United States District Court, W.D. Tennessee, Western Division
THOMAS G. HENSLEY and PAMELA L. HENSLEY as natural parents and wrongful death beneficiaries of Coty Lee Hensley, deceased, and THE ESTATE OF COTY LEE HENSLEY, Deceased, by PAMELA L. HENSLEY, Administratrix, Plaintiffs,
METHODIST HEALTHCARE MEMPHIS HOSPITALS, MARK C. BUGNITZ, M.D., and JAMES W. EUBANKS, III, M.D., Defendants.
ORDER ON PENDING MOTIONS
S. THOMAS ANDERSON, District Judge.
Before the Court are seven pending motions. On December 28, 2015, the remaining Defendants filed four Motions to Exclude the Causation Opinions of the Plaintiffs' various experts. (ECF Nos. 211-214). The Defendants also filed an accompanying Motion for Summary Judgment, arguing that if the Plaintiffs' experts were excluded, the Plaintiffs would be unable to establish essential elements of their healthcare-liability action under Tennessee law. (ECF No. 215). The Plaintiffs responded in opposition to the Motions to Exclude on January 26, 2015. (ECF Nos. 234-237). After the Court granted leave, the Defendants filed replies on February 13, 2015. (ECF Nos. 248-251).
The Plaintiffs' one pending motion is a Motion to Strike and Limit the Number of Defendants' Expert Witnesses, filed December 29, 2015. (ECF No. 216). The Defendants filed5> separate responses to this motion. (ECF Nos. 222, 225, 227). Without seeking leave of the Court to file, the Plaintiffs filed a reply on January 16, 2015. (ECF No. 228). The Defendants subsequently filed a Motion to Strike the Plaintiffs' reply to this motion, arguing that the Plaintiffs violated Local Rule 7.2(c) in submitting a reply without the Court's leave. (ECF No. 231). The Plaintiffs never responded to this Motion to Strike, which correctly set forth the requirement for seeking leave. Thus, as an initial matter, the Defendants' Motion to Strike the Plaintiffs' Reply is GRANTED. The Court addresses each of the pending motions below, in the order deemed most appropriate.
On June 28, 2012, Plaintiff Thomas Hensley found his son, 11-year-old Coty Lee Hensley semi-conscious, lying on a porch of a job-site with blood coming from a small puncture-wound on the right side of his neck. (Compl. ¶ 35-37, ECF No. 1). Thomas rushed Coty to Baptist Memorial Hospital - North Mississippi. (Id. ¶ 38, 40). Upon arrival, Coty was in significant respiratory distress. He was intubated and transferred by helicopter to Methodist LeBonheur Children's Hospital in Memphis, Tennessee, for more specialized care. Coty arrived at LeBonheur around 10:00 p.m. the same day. (Id. ¶ 43-45; Defs.' Statement of Undisputed Facts ¶ 7-8, ECF No. 215-2). At LeBonheur, a CT scan found no significant injury to vessels in the neck, and the puncture wound was deemed insignificant. (Defs.' Facts ¶ 8). Coty was transferred to the intensive care unit, but his pulmonary function continued to deteriorate. (Id. ¶ 9). Doctors made the decision to place the patient on a heart-lung bypass, or extracorporeal membrane oxygenation ("ECMO"), by cannulating the femoral vessels. (Id. ¶ 10-11). This involved placing a catheter into the abdominal aorta through the femoral vessel in the right upper thigh. (Id. ¶ 12). The cannulation was unsuccessful, and Coty died. (Id. ¶ 15). The causation of5> Coty's death is central to this case: the Plaintiffs allege that Defendants Dr. Mark Bugnitz and Dr. James Eubanks were negligent in treating the patient at LeBonheur and that their negligence caused his death.
No autopsy was performed the day of Coty's death. (Id. ¶ 17). He was embalmed and buried, and more than two weeks later, his parents had the body disinterred and flown to Dallas, Texas, for a private autopsy by Dr. Amy Gruszecki. (Id. ¶¶ 18-19). Dr. Gruszecki is an expert proffered by the Plaintiffs and one of the experts challenged by the Defendants. Her opinions, as well as the opinions of the Plaintiffs' experts, are discussed in detail below.
ADMISSIBILITY OF EXPERTS
Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal courts, and trial judges have "the responsibility of acting as gatekeepers to exclude unreliable expert testimony." Under Rule 702, a witness may give expert testimony if he is qualified by "knowledge, skill, experience, training or education, " if the testimony is relevant, and if the testimony is reliable. Each of the Defendants' Motions to Exclude challenges the reliability of the Plaintiffs' experts' testimony. A reliability inquiry is "flexible, " but it should assess "whether the testimony is based upon sufficient facts or data, ' whether the testimony is the product of reliable principles and methods, ' and whether the expert has applied the principles and methods reliably to the facts of the case.'" The Supreme Court provided several factors to determine reliability: "testing, peer review, error rates, the existence and maintenance of standards controlling the technique's operation, and general acceptance in the relevant scientific community." Finally, although the proponent of expert testimony need not prove that the opinion is correct, the proponent does bear the burden of proving the opinion's admissibility.
