United States District Court, N.D. New York
BRIAN W. McELROY and CATHERINE R. McELROY, his wife, Plaintiffs,
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
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
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.
(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.
"[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,
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
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 cc of blood, constituted a deviation
from the standard of care and resulted in decreased perfusion to
his optic nerves, resulting in tunnel vision in his left eye and
only light perception in his right eye. Id.
Dr. Kim does not challenge Dr. McGoldrick's qualifications as
an expert witness in this action. Dr. McGoldrick is a physician
duly licensed to practice in the State of New York and has been
licensed to practice in New York since 1986. McGoldrick
Deposition at 5. From 1976 to 1987, she served as an
anesthesiologist at the Massachusetts Eye and Ear Infirmary
Massachusetts, and from 1987 until August of 2001 she served as
the director of the ambulatory surgery unit at Yale University.
Id. at 5, 8. Dr. McGoldrick left her position at Yale in August
of 2001 to become chairman and director of anesthesiology at New
York Medical College, Westchester Medical Center. Id. at 5.
Dr. McGoldrick's proposed expert testimony focuses on her
theory that the amount of fluid used during McElroy's surgery
caused his post-operative vision loss. In order to establish
causation, Plaintiffs must offer admissible expert testimony
regarding both general and specific causation. See
Amorgianos, F.3d at 268. In other words, Plaintiffs must
establish both (1) that the administration of an amount of fluid
disproportionate to a patient's need for replacement fluid can
cause ION and (2) that the administration of a disproportionate
amount of fluid actually did cause ION in the instant case. Dr.
Kim contends that Dr. McGoldrick's testimony to this effect is
fatally flawed as to both general and specific causation, and he
claims that her testimony should therefore be precluded as
Dr. Kim bases his contention primarily on the fact that Dr.
McGoldrick's opinion "is not supported by any scientific study,
has not received acceptance by any relevant peer review, and had
not been accepted by the physicians dealing with this area of
medicine." Dr. Kim's Memorandum at 2. More particularly, Dr. Kim
contends that "upon examination of the literature in the medical
community regarding ION, it is clear that the occurrence of ION
is considered rare and that the cause of it is multifactorial,
with no one cause specifically documented because of the lack of
an adequate number of cases for study and statistical analysis."
Id. at 4.
Dr. Kim points to a number of articles to support his position.
He refers, for instance, to Dr. Steven Roth's "Postoperative
Vision Loss, Still No Answers Yet," published in 2001, in which
Dr. Roth describes postoperative vision loss as a multifactorial
problem with no consistent underlying mechanism and notes that
there is a need for a large epidemiologic study and research at a
basic level in order to determine the underlying causes of, and
means to prevent, postoperative vision loss. He also cites Dr. Lori Ann Lee's "Postoperative
Vision Loss Data Gathered and Analyzed," in which Dr. Lee writes
that the etiology of postoperative ischemic operative neuropathy
is unclear and that the number of reported cases is too small to
draw conclusions. Similarly, Dr. Kim specifies a 1995 article
entitled "Postoperative Ischemic Optic Neuropathy," by Drs. E.
Lynne Williams, William M. Hart, Jr., and Rene Tempelhoff, which
also describes the etiology of postoperative ION as
In addition to the articles cited in support of his position,
Dr. Kim relies on statements made by Dr. McGoldrick during her
deposition testimony that Dr. Kim claims demonstrate the
unreliability of her theory. The statements relied upon by Dr.
Kim are statements by Dr. McGoldrick to the effect that, for
instance, "we have a lot of unanswered questions and we need more
data [with respect to determining the underlying causes and means
to prevent postoperative vision loss]." McGoldrick Deposition at
28-29. Another piece of Dr. McGoldrick's deposition testimony
pointed to by Dr. Kim states that there have not been any studies
done on animals, which might give some indication regarding the
accuracy of her hypothesis that McElroy's postoperative vision
loss was related to the overhydration of fluids, as Plaintiffs
have alleged. See id. at 69-73. Further, Dr. Kim notes Dr.
McGoldrick's testimony that her opinion that the administration
of 10,000 cc's of crystalloid caused McElroy's ION has not been
scientifically tested. See id. at 128-29.
Having considered these objections by Dr. Kim, the Court finds
that Dr. McGoldrick's testimony should not be precluded at trial.
With respect to what appears to be the gravamen of Dr. Kim's
motion, namely that the bulk of literature in the medical
community, and Dr. McGoldrick herself, suggest that the
occurrence of ION is rare and multifactorial, the Court is not
persuaded that this assertion, even if true, renders Dr. McGoldrick's testimony
unreliable. For instance, with respect to Dr. Roth's
"Postoperative Vision Loss, Still No Answers Yet" article, Dr.
