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Admissibility Rate: .333    (2/6)

Williams v. Complete Care Servs., Inc., No. 01-1092 (4th Cir. Oct. 16, 2001) (unpublished).  Trial court excludes testimony from Title VII plaintiff's human resource and labor relations consultant and nursing care expert.  Exclusion affirmed.  Trial court did not abuse discretion in finding testimony unreliable.

Cleveland v. United States, 457 F.3d 397 (5th Cir. 2006).  Patient presents in ER with flu-like symptoms, slightly elevated respiration rate, and history of diabetes.  Patient neglects to mention history of congestive heart failure (which does appear, however, in patient's full medical file).  Physician's Assistant (PA) examines patient, concludes patient needs no x-ray or other tests, and diagnoses upper respiratory infection, bronchitis, and sinusitis.  Without consulting attending physician or reviewing patient's file, PA prescribes meds and sends patient home.  Patient returns on following day, is diagnosed with pneumonia resulting from congestive heart failure, goes into respiratory and cardiac arrest, lapses into coma, and dies some years later.  His wife brings claim for medical malpractice.  To show that PA and other ER employees breached duty of care, she offers expert opinions from: (1) certified legal nurse consultant Wanda Poret, who opines that defendants violated duty of care by failing to take chest film; (2) Dr. Jay Piland, physician who treated patient in ICU after patient fell into coma, who opines that defendants should have run further tests; (3) Dr. Joe Rankin, radiologist, who testifies that he is not qualified to opine on whether physicians should order chest x-rays for patients with heart conditions, though in his experience they generally do; and (4) Dr. Carlos Cuenca, expert in internal medicine, who opines that defendants should have reviewed full medical file and run chest x-rays.  Defendants object to testimony from all four witnesses, arguing that nurses, internists, and radiologists are not qualified to opine on standard of care for ER physicians.  They also object that Dr. Piland prepared no expert report.  District court: (1) excludes Poret's testimony without opinion; (2)rules that Dr. Piland is qualified as internist, but that his testimony goes beyond proper scope for treating physician and is unreliable under Daubert; (3) issues no formal admissibility ruling on Dr. Rankin; and (4) issues no formal admissibility ruling on Dr. Cuenca.  After bench trial, district court finds for defendants, noting that plaintiff produced no expert testimony from any emergency specialist.  Exclusions affirmed.  Louisiana law governs in this FTCA action.  (1) Under Louisiana law, nurses (like Poret) are not competent to testify to breach of care by physicians, or PA's (by extension).  (2) Absent testimony that standards of care for internists and emergency specialists can be equated, district court did not abuse its discretion in holding Dr. Piland unqualified.  (3) To extent that district court excluded testimony from Dr. Rankin, it acted within its sound discretion on similar grounds.  (4) Dr. Cuenca does have some ER experience, but Fifth Circuit need not decide whether district court abused its discretion in disregarding his testimony, because district court was entitled to give greater weight to defendants' expert.

Elswick v. Pikeville United Methodist Hosp. of Ky., Inc., No. 01-5611 (6th Cir. Oct. 24, 2002) (unpublished).  To resist summary judgment in malpractice action, plaintiff offers testimony from two nurses and one specialist in hospital administration.  District court refuses to entertain their testimony because none of it was disclosed in discovery, and because none of plaintiffs' experts is qualified to opine on causation.  Exclusion affirmed.  Court of appeals need not reach disclosure issue, because all three experts admitted lack of qualifications to opine on causation.

Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004) (see the briefs).  Parents bring malpractice action after infant dies while under treatment by home health care personnel.  On summary judgment, parents rely on deposition testimony from treating physicians and nurses.  Defendant moves to strike testimony because parents did not designate witnesses as experts in their discovery disclosures.  District court grants motion to strike and awards summary judgment.  Exclusion affirmed.  It is true that disclosure rules do not require treating physicians or nurses to submit reports.  And it is also true that parents identified these witnesses in their discovery disclosures.  But they did not designate them as expert witnesses, and that omission prejudiced defendant.  Striking their deposition testimony insofar as it embodied expert opinion was legitimate sanction.  Because medical malpractice claims cannot be sustained under Indiana law without expert testimony, summary judgment was properly granted.

United States v. Young, 316 F.3d 649 (7th Cir. 2002).  Man is charged with interstate domestic violence.  At trial, his victim recants her previous allegations that he abducted and beat her.  Prosecution calls psychiatric mental health nurse, Dr. Ann Wolbert Burgess, who opines over defendant's objection that victim's recantation is typical behavior pattern for domestic abuse victims.  Jury convicts and defendant appeals.  Admissibility affirmed.  Expert's experience is germane to reliability of her testimony, and she has forty years of experience as psychiatric nurse, specializes in criminal violence, has authored over 100 publications on forensic nursing, rape, and domestic violence, and has performed academic research studying several hundred battered women.  Her work is generally accepted in mental health profession, and two other circuits have upheld similar testimony (from this very expert, in one instance).  Defendant challenges reliability of her methods on three grounds: (1) formation of her opinion prior to interviewing victim; (2) reliance on "anecdotal" evidence involving other battered women; and (3) failure to interview victim's friends and family.  But: (1) jury was not required to credit defense expert who testified that failing to interview victim first was unsound; (2) expert properly based her opinion on extensive experience as well as careful review of facts; and (3) expert did interview victim, and it is unlikely victim's friends or family could have negated abuse dealt to victim by defendant over decade's time.

