Franklin v. United States
| Decision Date | 18 February 2014 |
| Docket Number | CIV 12-1167 KBM/CG |
| Parties | BETTY FRANKLIN, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on three dispositive motions: 1) Plaintiff's Motion for Sanctions, Disqualification, and Exclusion of Witness (Doc. 90) ("Motion for Sanctions"), filed November 20, 2013; 2) the United States' Motion to Dismiss Plaintiff's Claims Not Raised in her Tort Claims Notice for Lack of Jurisdiction (Doc. 83) ("Motion to Dismiss"), filed November 5, 2013; and 3) the United States' Motion in Limine to Exclude Expert Opinions that Were Not Timely Disclosed or are Otherwise Inadmissible at Trial (Doc. 84) ("Motion in Limine"), filed November 5, 2013. Additionally, the Court addresses herein Plaintiff's Appeal of Magistrate's Order Striking Plaintiff's Expert Witness Rebuttal Reports (Doc. 125) ("Rule 72 Objections"), filed January 2, 2014.
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties consent to have me serve as the presiding judge and enter final judgment. Docs. 8, 12, 13. Having reviewed the parties' submissions and the relevant law, and having heard argument of counsel at the February 11, 2014 motions hearing, theCourt will deny the Motion for Sanctions, will grant in part and deny in part the Motion to Dismiss and the Motion in Limine, and will overrule the Rule 72 Objections. The Court will dismiss Plaintiff's informed consent claim and her claim based upon Dr. Wilder's alleged negligence in the performance of the September 28, 2010 cold knife cone procedure. Additionally, it will limit Dr. Steiner's expert testimony to the area of urology and will exclude his testimony regarding the possibility of future dialysis treatments.
Plaintiff Betty Franklin is a member of the Navajo Nation. Doc. 1 at ¶ 7. On August 19, 2010, she underwent a well-woman examination at the Northern Navajo Medical Center ("NNMC"), which is a medical facility in Shiprock, New Mexico that provides medical care to Native Americans pursuant to various federal statutes. Id. at ¶ 4. At the well-woman examination, Plaintiff reported vaginal bleeding for approximately two months, despite being post-menopausal. Id. at ¶ 9.
Thereafter, Dr. Kathleen Wilder, an employee of Indian Health Services, performed various procedures on Plaintiff in August and September of 2010, and Plaintiff was ultimately diagnosed with squamous epithelium most consistent with squamous cell carcinoma in situ. Id. at ¶ 10-13, 34. Dr. Wilder recommended that Plaintiff undergo a total abdominal hysterectomy ("TAH") and bilateral salpingo-oophorectomy ("BSO"). Id. at ¶ 14. Dr. Wilder performed Plaintiff's TAH/BSO procedure on October 14, 2010. Id. Five days later, Plaintiff had her first post-operative visit with Dr. Wilder at which time she had staples removedand reported post-op pain. Id. at ¶ 16. Plaintiff was instructed to return in approximately one month. Id.
On October 21, 2010, Plaintiff was treated at the Gallup Indian Medical Center ("GIMC") for a urinary tract infection after she complained of left lower back pain. Id. at ¶ 18. The next day, on October 22, 2010, Dr. Wilder's office contacted Plaintiff, asking her to come to the clinic to see Dr. Wilder as soon as possible; she was scheduled for a return visit on October 25, 2010. Id. at ¶ 17.
At the October 25, 2010 appointment, Dr. Wilder informed Plaintiff that she had invasive cervical cancer. Id. Plaintiff reported to Dr. Wilder that she had experienced left lower back pain for approximately one week. Id. at ¶ 19. A CT scan of Plaintiff's abdomen that same day indicated, among other findings, a "moderate left hydronephrosis and hydroureter with associated perinephric stranding and enlargement of the left kidney." Id. at ¶ 22. The next day, Plaintiff was admitted to the University of New Mexico Hospital ("UNMH") in part for evaluation and treatment of her left-sided hydronephrosis. Id. at ¶ 24.
