764 F.Supp.2d 240 (D.Me. 2011), 1:09-cv-00656-JAW, Samaan v. St. Joseph Hosp.

Docket Nº:1:09-cv-00656-JAW.
Citation:764 F.Supp.2d 240
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, L. John Topchik, Germani Martemucci Riggle & Hill, Jeffrey D. Russell, Thomas V. Laprade, Lambert Coffin Haenn, Portland, ME, for Defendants.
Case Date:February 10, 2011
Court:United States District Courts, 1st Circuit, District of Maine
 
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Page 240

764 F.Supp.2d 240 (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.

February 10, 2011

Page 241

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

Page 242

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

ORDER DENYING MOTION FOR RECONSIDERATION

JOHN A. WOODCOCK, JR., Chief Judge.

The Court denies the Defendants' motion for reconsideration of the Court's earlier denial of their motion for summary judgment.

I. STATEMENT OF FACTS

A. Procedural History

On July 2, 2010, David Kaplan, M.D. moved for summary judgment against Anton Samaan, contending that because Mr. Samaan had failed to present competent expert testimony to support his claims against the doctor, Dr. Kaplan was entitled to summary judgment. Def. David Kaplan, M.D.'s Mot. for Summ. J. (Docket # 24). With his motion for summary judgment, Dr. Kaplan filed a motion in limine seeking to exclude the opinions of Mr. Samaan's expert witness. Def. David Kaplan, M.D.'s Mot. in Limine to Exclude Testimony of Ravi Tikoo, M.D. (Docket # 26). Codefendant St. Joseph Hospital joined Dr. Kaplan's motion. Def. St. Joseph Hospital's Mot. for Summ. J. (Docket # 29). On October 14, 2010, 744 F.Supp.2d 367, 2010 WL 4053672 (D.Me.2010), the Court denied the motion in limine and the motion for summary judgment. Order on Mot. in Limine (Docket # 49); Order Denying Def.'s Mot. for Summ. J. (Docket # 50).

On October 19, 2010, Dr. Kaplan moved for reconsideration. Def. David Kaplan, M.D.'s Mot. for Recons. of the Court's Order on his Mot. for Summ. J. or in the Alternative for a Daubert Hr'g on the Admissibility of the Opinions of the Pl.'s Causation Expert (Docket # 53) ( Defs.' Daubert Mot. ). Mr. Samaan objected. Pl.'s Mem. in Opp'n. to Def. Kaplan's Mot. for Recons., or in the Alternative, for Daubert Hr'g (Docket # 65) ( Pl.'s Daubert Opp'n. ). On November 15, 2010, the Court denied the motion for reconsideration but granted the motion for a Daubert hearing. Order (Docket # 68) ( Hr'g Order ). Following a December 9, 2010 testimonial hearing, on December 21, 2010, 755 F.Supp.2d 236, 2010 WL 5177740 (D.Me.2010), the Court granted Dr. Kaplan's motion to exclude the expert testimony of Dr. Tikoo. Order on Daubert Hr'g (Docket # 91) (Daubert Order ).

On December 23, 2010, Dr. Kaplan and St. Joseph Hospital moved for reconsideration of the Court's October 14, 2010 Order on 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.' Mot. ). On January 11, 2011, Mr. Samaan objected. Pl.'s Mem. in Opp'n. to Defs. David Kaplan's and St. Joseph Hosp.'s Mot. for Recons. of the Court's Order on Mots. for Summ. J. (Docket # 99) ( Pl.'s Opp'n. ). On January 13, 2011, the Defendants replied. Defs.' Joint Reply to Pl.'s Opp'n to Mot. for Recons. of the Court's Order on Their Mot. for Summ. J. (Docket # 101) ( Defs.' Reply ).

B. The Positions of the Parties

1. The Defendants' Position

Referring to the Court Order on the Daubert hearing, the Defendants say that " it is now clear that Plaintiff will not be able to present expert evidence on causation." Defs.' Mot. at 3. With the exclusion of Dr. Tikoo's testimony, the Defendants say that Mr. Samaan cannot present evidence that there was a departure from a

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recognized standard of care that more likely than not caused him injury. Id. The Defendants therefore contend they are entitled to summary judgment.

2. Plaintiff's Position

Mr. Samaan objects on a number of grounds. First, he says that Rule 59 does " not provide a procedural avenue for the defendants to appeal the denial of a summary judgment motion, because such an order is interlocutory." Pl.'s Opp'n. at 2. Mr. Samaan again reminds the Court that he raised this issue when he opposed the Defendants' motion for reconsideration and that he raised the issue again during a November 17, 2010 telephone conference with the Court. Id. He says that when he questioned why a Daubert hearing was being held, the Court " merely replied: ‘ Because I want to.’ " Id. Mr. Samaan contends that Rule 59 is " expressly designed and intended to provide only for motions made post -trial, and following the entry of judgment." Id. Because the denial of a motion for summary judgment is an interlocutory order, which cannot be appealed under Rule 59, Mr. Samaan says that the motion is out of order. Id.

Mr. Samaan says that the " second reason that defendants' current motion must be denied is that the claim for professional negligence is not the only claim asserted in the complaint." Id. at 3. He points out that he has a claim for the negligent infliction of emotional distress. Id. at 3-4.

Finally, he claims that summary judgment is inappropriate because the record " contains admissions by both defendant St. Joseph Hospital and the defendants' joint expert witness, Dr. McKenna, which satisfy the Plaintiff's burden of proof for establishing the proximate cause element of the professional negligence claim." Id. at 4 (emphasis in original). Mr. Samaan protests that " [t]he court did not acknowledge or address those facts in the orders denying the motions for summary judgment and the first motion for reconsideration." Id. Mr. Samaan instructs that " admissions by a party-opponent are an exception to the prohibition on hearsay testimony and are admissible." Id. at 4-5 (citing FED. RULE EVID. 801(d)(2)). To this end, he points to the testimony of Dr. Maryann Walsh, the physician at St. Joseph who admitted Mr. Samaan, and a letter from Dr. Elsayed Hussein, Mr. Samaan's treating physician, who opined that Mr. Samaan should have received t-PA, and if he had, the permanent left-sided paralysis would have been avoided. Id. at 5-6. Finally, Mr. Samaan asserts that Defendants' joint expert witness, Dr. Paul Nyquist, " agreed with the ECASS-III recommendation for the extension of the 3 hour administration window, and did so because patients generally received a benefit from the administration of t-PA." Id. at 6-7. He goes on to say that Dr. Nyquist testified that " the statistics demonstrate patients receiving t-PA have a ten or eleven times greater chance of receiving a clinical benefit than experiencing a negative side-effect." Id. at 7 (emphasis in original). Mr. Samaan points to an article in which Dr. Nyquist wrote that the NINDS Study confirmed " the efficacy of this thrombolytic therapy when started within 3 hours of the stroke symptom onset." Id. at 7 (emphasis in...

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