United States v. Withorn, 204 F.3d 790 (8th Cir. 2000).  In trial for rape on Indian reservation, certified nurse midwife testifies that victim's overall injuries were consistent with victim's description, during rape exam, of physical assault.  Admissibility affirmed.  Expert had extensive medical education and training, including training in obstetrics and gynecology and in conducting examinations of rape victims.  There is nothing unusual about permitting expert testimony by certified nurse midwives in rape prosecutions and district court did not abuse discretion in doing so here.

Jerden v. Amstutz, 430 F.3d 1231 (9th Cir. 2005).  Neurosurgeon reaches incorrect diagnosis of brain tumor based on misinterpreted MRI results and performs unnecessary craniotomy on patient before correct diagnosis of multiple sclerosis is made.  In trial of patient's malpractice action against neurosurgeon, plaintiffs call nurse practitioner who assisted neurosurgeon.  On cross-examination, counsel for neurosurgeon asks nurse practitioner whether MRI results indicated brain tumor in nurse practitioner's opinion.  District court overrules patient's objection, holding that nurse practitioner's testimony constitutes factual rather than expert evidence.  Nurse practitioner testifies that MRI results showed brain tumor.  Jury finds for neurosurgeon.  Admissibility reversed.  Because of its incorrect perception that nurse practitioner was simply testifying about facts, district court failed to apply proper legal standard to determine whether his testimony was admissible as lay or expert opinion.  If it was offered as lay opinion, then district court should have determined whether it satisfied requirements of Fed. R. Evid. 701, including requirement that lay opinion testimony not be based on specialized knowledge.  Mere percipience of facts on which witness's opinion is based does not trump requirements of Fed. R. Evid. 702.  If nurse practitioner's opinion was offered as expert testimony, it is dubious that he was competent to provide it.  Remanded for new trial.

Armstrong v. Lab One, Inc., No. 04-15061 (9th Cir. Nov. 28, 2005) (unpublished).  Claimant sues ERISA plan for long-term disability benefits.  Plan relies on opinions from non-examining physicians and nurses.  District court awards summary judgment to plan.  Admissibility affirmed.   Claimant waived Daubert objection by failing to present it in district court.

McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004).  Prisoner with back pain is sent to hospital, treated, and returned.  Prisoner visits jail nurse on following day, complaining of inability to urinate and difficulty walking.  Nurse determines that prisoner should be transported to hospital to rule out pneumonia and "acute abdomen." Nurse so informs jail personnel but allegedly fails to communicate urgency of prisoner's need for attention.  After twelve hours have elapsed without prisoner's being transported, prisoner informs corrections officer that he no longer has feeling in his legs.  He is now finally transported, whereupon hospital medical staff discover spinal epidural abscess and perform surgery, reversing prisoner's total paralysis but leaving him partially paraplegic.  Prisoner brings claims for medical malpractice under Georgia law against hospital medical personnel, and also against jail nurse and her contractor employer.  In support, prisoner offers testimony from three expert physicians, Drs. James Merikangas, Rabih O. Darouiche, and David Gower, who seek to testify that delay in treatment caused or exacerbated prisoner's injury, and who also opine on applicable duty of care.  Hospital moves to exclude prisoner's experts, but jail nurse does not join in motion.  District court grants hospital's motion, and notes in doing so that all three experts for prisoner stated they were unqualified to opine on hospital nurses' duty of care.  District court then reopens discovery to permit prisoner to develop further causation evidence, but not as to issue of jail nurse's negligence.  Hospital defendants settle.  Relying on prior ruling that prisoner's experts were not qualified to opine on standard of care applicable to nurses, district court then grants summary judgment to jail nurse.  Prisoner appeals.  Judgment affirmed; exclusions affirmed in part and reversed in part.  Prisoner did offer competent evidence on jail nurse's duty of care: Dr. Dariouche testified that he could not comment on hospital nurses' conduct, but that jail nurse should have called ambulance to transport prisoner.  Physicians are competent to opine on nurses' duty of care under Georgia law, which governs in light of Fed. R. Evid. 601.  Physicians' qualifications necessarily extend to opinions on nurses' duty of care, and Dr. Dariouche's ability to opine on that subject did not require special acquaintance with jailhouse nursing, because issue was medical, not correctional.  But district court permissibly excluded physicians' opinions on causation.  They lacked reliable bases for their opinions that surgery would have altered outcome if provided more promptly.

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