On October 29, 2010, it was confirmed that Plaintiff had suffered ligation of the left ureter during the hysterectomy performed by Dr. Wilder. Id. at ¶ 27. Plaintiff was discharged from UNMH on November 1, 2010, with a nephrostomy tube and urine bag. Id. at ¶ 29. Then, in July 2011, Plaintiff's left kidney became necrotic due to chronic inflammation, and it was removed on July 20, 2011. Id. at ¶ 31.
In her Complaint pursuant to the Federal Tort Claims Act (FTCA), Plaintiff alleges a singular count of negligence against the United States. See id. at 5-8.She claims that the United States' employee, Dr. Wilder, breached her duty of care to Plaintiff by "failing to measure up to the standards of reasonable care, skill, and practice required of members of their profession." Id. at ¶ 38. More specifically, Plaintiff claims that Dr. Wilder ligated and damaged her left ureter during the hysterectomy that she performed on October 14, 2010, and that she failed, during surgery and in the days following, to identify and repair the ligated left ureter. Id. at 6.
Federal courts have the inherent power to manage their own proceedings and control the conduct of those who appear before them. Chambers v. NASCO, Inc., 501 U.S. 32, 43-51 (1991). Appellate courts review a court's imposition of sanctions under its inherent power for an abuse of discretion. Id. at 55.
The Federal Tort Claims Act ("FTCA") provides that "an action shall not be instituted upon a claim against the United States for money damages" unless the claimant first exhausts his or her administrative remedies. 28 U.S.C. § 2875(a).
Under Rule 72(a) of the Federal Rules of Civil Procedure, the Court shall consider objections made by the parties and "shall modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). To overturn the magistrate judge's decision as clearly erroneous under Rule 72(a), the districtcourt must have "a definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988) (internal quotation omitted). Put another way, "[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish." Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).
Federal Rule of Evidence 702 lays the foundation for the admissibility of expert testimony, providing as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. To determine whether an expert opinion is admissible under Rule 702, a court must perform the following two-step analysis:
See 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
Plaintiff argues that the conduct of counsel for the United States, Ruth Keegan, in initiating an ex parte contact with Plaintiff's treating physician, Dr. Teresa Rutledge, warrants sanctions. Doc. 90 at 1. Although counsel for Plaintiff conceded at the February 11, 2014 motions hearing that judgment on liability would be an "extreme" measure, he maintains that both disqualification of counsel and exclusion of Dr. Rutledge's testimony are appropriate.
On November 6, 2013, after the discovery deadline, Ms. Keegan served a supplemental disclosure naming Dr. Rutledge as a witness for the United States.1 Doc. 86. In response to an inquiry by Plaintiff's counsel, Ms. Keegan explained that she had communicated with Dr. Rutledge by e-mail and orally and that she had provided some of Plaintiff's medical records to Dr. Rutledge.
Dr. Rutledge, who has now been Plaintiff's treating doctor for cervical cancer for approximately three years, was not treating Plaintiff at the time of her October 14, 2010 hysterectomy. Instead, Dr. Wilder provided Plaintiff's pre-surgical care and performed the hysterectomy. Both parties agree that Dr. Rutledge became a potential fact witness in this case, however, when Dr. Wilder consulted her just before Plaintiff's hysterectomy. Indeed, Plaintiff's October 8, 2010 medical records include the following note by Dr. Wilder: Doc. 101, Ex. A at 1-2. Dr. Rutledge did not undertake the care of Plaintiff until several weeks or eighteen days2 after this documented communication between Dr. Wilder and Dr. Rutledge. Doc. 101 at 5.
Plaintiff's expert, Dr. Robert Barry Domush, opined during his September 10, 2013 deposition that Dr. Wilder's consultation with Dr. Rutledge before Plaintiff's hysterectomy did not change his opinion that Dr. Wilder should have referred Plaintiff to UNMH. Doc. 101, Ex. B, at 76:7-78:8. According to Dr. Domush, it was not clear that Dr. Wilder informed Dr. Rutledge of the pathologist's comment regarding "possible invasion." Id. at 76:13-14. In fact, he testified that he could not believe that Dr....
To continue reading
Request your trial