United States District Court, M.D. Alabama, Southern Division
CYNTHIA RUSHING MURPHY, as Personal Representative of the Estate of Jerry Lenson Murphy, deceased, Plaintiff,
ROBERT C. PRECISE, D.M.D., Defendant.
MEMORANDUM OPINION AND ORDER.
A. BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendant's Motion to
Exclude Testimony and Opinions of John F. Rothrock, M.D.,
(“Dr. Rothrock”) and Ruben R. Garcia, M.D.,
(“Dr. Garcia”) (Doc. 21). Defendant Robert C.
Precise, D.M.D. (“Precise” or
“Defendant”) moves pursuant to Rule 702, Federal
Rules of Evidence, and the principles of Daubert v.
Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993),
to exclude the testimony and causation opinions of
Plaintiff's tendered expert witnesses, Dr. Rothrock and
Dr. Garcia. Plaintiff Cynthia Rushing Murphy, as personal
representative of the Estate of Jerry Lenson Murphy, filed a
response in opposition arguing both experts are qualified to
offer opinions in this case and their proximate cause
opinions satisfy the standards of Rule 702 and
Daubert. (Doc. 26). Defendant has filed a reply.
(Doc. 30). The Court heard argument on the motions on April
18, 2017. For the reasons that follow, Defendant's motion
is due to be granted in part and denied in part.
Standards of Law
Rule of Evidence 702 provides that:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise 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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Daubert and in Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152, (1999), the Supreme Court
directed trial courts to perform a “gatekeeper”
function, designed to ensure that expert testimony is both
relevant and reliable. As explained by the Eleventh Circuit:
In Daubert, the Supreme Court explained that trial
courts must act as “gatekeepers” tasked with
screening out “speculative, unreliable expert
testimony.” Kilpatrick v. Breg, Inc., 613 F.3d
1329, 1335 (11th Cir. 2010) (citing Daubert, 509
U.S. at 597, 113 S.Ct. 2786). In that role, trial courts may
consider a non-exhaustive list of factors including (1)
whether the expert's theory can be and has been tested;
(2) whether the theory has been subjected to peer review and
publication; (3) the known or potential error rate of the
technique; and (4) whether the technique is generally
accepted in the scientific community. Id. Later, in
Kumho, the Court explained that the gatekeeping
function governs all expert testimony based on
“scientific, technical, or other specialized knowledge,
” not just scientific testimony. 526 U.S. at 147-49,
119 S.Ct. 1167 (quoting Fed.R.Evid. 702). The Court also
stressed that the factors identified in Daubert
“do not constitute a definitive checklist or
test.” Id. at 150, 119 S.Ct. 1167 (internal
quotation marks omitted). While those factors may help in
assessing the reliability of scientific or experience-based
expert testimony, the district court's “gatekeeping
inquiry must be tied to the facts of a particular
case.” Id. (internal quotation marks omitted).
Furthermore, Kumho emphasized that the goal of
gatekeeping is to ensure that an expert “employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field.” Id. at 152, 119 S.Ct. 1167.
Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1327
(11th Cir. 2014).
gatekeeping responsibility entails a three-part inquiry in
which the court considers whether (1) the expert is qualified
to testify competently regarding the matters he intends to
address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable; and (3) the testimony
assists the trier of fact, through the application of
specialized expertise, to understand the evidence or to
determine a fact in issue. Quiet Tech. DC-8, Inc. v.
Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340-41 (11th Cir.
2003). “The burden of laying the proper foundation for
the admission of expert testimony is on the party offering
the expert, and the admissibility must be shown by a
preponderance of the evidence.” Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1261 (11th Cir.
2004) (citation omitted).
filed this action in March 2016 following the death of her
husband, Jerry Lenson Murphy (“Murphy”), due to
the alleged dental malpractice by Defendant. (Doc. 1).
Plaintiff alleges Murphy was a 67-year-old Florida resident
who presented to Defendant's dental practice Dixieland
Dental in Midland City, Alabama, on March 5, 2014, to have
several teeth extracted and new teeth added to his existing
partial dentures. Id. ¶ 8. Murphy was initially
evaluated by Defendant at 10:30 a.m. that morning.
