Jenkins v. N. Cnty. Gen. Surgery
| Decision Date | 19 August 2022 |
| Docket Number | 4:20-cv-01415-SRC |
| Parties | WENDY JENKINS, et al., Plaintiffs, v. NORTH COUNTY GENERAL SURGERY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Following a knee replacement in 2019, Wendy Jenkins developed an infection and ultimately lost her leg after several follow-up procedures. Wendy and her husband Richard sued a number of doctors and entities they claim negligently caused or contributed to the loss of Wendy's leg. Following the Jenkinses' settlement with the other Defendants, the Court denied Dr. Floro's summary-judgment motion. Doc 135. The Court now takes up Dr. Floro's motions to exclude expert testimony, in which he invites the Court to arrogate to doctors the exclusive domain over expertise in such matters as, among other things, the costs of medical equipment, home modifications, and transportation. Docs. 100 102. The Court declines the invitation.
The Court has recounted the facts of this case in its Memorandum and Order regarding North County General Surgery and Dr. Floro's (collectively, “Dr. Floro”[1]) summary-judgment motion, and does not repeat the facts here. See Doc. 135. In that Memorandum and Order the Court also explained some of the medical terminology at issue in this case and likewise does not repeat those explanations here.
Federal law governs the admissibility of expert testimony in diversity cases in federal court. Clark v. Heidrick, 150 F.3d 912, 914 (8th Cir. 1998). In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court interpreted the then-effective version of Rule 702 of the Federal Rules of Evidence to require district courts to be certain that expert evidence based on scientific, technical, or other specialized knowledge is “not only relevant, but reliable.” 509 U.S. 579, 590 (1993). The district court must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 59293.
Post-Daubert amendments to Rule 702 clarify the standard:
Fed. R. Evid. 702; see also Fed.R.Evid. 702 advisory committee's note to 2000 amendment .
The Eighth Circuit has fleshed out the Rule 702 standards. Proposed expert testimony must meet three criteria to be admissible under Rule 702. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). “Second, the proposed witness must be qualified to assist the finder of fact.” Id. (citation omitted). “Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.” Id. (internal quotation marks omitted). To meet the third criterion, the testimony must be “based on sufficient facts or data” and be “the product of reliable principles and methods,” and the expert must have “reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702(b)-(d).
“Federal Rule of Evidence 702 reflects an attempt to liberalize the rules governing the admission of expert testimony.” Shuck v. CNH Am., LLC, 498 F.3d 868, 874 (8th Cir. 2007) (citing Lauzon, 270 F.3d at 686). The rule “favors admissibility if the testimony will assist the trier of fact.” Clark, 150 F.3d at 915. Doubt regarding “whether an expert's testimony will be useful should generally be resolved in favor of admissibility.” Id. (citation and internal quotation omitted).
Under Rule 702, the trial court has gatekeeping responsibility to “ensur[e] that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert, 509 U.S. at 597). “When making the reliability and relevancy determinations, a district court may consider: (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review or publication; (3) whether the theory or technique has a known or potential error rate and standards controlling the technique's operation; and (4) whether the theory or technique is generally accepted in the scientific community.” Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012) (citing Daubert, 509 U.S. at 593-94). “This evidentiary inquiry is meant to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as the particular case demands.” Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005). “There is no single requirement for admissibility as long as the proffer indicates that the expert evidence is reliable and relevant.” Id.
As a general rule “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th Cir. 2005) (quoting Hartley v. Dillard's, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002)). However, “if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury, it must be excluded.” Id. (citing Hartley, 310 F.3d at 1061). An expert opinion is fundamentally unsupported when it “fails to consider the relevant facts of the case.” Id. With this standard in mind, the Court addresses Dr. Floro's two motions in turn.
Wendy[2] and Richard Jenkins retained Jan Klosterman, R.N., to provide an opinion regarding a “life-care plan” for Wendy. A life-care plan is an assessment of a person's future medical needs (and associated costs). Thus, the Jenkinses offer Klosterman's opinions as evidence of damages. Klosterman is a Certified Nurse Life Care Planner and has maintained that certification since 1999. Doc. 112-1 at pp. 1-2. She has been a Registered Nurse since 1979. Id. at p. 1. She is also Medicare Set-Aside Consultant Certified and is a Certified Brain Injury Specialist. Id. She is a member of the American Association of Legal Nurse Consultants and the American Association of Nurse Life Care Planners, and previously held leadership positions in both organizations. Id. at p. 1. She has practiced life-care planning for over twenty years and estimates that she has reviewed “closer to a thousand” cases in that time. Doc. 112-3 at p. 151:4-6.
Klosterman's life-care plan sets out the various medical care that Klosterman opines Wendy will need for life, such as physician care, medication, medical procedures and treatments, prosthetics, and modifications to her home and transportation. Klosterman itemizes these costs and offers a “low” and “high” estimate for each-with the lifetime total cost of care ranging from approximately $2.3 to $3.4 million.
Following an introduction describing Klosterman's credentials, methodology, and reliance materials, Klosterman's expert report has several parts: (1) a narrative-consisting of a medical records chronology, a video nursing assessment, and nursing diagnoses; (2) a life-care plan; and (3) a summary of costs. Doc. 112-2 at p. 2. The report also contains a list of participating healthcare professionals and cost providers, as well as a table of medical records Klosterman reviewed.
Klosterman states that she based her life-care plan on a video nursing assessment, medical record review, and collaboration with treating physicians. As part of this process, she also identified the following “nursing diagnoses”: impaired walking, impaired physical mobility, risk for falls, self-care deficit, chronic pain, constipation, impaired home maintenance, impaired social interaction, and risk for caregiver-role strain. Doc. 112-2 at pp. 32-33. Klosterman states that these nursing diagnoses formed “a basis for future care needs and recommendations.” Id. at p. 32.
Based on these inputs, Klosterman's life-care plan outlines “present and future needs as dictated by the onset of Wendy's above-the-knee amputation and associated disability.” Doc. 112-2 at pp. 3-4. These needs include: physician care, diagnostic testing, medical procedures, medications, medical equipment and supplies, therapies and services, prosthetics and orthotics, adaptive equipment, home modifications, and transportation. Id. at pp. 33-34.
In the cost summary section, Klosterman itemizes and totals all of the costs associated with the life-care plan's recommendations. Id. at pp. 37-41. Klosterman used “local service providers, internet research, or published databases of charge data” to calculate costs in today's dollars. Id. at p. 4. For the purpose of calculating costs of lifetime care, Klosterman used a life expectancy calculation...
To continue reading
Request your trial