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McHugh v. Jackson


March 2, 2010


The opinion of the court was delivered by: Simandle, District Judge


This matter is before the Court on Defendant Gambro Healthcare, Inc.'s motion for summary judgment. [Docket Item 47.] Defendant seeks to exclude the testimony of Plaintiffs' two expert witnesses under Rule 702, without whom Plaintiffs cannot adduce sufficient evidence to proceed past summary judgment.


This case arises out of a motor vehicle accident that took place on July 6, 2005 in Cherry Hill, New Jersey. According to the Complaint, Plaintiff Kevin McHugh was traveling southbound on the highway when Defendant Juanita Jackson, also driving southbound, "violently struck the rear of the plaintiff's vehicle[,] causing severe, permanent damages and injuries to the plaintiff." (Compl. ¶9.) The investigating police officer, Robert Schuenemann, found that the accident was a result of Ms. Jackson's inattention. (Schuenemann Dep. 23:7-11, October 15, 2008.) Just prior to this accident, Ms. Jackson had been receiving dialysis treatment at Defendant Gambro's Cherry Hill facility. In addition to claiming that Ms. Jackson was negligent, Plaintiffs allege that Ms. Jackson was fatigued and hypotensive and therefore inattentive as a result of the dialysis treatment. They further claim that Defendant Gambro breached the relevant standard of care by allowing Ms. Jackson to leave the facility without fully assessing her vascular stability by taking a standing blood pressure measurement.*fn1

Defendant now moves for summary judgment, contending that Plaintiffs' expert witnesses must be precluded from testifying and Plaintiffs therefore cannot establish the elements of negligence.*fn2

Plaintiffs offer the testimony of Dr. Daisy Rodriguez and Cheryl Lachman R.N. Dr. Rodriguez is a board certified doctor of internal medicine who received her medical degree from the University of Pennsylvania in 1987. (Gebauer Cert. Ex-E ("Rodriguez CV").) She is licensed as a physician in four states. (Id.) Dr. Rodriguez's employment background involves primary care, pain management, and injury rehabilitation. (Rodriguez Dep. 7:1-16:24, June 10, 2009.) Dr. Rodriguez is not a nephrologist and does not diagnose or treat kidney failure. (Id. at 23:16-24:22.) She has not monitored dialysis treatment since her medical residency in 1987, but she has on several occasions managed post-dialysis complications. (Id. at 25:15-21, 33:11-36:2.)

Dr. Rodriguez addresses the issue of what caused Ms. Jackson's inattention leading to the accident. Her opinion that Ms. Jackson's inattention was the result of the dialysis treatment is based on the following facts: the fact that Ms. Jackson had a history of delayed stabilization of her blood pressure after dialysis in the weeks before and after the accident;*fn3 the fact that, on the day of the accident, wide fluctuations in Ms. Jackson's blood pressure were recorded during treatment; the fact that Jenna McHugh, who was traveling behind Plaintiff in another vehicle at the time of the accident and walked to the scene, observed Ms. Jackson to be "out of sorts" after the accident (J. McHugh Dep. 16:12-17, Oct. 2, 2008), and went so far as to speculate that Ms. Jackson was intoxicated (id.); and the fact that the responding police officer observed that Ms. Jackson appeared tired after the accident (Schuenemann Dep. 17:5-12, Oct. 15, 2008). (Gebauer Cert. Ex-F ("Rodriguez Report").)

To these facts, Dr. Rodriguez added a number of expert opinions based on her own training and experience as well as three textbooks about the effects of dialysis treatment: that hypotension and fatigue are common consequences of dialysis; that in a person of Ms. Jackson's age and vascular status, mild shifts in blood pressure can cause significant fluctuations in mental status; that observations that a person is "out of sorts" or "extremely tired" are consistent with fatigue and hypotension; and that fatigue and hypotension can cause inattentiveness. (Id.) Applying this expert knowledge to the facts in this case, Dr. Rodriguez concluded that Ms. Jackson was fatigued and hypotensive as a result of the dialysis and that this contributed to the accident. (Id.) Dr. Rodriguez did not opine as the general standard of post-dialysis care.*fn4

Defendant argues that Dr. Rodriguez is not qualified, that her method is not reliable, that there is not a valid connection between her testimony and the facts and issues in the case, and that her opinion constitutes a net opinion. Defendant does not challenge Nurse Lachman's qualifications or testimony as to standard of care, but merely maintains that she does not address causation in her expert report.

Without admissible testimony on causation, Defendant argues, it is entitled to summary judgment. The Court must determine whether Dr. Rodriguez's testimony as to causation is admissible, and if not, whether Nurse Lachman's testimony is sufficient for Plaintiffs to establish a prima facie case.


