Court Questions Whether Hematology Expert Report Meets All Rule 26 Requirements

The plaintiffs claimed their father passed away from esophageal cancer because of the delay in his diagnosis and treatment. They retained a hematology expert witness to opine on the standard of care for cancer patients.

Wendy Ketner, M.D.

Written by
— Updated on October 27, 2021

Court Questions Whether Hematology Expert Report Meets All Rule 26 Requirements

Court: United States District Court for the Eastern District of Louisiana
Jurisdiction: Federal
Case Name: Tucker v. United States
Citation: 2019 U.S. Dist. LEXIS 150053

The defendants tried to exclude the expert’s written report and testimony. Furthermore, the defendants argued his expertise exceeded what a general practitioner would know. The court dismissed the defendants’ motion at this time.

Facts

The plaintiffs sued the administrator of a VA Hospital in New Orleans. They claimed their father died of esophageal cancer due to the medical malpractice of his healthcare providers in the hospital. According to the plaintiffs, the providers refused to diagnose and treat his illness promptly. The state tried to exclude the written report and testimony of the plaintiffs’ hematology expert witness. The defendants argued it was conclusory and did not express the rationale and explanations for the opinions. Furthermore, it did not fully explain the facts or data included in the context of the opinions.

The Plaintiffs’ Hematology Expert Witness

The hematology expert witness was a board-certified internal medicine and oncology doctor. Additionally, he was familiar with the standard of care for both subjects along with hematology. He also knew the relevant medical literature and has written many oncology publications in peer-reviewed journals. He checked the deceased’s medical records at the VA Hospital and other clinics. The expert witness regularly worked with volunteers and family physicians as part of a cancer patient treatment team.

The expert testified that there was an unacceptable delay in the diagnosis and treatment of the deceased’s progressive esophageal cancer. He claimed the delay probably reduced his chances of survival and his life’s longevity. Furthermore, he opined that any patient who reports dysphagia and loses 20 pounds has esophageal cancer unless proven otherwise.  The expert testified that doctors should have performed EGD or barium swallowing as soon as the patient showed these symptoms.

The hematology expert witness thought it was unlikely that the deceased would have survived cancer. However, his life could have been 3-6 years longer with a timely diagnosis. The 5-month delayed diagnosis shortened his life expectancy.

Arguments

The government argued the court should omit the expert’s testimony because it was not reliable under Rule 702. It further contended the report did not fulfill the requirements of the Federal Rule of Civil Procedure 26(a)(2)(B). The government argued that even if the report met Rule 26(a)(2)(B), the court should exclude the standard of care testimony regarding the deceased’s physician. The defendants asserted the expert had 26 years of experience in cancer patients’ treatment that a general practitioner doesn’t have.

The plaintiffs submitted that the expert was qualified to give such opinions. The plaintiffs also argued the expert’s report and testimony met the requirements of Rule 26(a)(2)b). They both lay the basis for his opinions and provided a synopsis of his testimony.

Discussion

The court found that the expert’s testimony was slim. However, it met the first four requirements of Rule 26(a)(2)b) ( the first three are most important). This case was scheduled for a bench trial. As such, the purposes of Daubert, on which the present motion was based, were no longer involved. There was no need for pretrial rulings on the admissibility of facts. The court dismissed the motion at this time.

Ruling

The court held the hematology expert’s testimony to be admissible. Restrictions were put on his testimony for procedural reasons.

Key Takeaways for Experts

It’s crucial to understand the Federal Rule of Civil Procedure 26(a)(2)(B) when writing your expert witness report. If you fail to comply with the requirements, you run the risk of the court excluding your testimony altogether. In this case, the defendants argued the written report did not meet what Rule 26(a)(2)(B) required. However, the court found that it did meet the first four requirements of this rule. As such, it’s important that your expert report includes all the rule needs. By doing so, you can prevent the opposition from attempting to exclude your testimony.

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