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Murphy v. Precise

United States District Court, M.D. Alabama, Southern Division

April 28, 2017

CYNTHIA RUSHING MURPHY, as Personal Representative of the Estate of Jerry Lenson Murphy, deceased, Plaintiff,
v.
ROBERT C. PRECISE, D.M.D., Defendant.

          MEMORANDUM OPINION AND ORDER.

          DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Standards of Law

         Federal Rule of Evidence 702 provides that:

         A 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         In 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).

         This 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).

         II. Background

         Plaintiff 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.

         III. Experts

         In 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 discussed below:

         A. Dr. Rothrock

         Dr. 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 at 2-3).

         His 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).

         Dr. 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 ...


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