A. Standard of Review

Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted). These findings, in turn, must be based upon a determination of whether contested evidence is admissible under the Federal Rules of Evidence, for only admissible evidence may be considered in determining whether a "genuine" dispute of material fact exists under Rules 56(c)(2) & 56(e)(2), Fed. R. Civ. P. (Dec. 1, 2009).

B. Admissibility of Expert Testimony Generally

The admissibility of expert testimony is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Rule 702 of the Federal Rules of Evidence, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

As the Supreme Court explained in Daubert, district court judges perform a "gatekeeping role," 509 U.S. at 596, by assessing whether expert testimony is both relevant and methodologically reliable in order to determine whether it is admissible under Rule 702. Id. at 590-91.*fn5

Under the law of this Circuit, Daubert and Rule 702 call upon the Court to examine the admissibility of expert testimony in light of three factors: the qualifications of the expert, the reliability of his or her methodology and the application of that methodology, and whether the testimony fits the matters at issue in the case. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994); see Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). An expert's qualification to testify is based on whether the witness has the "specialized knowledge" referred to in the rule regarding the area of testimony. Id.

Reliability refers to the rule's requirement that "the testimony is the product of reliable principles and methods," and is governed by the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Finally, there must be "a valid scientific connection" - a so-called "fit" - between the expert's testimony and the facts and issues in the case in order for the expert's testimony to be admissible. Paoli, 35 F.3d at 743. The proponent of expert testimony must establish the admissibility of the expert's opinion by a preponderance of the evidence. Id. at 744.

C. Qualifications of Dr. Rodriguez

Rule 702 requires the witness to have "specialized knowledge" regarding the area of testimony. The Court of Appeals has explained that an expert's qualifications should be assessed "liberally," recognizing that "a broad range of knowledge, skills, and training qualify an expert as such." In re Paoli, 35 F.3d at 741.

Defendant argues that because Dr. Rodriguez does not have recent training or experience in the specialization of nephrology or extensive experience with post-dialysis care, she is not qualified to render an opinion on the effects of dialysis on Ms. Jackson's blood pressure and fatigue level, or to analyze Ms. Jackson's treatment records.*fn6 Under the federal rules, "the fact that a doctor is not a specialist in a particular field goes not to the admissibility of the opinion but rather to the weight that the jury may wish to place upon it." Cree v. Hatcher, 969 F.2d 34, 38 n.5 (3d Cir. 1992); Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996) (holding that an internist was sufficiently qualified to give expert testimony on his diagnosis of mesothelioma even though he was not pathologist, oncologist or expert in definitive cancer diagnosis). See also In re Paoli, 35 F.3d at 741; Hammond v. International Harvester Co., 691 F.2d 646, 652-53 (3d Cir. 1982); Knight v. Otis Elevator Co., 596 F.2d 84, 87-88 (3d Cir. 1979).

Defendant does not cite or make any arguments regarding federal law on this point, relying exclusively on state law decisions. The Court need not comment on the accuracy of Defendant's reading of these state cases. The Court finds that to the extent that New Jersey state law on admissibility requires additional qualifications to those possessed by Dr. Rodriguez, such authority is inconsistent with the relevant federal rule that lack of specialization goes to weight and not admissibility. Since federal procedural rules govern even in this diversity action, inconsistent state procedural rules are irrelevant.*fn7

Even without Dr. Rodriguez's admittedly limited experience with post-dialysis care, as a board certified and practicing internist who has also researched the literature regarding aftereffects of dialysis, Dr. Rodriguez is qualified to discuss the physiological effects of dialysis treatment, to testify as to the effects of hypotension on attentiveness and decision-making, and to draw conclusions based on the Ms. Jackson's treatment records and third parties' observations of Ms. Jackson about whether Ms. Jackson was suffering from fatigue or hypotension as a result of dialysis at the time of the accident. To the extent that her opinion should not be given as much weight as the opinion of a nephrologist on these matters, Defendant will be entitled to make that argument to a jury and offer competing testimony.

D. Dr. Rodriguez's Method and Application to These Facts

Daubert describes "the overarching subject" of the inquiry envisioned by Rule 702 as "the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie a proposed submission." Daubert, 509 U.S. at 594. As to the level of scrutiny involved, the Third Circuit Court of Appeals in Paoli said that:

The grounds for the expert's opinion merely have to be good, they do not have to be perfect. The judge might think that there are good grounds for an expert's conclusion even if the judge thinks that there are better grounds for some alternative conclusion, and even if the judge thinks that a scientist's methodology has some flaws such that if they had been corrected, the scientist would have reached a different result.

