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Biernacki v. United States

United States District Court, W.D. New York

March 6, 2014

HALINA BIERNACKI, Individually and as Executrix of the Estate of David Street, Plaintiff,


H. KENNETH SCHROEDER, Jr., Magistrate Judge.

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #29.

Currently before the Court is defendant's motion for summary judgment (Dkt. #147); plaintiff's motion for summary judgment (Dkt. #154); and plaintiff's motion to strike Dr. Sellick's declaration (Dkt. #159). For the following reasons, defendant's motion for summary judgment is granted; plaintiff's motion for summary judgment is denied; and plaintiff's motion to strike is denied.


Plaintiff, Halina Biernacki, proceeding pro se, commenced this medical malpractice action pursuant to the Federal Tort Claims Act, alleging that her 88 year-old husband, David Street, received inadequate medical treatment at the VA Western New York Health Care System following his ingestion of fresh spinach contaminated with E. coli 0157:H7, [1] resulting in his death on October 22, 2006. Dkt. #1. Plaintiff complains that defendant failed to perform tests to identify the particular strain of E. coli affecting Mr. Street, thereby overlooking the risk of Hemolytic Uremic Syndrome ("HUS"), an extremely rare cause of kidney failure. Dkt. #1. As a result of their failure to test for the E. coli strain, plaintiff alleges that Mr. Street received inappropriate medical treatment which aggravated his condition and that the diagnosis and treatment of the resulting HUS was delayed. Dkt. #1. Plaintiff alleges that if defendant had followed the standard of care set forth by numerous regulatory agencies, including advice to test for the E. coli strain and regulations requiring reporting of communicable diseases, he would have received appropriate treatment and survived his illness. Dkt. #1.

John A. Sellick, Jr., D.O., is employed as a hospital epidemiologist by the Department of Veterans Affairs' Western New York Healthcare System ("VA WNY"), and Kaleida Health. Dkt. #149, ¶ 1. Dr. Sellick is also an Associate Professor in the Division of Infectious Diseases at the State University of New York at Buffalo Medical School. Dkt. #149, ¶ 1. Upon review of Mr. Street's medical records, Dr. Sellick declares that Mr. Street was admitted to the VA WNY on September 14, 2006 with a diagnosis of renal failure and pneumonia and started on the recommended antibiotic, moxifloxacin. Dkt. #149, ¶¶ 11 & 20; Dkt. #158, ¶ 51. Dr. Sellick notes that plaintiff also presented with multiple denuded skin lesions on his lower extremeties. Dkt. #158, ¶ 23.

Plaintiff's blood culture, which was taken upon admission and prior to the administration of antibiotics, tested positive for E. coli and Staphylococcus aureus, which commonly arises from skin lesions or intrabdominal sources and is appropriately treated with antibiotics. Dkt. #149, ¶ ¶ 22 & 40 & Dkt. #158, ¶¶ 44-46 & 80. Dr. Sellick opines that Mr. Street's E. coli bacterial infection very likely was due to an extra intestinal pathogenic E. coli ("EXPEC"), strain from one of his skin lesions, or possibly from his gallbladder or lungs. Dkt. #149, ¶ ¶ 32 & 39. Mr. Street's E. coli and Staphylococcus aureus infection resulted in multiple organ system failure, which caused his death on October 22, 2006. Dkt. #149, ¶¶ 24 & 57.

Dr. Sellick explains that E.coli 0157:H7 is a strain of SHIGA toxin producing E. coli ("STEC"), also known as an enterohemorrhagic E. coli ("EHEC"). Dkt. #149, ¶¶ 34-35. However, the STEC strain does not enter the bloodstream and there is no reported case of E. coli 0157:H7 blood infection in the United States. Dkt. #149, ¶¶ 37-38 & Dkt. #154-1, p.14. Testing for STEC strains, including E. coli 0157:H7, are applied to bacteria that have been isolated from fecal specimens, not on bloodstream isolates of E. coli. Dkt. #149, ¶¶ 43-44. Although plaintiff reported that Mr. Street had been suffering from, inter alia, diarrhea prior to his admission, medical records indicate that this symptom had resolved by the time of his admission. Dkt. #149, ¶¶ 12, 16 & 46; Dkt. #158, ¶ 54. Given that Mr. Street's diarrhea was short-lived and presumed to be due to the oral antibiotic he received prior to his admission, Dr. Sellick declares that there was no medical indication to perform additional stool cultures to test for E. coli 0157:H7. Dkt. #149, ¶ 46 & Dkt. #154-1, p.14.

In October of 2012, following the filing of plaintiff's complaint, the VA WNY obtained Mr. Street's blood isolates (which had been stored in a laboratory freezer in accordance with VA WNY's practice), for further testing to determine the strain of E.coli. Dkt. #149, ¶ ¶ 59-60. Mr. Street's blood isolate fermented sorbitol. Dkt. #149, ¶ 61. E.coli 0157:H7 is sorbital negative; it does not ferment sorbitol. Dkt. #149, ¶ 62. In addition, the VA WNY sent the blood isolate to Quest Diagnostics for further testing. Dkt. #149, ¶ 64. Because there would be no need to serotype a sorbitol positive strain, the VA WNY did not inform Quest that the specimen was sorbitol positive and Quest presumed that the specimen was sorbitol negative. Dkt. #149, p.27. Quest reported that the blood isolate was negative for E.coli 0157:H7. Dkt. #149, ¶ 65 & p.30.


Motion to Strike

Plaintiff moves to strike Dr. Sellick's declaration "because it does not appear to be written by witness and presented omissions, distortions, redundant, and is unauthorized." Dkt. #159, ¶ 2. More specifically, plaintiff appears to challenge Dr. Sellick's ability to proffer an expert opinion when he had no personal involvement with Mr. Street's treatment. Dkt. #159, ¶¶ 6 & 9. Plaintiff also alleges that Dr. Sellick has misrepresented his professional experience. Dkt. #165, ¶ 30; Dkt. #167 & Dkt. #171

The admission of expert testimony in an action pending in federal court is governed by Rule 702 of the Federal Rules of Evidence, which provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form ...

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