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McELROY v. ALBANY MEMORIAL HOSPITAL

BRIAN W. McELROY and CATHERINE R. McELROY, his wife, Plaintiffs,
v.
ALBANY MEMORIAL HOSPITAL, ALAN MOSKOWITZ, M.D., ALAN MOSKOWITZ, M.D., P.C., d/b/a CENTER FOR SCOLIOSIS AND SPINE DISORDERS, DONALD CALLEY, M.D., and MARVIN KIM, M.D., Defendants.



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

MEMORANDUM-DECISION AND ORDER*fn1

I. Background

On January 19, 1999, plaintiff Brian McElroy ("McElroy") underwent spinal surgery in the form of posterior lumbar interbody fusion of the spine at L5-S1. McElroy and his wife, Catherine (collectively, "Plaintiffs"), allege that, following the surgery, McElroy, who had never experienced visual impairment, visual loss, or any form of blindness prior to January 19, 1999, was rendered blind in both eyes as a result of negligence and malpractice on the part of defendant Dr. Marvin Kim, M.D. ("Dr. Kim"). Specifically, Plaintiffs allege that Dr. Kim was negligent in the administration and monitoring of anesthesia, the positioning of McElroy during the surgery, the monitoring of McElroy's blood pressure and vital signs, the provision of proper body fluids to McElroy, and the failure to perform a proper, thorough, and complete pre-anesthetic examination. Presently before the Court is a motion by Dr. Kim (1) to preclude Plaintiffs from offering the expert testimony of Dr. Kathryn E. McGoldrick, M.D. ("Dr. McGoldrick"), at trial and (2) for summary judgment dismissing the complaint against Dr. Kim, pursuant to Federal Rule of Civil Procedure 56. Also pending before the Court is Dr. Kim's motion to exclude Plaintiffs' expert witness, Mark Dershwitz, M.D., Ph.D. ("Dr. Dershwitz"), from trial on the grounds that his expert disclosure is vague, nonspecific, and uninformative, in addition to its being in violation of this Court's December 4, 2003 Order limiting Plaintiffs' further expert disclosure to the issue of res ipsa loquitor.

  In his motion for summary judgment, Dr. Kim contends that Dr. McGoldrick's testimony should be excluded and that, if her testimony is in fact excluded, Plaintiffs will be unable to state a prima facie case against Dr. Kim, thereby entitling him to summary judgment dismissing the complaint. For the reasons set forth below, the Court denies both of Dr. Kim's motions.

  II. Discussion

  (a) Expert Testimony Standard

  The admissibility of expert and other scientific or technical expert testimony is governed by Rule 70 of the Federal Rules of Evidence, which provides as follows:
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.
Fed.R.Evid. 702.

  "[T]he Supreme Court has made clear that the district court has a `gatekeeping' function under Rule 702 — it is charged with `the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand'" Amorgianos v. National Railroad Passenger Corporation, 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)).

  "In fulfilling its gatekeeping role, the trial court should look to the standards of Rule 401 in analyzing whether proffered expert testimony is relevant, i.e., whether it ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (quoting Campbell v. Metropolitan Property and Casualty Insurance Company, 239 F.3d 179, 184 (2d Cir. 2001)). Then, the district court must determine whether the proffered testimony has a sufficiently reliable foundation to permit it to be considered, making this determination with reference to the indicia of reliability identified in Rule 702, namely (1) that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case. See id. "In short, the district court must `make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Id. at 265-66 (quoting Kumho Tire Company v. Carmichael, 526 U.S. 137, 152 (1999)).

  In addition to the specific criteria set forth by Rule 702, the Supreme Court set out a list of non-exclusive factors that the district court may consider in determining whether an expert's reasoning or methodology is reliable. These factors include: (1) whether the theory or technique on which the expert relies can be and has been tested — that is, whether the expert's theory can be challenged in some objective or empirical sense; (2) whether the theory or technique has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory and the existence and maintenance of standards controlling the technique or theory's operation; and (4) whether the theory or technique has been generally accepted by the relevant scientific community. See Daubert, 509 U.S. at 593-94. These factors do not constitute a "definitive checklist or test," however, as "[t]he inquiry envisioned by Rule 702 is . . . a flexible one." Id. Thus, "the gatekeeping inquiry must be tied to the facts of a particular case." Amorgianos, 303 F.3d at 266 (quoting Kumho, 526 U.S. at 150).

  The flexibility of the inquiry is meant to ensure that the district court is given the discretion necessary "to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact." Id. at 267. However, to warrant admissibility, "it is critical that an expert's analysis be reliable at every step," as "the Daubert requirement that the expert testify to scientific knowledge — conclusions supported by good grounds for each step in the analysis — means that any step that renders the analysis unreliable under the Daubert factors renders the expert's testimony inadmissible." Id. at 267 (citations and quotations omitted).

  Thus, in making its reliability determination, "the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand" Id. If the court finds some flaw in the expert's reasoning, the judge should only exclude the expert's testimony if that flaw is large enough that the expert lacks "good grounds" for his conclusions. Id. This tendency toward limiting the exclusion of expert testimony "accords with the liberal admissibility standards of the federal rules and recognizes that our adversary system provides the necessary tools for challenging reliable, albeit debatable, expert testimony." Id. As the Daubert court explained, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.

  (b) Dr. McGoldrick's Testimony

  According to Plaintiffs' disclosure statement, Dr. McGoldrick is expected to testify that McElroy's postoperative vision loss is the result of ischemic optic neuropathy ("ION"). See Plaintiffs' Witness Disclosure at 2. She is also expected to testify as to other risk factors for ION, including large intraoperative blood loss, long duration in the prone position, intraoperative hypotension and anemia, venous congestion, and increased venous pressure that occurs with prolonged head-down positioning or when large quantities of fluid infusion decrease profusion to the optic nerve. Id. Finally, she is expected to testify that decreased blood pressure and increased venous pressure can be hazardous and that, in the instant case, the administration of 10,000 cc of crystalloid to McElroy, who purportedly lost only 600 ...


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