court initially denied the defendants' motions. Samaan v. St. Joseph Hosp. ( Samaan III ), No. CV-09-656, 2010 WL 4135287 (D.Me. Oct. 14, 2010) (denying summary judgment); Samaan v. St. Joseph Hosp. ( Samaan II ), 744 F.Supp.2d 367 (D.Me.2010) (denying motion to exclude). Dr. Kaplan moved for reconsideration or, in the alternative, a Daubert hearing. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

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The court scheduled the requested hearing for December 9, 2010.

At the Daubert hearing, both Dr. Tikoo and the defendants' expert, Dr. Paul Nyquist, testified. Though the cornerstone of each doctor's opinion was the definitive study of the efficacy of t-PA— a 1995 study conducted by the National Institute of Neurological Disorders and Stroke (NINDS)— a vast gulf separated their views. For now, it suffices to say that the two men, though using the same data, strongly disagreed about whether the failure to administer t-PA proximately caused the plaintiff's injuries.

In addition to presenting different interpretations of the data through their experts, the parties argued for different interpretations of Maine law. The defendants posited that Maine requires a medical malpractice plaintiff to prove that the allegedly negligent act was " more likely than not" a substantial cause of the injury; the plaintiff demurred, arguing that Maine would recognize the " lost chance" doctrine, which permits recovery when a patient's chances are diminished to some degree by a doctor's acts or omissions.

The district court concluded that the applicable standard for causation was " more likely than not" and that Maine had not adopted the " lost chance" doctrine. Samaan v. St. Joseph Hosp. ( Samaan IV ), 755 F.Supp.2d 236, 246-48 (D.Me.2010). The court then proceeded to analyze Dr. Tikoo's testimony and determined that his statistical calculations were not responsive to the question of whether the failure to administer t-PA more likely than not caused the plaintiff's injuries. Id. at 248-49. The court therefore excluded Dr. Tikoo's testimony.

This ruling prompted the defendants to move for reconsideration of the court's earlier denial of summary judgment, see Samaan III, 2010 WL 4135287, at *1, contending that the plaintiff's case evaporated with the exclusion of the testimony of its only causation expert. The plaintiff opposed this motion on various grounds, arguing among other things that two other expert witnesses could provide competent evidence that the failure to treat the plaintiff with t-PA proximately caused his injuries. Finally, he posited that his claim for negligent infliction of emotional distress survived the exclusion of Dr. Tikoo's testimony.

After pausing to exclude a " to whom it may concern" letter (to which we shall return shortly), Samaan v. St. Joseph Hosp. ( Samaan V ), 764 F.Supp.2d 238, 239-40 (D.Me.2011), the district court denied the defendants' renewed motion for summary judgment, Samaan v. St. Joseph Hosp. ( Samaan VI ), 764 F.Supp.2d 240, 249 (D.Me.2011). The court predicated this ruling on a tentative finding that the descriptions of the new experts' expected testimony appeared sufficient to defeat summary judgment on the question of causation. Id. at 247-49. But the court warned that there might be " other reasons to exclude the [ ] testimony." Id. at 249 n. 4. On a related topic, the court's rescript made clear that, with respect to proof of causation, it viewed medical malpractice and negligent infliction of emotional distress as peas in a pod. Id. at 246-47.

The defendants responded by moving to exclude the testimony of the newly identified causation " experts" and for reconsideration of summary judgment in light of that anticipated exclusion. They offered both procedural and substantive reasons for excluding the testimony. The plaintiff opposed these motions but the district court granted them.

The court's principal basis for excluding the newly identified testimony was its determination that neither of the two physicians

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who were the source of that testimony had been designated as an expert witness with respect to causation. Samaan v. St. Joseph Hosp. ( Samaan VII ), 274 F.R.D. 41, 45-50 (D.Me.2011). The entry of summary judgment followed from that exclusion: without any expert opinion evidence of causation, the plaintiff's claims necessarily failed. Id. at 53. This timely appeal ensued.

II. ANALYSIS

In this venue, the plaintiff raises a gallimaufry of issues. His...

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