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Cash v. United States

United States District Court, D. Maine

October 26, 2016

LISA CASH, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM OF DECISION ON MOTION IN LIMINE REGARDING EXPERT WITNESSES

          John C. Nivison U.S. Magistrate Judge.

         Plaintiff Lisa Cash, as mother and next friend of W.P., a minor, alleges that the Penobscot Community Health Center, [1] through one of its practitioners, was negligent in its care of W.P. (Am. Compl., ECF No. 4.) The matter is before the Court on Plaintiff's Motion in Limine to Preclude Defendant from Offering Multiple Experts on the Same Issues. (ECF No. 20). The motion is denied without prejudice to Plaintiff's ability to renew the motion prior to or at trial.

         Background

         Plaintiff's claim is based on Defendant's alleged failure to diagnose an enlarged spleen secondary to acute leukemia when W.P. presented with a “grotesquely swollen abdomen.” (Am. Compl. ¶¶ 14 - 17.) Plaintiff alleges that had Defendant satisfied the standard of care, W.P. would not have suffered a white blood cell clot in her spinal cord, which clot caused paralysis. (Id. ¶ 23.)

         Defendant designated three experts to address issues related to liability: (1) Wendy Chabot, M.D., a practicing pediatrician; (2) Debra Friedman, M.D., Director of the Pediatric Hematology/Oncology Division of the Vanderbilt University School of Medicine and professor of pediatric medicine; and (3) James Jarvis, M.D., Chief of Family Medicine Service and Director of Family Medicine Residency Program at Eastern Maine Medical Center and professor of osteopathic medicine. Defendant's designation of experts (ECF No. 25-1) reflects that Defendant expects the experts to testify within their respective areas of expertise: Dr. Friedman (hematology/oncology), Dr. Chabot (pediatrics) and Dr. Jarvis (family medicine). Plaintiff contends the expected testimony of Dr. Chabot and Dr. Jarvis is nearly identical, and thus Defendant should be precluded from calling both witnesses to testify at trial.[2]

         A. Failure to Detect

         On Plaintiff's assertion that Defendant failed to detect and diagnose W.P.'s condition, Defendant anticipates Drs. Chabot and Jarvis will testify as follows:

         Dr. Chabot

Dr. Chabot will opine that, even if W.P. had an enlarged liver and/or spleen at the time of the February 21, 2014 appointment, one cannot say that a failure to detect that potentially enlarged liver and/or spleen more likely than not fell below the standard of care. An enlarged spleen and/or enlarged liver can be difficult to pick up in a pediatric patient, particularly a new patient, even with a proper abdominal examination that meets the applicable standard of care, such as that performed by PA Dempsey.

         Dr. Jarvis

Dr. Jarvis also will opine that, even if W.P. had an enlarged liver and/or spleen at the time of the February 21, 2014 appointment, one cannot say that a failure to detect that potentially enlarged liver and/or spleen more likely than not fell below the standard of care. An enlarged spleen and/or enlarged liver can be difficult to pick up in a pediatric patient, particularly a new patient, even with a proper abdominal examination that meets the applicable standard of care, such as the examination performed by PA Dempsey.

         B. Physical Examination and Medical Record

         As to whether the medical record created by and the physical examination conducted by Defendant satisfied the standard of care, Defendant designated Drs. Chabot and Dr. Jarvis to testify as follows:

         Dr. Chabot

Dr. Chabot will opine that the medical record created by PA Evelyn Dempsey for W.P.'s February 21, 2014 visit to the Brewer Walk-In Clinic meets the applicable standard of care in its completeness and accuracy. Dr. Chabot will opine that PA Dempsey's physical examination of W.P., including her abdominal examination, met the standard of care.

         Dr. ...


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