Id. at 742, 744 (internal quotations and citations omitted). In other words, the test "is not whether a particular . . . opinion has the best foundation or whether it is demonstrably correct. Rather, the test is whether the particular opinion is based on valid reasoning and reliable methodology." Oddi v. Ford Motor Co., 234 F.3d 136, 145-46 (3d Cir. 2000) (internal citations omitted).

The issue of fact addressed by Dr. Rodriguez's testimony is the cause of Ms. Jackson's inattention leading to the accident. Dr. Rodriguez relied on a partial medical history (Ms. Jackson's dialysis treatment records from April 2003 to July 2007), third parties' observations of Ms. Jackson immediately after the accident, her knowledge of the effects of dialysis, and the report of the treatment on the day of the accident, to retroactively diagnose Ms. Jackson's inattention on the day of the accident as having resulted from fatigue and hypertension caused by her dialysis treatment.

Dr. Rodriguez concluded that Ms. Jackson's "inattention was caused by hypotension that should have been picked up had the policies of Gambro Dialysis Center been followed." (Rodriguez Dep. 78:24-79:5.) The assessment of evidence to identify the underlying cause of observed symptoms from among the possible causes is called differential diagnosis. The assessment made by Dr. Rodriguez in this case is not a typical differential diagnosis, because it attempts to explain an ephemeral past condition (i.e. inattention) that is itself only known by circumstantial evidence (i.e. the accident and observations of witnesses). Nevertheless, the Court finds that the guidance provided in Paoli as to the reliability of such diagnosis provides the relevant standard. See generally In re Paoli, 35 F.3d 717.*fn8

At issue in Paoli was expert medical testimony that determined, on the basis of differential diagnosis, that the plaintiffs' illnesses were caused by exposure to certain chemicals. Id. The defendants contended that the doctors' methodology was unreliable. Id. at 746. Paoli found that most of the Daubert factors "are of only limited help" in assessing whether a particular differential diagnosis is reliable, and relied heavily on "the existence of standards controlling the technique's operation," to decide whether the differential diagnosis in that case was reliable. Id. at 758.

The court identified several standard diagnostic techniques involved in differential diagnosis: a physical examination of the patient, a review of medical records, taking a medical history and conducting of laboratory tests. Id. However, the court found that "[A] doctor does not always have to employ all of these techniques in order for the doctor's differential diagnosis to be reliable. . . . [S]ometimes differential diagnosis can be reliable with less than full information." Id. at 759. Not only can differential diagnosis be made with less than full information, it is also not necessary that all of the data point to the same conclusion. Id. at 766. Instead, the question is whether the core function of the differential diagnosis has been fulfilled in each case. The Paoli court found that "all of the experts agree that at the core of differential diagnosis is a requirement that experts at least consider alternative causes," and that "performance of standard diagnostic techniques provides prima facie evidence that a doctor has considered such causes and has attempted to test his or her initial hypothesis as to cause." Id. at 759.

Recognizing that the circumstances of differential diagnosis vary case-by-case, the Court of Appeals crafted a flexible test for assessing differential diagnosis. The Court held that expert testimony based on differential diagnosis should be excluded if:

[The doctor] engaged in very few standard diagnostic techniques by which doctors normally rule out alternative causes and the doctor offered no good explanation as to why his or her conclusion remained reliable, or the defendants pointed to some likely cause of the plaintiff's illness other than the defendants' actions and [the doctor] offered no reasonable explanation as to why he or she still believed that the defendants' actions were a substantial factor in bringing about that illness.

Id. at 760. Adapting this test to the facts here, the question would be whether Dr. Rodriguez performed or had access to the results of standard diagnostic techniques to connect Ms. Jackson's inattention to her dialysis treatment. If she only performed or had access to very few such tests, the question would be whether she can provide a good explanation as to why her conclusion remained reliable.*fn9 Because Defendant identifies the accident itself as an alternate explanation for Ms. Jackson's symptoms, which certainly is plausible, Dr. Rodriguez also needs to offer a reasonable explanation as to why she still believes that the defendants' actions caused the inattention.*fn10

In the present case, Dr. Rodriguez undoubtedly engaged in or had access to the results of very few of the standard diagnostic techniques by which doctors rule out alternative explanations. Dr. Rodriguez was asked to determine the cause of Ms. Jackson's inattention on the day of the accident. Dr. Rodriguez had no contemporaneous examination to refer to, or the results of any diagnostics directed at determining whether Ms. Jackson suffered from hypotension or fatigue on the day and at the time in question. Indeed, other than the sitting blood pressure measurement made at the end of Ms. Jackson's treatment, there was no direct medical evidence available.