I. Dr. Amy Gruszecki
The Defendants move to exclude the causation opinions of Dr. Amy Gruszecki, MSFS, D.O., first, as unreliable under Federal Rule of Evidence 702. (ECF No. 211). Second, the Defendants seek to exclude the opinions of Dr. Gruszecki as a sanction for spoliation of evidence. (ECF No. 212).
The Defendants argue that Dr. Gruszecki's cause-of-death opinions are not based on accepted scientific methods and are therefore inherently unreliable. Dr. Gruszecki performed an autopsy on July 19, 2012, over two weeks after Coty's death. Dr. Gruszecki's two opinions relevant to this Order are the following: (1) her estimation of "[a]pproximately 1 to 1.5 liters of blood in the lower abdomen and pelvis retroperitoneal and peritoneal tissues;" and (2) her conclusion that Coty "died as the result of extensive retroperitoneal and peritoneal hemorrhage due to probable blunt force trauma to the abdomen." The first finding led to Dr. Gruszecki's conclusion regarding the cause of death. Her opinions, if reliable, are relevant to the Plaintiffs' case: they seek to establish that Coty died as a result of blunt-force trauma, which led to bleeding in the retroperitoneal and peritoneal spaces, and subsequently, the child's death. The Plaintiffs allege that Dr. Bugnitz and Dr. Eubanks were negligent in failing to correctly diagnose and properly treat Coty under the relevant professional standard of care. Their negligence, Plaintiffs allege, was the proximate cause of Coty's death.
First, the Defendants challenge Dr. Gruszecki's estimation of the amount of blood in the retroperitoneal and peritoneal spaces as unreliable and not based on acceptable scientific practices. At Dr. Gruszecki's deposition, defense counsel questioned her as to her method of measuring the amount of blood in the tissues. She responded that the estimation was
just based on experience.... [T]he amount of blood infiltrating throughout the tissue is unable to be measured with a measuring cup because you cannot scoop up the fat and scoop it out in order to measure how much blood is in there. So it's an estimate based on what... is there and the volume based on my experience that I think it is. Which is why I don't give an exact amount. I said 1 to 1-1/2 liters.
The Defendants point out that Dr. Gruszecki used the word "guesstimate" when describing her methodology. But when asked to clarify, she stated that her "speculation" was "based on [her] experience of blood in cavities." The Defendants proffer no expert to demonstrate that pathologists do not routinely estimate levels of blood in conducting autopsies. Instead, they cite their own expert's opinion that "[i]t is not medically or scientifically possible after death to accurately, or even semi accurately, ... determine the exact volume of blood that has infused within soft tissues and musculature, such as the retroperitoneal space, from an antemortem hemorrhage."
Aside from Dr. Gruszecki's visual estimation of the amount of blood in the tissues, the Defendants also challenge her estimation because she could not tell what percentage of the blood was diluted with embalming fluid. Dr. Gruszecki did not test the blood to determine the amount of dilution, and therefore, the exact amount of blood in the tissues. The parties dispute whether it was even possible to determine the percentage of blood versus the percentage of embalming fluid.
While Dr. Gruszecki's estimation of the amount of blood appears to be fertile grounds for cross-examination, it is not unreliable under Rule 702, Daubert, and its progeny. Dr. Gruszecki has performed thousands of autopsies. Based on her experience, she testified that "[t]he blood that [she] found was... it was infiltrating through the retroperitoneal tissues and around the pancreas, kidney, bladder, adrenal and intestines. There was also some free peritoneal blood present within the pelvic gutter and around the bladder." In this Motion, the Defendants have not disputed the presence of a large amount of blood in the spaces, nor have they disputed that an exact measurement of the amount of blood is impossible. Although one defense expert opined that a pathologist could not accurately estimate the exact amount of blood, Dr. Gruszecki's experience in conducting autopsies should allow her to opine broadly on the amount of blood that she saw, even if it is impossible to determine the precise volume. The Defendants are free to challenge Dr. Gruszecki's estimation and her failure to determine a percentage of dilution, if ascertainable, in front of the jury. Her visual estimation-when an exact measurement was admittedly not possible and not regular practice-is sufficiently reliable under Rule 702 to admit her testimony.
Second, the Defendants challenge Dr. Gruszecki's finding that, in light of the amount of blood in the peritoneal and retroperitoneal tissues, Coty died as a result of that bleeding. The Defendants argue because Dr. Gruszecki "could not, and did not, identify the source of the alleged bleeding, " her causation opinion is not reliable. Dr. Gruszecki based her opinion on the amount of blood in the tissues-an amount she believes is consistent with bleeding that started well before the doctors performed ECMO:
My opinion is that the-the insertion of an ECMO catheter or any catheter within an hour of his death would not have caused this bleeding that I found at autopsy.
[T]he bleeding was much too extensive and infiltrative throughout the retroperitoneal space that I saw to have been caused within the short period of time of roughly an hour.
When asked how fast a hematoma would form, Dr. Gruszecki testified that she could not give an exact rate ...