Jahn v. Equine Services

• Decision Date: 04 May 2000
• Docket Number: No. 99-5647,99-5647
• Parties: (6th Cir. 2000) Deborah Jahn, Plaintiff-Appellant, v. Equine Services, PSC; Scott D. Bennett, D.V.M.; Mary Beth Wallingford, D.V.M.; and Richard Griffin, D.V.M., Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 382

233 F.3d 382 (6th Cir. 2000)

Deborah Jahn, Plaintiff-Appellant, v. Equine Services, PSC; Scott D. Bennett, D.V.M.; Mary Beth Wallingford, D.V.M.; and Richard Griffin, D.V.M., Defendants-Appellees.

No. 99-5647

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 4, 2000

Decided and Filed: November 21, 2000

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. No. 98-00009--Joseph M. Hood, District Judge. [Copyrighted Material Omitted] Daniel E. Danford, Benjamin L. Kessinger, Jr., STITES & HARBISON, Lexington, Kentucky, for Appellant.

Matthew J. Smith, Thomas F. Glassman, SMITH, ROLFES & SKAVDAHL COMPANY, Cincinnati, Ohio, Michael J. Cox, MILLER, GRIFFIN & MARKS, Lexington, Kentucky, for Appellees.

Before: MERRITT, CLAY, and CUDAHY, Circuit Judges^*.

OPINION

CUDAHY, Circuit Judge.

Deborah Jahn owned a champion Hackney pony named Night Passage. In April of 1997, the pony was taken to Equine Services, PSC, to have corrective surgery for a breathing problem. The surgery was performed on April 15, 1997, and a few hours after the operation, Night Passage was found dead in his stall. Jahn sued Equine Services and three veterinarians in federal court asserting various state-law causes of action. The district court granted summary judgment in favor of the defendants on all counts in the complaint, and Jahn now appeals.

Jahn, an Illinois resident, sought treatment for Night Passage's palate displacement, a condition common among Hackney ponies that interferes with the horse's breathing. This condition can be corrected using one of several surgical techniques, and Dr. Bennett at Equine Services¹ chose to use a technique known as a "modified Forsell's procedure."² This procedure involves the removal of muscle and tissue from the pony's neck, thereby allowing it to better relax its neck to open the airway and permit fuller breathing³. During a pre-surgery evaluation, it was discovered that Night Passage had a fibrinogen level of 600 and a nasal discharge. Dr. Bennett apparently concluded that this was not a source of concern and had the pony prepared.

The surgery began at approximately 4:30 p.m. on April 15, 1997. Three veterinarians and two assistants took part in the procedure. Dr. Bennett supervised the entire operation and performed the modified Forsell's procedure himself. Dr. Richard Griffin--a veterinary intern--recommended a pre-surgical anesthesia dosage and administered the anesthesia once Dr. Bennett verbally approved the dose. Night Passage was given 450 milligrams of xylanine and 1100 milligrams of ketamine before the surgery. Dr. Maribeth Wallingford--another veterinary intern--had limited involvement with the operation because an emergency with another animal required her attention. The modified Forsell's procedure was conducted with Night Passage under general anesthetic, and Dr. Griffin, again under the supervision of Dr. Bennett, administered anesthetic gas to the pony throughout the surgery. No record of the type or amount of gas used exists⁴. According to the veterinarians present, Night Passage remained stable during the entire surgery, which lasted about 45 minutes.

After the surgery ended at 5:15, Night Passage was taken to a padded recovery room, where he began to wake up about five minutes later. From this point forward Equine Services made no additional medical records relating to Night Passage. According to Dr. Bennett, Night Passage was back on his feet after 20 minutes, and he decided to return Night Passage to his stall. Dr. Griffin supervised the pony's return to a regular stall, and observed Night Passage for approximately 10 minutes thereafter. All appeared fine. Dr. Bennett claims that he "probably saw [Night Passage] going back and forth to the stalls and checking other horses 10 or 15 times" before 7:30 p.m., and each time, he detected no problems with the pony's condition. See J.A. at 223 (Bennett Depo.). ⁵ As indicated above, however, no medical records of any kind document these visits or Night Passage's condition during the course of the evening. A horse caretaker at Equine Services claims that he checked on Night Passage periodically until 8:15 (when he went home for the night), but again, there are no records of the visits or Night Passage's condition. At approximately 9:00, one of the technicians who assisted with Night Passage's surgery checked the pony. She claimed that no problems were detected, but, yet again, there are no medical records to support this. Night Passage was found dead at approximately 10:00 p.m.

