Sours v. Yamout

• Decision Date: 05 April 2022
• Docket Number: Civil Action 3:19-CV-473-KHJ-FKB
• Parties: JULIE SOURS and JOHN RITCHIE, individually and on behalf of the wrongful death beneficiaries of MARK W. RITCHIE, deceased PLAINTIFFS v. ADAM N. YAMOUT, D.O. DEFENDANT
• Court: U.S. District Court — Southern District of Mississippi

JULIE SOURS and JOHN RITCHIE, individually and on behalf of the wrongful death beneficiaries of MARK W. RITCHIE, deceased PLAINTIFFS v. ADAM N. YAMOUT, D.O. DEFENDANT

Civil Action No. 3:19-CV-473-KHJ-FKB

United States District Court, S.D. Mississippi, Northern Division

April 5, 2022

ORDER

KRISTI H. JOHNSON, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Dr. Adam N. Yamout, D.O.'s Motion in Limine to Strike and/or Exclude the Proposed Testimony of Dr. David Messerly [172], Motion in Limine to Exclude Certain Expert Testimony [174], and Motion for Partial Summary Judgment [170]. For the following reasons, the Court denies these motions.

I. Facts and Procedural History

This case arises from the death of Mark W. Ritchie. These facts are largely undisputed. Forty-nine-year-old Ritchie was involved in a motorcycle accident on June 28, 2017. Defendants' Summary of Relevant Medical Treatment [170-1] at 1; Plaintiffs' Summary of Relevant Medical Treatment [181-1] at 12. As a result, he was admitted to the emergency department at Anderson Regional Medical Center. [170-1] at 1; [181-1] at 12. There, Ritchie was diagnosed with a right ankle open medial talus fracture, dislocation of the right ankle, and ankle laceration. [170-1] at 1; [181-1] at 12. Ritchie was then admitted to Anderson hospital. [170-1] at 1; [181-1] at 12. Orthopedic surgeon Dr. James Green, Jr., M.D. performed surgery on Ritchie to treat his injuries. [170-1] at 1; [181-1] at 12. Ritchie was discharged on July 1, 2017. [170-1] at 1; [181-1] at 12.

Nine days later, Ritchie attended a follow-up appointment with Dr Green. Medical Records [122-4] at 4. Dr. Green said that Ritchie's surgical wounds “looked good” and removed his staples. Id. Dr. Green noted “serous drainage . . . from the plantar heel laceration” and that Ritchie developed “a sizeable fracture blister along the posteromedial calf.” Id. Dr. Green dressed the blister with sterile adhesive bandage. Id. Ritchie explained that he had been feeling weak and had a sore throat. Id. Dr. Green referred Ritchie to the walk-in medical clinic for “his pulmonary upper respiratory” problems. Id.

The walk-in clinic immediately referred Ritchie to the Anderson emergency room, where he complained mainly of shortness of breath. Id. at 5-6. His brother also reported that Ritchie was suffering from cold chills, diaphoresis, neck pain, back pain around his kidneys, nausea, and was pale. Id. at 6. Ritchie then was admitted to Anderson hospital, and during his diagnostic exams, there was a “gross elevation in his white blood cell count” that suggested infection. Id. at 11-12.

As Ritchie's condition worsened, the hospital transferred him to the intensive care unit (ICU). Id. at 16. Dr. Yamout assumed primary care of Ritchie. Dr. Yamout Depo. [181-8] at 84-85. Ritchie's health continued to deteriorate, so he consented to intubation at about 10:15 p.m. [122-4] at 17. The exact time of the first intubation attempt is unknown.

During Dr. Yamout's first attempt to intubate Ritchie, he intubated the esophagus. Id. at 29. He tried to intubate twice more but both attempts failed. Id. Dr. Yamout noted that “[a]nasthesia and the ER physician were called immediately.” Id. The anesthesiologist could not intubate Ritchie either. Id. “[T]hus, an emergent cricothyroidotomy[, an incision made to establish an airway in life-threatening situations, ] was performed at the bedside successfully.” Id. “Unfortunately just prior to this[, Ritchie] lost his pulse.” Id. At 11:00 p.m., Ritchie lost his pulse (or, “coded”) for about 18 minutes before he was resuscitated. Id. Ritchie coded again at 2:52 a.m., with resuscitation at 2:57 a.m., and coded again at 3:48 a.m. with resuscitation at 3:56 a.m. Id.

