United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Pending before the Court are Defendants' Motion to Strike (Doc. 109, filed May 27, 2014), Motion to Strike (Doc. 110, filed May 27, 2014), Motion to Strike the Testimony and/or Opinion of Plaintiff's Expert Carol E. Dankin (Doc. 133, filed July 3, 2014), Motion to Strike and Exclude Testimony of Carol Dakin PhD, RN (Doc. 134, filed July 3, 2014), Motion in Limine to Exclude or Limit Testimony From Plaintiff's Experts (Doc. 136, filed July 3, 2014), Motion to Strike and Preclude Expert Testimony of Dr. Carla Rodgers, Dr. Allan Nineberg, and Dr. Robert Auerbach (Doc. 138, filed July 3, 2014), and Supplemental Motion in Limine to Exclude or Limit Testimony From Plaintiff's Experts (Doc. 151, filed July 17, 2014). The Court has found two underlying issues within all seven motions, the basic premise being whether Plaintiff's experts are qualified to testify, and whether the Plaintiff's experts' reports are compliant with Rule 26(a)(2)(B).
A. Similarly Situated Health Care Provider
Rule 601 of the Federal Rules of Evidence states that "in civil actions and proceedings, with respect to an element of a claim or a defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law." FED. R. CIV. P. 601. Generally speaking, "state law governs the competency of a witness where the proof is directed at a substantive issue governed by state law." Barton v. Am. Red Cross, 829 F.Supp. 1290, 1299 (M.D. Ala. 1993) aff'd, 43 F.3d 678 (11th Cir. 1994) and aff'd, 43 F.3d 679 (11th Cir. 1994) (citing Charles A. Wright and Victor J. Gold, 27 Federal Practice and Procedure § 6007 at 78-79 (1990); James Wm. Moore and Helen I. Bendix, 10 Moore's Federal Practice § 601.06 at VI-22 (2d ed. 1993)). Although the basis of jurisdiction in this Court falls under an action for deprivation of civil rights pursuant to 42 U.S.C. § 1983, Rule 601 provides the basis for the source of applicable substantive law. Id. Since Alabama law provides the rule of substantive law for the issues before this Court, specifically, whether the relevant Defendants committed medical malpractice under the Alabama Medical Liability Act of 1987, § 6-5-542 et seq. of the Code of Alabama (1975) ("AMLA"), Alabama law also governs the competency of witnesses to testify as experts on those issues. Id.
The AMLA provides the rule of law governing expert witnesses. Subsection (e) to § 6-5-548 states that "[a] health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a similarly situated health care provider.'" ALA. CODE § 6-5-548(e). The case at bar concerns medical professionals who do not hold themselves out as specialists, thus, subsection (b) to § 6-5-548 provides the proper analysis. Subsection (b) states in full:
Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is not certified by an appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself or herself out as a specialist, a "similarly situated health care provider" is one who meets all of the following qualifications:
(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
(2) Is trained and experienced in the same discipline or school of practice.
(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.
ALA. CODE § 6-5-548(b).
Plaintiff Courtney McBride ("McBride" or "Plaintiff") offers three expert witnesses to testify about alleged breaches of the standard of care committed by the defendants, and one expert witness to testify about causation. McBride disclosed Carol E. Dakin, PhD, RN ("Dr. Dakin") to provide expert testimony on the alleged breach of the standard of care committed by Herminia Coppage, RN ("Nurse Coppage"). See Doc. 156-1 at 44-53. McBride disclosed Carla Rodgers, M.D. ("Dr. Rodgers), and Allan S. Nineberg, M.D. ("Dr. Nineberg") to provide expert testimony on the alleged breach of the standard of care by Defendants Dinesh Karumanchi, M.D. ("Dr. Karumanchi"), and Rajendra Paladugu, M.D. ("Dr. Paladugu"). See Doc. 156-1 at 2-7, 18-19. McBride disclosed Robert Auerbach, M.D., F.A.A.D., F.A.C.P. ("Dr. Auerbach") to provide expert testimony on causation. See Doc. 156-1 at 29-30.
i. Dr. Dakin
First, the Court will address whether Dr. Dakin is qualified to provide expert testimony on whether Nurse Coppage breached the standard of care. The record indicates that Dr. Dakin is a licensed Registered Nurse ("RN") in Pennsylvania and New Jersey. See Docs. 156-1 at 54; 163-1 at 1. Thus, she meets the first criterion under subsection (b). See ALA. CODE § 6-5-548(b)(1).