Id. ¶ 9. Plaintiff claims that during the
evaluation Defendant learned or should have learned of
Murphy's active medical and medication history.
Id. ¶ 9. Plaintiff asserts that Defendant did
not chart Murphy's blood pressure or other vital signs at
that time, nor did he seek approval for the dental procedure
from Murphy's primary physician or any of his other
providers. Id. ¶ 10. Following the evaluation,
Murphy left the office to return at 2:00 p.m. for the
extractions and placement of partial dentures. Id.
¶ 11. Murphy returned to the office in the afternoon,
and sometime after 3:00 p.m., he was reportedly administered
“2.00 total carpules of Lidocaine with Epinephrine
1:100, 000, ” and four or more teeth were extracted.
Id. Immediately following the procedure, Murphy
became disoriented, diaphoretic, and unresponsive.
Id. ¶ 12. He was transported by EMTs to Flowers
Hospital and shortly thereafter transferred to Southeast
Alabama Medical Center where he was diagnosed as having
suffered “a massive pontine hemorrhage extending into
the ventricles without hydrocephalus.” Id.
Murphy was determined to be non-surgical and subsequently
died on March 8, 2014. Id. There were no
pre-surgical, surgical, or post-surgical blood pressures
contemporaneously recorded in Murphy's Dixieland Dental
records. Id. ¶ 13. The records, however,
included handwritten notes created by Defendant thirteen days
after surgery in which he concludes Murphy's
pre-operative blood pressure was 174/87 and his blood
pressure after becoming unresponsive was 228/129.
Id. Plaintiff sued Defendant for dental negligence
and breach of the applicable standards of care in (1) failing
to properly evaluate Murphy's medical condition and/or
obtain pre-procedure medical clearance; (2) undertaking
extraction of four or more of Murphy's teeth; (3) failing
to refer Murphy to an oral surgeon for evaluation and
possible treatment; and (4) administering two or more
carpules of Lidocaine with Epinephrine 1:100, 000 to Murphy.
Id. ¶ 16.
support of her allegations and claims for damages, Plaintiff
relies on the testimony of two experts: Dr. Rothrock and Dr.
Garcia. The substance of their expertise and opinions and the
motions to exclude each of these expert witnesses is
Rothrock received his undergraduate degree (B.A.) from
Washington & Lee University in 1973 and his medical
degree (M.D.) from the University of Virginia Medical School
in 1977. He completed his internship and residency training
in neurology at the University of Arizona in 1981. In 1981,
he joined the faculty of University of Arizona as an
assistant professor in the Department of Neurology. In 1983,
he joined the neurosciences faculty at the University of
California, San Diego (UCSD) where he established and
directed the UCSD Headache Center. At UCSD Dr. Rothrock and
his colleagues assisted in the development of such therapies
as intravenous t-PA for acute stroke therapy and warfarin for
stroke prevention in individuals with atrial fibrillation. He
was promoted to the position of full professor at UCSD before
leaving in 1994 to serve as Chair of Neurology and
subsequently as Associate Dean for Clinical Research at the
University of South Alabama. In 2006 he accepted a position
as Professor, Vice-Chair and Medical Director of Neurology at
the University of Alabama School of Medicine (UAB). While at
UAB, he explored new therapies for primary intracerebral
hemorrhage and acute ischemic stroke. From 2012 to 2015, he
served as Professor and Chair of Neurology Department at the
University of Nevada (Reno) School of Medicine and Director
of the Institute for Neurosciences at Renown Regional Medical
Center. In 2015 he took his current position as Vice Chair of
the Department of Neurology and Professor of Neurology at
George Washington University School of Medicine. (Doc. 26-1
current duties include inpatient and outpatient clinical
work, supervise residents and students, teaching, clinical
research, and administrative work related to his position as
vice chair. (Doc. 27-1 at 8-13).
Rothrock has specialty certifications in adult neurology,
headache medicine, and vascular neurology. He has been
involved in numerous areas of active independent research
regarding stroke and headache and specific research projects
focusing on diagnosis and management of stroke. Dr. Rothrock
has presented and authored or co-authored extensively related
to headaches and stroke. (Doc. 26-1 at 8-35). He is board
certified by the American ...