Breitenbach v. United States, 1:16-CV-00011 (NAM/CFH)

• Decision Date: 05 November 2019
• Docket Number: 1:16-CV-00011 (NAM/CFH)
• Parties: JOHN C. BREITENBACH, JR., Individually and as Executor of the Estate of DEBORAH J. BREITENBACH, Plaintiff, v. UNITED STATES OF AMERICA; NANCY A. CAFFREY, R.P.A.-C; MOSES-LUDINGTON HOSPITAL; and INTER-LAKES HEALTH, INC., Defendants.
• Court: U.S. District Court — Northern District of New York

JOHN C. BREITENBACH, JR.,Individually and as Executor of the Estate of DEBORAH J. BREITENBACH, Plaintiff, v. UNITED STATES OF AMERICA; NANCY A. CAFFREY, R.P.A.-C;MOSES-LUDINGTON HOSPITAL;and INTER-LAKES HEALTH, INC., Defendants.

1:16-CV-00011 (NAM/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

November 5, 2019

APPEARANCES:

Joseph R. Brennan

Brennan, White Law Firm

163 Haviland Road

Queensbury, New York 12804

Attorney for Plaintiff

Grant C. Jaquith

United States Attorney

Karen Folster Lesperance

Assistant United States Attorney

Office of the United States Attorney

445 Broadway, Room 218

Albany, New York 12207

Attorneys for Defendant United States of America

Konstandinos D. Leris

Shawn F. Brousseau

Napierski, Vandenburgh Law Firm

296 Washington Avenue Extension

Albany, New York 12203

Attorneys for Defendants Caffrey,

Moses-Ludington Hospital, and

Inter-Lakes Health, Inc.

Hon. Norman A. Mordue, Senior U.S. District Court Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The trial in this action is scheduled to commence on November 18, 2019. (Dkt. No. 83). Familiarity with the underlying facts are assumed based upon this Court's prior Memorandum-Decision and Order. (Dkt. No. 53). Presently before the Court are the Defendants' motions in limine (Dkt. Nos. 65, 71, 79), and Plaintiff's amended responses (Dkt. No. 90, 91).¹ For the following reasons, Defendants' motions are granted in part and denied in part.

II. DISCUSSION

A. Expert Testimony

First, Defendants Nancy Caffrey, R.P.A.-C, Moses Ludington Hospital and Inter-lakes Health, Inc. (the "Moses Ludington Defendants") assert that Plaintiff's medical expert, Dr. David T. Bachman, should be precluded from testifying that the use of a bougie device during emergency intubations was part of the standard of care in 2014. (See generally Dkt. No. 65-1). Specifically, they claim that Dr. Bachman's opinion is based on a medical article that acknowledges that bougies were only used in 3.5 percent of initial intubation attempts in the Emergency Department. (Id., p. 2). Defendants seize on this statistic and assert that "the only peer preview [sic] publication on the issue was inconclusive as to whether bougie use should be endorsed and the technique had not gained general acceptance as of 2014." (Id., p. 5). Theyclaim that Dr. Bachman's opinion is unreliable because his "reliance on [this] article exhibits a huge analytical gap between the article on which he relies and the conclusions he makes regarding bougie use." (Id.). Similarly, the Government has also filed a motion arguing that Dr. Bachman's opinion is not based on sufficiently reliable data and methodology. (Dkt. No. 71, pp. 5-7).

In response, Plaintiff argues that Dr. Bachman's opinion is "more than sufficient" to create an issue of fact as to whether Defendants' failure to use a bougie departed from the standard of care. (Dkt. No. 91-1, pp. 5-6). Plaintiff relies on Dr. Bachman's expert report and deposition testimony and argues that Defendants' effort to exclude Dr. Bachman's testimony is an attempt at a "second bite at the apple" on an issue that the Court previously considered on summary judgment. (See Dkt. No. 90-1, pp. 3-5).

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 imposes a "special obligation" on the trial court to make sure that scientific testimony is both relevant and reliable. Accordingly, District courts perform "a 'gatekeeping' role in ensuring that expert testimony satisfies the requirements of Rule 702." United States v. Farhane, 634 F.3d 127, 158 (2d Cir. 2011) (citing Daubert, 509 U.S. at 593). Specifically, 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: (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) theexpert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702.

Generally, "[i]n determining whether an expert's opinion should be excluded as unreliable, 'the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand.'" Houser v. Norfolk S. Ry. Co., 264 F. Supp. 3d 470, 475 (W.D.N.Y. 2017) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002)). "An expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion." Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006). "A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Nimely v. City of New York, 414 F.3d 381, 396 (2d Cir. 2005) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Thus, "when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 266.

