Court: United States District Court for the Eastern District of Louisiana
Case Name: Fulmer v. United States
Citation: 2019 U.S. Dist. LEXIS 75858
The plaintiffs, the deceased’s widower and daughter, alleged the deceased’s doctor and nurse practitioner failed to diagnose the deceased’s breast cancer. The plaintiffs retained an oncology expert witness to opine on the causation of the cancer and the standard of care. The defendant argued the expert witness lacked the knowledge of an oncologist.
The court excluded the oncology expert witness because his professional experience did not support his methodology.
A primary care practitioner in New Orleans examined the deceased. The doctor sent her to a gynecologist for a pap smear and prescribed a bilateral screening mammogram. The deceased also visited a nurse practitioner, who recommended a second bilateral screening mammogram. An examination of the medical files showed no record of the deceased complaining about her breasts to either physician. Additionally, records showed the deceased never went for either prescribed mammogram.
Shortness of breath and coughing prompted the deceased to visit the emergency room. The emergency room physician reported a “large white area to the outer aspect of the right breast.” The diagnosis identified the white area as invasive ductal carcinoma. The victim died the following year at her residence. Autopsy findings revealed she died of breast cancer. The deceased’s widow and daughter claimed compensation from the doctor and nurse practitioner for negligence. The plaintiffs alleged the doctor and nurse practitioner failed to prevent, diagnose, and treat the deceased’s breast cancer.
The Plaintiff Oncology Expert Witness
The United States challenged the evidence provided by the plaintiffs’ oncology expert witness. The expert was a triple board-certified physician trained in bariatric medicine, quality assurance, and family medicine. The defendant argued the expert lacked the knowledge of the oncologist. Because of this, the government claimed that in order to give an opinion on the cause in this case, an expert would need such knowledge. This included the link between delay in cancer screenings and the deceased’s death. The government argued the expert’s testimony and opinions on causation and the standard of care were inaccurate. They asserted the expert witness did not provide a reliable methodology or references for his views.
On the other hand, the plaintiffs argued it was not for the oncologist to say the inability to administer breast examinations for seven years induced the death. Alternatively, the plaintiffs defended the expert’s qualifications. His experience treating cancer patients and designing breast cancer medications qualified him to speak on this topic. From 2001 to 2004, the oncology expert witness treated cancer patients as a senior physician at the Cancer Research Institute. The expert witness’s patients included breast cancer patients. The oncology expert witness has since founded a private consultancy company devoted to clinical trials. He was also the chief investigator of a number of breast cancer research trials. The trials also consisted of a potential drug targeting women with breast cancer.
The plaintiffs also argued the expert’s testimony fit the criteria of Rule 26. The plaintiffs stated the medical records included the only references required to validate his views. In the expert’s declaration, the plaintiffs listed various scientific and cancer societies and associations as the basis for his views.
The court observed that although the expert was not an oncologist, he could determine the level of neglect from the family medicine practitioner. However, an expert’s experience in pathology or oncology was required to opine on causation. This experience was necessary to assess the causal relation between the supposed delay in diagnosing the deceased’s cancer and possible damage. The expert had a limited amount of experience with cancer treatments. Yet, the court noted he did not have the requisite qualifications with oncology or pathology for these opinions.
The expert’s testimony failed to describe the methodology that he used to arrive at his conclusions. The court observed that these conclusory opinions were not reliable. The opinions did not formulate a reasoned basis or methodology the court was expected to determine pursuant to Rule 702.
The motion to exclude the oncology expert witness’s testimony was granted.
Key Takeaways for Experts
When asked to testify about causation, make sure you have strong credentials in the case topic area. In the court’s eyes, it is not always sufficient to have experience treating patients. In this case, the expert witness had experience treating cancer patients. However, the expert did not have the oncology background necessary to opine on the cause of breast cancer. It is important for medical experts to have experience treating patients. Nevertheless, it also helps build your testimony if you have an educational background in the case topic.