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Ebron v. United States

September 17, 2008

NICOLE EBRON, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Presently before the Court is defendant's motion in limine to preclude plaintiff Ebron's expert witness, Dr. Ackerman, from testifying to opinions not contained in his expert report. (Dkt. No. 14: Notice of Motion; see also Dkt. No. 15: Def. Br.; Dkt. No. 16: Onozawa Aff.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.) For the reasons discussed below, the motion is GRANTED.

FACTS

Plaintiff's complaint asserts that on January 2, 2004, she received a tetanus shot from Nurse Gilmore, who did not prepare the injection site with an alcohol wipe. (Dkt. No. 1: Compl. ¶¶ 27-30.) Ebron's first cause of action asserts malpractice. (Compl. ¶ 33.) Ebron's second cause of action asserts that Dr. Gayle and Nurse Gilmore "failed to fully and/or adequately advise the plaintiff of the risks inherent in the medical care and treatment to be rendered to plaintiff by defendant, such that defendant failed to obtain informed consent from plaintiff for the medical care and treatment so rendered by defendant." (Compl. ¶ 37.)*fn1

On or about July 8, 2008, Ebron's counsel provided plaintiff's Rule 26(a) expert report, in two pieces: a document signed only by counsel (Dkt. No. 16: Onozawa Aff. Ex. A), and a July 8, 2008 letter signed by Dr. Ackerman (Onozawa Aff. Ex. B). The disclosures provided that:

It is anticipated that at the time of trial that Dr. Ackerman, M.D., will testify as to the defendants' departure from good and accepted medical practice and procedure in the care and treatment that the defendant provided Ms. Nicole Ebron. It is also anticipated that Dr. Ackerman, M.D. will offer the opinion that the defendants failed to properly prepare Ms. Ebron's tetanus injection site for the tetanus injection that was given to Ms. Nicole Ebron and that the failure to properly prepare the tetanus injection site prior to the tetanus injection was a deviation from good and accepted medical practice and procedure which led to, and was the cause of, the infection and the scarring sustained by Ms. Ebron. It is further anticipated that Dr. Ackerman, M.D.'s Testimony will be that the scarring sustained by Ms. Ebron was the result of the defendants negligence and medical malpractice and that the scarring is permanent. (Onozawa Aff. Ex. A), and

Based on my review of all of the information made available to me, I have formed the following opinion:

An injection was performed without appropriate skin preparation. Preparing the skin properly is a standard technique that should be followed at all times. The patient subsequently developed a significant skin infection at the injection site this led to the need for the incision and drainage of the infected injection site and the patients prolonged use of antibiotics.

Within a reasonable degree of medical certainty, the infection was caused by the improper injection technique.

The failure to prepare the injection site by proper cleansing is a departure from the standard of care and is a causal result of the injury in this case.

The defendants' departed from good and accepted medical practice and procedure in the care provided to Ms. Nicole Ebron. The defendants' failure to properly prepare the tetanus injection site was a deviation from good and accepted medical practice and procedure. Further, it was this deviation from good and accepted practice, care and procedure which led to and was the cause of the infection and the scarring sustained by Ms[.] Ebron. Additionally the scarring sustained by Ms. Ebron is permanent.

The basis [of] my opinions are my education and training in the field of medicine, preparation of tetanus and other injection sites as well as the administration of tetanus and other injections, and a review of the my review of all of the information which was made available to me. (Onozawa Aff. Ex. B).

At his deposition, Dr. Ackerman confirmed:

Q: Aside from your opinion that the infection was caused by the failure to properly prep the site, are you offering ...


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