Here, Defendants do not challenge Dr. Bachman's qualifications as a medical expert, but rather the basis for his opinion that the use of a bougie during an emergency intubation was required under the standard of care in 2014. Relevantly, Dr. Bachman's expert report states that:

With regards to airway management techniques, the [Defendant] providers also failed to observe [ ] standards of care. When attempting endotracheal intubation of a difficult airway, use of a bougie, as was done at Fletcher Allen, is consistently recommended.

And when performing a cricothyroidotomy, use of a bougie is also recommended. . . .

Ms. Caffrey's technique while attempting the oral intubation, when she did not use a bougie, and when performing the cricothyroidotomy, when she also did not use a bougie and when she incised the trachea vertically rather than the cricothyroid membrane horizontally, did not meet accepted standards of care. . . . As a result of these failures to meet accepted standards of care, Mrs. Breitenbach suffered a cardiac arrest with the resultant severe anoxic brain injury leading to her death on April 22, 2014.

(Dkt. No. 44-7, pp. 6-7).

After reviewing Dr. Bachman's resume, expert report and deposition testimony, the Court concludes that his opinions are sufficiently reliable to be admissible. The record shows that Dr. Bachman relied on more than just the one study cited by Defendants to reach his conclusions; rather he testified that "[his] conclusions were based on reviewing the record and [his] medical experience over the years." (Dkt. No. 44-8, p. 66). Dr. Bachman explained his medical background and experience in significant detail and provided Defendants with a clear account of the basis for his opinion about the required standard of care. (See generally Dkt. No. 44-7; Dkt. No. 44-8, pp. 48-66). He stated that his opinion that the use of a bougie was "consistently recommended" and part of the standard of care was also based on "advanced airway courses" he had attended and also from "textbooks by Ron Walls and others who really support the use of the Bougie." (Dkt. No. 44-8, p. 57). He also noted that "Weingart is another author that certainly recommends [the use of a bougie]." (Id.).

Although Defendants point to competing evidence disputing Dr. Bachman's opinion, their arguments are better suited for cross examination. Indeed, the Court previously found that a question of fact existed as to whether Defendants departed from the standard of care by not using a bougie during their initial intubation attempts, and whether that deviation causedthe Decedent's death. (Dkt. No. 53, pp. 24-25). Under the circumstances, the conflicting evidence presented by the parties must be weighed by the finder of fact. See Monell v. Scooter Store, Ltd., 895 F. Supp. 2d 398, 412 (N.D.N.Y. 2012) (noting that "conflicting expert testimony . . . creates questions of fact and credibility determinations to be answered by the jury"); Penrose v. United States, No. 13-CV-1060, 2016 WL 796062, at *5-6, 2016 U.S. Dist. LEXIS 22285, at *15-18 (N.D.N.Y. Feb. 24, 2016) (finding that conflicting expert testimony creates questions of fact "best left to the fact finder").

In sum, the record shows that Dr. Bachman's opinion is based on his significant medical experience, the medical training he received over the years, and from certain medical authors on the subject matter. (See generally Dkt. No. 44-7; Dkt. No. 49-15; Dkt. No. 44-8, pp. 48-66). Dr. Bachman's opinion, therefore, rests on a sufficiently reliable foundation. Accordingly, the Court denies Defendants' motions (Dkt. Nos. 65, 71) to preclude Dr. Bachman's expert testimony. See I.M. v. United States, 362 F. Supp. 3d 161, 193-95 (S.D.N.Y. 2019) (rejecting the defendants' attempt to preclude the plaintiff's medical expert where the expert was qualified to provide testimony and the record contained enough support to ensure that the expert's testimony was sufficiently reliable); see also Overstreet v. Virts, 2019 WL 1331567, at *20-23, 2019 U.S. Dist. LEXIS 49527, at *59-69 (W.D.N.Y. Mar. 25, 2019) (holding that factual disputes regarding the standard of care "are appropriate subjects for cross-examination that go to the weight, not admissibility, of [an expert's] testimony").

B. Testimony by the Decedent's Children

The Moses Ludington Defendants also move to preclude testimony from the Decedent's adult children. (Dkt. No. 79). Specifically, they assert that Plaintiff never identified these individuals as potential witnesses in his Rule 26 disclosures and is thereforeprecluded from calling them as...