Judge Ezra Denies Unusual Expert Motion and Nudges Med-Mal Case Towards Liability Summary Judgment

Spears v. United States of America, No. SA:13-CV-47-DAE, slip op. (W.D. Tex. Jan. 23, 2014)(Ezra, J.)

In this medical malpractice case under the Federal Tort Claims Act (FTCA), the Government acknowledged that an 81 year-old patient received an overdose of a drug intended to boost his blood pressure, but denied that the drug was the cause of his death an hour later.  Slip op. at 2-6.  The orthopedic surgeon who performed the initial procedure for the patient was hospitalized wrote the family a letter opining that the drug was cause of death, but he did not explain the how and why of the matter.  Slip op. at 22-27.  Likewise, another plaintiff’s expert cited the overdose, but did not amplify on causation.  Id.  The surviving family filed a motion for summary judgment on liability.  The government moved to strike the orthopedic surgeon as a witness.  Id. at 6. 

The government’s motion did not take issue with the sufficiency of the surgeon’s letter or argue that the letter fell short of Rule 26(a)(2)(B)’s report requirement.  Slip op. at 19 n.4.  Nor did the government argue that the report fell short of Rule 702’s expert requirements.  See Fed. R. Civ. P. 26(a)(2)(B); Fed. R. Evid. 702.  Rather, the Government maintained the surgeon’s expert testimony violated an army regulation restricting physician testimony in litigation.  Slip op. at 8-9 (quoting 32 C.F.R. § 516.49(a)).  The District Court concluded, however, that the regulation did not operate as a privilege or other evidentiary limitation, based in part on another Western District case, Young v. United States, 181 F.R.D. 344 (W.D. Tex 1997). 

The District Court then turned to the family’s motion for summary judgment and found that partial summary judgment was appropriate on breach of the standard of care—based on the admitted overdose.  Slip op. at 20-23.  But the District Court found that the how-and-why vacuum in the plaintiffs’ expert opinions foreclosed a similar finding on causation.  Id. at 23-27.  Notably, the District Court granted the family leave to file another motion for partial summary judgment on causation.”  Id. at 28.