Instead, as noted above, Dr. Rodriguez reviewed Ms. Jackson's medical history and treatment records, and relied on third party descriptions of Ms. Jackson's demeanor after the accident. This evidence is far less substantial than the evidence ordinarily relied on in making a medical diagnosis. The Court will not, therefore, grant to Dr. Rodriguez the presumption that she ruled out alternative explanations. The burden is on Plaintiffs as the parties seeking admissibility of this expert testimony, and ultimately Dr. Rodriguez, to explain how it is she was able to reliably conclude that hypotension and fatigue caused Ms. Jackson's inattention and subsequent observed disorientation. Dr. Rodriguez must provide a good explanation as to why her conclusion remained reliable even though it was made without the techniques normally used to make such a diagnosis.

Such an explanation has not yet been provided to the Court. Dr. Rodriguez's report does not discuss alternative explanations for Ms. Jackson's inattention, or her observed symptoms after the accident. In addition to not addressing the other possible causes of inattention, or alternate explanations for Ms. Jackson's post-accident behavior, Dr. Rodriguez also does not explain in the report why she disregarded Ms. Jackson's testimony that she felt fine on the day of the accident. This fact, standing on its own, is not determinative. Indeed, Dr. Rodriguez eventually explained in her deposition that she discounted Ms. Jackson's subjective assessment of her state because, in her medical judgment, someone suffering from the side effects of dialysis is not able to accurately assess those deficiencies at the time they are occurring. (Rodriguez Dep. 115:9-116:23.) An expert is certainly permitted to come to a conclusion that is not supported by all of the data. Paoli, 35 F.3d at 766. However, given the paucity of available evidence here, and the fact that Ms. Jackson's subjective assessment is consistent with the alternative Dr. Rodriguez's differential diagnosis is supposed to be ruling out (that Ms. Jackson's inattention was unrelated to her dialysis treatment, that Ms. Jackson's inattention was merely ordinary distraction, or her subsequent symptoms were a result of the accident itself), Dr. Rodriguez must more adequately explain why her diagnosis was reliable despite Ms. Jackson's contrary subjective assessment of herself.

Whether Dr. Rodriguez can provide a "good explanation as to why . . . her conclusion remained reliable" and defend her method as required by Paoli is a question of fact. The Court cannot rely on the deficiencies of the expert report to exclude her testimony, especially when Defendants have not established the relevant grounds in deposition.*fn11 In Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999), the district court excluded plaintiff's expert testimony based on the expert's report without holding a hearing. 186 F.3d at 416-18. The Court of Appeals concluded that the district court abused its discretion when it excluded the expert's opinion without holding a hearing. Id. at 418. The Court explained: "The district court's analysis of the Lambert Report does not establish that Lambert may not have good grounds for his opinions, but rather, that they are insufficiently explained and the reasons and foundations for them inadequately and perhaps confusingly explicated." Id. In such circumstances, where a ruling on admissibility turns on factual questions, even where the party seeking to introduce the expert has not requested a hearing, a hearing is required. Id. at 417-18.*fn12

In summary, Dr. Rodriguez relied on a sparse record to attempt a diagnosis of Ms. Jackson's inattention at the time of the accident. Because her attempt to make the diagnosis, requiring her to distinguish the explanation she endorses from other possible explanations, relied on few of the standard diagnostic techniques, it is necessary that she explain to the Court why she believed the diagnosis was still reliable. She has not done so in her report, but this is not a sufficient basis upon which to exclude her testimony. She may have good reasons for rejecting the collision as the cause of Ms. Jackson's demeanor post-accident. The Court must conduct a Daubert hearing in order to make a determination as to Dr. Rodriguez's ability to explain why her conclusion remains reliable despite the lack of formal diagnostic techniques.

E. Net Opinion

Defendant contends that because Dr. Rodriguez based her opinion on the testimony of other witnesses as to Ms. Jackson's condition, she offers only a "bare conclusion" that constitutes a net opinion. Defendant's argument is without merit. Dr. Rodriguez relied on a number of other sources of information, including medical texts and Ms. Jackson's medical records indicating problems with vascular stability. Such an opinion is not a net opinion. See Nguyen v. Tama, 688 A.2d 1103, 1107 (N.J. Super. Ct. App. Div. 1997). Indeed, even if Dr. Rodriguez had based her opinion exclusively on the testimony of other witnesses, this would not necessarily render her testimony a net opinion, because she would be adding to that data her own medical expertise to render an opinion.*fn13

F. Nurse Lachman's Testimony

Defendant argues for the exclusion of Nurse Lachman's testimony because she did not address causation. Even if it were true that Nurse Lachman did not address causation, a witness need not address every aspect of a party's case in order to be helpful to a trier of fact. Since Nurse Lachman does address the general standard of care, her testimony would still be relevant and admissible. Nevertheless, the Court will also determine whether Nurse Lachman addresses causation because, if so, it may be that Defendant's motion would be denied regardless of whether Dr. Rodriguez's testimony is admissible.

