Gess v. U.S.
| Decision Date | 17 September 1997 |
| Docket Number | No. Civ.A. 93-D-0913-N.,No. Civ.A. 93-C-1394-N.,No. Civ.A. 94-D-0326-N.,No. Civ.A. 94-D-1395-N.,No. Civ.A. 93-D-1391-N.,No. Civ.A. 93-D-1392-N.,No. Civ.A. 94-D-1199-N.,No. Civ.A. 94-D-1201-N.,No. Civ.A. 93-D-1140-N.,No. Civ.A. 93-D-1393-N.,No. Civ.A. 94-D-1200-N.,Civ.A. 93-D-0913-N.,Civ.A. 93-D-1140-N.,Civ.A. 93-D-1391-N.,Civ.A. 93-D-1392-N.,Civ.A. 93-D-1393-N.,Civ.A. 93-C-1394-N.,Civ.A. 94-D-1395-N.,Civ.A. 94-D-0326-N.,Civ.A. 94-D-1199-N.,Civ.A. 94-D-1200-N.,Civ.A. 94-D-1201-N. |
| Citation | 991 F.Supp. 1332 |
| Parties | Barbara GESS, et al., Joseph Givens, et al., Patrick G. Roberts, et al., Teresa Fowler, et al., David Barber, et al., Jay Dehaai, et al., Cheryl Pretiger Toms, et al., Alphonso Barnes, et al., Joseph Warrick, et al., Connie Mullen, et al., Donald Gregory Sharpe, et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
George L. Beck, Jr., Montgomery, AL, for Plaintiffs.
Redding Pitt, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty., Gail K. Johnson, Heather S. Call, U.S. Dept. of Justice, Washington, D.C., for Defendant.
DE MENT, District Judge.
In this action, plaintiffs Seek to recover from the defendant for injuries they suffered while patients in the care of Air University Regional Hospital at Maxwell Air Force Base ("Maxwell Hospital") in Montgomery, Alabama. The Court bifurcated the proceedings in this matter and heard evidence on the issues of duty and breach during a bench trial held during July 8 - 12, 1996. In the Court's December 12, 1996, Memorandum Opinion and Order, the Court found that the defendant owed the plaintiffs both a general duty of care and a duty to protect them from the criminal acts of third parties, and that the defendant had breached these duties. See Gess v. United States, 952 F.Supp. 1529, 1552-60 (M.D.Ala.1996). As a foreseeable result of defendant's breach, a disturbed medical aide, Michael Beckelic, "tampered" with each of the eleven child-plaintiffs and the adult plaintiff, Cheryl Schoen, either by injecting them with lidocaine or by harming them in some other manner. Id. at 1539-49.
The parties presented the second half of the evidence in this case between August 4, 1997, and August 8, 1997. In this second phase of the trial, the Court must address two issues. First, the Court must determine what specific injuries, if any, the plaintiffs have suffered and/or continue to suffer. Second, the Court must determine which, if any, of these specific injuries were proximately caused by defendant's breach. More precisely, the Court must determine which of the plaintiffs' injuries were proximately caused by Beckelic's "tampering." The plaintiffs cannot recover unless a preponderance of the evidence demonstrates that they have injuries and that these injuries were proximately caused by Beckelic's "tampering." See Ranger Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co., 410 So.2d 40, 41 (Ala. 1982).
Before turning to these questions, however, the Court must first address two preliminary matters. First, defendant argues that the testimony of plaintiffs' expert, Dr. Richard Colan, must be excluded on the issue of causation because it does not comport with the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Second, defendant contends that the majority of the plaintiffs cannot recover because their claims are barred by the statute of limitations.
In Daubert, the Supreme Court held that Rule 7021 of the Federal Rules of Evidence governs the admission of expert testimony. Id. 509 U.S. at 589. With regard to scientific testimony, the Court held that, under Rule 702, the testimony must be both reliable and relevant to be admissible. Id. Testimony which amounts to speculation or merely reflects an expert's subjective belief is not admissible under Rule 702. Id. at 590. On the other hand, scientific testimony does not have to be known to a certainty to be admissible; rather, it must be derived by the scientific method from what is known. Id.
When expert scientific testimony is proffered, the district court's task is to determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at 592 (footnote omitted). This inquiry requires the court to assess "whether the reasoning or methodology underlying the testimony is scientifically valid and [ ] whether that reasoning or methodology can be applied to the facts in issue." Id. at 592-93.
