Ross v. American Red Cross, Case No. 2:09-cv-905
| Decision Date | 10 May 2012 |
| Docket Number | Case No. 2:09-cv-905 |
| Parties | LAUREN J. ROSS Plaintiff, v. AMERICAN RED CROSS, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This matter is before the Court on the following filings by the parties:
1. Defendant American Red Cross's Motion to Exclude and Preclude the Use of the Testimony of Mr. David Woodruff and for Summary Judgment (ECF No. 120), Plaintiff's Memorandum in Opposition (ECF No. 148), and Defendant's Reply in Support (ECF No. 159);
2. The Motion of Plaintiff Lauren J. Ross to Strike Affidavit of Red Cross Standard of Care Expert Linda Chalmers (ECF No. 168), Defendant's Response in Opposition (ECF No. 172), and Plaintiff's Reply in Support (ECF No. 174);
3. Plaintiff's Response to the Defendant's objections to various evidentiary materials attached to and/or referenced in Plaintiff's Memorandum in Opposition to summary judgment (ECF No. 164); and
4. Plaintiff's motion to substitute certified copies of letters issued to the American Red Cross from the United States Department Health and Human Services, Food and Drug Administration, for uncertified copies attached to Plaintiff's Memorandum in Opposition to summary judgment (ECF No. 166).
For the reasons more fully explained below, Defendant's motion to exclude Woodruff'stestimony and for summary judgment (ECF No. 120) is DENIED, Plaintiff's motion to strike Chalmers' affidavit (ECF No. 168) is DENIED, and Plaintiff's motion to substitute certified copies (ECF No. 166) is DENIED AS MOOT.
This case originated in the Franklin County (Ohio) Court of Common Pleas, where Plaintiff Lauren J. Ross filed a Complaint alleging negligence against the American Red Cross (the "Red Cross"). (Compl., ECF No. 2-1.) Ross alleges that she suffered physical injury due to the negligence of the Red Cross employee who drew her blood during a blood donation. (Id., ¶ 3.) Red Cross removed the case to this Court, invoking federal jurisdiction under 36 U.S.C. § 300105 and American Natl. Red Cross v. S.G. & A.E., 505 U.S. 247, 248, 112 S. Ct. 2465, 120 L. Ed. 2d 201 (1992). (Notice of Removal, ECF No. 2.)
On September 12, 2008, Plaintiff came to the Central Ohio office of the American Red Cross to give a blood donation. Plaintiff was an experienced donor, having donated blood numerous times previously. Red Cross employee Dedra Montague was the phlebotomist who was assigned to draw a unit of blood from Plaintiff. At that time, Montague had nearly six years of donor blood collection experience with the Red Cross.
Montague first attempted to draw blood from Plaintiff's left arm. Almost immediately upon Montague sticking the needle into Plaintiff's arm, Plaintiff felt pain and demanded that Montague remove it. Montague estimates that the needle was less than a half-inch into Plaintiff's arm at the time Plaintiff asked her to remove it. (Montague Dep. 16, ECF No. 119-1.) There was no bleeding when Montague withdrew the needle, indicating that the needle did not hit a vein. (Id.; Chalmers Aff. Ex. 1, at 4, ECF No. 151-1.) According to Plaintiff, her arm "feltas if it was burning, it hurt and [the pain] seemed to paralyze movement of my arm. The pain persisted even after Montague removed the needle. In the numerous times Plaintiff previously donated blood, she had never felt that kind of pain. Plaintiff described the pain as "excessive" and told Montague that she "thought she [Montague] had hit a nerve." (Id.) A Red Cross manager gave Plaintiff an ice pack to place on her left arm to alleviate the pain.
Despite the pain in her left arm, Plaintiff continued with the blood donation, allowing another Red Cross employee to draw a unit of blood from her right arm. Plaintiff continued to complain to the Red Cross about the pain in her left arm. Plaintiff felt a "burning, throbbing sensation all the way up close to the shoulder." (Id.) Plaintiff left the Red Cross facility and went home because of the pain. The Red Cross gave Plaintiff a "green sheet" that gave instructions to follow with regard to any complications arising from the injection. On a form titled "Donor Reaction / Injury Record (DRIR)," the Red Cross coded the "complication" involving Plaintiff as "XN," meaning that the patient suffered a "nerve irritation." (Montague Dep. 19 and Ex. 2.)
Over the six-day period following the incident, Red Cross employee Linda Stacy had telephone contact with Plaintiff as a follow-up. Red Cross records indicate that Plaintiff reported that she continued to experience pain in her biceps and shoulder, was suffering neck pain, was feeling a loss of strength in her left arm, and was having trouble sleeping since the day of the blood donation. (Montague Dep. Ex. 1.) Records indicate that Stacy gave Plaintiff verbal instructions relating to "XN" (i.e., nerve irritation).
In the weeks following the incident at the Red Cross, Plaintiff sought medical care fromvarious medical providers, as she continued to suffer pain. Over the next several months, eight physicians who treated Plaintiff either diagnosed or opined that Plaintiff suffered from complex regional pain syndrome ("CRPS"), a condition also known as reflex sympathetic dystrophy ("RSD"). Plaintiff alleges that she has been unable to continue her employment as owner of a personal training business because of her injury and that the injury is so debilitating as to permanently affect her ability to work in the future. (Compl., ¶ 5.) Plaintiff's retained expert in this case, board certified neurologist Robert L. Knobler, M.D., Ph.D., agrees that Plaintiff suffers from CRPS/RSD and has opined that the "needle stick" by Montague caused the onset of that condition in Plaintiff.
The Red Cross moves for summary judgment on Plaintiff's Complaint under Fed. R. Civ. P. 56. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party, which must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)); Hamad v. Woodcrest Condo. Ass'n,328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided _that one party must prevail as a matter of law.' " Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52).
As a threshold issue to resolve before reaching the merits of the Red Cross's motion for summary judgment, the Red Cross argues that the Court should exclude the testimony of David Woodruff. Plaintiff disclosed Woodruff as a testifying expert and relies on his opinion to establish that the Red Cross deviated from the applicable standard of care during the blood donation process that allegedly caused Plaintiff's injury.
The Federal Rules of Evidence provide that expert witnesses may only testify where that testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Expert witnesses must be qualified to testify to a matter relevant to the case, and a proffering party can qualify their expert with reference to his "knowledge, skill, experience, training or education." Id. See also Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 293 (6th Cir. 2007). In this case, the Red Cross challenges both Woodruff's qualifications as an expert and his ability to testify under the relevance and reliability standards set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993), and its progeny.
In order to assist in her proof that the Red Cross was negligent, Plaintiff seeks to have Woodruff testify as to the standard of care applicable to nurses. (Woodruff Dep. 10, ECF No. 122-1.) In Woodruff's opinion, "nerve injuries" are "completely preventable" in a properly performed phlebotomy. (Id. at 70.) Consistent with that view, Woodruff opines that Montague must have breached the applicable standard of care because a nerve injury necessarily means that Montague performed the venipuncture "incorrectly." (Id. at 103, 118.)1
The Red Cross challenges Woodruff's qualifications to give expert testimony in this case. Woodruff holds bachelor's and master's degrees in nursing from Kent State University and has been a nursing instructor at various institutions (including Kent State and the University of Akron) since 1992. Woodruff also worked as a clinical nurse for 13 years. In these clinical and educational settings, Woodruff has had experience performing and teaching venipuncture. Despite these qualifications in the field of nursing, the Red Cross argues that Woodruff is not qualified to give expert testimony under Fed. R. Civ. P. 702 because of his undisputed lack of experience in blood donor phlebotomy. While...
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