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Fulmer v. United States

United States District Court, E.D. Louisiana

May 6, 2019


         SECTION M (5)

          ORDER & REASONS


         Before the Court are a motion in limine to exclude the expert testimony of Dr. Maxwell Axler (“Dr. Axler”)[1] and a motion for summary judgment[2] filed by defendant the United States of America (“Government”), to which plaintiffs Jay Holt Fulmer and Christina MacDonald (“Plaintiffs”) respond in opposition, [3] and in support of which the Government replies.[4] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This litigation arises from the death of Catherine Fulmer on March 19, 2015.[5] Over the last years of her life, Catherine Fulmer was treated by a variety of health care practitioners for a number of chronic conditions, including hypertension, morbid obesity, diabetes mellitus, chronic venous stasis and peripheral edema, peripheral neuropathy, chronic back pain, and chronic dyspnea.[6] Relevant here, Catherine Fulmer was treated by Dr. Manual Imseis (“Dr. Imseis”), a primary care doctor, at EXCELth Family Health Center (“EXCELth”) in New Orleans, Louisiana, from June 11, 2011, through September 17, 2014. During that time, Catherine Fulmer saw Dr. Imseis 41 times. During the October 6, 2011 visit, Dr. Imseis referred her to a gynecologist for a pap smear. During the July 17, 2013 visit, Dr. Imseis ordered a bilateral screening mammogram.[7] There is no record that Catherine Fulmer ever complained to Dr. Imseis about her breasts. There is also no record that Catherine Fulmer ever went for the mammogram, [8] as is consistent with a lack of documentation to show that Catherine Fulmer ever participated in various cancer screenings and mammograms ordered by practitioners she had seen since 2008.[9] In fact, when Catherine Fulmer saw Dr. Mona Shalaby (“Dr. Shalaby”) at EXCELth in May of 2008, Dr. Shalaby noted, “Mrs. Fulmer declined any cancer screening, though she understood the risk of not having them, ” and later in 2009, Dr. Shalaby noted that Catherine Fulmer again “declined pap smear today” and “did not have mammogram or stools for hemoc[c]ult. I discussed it again with her today and discussed the risk of cancers.” Although, in 2009, Dr. Shalaby recorded that Catherine Fulmer planned to have cancer screening at University Hospital and Clinic, she declined to have the mammogram in Dr. Shalaby's office, and no records show that she ever had the test as ordered.[10]

         Catherine Fulmer also received treatment by Nurse Practitioner Cynthia Bartholomae (“NP Bartholomae”) at Access Health Louisiana (“Access Health”) in Kenner, Louisiana, for primary care on June 4, 2014, and thereafter at EXCELth on October 22, November 5, 10, and 26, and December 3, 2014, and January 27, 2015.[11] On the October 22 and November 10, 2014 visits, NP Bartholomae ordered a bilateral screening mammogram. Yet, no records show that Catherine Fulmer received a screening or that she complained to NP Bartholomae about the condition of her breasts.[12]

         On December 26, 2014, Catherine Fulmer was admitted to the St. Bernard Parish Hospital emergency room for shortness of breath and coughing. The emergency room physician noted a “large white area to the outer aspect of the right breast, ” which was later identified as invasive ductal carcinoma.[13] Catherine Fulmer died at her home on March 19, 2015. The certificate of death does not identify the cause of death; the manner of death is noted as “pending investigation.”[14] Nonetheless, autopsy results that indicate Catherine Fulmer died of “invasive, poorly to moderately differentiated ductal carcinoma of the right breast with metastases to right axillary lymph nodes, left breast, periaortic lymph nodes, neck lymph nodes, mesentery, liver and right lung.”[15] Catherine Fulmer's widow, Jay Holt Fulmer, and daughter, Christina MacDonald, seek survival, wrongful-death, and lost-chance-of-survival damages against Dr. Imseis and NP Bartholomae under the Federal Tort Claims Act (“FTCA”) for negligently failing to prevent, diagnose, and treat Catherine Fulmer's breast cancer.[16]


         The Government first seeks to exclude the testimony of Dr. Axler, Plaintiffs' sole expert.[17] The Government asserts that Dr. Axler, a physician triple-board certified in family medicine, bariatric medicine, and quality assurance, [18] lacks the expertise of an oncologist, which the Government claims is required for an expert to give an opinion of causation in this case - namely, how a delay of cancer screenings and diagnosis caused Catherine Fulmer's death. Even if Dr. Axler were qualified, the Government argues that Dr. Axler's opinions and testimony as to the standard of care, breach of the standard of care, and causation are unreliable because he fails to provide sources or a reliable methodology for his opinions as required by Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure and Rule 702 of the Federal Rules of Evidence.[19] Without an expert, the Government contends that Plaintiffs cannot sustain their burden under Louisiana medical malpractice law, making summary judgment in favor of the Government appropriate.[20]Plaintiffs argue that Dr. Axler's testimony on causation should not be excluded because “[i]t doesn't take an oncologist or even a physician to conclude that failure to conduct breast exams for seven years” caused the delay in Catherine Fulmer's diagnosis and ultimate death. Alternatively, Plaintiffs urge that Dr. Axler is qualified because of his experience in treating cancer patients and developing drugs for breast cancer, which he recites in a declaration submitted for the first time with Plaintiffs' opposition to this motion.[21] For instance, Dr. Axler treated cancer patients (including breast cancer patients) as the senior physician at the SRB Cancer Clinic and Research Institute in Houston, Texas, from 2001 to 2004. Dr. Axler also founded BioPharma Research Associates, LLC (“BioPharma”), a private consulting practice dedicated to clinical research trials in Houston, Texas. In addition to being medical director at BioPharma from 2002 to 2018, Dr. Axler acted as principal investigator there in several breast cancer trials concerning a new drug for breast cancer patients. That drug has since been approved by the FDA and is in current clinical use in the United States.[22] Plaintiffs further contend that Dr. Axler's report meets the requirements of Rule 26 because the only “facts and data” needed to support his opinions are found in the medical records, which need not be attached to the report. Plaintiffs list “14 different prestigious medical and cancer associations and societies” in Dr. Axler's declaration to substantiate the bases for his opinions.[23]

