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McHugh v. Jackson

March 2, 2010

KEVIN MCHUGH & JENEEN MCHUGH, PLAINTIFFS,
v.
JUANITA JACKSON, ET AL., DEFENDANTS.



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

OPINION

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.

I. BACKGROUND

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.

III. DISCUSSION

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 ...


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