Court Deems Plastic Surgery Expert’s Differential Diagnosis Opinion is Within Scope

    Court: United States District Court for the District of Kansas
    Jurisdiction: Federal
    Case Name: Cohen v. Lockwood
    Citation: 2004 U.S. Dist. LEXIS 5989

    In this medical malpractice case, the defendant seeks to exclude the plaintiff’s plastic surgery expert for allegedly offering causation testimony outside of his expertise. Further, the defendant claims the expert is not permitted to opine on the standard of care since this was not included in the expert report.

    The court finds that since the plastic surgery expert is sufficiently qualified in his field, he is permitted to testify on causation. The expert, however, erred by opining on standard of care, since this was not included in his report and, thus, violated Rule 26(a)(2)(B).


    In this medical malpractice case, the plaintiff sued a plastic surgeon after undergoing two plastic surgery operations: a mammoplasty and an axillary brachioplasty. The plaintiff alleged that the defendant negligently cut or partly sliced her long thoracic nerve during the procedures. This resulted in the plaintiff developing severe thoracic neuropathy manifesting itself as a disorder known as scapular winging (when one or both shoulder blades stand out of the back instead of lying flat) as well as a general decline in mobility of the left arm. To support her case, the plaintiff retained a plastic surgery expert witness.

    The Plaintiff’s Plastic Surgery Expert Witness

    The plaintiff’s plastic surgery expert witness was a cosmetic surgeon who was another one of the plaintiff’s treating physicians. In videotaped testimony, the plastic surgery expert opined that the plaintiff’s post-surgery injuries could not have been caused by her workout routine or in a recent bike accident.

    The defendant protested that the expert’s causation testimony was beyond his knowledge. The defendant also claimed that the expert was not qualified to testify that the plaintiff’s long thoracic nerve was sliced, not crushed. Finally, the defendant sought to strike the expert’s standard of care testimony and have the deposition transcript and video edited accordingly. This testimony, per the defendant, was an unfair surprise because this had not been included in the expert’s report.

    The plaintiff argued that whether the defendant had breached the standard of care was a key issue in any medical negligence case, and therefore the defense should not have been shocked at that testimony. Furthermore, the plaintiff argued that another expert had given a standard care opinion in a deposition the day after the plastic surgery expert’s deposition, so this was an issue the defense should have been ready to address.


    The court explained that the expert’s background showed he qualified as a plastic surgery expert. Further, the court considered the expert’s opinion was within the limits of his unique training and experience. The expert’s opinions were followed by thorough descriptions from which the court could discern sufficient data and facts as required by Rule 702. The court also found that the expert reasonably explained his rationale in eliminating the defendant’s suggested alternative causes of the plaintiff’s injuries, making his own diagnosis reliable and admissible.

    The court, however, sided with the defendant when it came to the expert’s opinion on the standard of care. The aim of allowing a party to publish a report compiled by an expert containing a full statement of all views to be shared is to prevent unfair surprises and allow the opposition to prepare their response. Any new rule, in turn, would encourage sand-bagging by trial lawyers and disregard Rule 26(a)(2)(B)’s specific criteria.


    The defendant’s motion to exclude the plastic surgery expert witness’s testimony was granted in part and denied in part.

    Key Takeaways for Experts

    This case demonstrates the importance of testifying within the scope of your expertise. Here, the expert was found sufficiently qualified, and therefore, permitted to opine on causation theories. The expert did misstep, however, by testifying on a topic not included in the expert report. If you plan to opine on a topic, it must be included in your report.