Nurse Practitioner’s Testimony Challenged Under Rule 702

The plaintiff sued the defendant grocery store chain after sustaining injuries from a slip and fall. The nurse practitioner who treated her opined on the facts, the injury and resulting case, and possible damages.

Wendy Ketner, M.D.

Written by
— Updated on April 25, 2022

Nurse Practitioner’s Testimony Challenged Under Rule 702

Court: United States District Court for the District of Nevada
Jurisdiction: Federal
Case Name: Scolaro v. Vons Cos.
Citation: 2019 U.S. Dist. LEXIS 221547

However, the defendant argued the nurse was unqualified to testify on the cause of the injuries. The plaintiff claimed Daubert didn’t apply because the plaintiff did not present the nurse as an expert.

Facts

The plaintiff was shopping at a grocery store when she slipped on a puddle next to a wet-floor sign. She filled out a client accident form stating the various body parts she injured. The plaintiff then sued the supermarket chain for negligence and claimed damages. The plaintiff sought treatment for her injuries, undergoing neck surgery. A nurse practitioner treated her for lower back pain radiating into her hip and down to her knee. Additionally, a nurse practitioner treated her for neck pain radiating down to her left arm.

The nurse continued to treat the plaintiff. The nurse submitted a review note stating that the plaintiff had been assessed for left shoulder pain. The review note also stated that the plaintiff would need additional surgery on the shoulder for tears related to the fall with a fair degree of certainty. The plaintiff did not hire the nurse as an expert. However, she was supposed to testify regarding the facts and circumstances, the injury and resulting care, and the possible damages.

The Plaintiff’s Nursing Expert Witness

The defendant sought to preclude the nurse from testifying about the cause of the plaintiff’s left rotator cuff muscle tear. The defendant argued that she was unqualified because the plaintiff did not hire her as an expert. Additionally, the defendant claimed that her testimony was not reliable.

The defendant set out a litany of reasons to support his argument that the nurse practitioner was eminently unqualified to give an opinion on the cause of the accident, including that:

  1. The nurse practitioner did not express the protocol or the intent of two well-known and elementary diagnostic tests used to diagnose orthopedic injury to the arm so that it could not possibly have decided the cause of a complicated rotator cuff tear
  2. She had not diagnosed or repaired the plaintiff’s muscle tear
  3. The nurse practitioner was not an orthopedic surgeon or doctor
  4. She had never treated a patient for torn rotator cuff
  5. Her comment on causation in the plaintiff’s progress report was unreliable because she did not elaborate on her methodology

Discussion

The plaintiff argued that Daubert didn’t apply because she did not present the nurse as an expert witness or her treating physician. The nurse practitioner could provide evidence of causation if she had formulated an opinion during treatment. The defendant had not challenged causation, and the cause was self-evident. As such, the plaintiff argued the nurse practitioner’s opinion on causation was also not subject to expert witness requirements. Moreover, even if Daubert applied, the nurse practitioner was qualified to give that opinion. The nurse practitioner had 15 years of experience as a licensed nurse practitioner legally entitled to practice as a primary care provider.

Any damage to the plaintiff’s left shoulder had not become evident until after surgery to the neck. As such, the court acknowledged that the cause of the fall was not evident. Thus, the conclusion was outside the limits of the testimony of the lay witness. The nurse practitioner determined that the fall caused the injury by a reasonable degree of certainty. This indicated that this assessment was an expert testimony that involved specialized knowledge. There was evidence that the nurse practitioner did not reach that conclusion during treatment. She did not treat or repair the tear. Therefore, the court considered the nurse practitioner’s proof of causation as expert testimony and had to comply with Rule 702.

The court could not decide whether the nurse practitioner was qualified to give an opinion on whether that opinion was accurate. Both sides had added partial versions of the transcript of her deposition, which had omitted her credentials. All the court could see was that the nurse practitioner was a registered nurse practitioner operating at a pain management clinic who could not remember treating a similar injury. The documentation was too undeveloped to conclude a review of Daubert and Rule 702.

Ruling

The court deferred the ruling on the motion until after a Daubert hearing to decide on the causation opinion.

Key Takeaways for Experts

This case illustrates the importance of having the right professional experience to support your opinions. In this case, the defendant argued that the nurse practitioner was unqualified to opine on the cause of the accident. While the plaintiff stated that the nurse practitioner was not an expert, it’s important to keep your testimony within the scope of your expertise. For professional opinions, you should have the specific specialized knowledge to give an opinion.

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