United States District Court, E.D. Louisiana
INELL TUCKER, ET AL.
UNITED STATES OF AMERICA
ORDER AND REASONS
B. VITTER UNITED STATES DISTRICT JUDGE.
the Court is the Plaintiffs' Motion In Limine to
Exclude the Testimony of Defendant's Expert, Dr.
Christopher DuCoin. The Motion is opposed and the
Plaintiffs have filed a Reply. For the reasons that follow, the
Motion is DENIED.
April 18, 2018, Inell Tucker, Tanya Craft and Chukym Tucker
(collectively, “Plaintiffs”), filed a Complaint
in this Court, seeking damages under the Federal Tort Claims
Act for the death of Terry Tucker. Plaintiffs sued the United
States of America as the operator of the Southeast Louisiana
Veterans Healthcare Services healthcare facility in New
Orleans (the “VA Hospital”), alleging that Mr.
Tucker died of esophageal cancer due to the medical
malpractice of his healthcare providers at the VA Hospital,
including Dr. Urszula Moroz, who failed to timely diagnose
and treat his condition. A bench trial is scheduled to commence
in this matter on September 16, 2019.
filed the instant Motion on July 17, 2019, seeking to exclude
the testimony of the Government's expert witness, Dr.
Christopher DuCoin, under Federal Rule of Evidence
Plaintiffs allege that Dr. DuCoin is not qualified to opine
on the issue of medical causation under Rule 702 or La. R.S.
9:2794 because he is a general surgeon and this case involves
the failure to diagnose esophageal cancer, which is an
oncological issue. Plaintiffs argue that Dr. DuCoin is not
qualified to testify in the field of oncology because he
admitted under oath that: (1) he was only in his first year
of private practice in general surgery at the time of the
delayed diagnosis in 2015; (2) he is not fellowship-trained
or board certified in surgical oncology; (3) esophageal
cancer represents only 10% of his practice and, as a surgeon,
he removes the mass but does not diagnose the cancer; (4) a
patient's survival rate is determined by a medical
oncologist, not a general surgeon; (5) an oncologist
determines whether and to what extent a patient receives
radiation and chemotherapy; and (6) the literature he
reviewed in reaching the conclusions in his expert report is
an oncology study. As such, Plaintiffs argue that Dr. DuCoin
must be prohibited from testifying at trial under Fed.R.Evid.
702. Alternatively, Plaintiffs assert that the Court should
limit Dr. DuCoin's testimony to the issue of whether Mr.
Tucker's cancer was operable, since he is a
Government opposes the Motion, asserting that Dr. DuCoin
easily satisfies the standards of both La. R.S. 9:2794(D)(1)
and Fed.R.Evid. 702 and, therefore, is qualified to offer
standard of care testimony as to the issue of medical
causation.Specifically, the Government asserts that
Dr. DuCoin has been practicing medicine continuously since
April 2015, prior to the alleged medical malpractice in this
case, that his general surgery residency and two fellowships
in minimally invasive surgery involved extensive care and
treatment of patients with cancer, including esophageal
cancer, and that Dr. DuCoin treated approximately 20-30
patients a year for four years of his clinical practice who
had been diagnosed with esophageal cancer. The
Government points out that for a majority of those 80-120
patients, Dr. DuCoin ordered testing to determine the stage
of the cancer and, among other things, frequently determined
a patient's survival rate based on his education,
training, past experience and knowledge of the relevant
medical literature. The Government disputes each of the
Plaintiffs' six arguments regarding why Dr. DuCoin is not
qualified to offer medical causation testimony in this case,
emphasizing that he provided comprehensive care to esophageal
cancer patients during his first year of private practice and
that board certification in a particular field is just one
factor that courts should consider and not a determinative
factor. The Government argues that none of the
Plaintiffs' six arguments, in isolation or considered
together, demonstrate that Dr. DuCoin is unqualified to offer
medical causation testimony in this case.
response, Plaintiffs assert that because this case involves
the failure to diagnose cancer and a delay in the diagnosis,
expertise in medical oncology or pathology is required to
prove causation and the resulting damages. Although the
Government claims that Dr. DuCoin has extensive experience
providing comprehensive care to esophageal cancer patients
and that his fellowship education and training involved the
treatment of patients with esophageal cancer, Plaintiffs
argue that experience does not make Dr. DuCoin an expert in
oncology or pathology.Thus, Plaintiffs maintain that Dr.
DuCoin is not qualified to render opinions on medical
causation in this case.
Law and Analysis
expert testimony is challenged, the party seeking to present
the testimony has the burden of proving by a preponderance of
the evidence that the testimony satisfies Federal Rule of
Evidence 702. Rule 702 provides the following:
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