After Ritchie's family was informed of his poor prognosis, they requested no further resuscitation. Id. at 31. The medical records list his cause of death as sepsis syndrome. Id.

Plaintiffs Julie Sours and John Ritchie sued for Ritchie's wrongful death, asserting medical negligence claims. Amend. Compl. [3] at 5. The only remaining Defendant is Dr. Yamout who now moves to exclude Plaintiffs' expert testimony and for partial summary judgment. The Court addresses each motion in turn.

II. Motions in Limine

A. Standard

The purpose of a motion in limine is to prevent opposing counsel from “mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to the moving party that a timely motion to strike or an instruction by the court to the jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors' minds.” Parker v. Tyson Foods, Inc., 499 F.Supp.3d 297, 299 (S.D.Miss. 2020) (quoting O'Rear v. Fruehauf Corp. 554 F.2d 1304, 1306 n.1 (5th Cir. 1977)). Though the granting of a motion in limine “does not preclude the party sponsoring the evidence from revisiting the issue at trial, ” the issue must be raised “outside the jury's presence.” Id. (quoting United States v. Beasley, No. 3:20-CR-36-DPJ-LRA, 2020 WL 6438255, at *1 (S.D.Miss. Nov. 2, 2020)).

“In Mississippi, the success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff's selected medical expert.” Conn v. United States, 880 F.Supp.2d 741, 742 (S.D. Miss 2012) (cleaned up). Federal Rule of Evidence 702 governs the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case

Fed. R. Evid. 702.

“Under Daubert, Rule 702 charges trial courts to act as ‘gate-keepers,' making 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.'” Piptone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993)). “In short, expert testimony is admissible only if it is both relevant and reliable.” Id. at 244.

In determining expert testimony reliability, the Court considers whether the content of the expert's testimony: “(1) can be or has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of error or standards controlling its operation; and (4) is generally accepted in the relevant scientific community.” Id. (citing Daubert, 509 U.S. at 593-94). “The proponent need not prove to the judge that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable.” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (citation omitted).

B. Motion in Limine to Strike and/or Exclude the Proposed Testimony of Dr. David Messerly [172]

Dr. Yamout first moves to strike or exclude the proposed testimony of Dr. David Messerly. [172]. Dr. Yamout is a hospitalist-a physician whose focus is the general medical care of hospitalized patients-and is certified in internal medicine. He contends that Dr. Messerly, an emergency medicine physician, is unqualified to testify about the duties of a hospitalist performing a rapid sequence intubation (RSI) in the ICU setting. [172] at 2.

In Mississippi, a plaintiff must present a medical expert to articulate an objective standard of care. Conn, 880 F.Supp.2d at 742. Mississippi courts have articulated this standard of care as

given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment[, ] and options.

Butler v. Chadwick Nursing and Rehab. Center, 223 So.3d 835, 841 (Miss. Ct. App. 2017) (quoting Hall v. Hilbun, 466 So.2d 856, 873 (Miss. 1985).

Mississippi does not require a medical expert to be familiar with a specific subject, but rather with a specialty. Hubbard v. Wansley, 954 So.2d 951, 958 (Miss. 2007). But “[g]enerally, it is not required that an expert in a medical-malpractice case be of the same specialty as the doctor about whom the expert is testifying.” Est. of Ward v. Williams, 333 So.3d 44, 49 (Miss. Ct. App. 2021) (holding that a nephrologist may testify about the standard of care surrounding kidney care in an emergency medicine case) (quoting McDonald v. Mem'l Hosp. at Gulfport, 8 So.3d 175, 181 (Miss. 2009)).

Mississippi courts have also held that “[if a] procedure is one that could be used in a specialized or a generalized practice . . . any licensed practitioner could testify that the defendants violated the standard of care, not as specialists but as general practitioners.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss. 1995). “A specialist may testify as to the standard of care that a general medical practitioner should follow when performing a recognized medical procedure.” Id. See also Brown v. Mladineo, 504 So.2d 1201, 1203 (Miss. 1987) (holding that a general surgeon was qualified to testify about gynecological surgery). For example, in Estate of Sumra l v. Singing River Health Sys., the ...