Next, the ALMA requires Dr. Dakin to have training and experience in the same discipline or school of practice. ALA. CODE § 6-5-548(b)(2). The Alabama Supreme Court explained that subsection (b)(2) requires that a nonspecialist be trained in the practice in which the alleged breach occurred. Ex parte Waddail, 827 So.2d 789, 795 (Ala. 2001) (citing Husby v. South Alabama Nursing Home, Inc., 712 So.2d 750, 753 (Ala.1998)). Thus, in order to testify about the breach of the standard of care in this case, Dr. Dakin must possess training and experience in psychiatric nursing. Dr. Dakin's affidavit and curriculum vitae, which are part of the record, indicate that she received a Bachelor of Science degree ("B.S.N.") in 1966 and a Master of Science degree ("M.S.N.") in 1968 from the University of Pennsylvania School of Nursing, and a Doctorate in Health Professions Education ("Ph.D.") in 1987 from the University of Pennsylvania. See Docs. 156-1 at 54; 163-1 at 1. The record also indicates that Dr. Dakin has over 45 years of experience as an instructor in psychiatric/mental health nursing which has required her to provide hands-on treatment to patients. See Docs. 156-1 at 55; 163-1 at 1. Thus, the Court finds that Dr. Dakin has the requisite "training and experience" in psychiatric nursing to meet the second criterion under subsection (b). See ALA. CODE § 6-5-548(b)(2).
Finally, the third criterion requires that Dr. Dakin has "practiced in the same discipline or school of practice during the year proceeding the date that the alleged breach of the standard of care occurred." ALA. CODE § 6-5-548(b)(3). It is undisputed that Dr. Dakin is an adjunct nursing instructor and psychiatric clinical supervisor to nursing students at Temple University's College of Allied Health Sciences where she is "responsible for supervising nursing students in the care of in-patient psychiatric patients." See Docs. 134 at 3; 156-1 at 55; 163-1 at 1. At contention is whether Dr. Dakin "practiced in the same discipline or school of practice." Defendants contend that as an adjunct instructor, Dr. Dakin has not served as a full-time staff nurse at an in-patient facility since 1972. See Doc. 134 at 3.
In Dowdy v. Lewis, the Alabama Supreme Court already decided this very issue. 612 So.2d 1149, 1152 (Ala. 1992). The court addressed the issue after the plaintiff alleged that the lower court "erred in permitting testimony of two experts [...] who were not qualified" under § 6-5-548(b)(3). Id. at 1150. The relevant defendant was a medical surgical nurse, and the defendant called two experts on her behalf; one was the associate dean and director of graduate studies at the University of South Alabama, and the other was an instructor and supervisor of nursing students at University of North Alabama School of Nursing. Id. at 1152. The court explained that "[a]lthough § 6-5-548 does not explain what is meant by practice of nursing, ' Ala.Code 1975, § 34-21-1(3)(a), defines practice of professional nursing, ' in part, as follows:
The performance, for compensation, of any act in the care and counselling of persons or in the promotion and maintenance of health and prevention of illness and injury based upon the nursing process which includes systematic data gathering, assessment, appropriate nursing judgment and evaluation of human responses to actual or potential health problems through such services as case finding, health teaching, health counselling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens including administering medications and treatments prescribed by a licensed or otherwise legally authorized physician or dentist."
Id. at 1151 (quoting ALA.CODE § 34-21-1(3)(a) (1975)) (emphasis in original). The Court conducted review of both expert witnesses' education and experience, and found that with decades of experience in the same type of nursing as the defendant and the fact that they were "still working in the nursing field as a teacher and supervisor of nursing students as they actually perform nursing care on patients. The ...