McGoldrick's deposition testimony indicates that she agrees with
some of Dr. Roth's conclusions. In particular, Dr. McGoldrick
stated that she agreed with Dr. Roth's conclusion that "large
quantities of fluid infusion . . . decrease perfusion."*fn2
See McGoldrick Deposition at 28.
Dr. McGoldrick also went on to state that while she agrees that
ION is "a multifactorial disease" and is aware of cases where
there seems to be no good explanation for why a particular
patient had postoperative visual loss, she does "think [that] in
Mr. McElroy's case there are good reasons why he had
postoperative visual loss." Id. at 31-32. Moreover, she cited
Dr. Roth's article for the proposition that, given that we know
what some of the multifactorial causes of ION are, "you could
titrate your anesthetic to avoid certain complications or
scenarios . . . that are known to cause risks." Id. at 31-32.
In other words, in her deposition testimony, Dr. McGoldrick
interpreted Dr. Roth's article, cited by Dr. Kim as an
authoritative source within the medical community, as being
supportive of her causation theory.
Additionally, Dr. McGoldrick noted that, as of January 19,
1999, "[s]everal articles that discussed factors that were
thought to be contributory to the development of [ION]" were
available in the literature*fn3 and that her theory is "as
objective as [it can be] given what is available in that literature." See McGoldrick Deposition at 127. However, even if
Dr. McGoldrick could point to no textual authority for her
opinion, the Second Circuit has stated that disputes regarding
such matters as the lack of textual authority for an expert's
opinion, or faults in the methodology used by an expert in
reaching an opinion, "go to the weight, not the admissibility,"
of the expert's testimony. McCullock v. H.B. Fuller Company,
61 F.3d 1038, 1044 (2d Cir. 1995). Upon consideration of Dr.
McGoldrick's qualifications and upon a careful examination of her
deposition testimony, the Court sees no step in her analysis that
renders her opinion unreliable and finds that, at the very least,
she has "good grounds" for her conclusions, the presence of which
suggest that the Court should not exclude her testimony.
Amorgianos, 303 F.3d at 267. Thus, given Dr. McGoldrick's
unchallenged qualification as an expert in this matter, the Court
finds that this issue regarding whether the multifactorial nature
of ION in general renders it impossible to isolate a particular
reason why McElroy developed ION in this case represents
precisely the sort of instance in which, as stated by the
Amorgianos court and discussed above, our adversary system
provides the necessary tools for challenging reliable, albeit
debatable, expert testimony.
Because the Court finds that Dr. McGoldrick should not be
precluded from testifying at trial, and because such preclusion
was the basis for Dr. Kim's summary judgment motion, that summary
judgment motion is denied.
(c) Dr. Dershwitz's Testimony
As is the case with Dr. McGoldrick, Dr. Kim does not challenge
Dr. Dershwitz's qualifications as an expert witness in this case.
Dr. Dershwitz has an M.D. and a Ph.D., and is licensed to
practice in the State of Maine and the Commonwealth of
Massachusetts. Dershwitz Disclosure at 3. He has also been
certified by the American Board of Anesthesiology. Id. at 3. From 1986 to 2002, he had an appointment at Massachusetts General
Hospital as an assistant in anesthesia (1986-90), assistant
anesthetist (1990-96), associate anesthetist (1996-2000), and
clinical associate in anesthesia (2000-02). Id. at 4. Since
2000, Dr. Dershwitz has served as an anesthesiologist at UMass
Memorial Medical Center. Id. He has had several academic
appointments since 1977, and he has authored numerous reports and
abstracts on the subject of anesthesiology. Id. at 4, 8-16.
Dr. Dershwitz stated in his report (as amended on April 12,
2004) that McElroy's postoperative vision loss was due to ION
caused by a prolonged period of decreased delivery of oxygen to
the anterior portion of the optic nerve. Dershwitz Disclosure at
1. He wrote that such vision loss is a rare occurrence that would
be considered "more likely than not" due to the negligence of Dr.
Kim. Id. According to Dr. Dershwitz, the factors leading to ION
include low arterial blood pressure, high venous blood pressure,
low hematocrit, low oxygen saturation, and high intraocular
pressure. Id. He described the procedure performed by Dr. Kim,
in which he gave McElroy approximately 10,000 cc's of intravenous
fluids when the surgery only resulted in about 600 cc's of blood
loss. Id. Dr. Dershwitz concluded that the amount of
intravenous fluids administered "likely contributed" to a high
venous blood pressure and low postoperative hemocrit, both of
which are factors that may contribute to a decrease in oxygen
delivery. Id. He also noted that other risk factors for ION
include prone position, pressure on the face, long duration of
surgery, and patient history of smoking. Id. at 2. Dr.