In Joiner v. General Elec. Co., 78 F.3d 524 (11th Cir.1996), the Eleventh Circuit held that under the first prong of Daubert:
[T]he district court must examine the reasoning or methodology underlying the expert opinion to determine whether it utilizes valid scientific methods and procedures. Trial judges must evaluate scientific processes and studies with which they may not be intimately familiar, but be careful not to cross the line between deciding whether the expert's testimony is based on "scientifically valid principles" and deciding upon the correctness of the expert's conclusions.
Id. at 530. In Daubert, the Supreme Court identified several factors which may assist the district court to determine whether a given scientific theory or study is reliable. These factors include: (1) whether the theory can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the method is generally accepted in the scientific community. 509 U.S. at 593-94. The Court emphasized that the district court's inquiry must be a flexible one. Id. at 594. Indeed, "[t]hese factors are neither exhaustive nor applicable in every case." Joiner, 78 F.3d at 530 (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir.1994)). Finally, the Joiner Court reemphasized the role of the trial court:
the gatekeeping responsibility of the trial courts is not to weigh or choose between conflicting scientific opinions, or to analyze and study the science in question in order to reach its own scientific conclusions from the material in the field. Rather, it is to assure that an expert's opinions are based on relevant scientific methods, processes, and data, and not mere speculation, and that they apply to the facts at issue.
In the instant case, defendant argues that Dr. Colan's testimony on causation should be excluded because it is unreliable. Accordingly, the Court must first identify the basis of Dr. Colan's testimony and then decide whether the methods, procedures and information used by Dr. Colan to reach his conclusions are scientifically reliable. Id. at 530-31.
Dr. Colan's testimony on causation was based on the following: (1) a review of each plaintiff's medical records; (2) a review of the medical records of other patients at Maxwell Hospital who suffered similar symptoms but who are not plaintiffs in this suit; (3) physical examinations of each plaintiff; (4) a review of the findings and conclusions of the other doctors and investigators who reviewed these cases; (5) a review of literature pertaining to lidocaine and its chemistry and effects on human beings and the available literature on whether and how lidocaine can injure the central nervous system; (6) his training through medical school and residency; and (7) his extensive experience in treating and diagnosing patients suffering from neurological disorders.
Dr. Colan admits that there are no clinical studies which conclusively establish that exposure of neonates to toxic doses of lidocaine causes long-term health effects. Nor will there be any according to Dr. Colan. Such a study would be unethical under the tenets of modern medicine. However, as the Daubert Court noted, the subject of an expert's testimony need not be known to a certainty for that testimony to be admissible. 509 U.S. at 590. For Dr. Colan's testimony to be admissible, he must take what is known, however large or small that body of knowledge may be, and draw his conclusions from that knowledge using the scientific method. See id.
What, then, did Dr. Colan know? To begin, he knew that the eleven child plaintiffs and the one adult plaintiff exhibited a similar core of symptoms after they were "tampered" with by Beckelic. These symptoms included bradycardia, acidosis, apnea, hyperglycemia and cyanosis. Ex. 8 attached to Colan Dep. of 6/6/94. With the exception of Goggans, each of the plaintiffs exhibited most, if not all, of these symptoms. Id. Dr. Colan testified that a toxic dose of lidocaine could cause all of these symptoms. Colan Dep. of 7/22/96 at 37. Significantly, while there are many potential causes for any one of these symptoms, Dr. Colan's training, experience and research led to him to conclude that, of the potential causes identified, only lidocaine would create this combination of core symptoms. Id. at 107-08; Colan Dep. of 3/3/94 at 148. Additionally, Dr. Colan knew that lidocaine was easily accessible at Maxwell Hospital, that an empty vial of lidocaine had been found in the hospital nursery and that one of the plaintiffs, Sharpe, had tested positive for lidocaine.2
Second, Dr. Colan reviewed all of the literature3 he could find pertaining to the effects of lidocaine poisoning on the central nervous system. One group of animal studies reviewed by Dr. Colan revealed that pre-term rats, exposed to lidocaine during the latter stages of the dam rats' pregnancies, suffered permanent impairment of their intelligence, attention and response. A second study found that nerve cells, in their rapid growth stage, are blighted and distorted by lidocaine.4 A third animal study showed that the actual function of nerve cells is decreased or impaired when they are exposed to lidocaine.
As mentioned earlier, Dr. Colan did not have any studies looking into the long-term effects of toxic doses of...
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