Defendant argues that without proof that Ms. Jackson was actually suffering from the after-effects of dialysis at the time of the accident, causation cannot be proven. Like Dr. Rodriguez's testimony, Nurse Lachman's testimony must be considered in light of the testimony of Officer Schuenemann. He testified that the accident was caused by inattention, and that this inattention may have been a result of Ms. Jackson's fatigue. (Schuenemann Dep. 16:22-18:10, 23:7-11, 28:5-21, 32:8-17). For the purposes of this motion, the Court must view the evidence in the light most favorable to Plaintiffs, and so the Court must assume that the accident was caused by inattention and that Ms. Jackson was fatigued. The relevant issue of causation addressed by Nurse Lachman is what caused Ms. Jackson's inattention and fatigue (and the relationship between the two).

Questions of causation are often mixed questions of law and fact. There is the factual question of causation, which is whether some event would have happened but for the occurrence of some prior event. And there is also the legal question of causation, whether the connection between the two events is legally sufficient.*fn14 In this motion, Defendant alleges that Nurse Lachman does not address factual causation, in other words, that there is nothing in her testimony from which a reasonable fact-finder could conclude that Ms. Jackson's inattention would not have occurred but for the dialysis treatment.

Nurse Lachman testified that, to a "reasonable degree of nursing probability," the kind of dialysis treatment Ms. Jackson received on the day of the accident "increased Ms. Jackson's chance of blood pressure instability, dizziness, and fatigue." (Gebauer Cert., Ex-I ("Lachman Report"), at 4.) She further testified that the standard of care dictates that a medical provider check a patient's standing blood pressure before releasing the patient. Failure to do so places a patient at risk for injuries resulting from the possible side effects of dialysis. (Id.) Therefore, the question with regard to Nurse Lachman's testimony is whether a causal link between Ms. Jackson's dialysis treatment and her inattention and fatigue can be shown by demonstrating that the dialysis increased Ms. Jackson's chances of suffering from those conditions, even if other causes cannot be definitely ruled out.

Because inattention is such a general condition, and one that often occurs without any particular cause other than ordinary distraction, whether a reasonable fact-finder could conclude that the dialysis treatment was the cause of Ms. Jackson's inattention depends in large part on the degree of the increase in risk Nurse Lachman described. If the dialysis treatment Ms. Jackson received on the day of the accident is very likely to have caused various side effects leading to inattention, then this abstract statement of fact in combination with the fact that the condition actually occurred would be enough evidence upon which a fact-finder could determine causation. If, on the other hand, the increased risk of certain conditions was relatively small, the fact that the condition actually occurred would not be sufficient evidence to determine that the dialysis caused it.*fn15 Nurse Lachman's testimony will also be made stronger or weaker depending on the extent to which Dr. Rodriguez will be permitted to testify that the third parties' observations of Ms. Jackson after the accident indicate that she was suffering from the side effects of dialysis that Nurse Lachman indicates Ms. Jackson was placed at increase risk of suffering from as a result of Defendant's breach.

It is impossible to assess at this stage whether Nurse Lachman's testimony would be sufficient for a fact-finder to find causation, in part because the Court has not yet determined what parts of Dr. Rodriguez's testimony will be admitted, and in part because Nurse Lachman never discusses the degree of the increase she speaks about. Whether Nurse Lachman's testimony is sufficient turns on what other information the jury has been given by Dr. Rodriguez, and the degree of increase to which she is able to testify. Therefore, the Court will reserve decision until the conclusion of the pretrial hearing with regard to Dr. Rodriguez's testimony to determine whether Plaintiffs have met the burden of adducing evidence from which a fact-finder could find causation.


Dr. Rodriguez will be given an opportunity at the pretrial hearing to explain how she was able to come to her conclusion on causation, including how and why she disregarded alternative explanations. If she cannot offer the explanations required by Paoli to the satisfaction of the Court, her testimony must be excluded. After that determination has been made, the Court will consider whether Plaintiff has adduced sufficient evidence from which a fact-finder could determine that Defendant caused Plaintiffs' injuries. The Court will convene a Daubert hearing as soon as practicable. The accompanying Order shall be entered.

JEROME B. SIMANDLE United States District Judge

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