Dershwitz said that all but the last factor were under the direct
control of the physicians, and all of those factors were known to
the anesthesiologists prior to the procedure. Id. at 2.
Dr. Kim contends that the testimony of Dr. Dershwitz should be
excluded at trial because it would exceed the authority granted pursuant to this Court's
December 4, 2003 Order restricting further expert disclosure by
the Plaintiffs to the issue of res ipsa loquitor. Snyder
Attorney Affidavit at 2. Dr. Kim argues that Dr. Dershwitz's
proposed testimony does not relate to res ipsa loquitor as
required by the Order, but will instead include testimony
regarding general malpractice. Dr. Kim's Memorandum at 4.
However, the proposed testimony of Dr. Dershwitz fulfills the
requirements for the application of res ipsa loquitor, and is
therefore within the scope of authority granted by the Order.
Three prerequisites must be satisfied for res ipsa loquitor to
be invoked. The first prerequisite is that the event causing the
injury must be of a type that does not ordinarily occur in the
absence of negligence. States v. Lourdes Hosp. 100 N.Y.2d 208,
210 (2003). Although Dr. Dershwitz does not use that precise
language in his report, the prerequisite is satisfied by his
assertion that such postoperative vision loss "would be
considered by specialists in anesthesiology and perioperative
medicine to be, more likely than not, due to the negligence on
the part of one or more of his caregivers." Dershwitz Disclosure
at 1. He also noted that the approach taken by Dr. Kim was
"unconventional." Id. Further, Dr. Dershwitz stated that the
procedure led Dr. Kim to administer excessive amounts of fluid to
McElroy, likely causing high venous blood pressure and low
hemocrit, both of which are factors leading to decreased oxygen
delivery (the cause of ION). Id.
The second prerequisite is that the injury be caused by an
agent or instrumentality within the exclusive control of the
defendant, and the third is that no act or negligence of the
plaintiff contributed to the happening of the event that caused
the injury. States, 100 N.Y.2d at 212. The proposed testimony
of Dr. Dershwitz satisfies both of these requirements. Dr.
Dershwitz named five factors (low arterial blood pressure, high
venous blood pressure, low hematocrit, low oxygen saturation, and high intraocular pressure) that contribute to a
decrease in oxygen delivery causing ION, and each factor was
under the control of the physicians. Dershwitz Disclosure at 1.
He also identified four risk factors that could contribute to
ION, including prone position, pressure on the face, long
duration of surgery, and patient history of smoking. The first
three risk factors were under the direct control of the
physicians, and Dr. Dershwitz does not state that any history of
smoking was necessarily a contributing cause in this particular
case. Furthermore, with respect to all of the risk factors, the
anesthesiologists were aware of the existence of all of the risk
factors at the time and proceeded with this particular procedure
in the face of them.
Dr. Kim further argues that the written report submitted by Dr.
Dershwitz is insufficient under Federal Rule of Civil Procedure
26, which requires that an expert's report contain "a complete
statement of all opinions to be expressed and the basis and
reasons therefor [and] the data or other information considered
by the witness in forming the opinions." Dr. Kim claims that Dr.
Dershwitz's conclusions are "vague, nonspecific and completely
uninformative." Dr. Kim's Memorandum at 3-4. The Court finds,
however, that Dr. Dershwitz's report is sufficiently specific
under Federal Rule of Civil Procedure 26. In his report, Dr.
Dershwitz described the cause of McElroy's postoperative vision
loss as being ION. Dershwitz Disclosure at 1. He detailed the
cause of ION, as well as the factors that contribute to it. Id.
He specifically explained the procedure used by the
anesthesiologists and how that likely resulted in a high venous
blood pressure and low postoperative hemocrit, which are listed
in his report as causes of the decreased oxygen flow that leads
to ION. Id. This information is sufficient to satisfy the
requirements of Rule 26.
Because the testimony of Dr. Dershwitz does not exceed the
scope required by this Court's December 4, 2003 Order and does
not violate Federal Rule of Civil Procedure 26, this Court finds that the testimony of Dr. Dershwitz will not be excluded.
Based on the foregoing discussion, it is hereby
ORDERED, that Dr. Kim's motion for summary judgment (Dkt. No.
51) is DENIED; and it is further
ORDERED, that Dr. Kim's motion to preclude Dr. Dershwitz from
testifying at trial is DENIED; and it is further
ORDERED, that the Clerk serve a copy of this order on all
IT IS SO ORDERED.