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McDaniel v. UT Medical Group, Inc.

United States District Court, W.D. Tennessee, Western Division

February 8, 2018

CHARLES MARK McDANIEL, and his wife, MELODY McDANIEL, Plaintiffs,
v.
UT MEDICAL GROUP, INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO EXCLUDE DR. MICHAEL ROBERTS

          TU M. PHAM, United States Magistrate Judge

         Before 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.)

         The 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.

         I. BACKGROUND

         The 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.)

         In the 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 Memphis, Tennessee.

         The McDaniels counter that UTMG is relying on “outdated case law” and that the court should examine the matter through the lens of the Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn.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?
A: Yes.
Q: Do you have occasion to talk to them about their surgical practice and how they do things?
A: Yes.
Q: Do you know any surgeons in other states?
A: Yes.
Q: Do you know any surgeons in Georgia?
A: Yes.
Q: Any surgeons in Missouri?
A: Yes.
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 there?
A: No.
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.
A: Yes.
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?
A: Yes.

(Behrman Dep. 19:16-21:16, Dec. 21, 2011, ECF No. 41-2 at 4 to 9.)

         To 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?
A: Yes.
. . . .
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 ...

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