United States District Court, W.D. Tennessee, Western Division
CHARLES MARK McDANIEL, and his wife, MELODY McDANIEL, Plaintiffs,
UT MEDICAL GROUP, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO EXCLUDE DR.
PHAM, United States Magistrate Judge
the court is defendant UT Medical Group, Inc.'s
(“UTMG”) motion to exclude the expert testimony
of Michael Roberts, M.D., filed on November 3, 3017. (ECF No.
40.) Plaintiffs Charles Mark McDaniel and Melody McDaniel
filed a response on November 17, 2017. (ECF No. 41.) UTMG
filed a reply on December 7, 2017. (ECF No. 44.)
court has considered the briefs submitted in support of and
in opposition to the motion and their attached exhibits. For
the reasons provided below, UTMG's motion is GRANTED.
McDaniels allege that in 2009, a UTMG surgeon working at
Baptist Memorial Hospital, Stephen Behrman, M.D., provided
medical treatment to Mr. McDaniel of a quality that
“fell below the recognized standard of acceptable
professional practice for physicians in Shelby County,
Tennessee and similar communities.” (ECF No. 1 at 6.)
Specifically, they allege that Dr. Behrman failed to provide
appropriate post-operative treatment for Mr. McDaniel during
his recovery from a surgery for a ventral hernia repair.
(Id. at 5 to 7.) The McDaniels claim that Dr.
Behrman's alleged negligence has caused them physical,
mental, emotional, and financial harm. (Id. at 7 to
8.) They seek compensatory damages. (Id.)
instant motion, UTMG asks that the court exclude one of the
McDaniels' proposed expert witnesses, Dr. Michael
Roberts. (ECF No. 40-2 at 5.) UTMG argues that Dr. Roberts
should be excluded because he has failed to demonstrate that
he is sufficiently familiar with the Memphis medical
community or a similar community so as to be able to testify
about the standard of acceptable professional practice in
McDaniels counter that UTMG is relying on “outdated
case law” and that the court should examine the matter
through the lens of the Tennessee Supreme Court case of
Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).
(ECF No. 41 at 2 to 3.) They claim that, under the
“relaxed” Shipley standard, Dr. Roberts
has demonstrated adequate familiarity with the Memphis
medical community in three ways. (Id.) First, they
argue, he has demonstrated that he is familiar with the
Memphis medical community because he is familiar with
Milledgeville, Georgia. To make their point, the McDaniels
offer this syllogism: (1) Dr. Roberts has testified
Milledgeville has a similar standard of care to Dyersburg,
Tennessee; (2) Dr. Behrman has testified Dyersburg has a
similar standard of care to Memphis; and therefore, (3)
Milledgeville must have a similar standard of care to
Memphis. (ECF No. 41 at 5.) To support this argument, the
McDaniels point to the deposition of Dr. Behrman, which
states, in applicable part, as follows:
Q: Do you know surgeons from other parts of Tennessee, like
Dyersburg or Jackson or Nashville?
Q: Do you have occasion to talk to them about their surgical
practice and how they do things?
Q: Do you know any surgeons in other states?
Q: Do you know any surgeons in Georgia?
Q: Any surgeons in Missouri?
Q: When you've spoken to them about their surgical
practices, have there ever been anything that you've
determined was different about how they practiced medicine
Q: And you filed an Affidavit in this case, and we'll get
to that, but you claimed to be familiar with the standard of
care for surgeons here in Memphis and Shelby County.
Q: Do you believe there's a national standard of care for
ventral hernia repairs?
A: I would say so, yes.
. . . .
Q: And in talking to surgeons in Dyersburg or Jackson, you
don't think the standard of care for ventral hernia
repairs there is any different than it is in Memphis?
A: I mean, techniques, mesh types might be different, but I
think the standard of care would be similar.
Q: Assuming similar treatment capabilities and access to
devices and things, correct?
(Behrman Dep. 19:16-21:16, Dec. 21, 2011, ECF No. 41-2 at 4
further bolster this argument, the McDaniels highlight Dr.
Behrman's testimony that he believed other much smaller
communities share a similar standard of care with Memphis:
Q: Were you of the opinion that the standard of care in
Memphis is the same as the standard of care in Chattanooga?
. . . .
Q: Did you actually go to Chattanooga to testify?
A: It's actually some little town outside of Chattanooga
in the middle of nowhere.
Q: Franklin County. Is it Cleveland?
A: No, it's even smaller. I mean, it is - I mean,
it's Mayberry. I mean, it's tiny.
Q: But you still had the opinion that the standard of care in
Memphis was no different from the standard of ...