Night Passage's corpse was sent to Dr. Robert Tramontin at the Livestock Disease Diagnostic Center (LDDC) in Lexington, Kentucky, where he preformed an autopsy on the unfortunate animal. His autopsy report does not indicate whether he conducted an external examination of the body, but it contains several specific findings from an internal examination. During this autopsy, Dr. Tramontin examined the area of the surgery and determined that the surgery had been done properly. He also performed cultures to check for bacterial infection in the lungs but found no evidence of an infection, although he noted that the lungs were very congested and the trachea and bronchi contained a "pale frothy material." J.A. at 452 (Tramontin's Case Summary). The report states that the "[c]ongestive change in various organs along with very pale mucous membranes indicate that this animal was in shock." Id. In his deposition, Dr. Tramontin stated that he did not know the specific cause of death, and the autopsy report noted simply "DIAGNOSIS: Hemorrhage, brain and spinal cord, etiology uncertain." Id. The LDDC sent numerous slides to Dr. Bolin, the veterinary pathologist at the Illinois Bureau of Animal Disease Laboratory. Looking at these slides, Dr. Bolin also identified signs of shock, but he could not determine the cause of death. Nor did Dr. Bolin see any signs of infection based on the slides in his possession⁶.

In November of 1997, Jahn filed suit against Dr. Bennett and Equine Services in the Eastern District of Kentucky, later adding Drs. Griffin and Wallingford as defendants in her first amended complaint. (We shall refer to the defendants collectively as Equine Services.) Jahn's complaint stated five counts against the defendants. First, she alleged that all the defendants had been negligent in their treatment of Night Passage before, during and after the surgery. Second, she claimed that Equine Services had breached an oral contract to monitor Night Passage "continuously, completely and around the clock." J.A. at 39 (First Amended Complaint). Third, Jahn alleged that Dr. Bennett and Equine Services were negligent by failing to inform her of the risks involved in Night Passage's surgery. Fourth, Jahn pleaded conversion against Dr. Bennett and Equine Services alleging that they did not have consent to perform the surgery. Fifth, and finally, Jahn alleged that Equine Services had committed fraud by representing to her that Night Passage would be monitored "continuously, completely and around the clock." Id. at 42. Given the complicated nature of cases dealing with allegations of veterinary malpractice, Jahn employed two expert witnesses.

Jahn's first expert witness , Dr. George Mundy, has been a practicing veterinarian in Kentucky since 1983 and has extensive experience diagnosing and treating horses. He has presented several papers on the veterinary aspects of race horses, but as of the time he was deposed, Dr. Mundy had not performed a surgery in the preceding ten years and had never performed a modified Forsell's procedure. Jahn's other expert, Dr. Rhonda Robbins, has been a veterinarian since 1986, specializing in horse medicine, and has taught in the Department of Large Animal Surgery at Auburn University.

In their depositions, both Drs. Mundy and Robbins stated that a fibrinogen level of 600 and a nasal discharge are signs of infection or inflammation and provided cause for delaying the surgery in order to conduct further tests. Dr. Robbins explained that Night Passage's fibrinogen level was high enough to be a significant factor in the pony's death, and Dr. Mundy noted that even a mild infection can threaten a horse's life. Both also agreed that infection matched with anesthesia--even normal dosages, when given to a horse with an infection--could lead to shock and then death. Dr. Robbins stated that it appeared, from the records she had before her, that Night Passage had been given an overdose of approximately 1.5 to 2 times the normal pre-operative dosage of Xylanine and Ketamine. Dr. Mundy believed that the pony went into shock at some point after the surgery, fell and hit his head, causing the hemorrhage in the brain and spinal cord and death. Drs. Mundy and Robbins were both critical of the lack of medical records kept by Equine Services and were especially critical of the lack of postoperative care. But, much like the pathologists Tramontin and Bolin, neither Dr. Mundy nor Dr. Robbins could identify with any degree of certainty the specific physiological cause of Night Passage's death.

After the case proceeded through discovery, all the defendants moved for summary judgment. Although Dr. Wallingford had retained separate counsel, the defendants all made the same argument for summary judgment. They argued that Jahn's claims failed because she could not establish the cause of the pony's death. Because Jahn could not establish causation, they argued, her entire case collapsed. In response to these motions, the district court determined, sua sponte and without allowing additional briefing, that the proposed testimony of Drs. Mundy and Robbins was inadmissible under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and rejected their expert testimony. The district court then decided summary judgment against Jahn on all her claims because without the testimony from her expert witnesses sh...