         In reply, the Government contends that Dr. Axler's declaration cannot be considered by the Court because it constitutes an untimely-filed supplemental expert report. While the curriculum vitae originally submitted to the Government had listed Dr. Axler's experience at the “SRB Clinic, ” it omitted the word “Cancer, ” and Dr. Axler's listed position at BioPharma did not indicate cancer-related research.[24] Had the Government known of Dr. Axler's purported expertise in oncology, it says “it may have consulted its own oncologist or other expert in cancer care or treatment.”[25] The Government accordingly urges the Court to exclude the declaration under Rule 37(c)(1) of the Federal Rules of Civil Procedure.[26] And, even if the declaration were considered, the Government says it fails to properly supplement Dr. Axler's bases and reasons for his opinions because it merely identifies a list of institutions rather than methodologies supported by specific documents.[27]

         III. LAW & ANALYSIS

         A. Rules 26(a)(2)(B) and 37(c)(1)

         Rule 26(a)(2)(B) provides that expert witnesses must generally submit an expert report that contains:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and,
(vi) a statement of the compensation to be paid for the study and testimony in the case.

         Under Rule 26(a), expert reports must explain the “how” and “why” of the expert's opinions with specificity. See Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995) (report lacked specificity to give advance notice of substance of expert's testimony so was deficient under Rule 26(a)); Denley, v. Hartford Ins. Co. of the Midwest, 2008 WL 2951926, at *4-5 (E.D. La. July 29, 2008); Reed v. Binder, 165 F.R.D. 424, 430 (D.N.J. 1996) (reports referencing “few specific resources” among “massive amounts of documents” insufficient under Rule 26(a)).

         Failure to abide by Rule 26(a)'s disclosure requirements prompts sanctions under Rule 37(c). Honey-Love v. United States, 664 Fed.Appx. 358, 361-62 (5th Cir. 2016). Rule 37(c)(1) of the Federal Rules of Civil Procedure states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) … the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Further, the scheduling order in this case required that “[w]ritten reports of experts, as defined by Federal Rule[] of Civil Procedure 26(a)(2)(B), who may be witnesses for Plaintiff fully setting forth all matters about which they will testify and the basis therefor shall be obtained and delivered to counsel for Defendant as soon as possible, but in no event later than November 21, 2018.”[28] In determining whether a violation of Rule 26 is harmless or substantially justified, a court considers: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose.” Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003).

         Additionally, “[t]he language of Rule 37(c)(1) gives the court broad discretion to fashion a remedy, as the court ‘may impose other appropriate sanctions.'” Reed, 165 F.R.D. at 431.

         Here, Dr. Axler's expert report wholly fails to identify the “basis and reasons” for his opinions as to the standard of care, the breach of that standard, and causation as required by Rule 26(a). Dr. Axler's original report listed no sources to substantiate any of his opinions. While the Government understandably insists that the Court should not even consider Dr. Axler's allegedly belated and prejudicial supplemental declaration, even this declaration fails to conform his report to the standards mandated by Rule 26(a). Dr. Axler's supplemental declaration merely lists a number of institutions as the bases for his opinions; the declaration makes no effort to tie any of his opinions to any particular source or publication of these institutions, much less adequately identify a specific basis or reasons for any of his opinions. Therefore, Dr. Axler's report is conclusory and insufficient under Rule 26(a). These deficiencies are both unexplained by Plaintiffs and prejudicial to the Government, which indicates it would have deposed Dr. Axler and retained an expert oncologist had Plaintiffs provided timely the requisite information concerning Dr. Axler's purported expertise and opinions. Therefore, Dr. Axler's testimony is excluded for failure to comply with Rule 26(a). See Honey-Love, 664 Fed.Appx. at 361-62 (affirming exclusion of expert's testimony under Rule 37 where no justification for opinions was offered); Denley, 2008 WL 2951926, at *4-5 (excluding report that did not provide justification for opinion under Rule 26(a)).

         B. Daubert Standard

         In addition to arguing deficiency under Rule 26(a), the Government contends that Dr. Axler's expert report should be excluded as unreliable under Rule 702. A district court has discretion to admit or exclude expert testimony under the Federal Rules of Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 requires a district court to act as a gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Rule 702 of the Federal Rules of Evidence provides:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the ...

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