Case:
Shannon Dux v. United States of America, No. 11 CV 7142, U.S. District Court, N.D. Illinois; Sept. 24, 2014
Background:
Doctors at defendant Edward Hines, Jr. Veterans Administration in Maywood, Ill., told a Vietnam veteran that he tested positive for prostate cancer. He underwent a radical prostatectomy, which resulted in incontinence, sexual dysfunction, and depression. The doctors later told the patient that they had mistakenly switched the tissue from his biopsy with that of another patient. He in fact did not have cancer. Because the side effects of surgery continued, and he had suffered from long-term depression, the patient committed suicide. He had previously considered suicide.
The patient’s daughter, Shannon Dux, then sued the VA for wrongful death and for her father’s pain and suffering.
Cancer Expert’s Testimony:
Defense expert Dr. Kevin McVary opined that even if the doctors had correctly told the patient that his biopsy was negative, he may have undergone a radical prostatectomy anyway and suffered the same side effects. The patient’s high and steeply increasing prostate antigen levels (PSA) indicate that the patient would have been re-biopsied in subsequent years. Further, the final pathology taken during surgery showed small foci of prostate carcinoma,” indicating that the patient did in fact have prostate cancer.
McVary also testified that it would have been within the standard of care not to perform a follow-up prostate biopsy.
The plaintiff argued that McVary’s testimony was speculative and inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 [1993]).
Admissibility of Cancer Expert’s Testimony:
Judge Joan B. Gottschall of the U.S. District Court for the Northern District of Illinois found that the plaintiff’s arguments were appropriate for cross-examination and go to the testimony’s weight, not its admissibility.
McVary is qualified by his knowledge, skill, experience, training, and education to offer an opinion regarding the future diagnosis of the patient’s cancer, the judge said. Further, McVary adequately supported his opinion that the doctors would ultimately have counseled the patient to undergo a radical prostatectomy, the judge said.
The judge denied the plaintiff’s Daubert motion but granted her partial summary judgment on the issue of breach of the standard of care. The judge also granted the government’s motion for partial summary judgment on the issue of proximate cause, and denied the plaintiff’s. Plaintiff’s sole remaining claim is her survival action.
