Callaway v. O'Connell

44 F. Supp. 3d 1316, 2014 U.S. Dist. LEXIS 120679, 2014 WL 4267497
CourtDistrict Court, M.D. Georgia
DecidedAugust 29, 2014
DocketCivil Action No. 5:13-CV-3 (MTT)
StatusPublished
Cited by3 cases

This text of 44 F. Supp. 3d 1316 (Callaway v. O'Connell) is published on Counsel Stack Legal Research, covering District Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Callaway v. O'Connell, 44 F. Supp. 3d 1316, 2014 U.S. Dist. LEXIS 120679, 2014 WL 4267497 (M.D. Ga. 2014).

Opinion

ORDER

MARC T. TREADWELL, District Judge.

This matter is before the Court on the Defendant’s motion for summary judgment and motions in limine to exclude the expert testimony of Dr. Dozier Russell Hood and Dr. Matthew E. Spector (Docs. 17-19) and the Plaintiffs’ motion in limine to exclude the expert testimony of Dr. Trad Wads-worth (Doc. 20). For the reasons discussed below, the Defendant’s motions in limine are DENIED, the Defendant’s motion for summary judgment is GRANTED in part and DENIED in part, and the Plaintiffs’ motion in limine is DENIED.

I. FACTUAL BACKGROUND

Plaintiff John Callaway1 was admitted to the hospital on March 22, 2011 after being diagnosed with Stage 4 laryngeal cancer. (Doc. 17-2 at ¶ 1). On March 28, 2011, Defendant Dr. Kevin O’Connell, an otolaryngologist, discussed Callaway’s cancer treatment options with him, including the option of chemotherapy and radiation treatment versus surgery.2 (Doc. 17-2 at ¶ 3). Callaway contends O’Connell stated that surgery was the only treatment option that would cure Callaway’s cancer, and O’Connell failed to inform Callaway of the success rates of preoperative chemoradia[1321]*1321tion therapy. (Doc. 24 at ¶ 3). O’Connell also advised Callaway that he could seek a second opinion. (Doc. 17-2 at ¶ 5). Calla-way did not get a second opinion because he believed O’Connell was confident that surgery could cure his cancer. Callaway also alleges that O’Connell stated another doctor would propose the same course of treatment. (Doc. 24 at ¶ 6). Callaway opted to have surgery, and O’Connell documented the treatment plan of surgery in the form of a total laryngectomy and bilateral neck dissections. (Doc. 17-2 at ¶ 3).

O’Connell and Callaway discussed the risks of surgical treatment, including that Callaway would lose his voice box, would always have a tracheostomy, would always need a speech apparatus, and might have trouble swallowing. (Docs. 17-2 at ¶ 13; 24 at ¶ 9). However, Callaway also contends O’Connell advised him that he would be able to return to work following surgery, and O’Connell never discussed the possibility that Callaway could become disabled from the surgery. (Doc. 24 at ¶ 9). Callaway signed an informed consent form, and O’Connell performed the surgery on April 7, 2011. (Doc. 17-2 at ¶ 10).

Following surgery, Callaway developed a fistula3 that requires him to use a feeding tube and prevents him from working. Although fistulas may sometimes be surgically repaired, Callaway has not attempted to have his fistula repaired because he is not financially able to do so. (Docs. 17-2 at ¶ 18; 24 at ¶ 18). Callaway has remained cancer free since surgery. (Doc. 17-2 at ¶ 12).

II. MOTIONS IN LIMINE

A. Standard of Review

When evaluating expert testimony in Georgia medical malpractice claims brought in federal court pursuant to diversity jurisdiction, the competency of an expert is determined by Georgia substantive law. McDowell v. Brown, 392 F.3d 1283, 1295 (11th Cir.2004). “Once a plaintiff has met the burden of producing a competent expert, a district court must still engage in a Rule 702 analysis [because] the state law ‘is directed at establishing a substantive issue in the case,’ while the gatekeeping structure of Rule 702 is ‘designed to ensure fair administration’ of the case.” Id. (quoting Legg v. Chopra, 286 F.3d 286, 292 (6th Cir.2002)).

In this case, the competency requirement concerns whether the proffered experts are qualified to render an opinion regarding the applicable standard of care. In a medical malpractice action, the opinion of an expert who is otherwise qualified will be admissible only if, at the time of the alleged act or omission, the expert:

(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the [1322]*1322defendant whose conduct is at issue ....

O.C.G.A. § 24-7-702(c). “[T]he requirement that the expert have ‘actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given’ means that the plaintiffs expert does not. have to have knowledge and experience in the ‘same area of practice/specialty as the defendant doctor.”’ Nathans v. Diamond, 282 Ga. 804, 806, 654 S.E.2d 121, 123 (2007) (citation omitted). Rather, the expert must have “knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiffs injuries.” Id. (citations omitted). Once the expert is found competent to testify under the qualifications statute, his testimony should then be screened under Rule 702 to determine if it is otherwise admissible expert testimony.

Pursuant to Rule 702, the opinion of an expert witness who is qualified based on knowledge, skill, experience, training, or education is admissible if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) ' the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702. The proponent of the expert testimony has the burden of showing that: (1) the expert is qualified to testify competently regarding the matters the expert will address; (2) the methodology used by the expert is sufficiently reliable; and (3) the testimony will assist the trier of fact. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (citation omitted).

To assess reliability, trial courts must determine “whether the reasoning or methodology underlying the testimony is ... valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v.

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44 F. Supp. 3d 1316, 2014 U.S. Dist. LEXIS 120679, 2014 WL 4267497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callaway-v-oconnell-gamd-2014.