Opinion
No. EP-03-CA-00343-KC.
March 8, 2006
ORDER
On this day, the Court considered Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment ("Motion"). For the reasons set forth herein, Defendant's Motion is DENIED.
I. BACKGROUND
The following background is derived from the undisputed facts as found in the parties' motions in support of and opposition to summary judgment in the present medical malpractice action.
On August 5, 1997, Plaintiff Carol Rogers ("Plaintiff") underwent a cesarean section at William Beaumont Army Medical Center ("WBAMC"). Def.'s Mot. To Dismiss or, in the Alternative, Mot. For Summ. J. 1 ("Def.'s Mot."). Prior to her cesarean section, Rogers received an epidural, which she alleges caused her to suffer a herniated disk. Id. Thereafter, Rogers filed an administrative claim against the United States Army on June 28, 1999 alleging: "Medical malpractice. Failed to diagnose[,] treat[,] and assist claimant in the birth of a large baby in excess of 11 pounds, negligently did a spinal block causing a severe disc and back injury." Id. 3; Def.'s Ex. 2 ("DEX 2").
After receiving this claim, the Army wrote to Rogers' counsel asking Rogers to provide support for her claim. Def.'s Mot. 4; DEX 3. The Army received no response. Def.'s Mot. 4. Subsequently, it issued a letter denying the claim for lack of support and documentation. Def.'s Mot. 4; DEX 4.
On August 28, 2003, Plaintiff filed a complaint in federal court under the Federal Tort Claims Act, alleging medical malpractice. Plf.'s Original Compl. On July 14, 2004, Plaintiff tendered an expert report to Defendant from one Dr. Barton W. Butterbaugh ("Butterbaugh Report"). Def.'s Mot. 4; DEX 5. The report contained (1) a list of the records reviewed by Butterbaugh, (2) a list of the factual circumstances surrounding the application of the epidural, and (3) the following "Discussion and Conclusions" section:
Plaintiff's deadline to submit expert reports was July 1, 2004. Def.'s Mot. 4.
Ms. Rogers is an example [of] a patient who suffered an injury to the L4-L5 disc secondary to multiple unsuccessful attempts at spinal needle placement during the performance of epidural anesthesia. Had this procedure been performed in a proficient and skillful manner, this injury more likely than not, would not have occurred.
DEX 5.
After receiving this report, Defendant requested dates to depose both Plaintiff and Butterbaugh. Def.'s Mot. 4. Defendant received no response. Id.
On October 21, 2004, Plaintiff's counsel wrote to Defendant requesting help in locating his client, Rogers. Id. 5; DEX 8. Defendant complied with this request by using several databases to find several people with the name "Rogers." Def.'s Mot. 5; DEX 8. On December 1, 2004, Defendant notified Plaintiff's counsel that the government had located Plaintiff, and again requested a date on which to depose Plaintiff. Def.'s Mot. 6; DEX 10. Plaintiff's counsel did not respond. Def.'s Mot. 6. All together, Defendant made fourteen requests to depose Plaintiff and Butterbaugh without response from Plaintiff's counsel. Id. 5; DEX 7.
Plaintiff admits that discovery was delayed in this case. Plf.'s Resp. ¶ 5. Plaintiff explains these delays by reference to (1) the fact that Plaintiff's counsel lost contact with Plaintiff and (2) the fact that Plaintiff's counsel has been struggling to "keep pace" with an extraordinary work load. Id.
On November 2, 2004, Plaintiff moved this Court to extend the Court's deadlines. The Court amended the scheduling order to reflect a discovery deadline of February 28, 2005 and a dispositive motions deadline of March 25, 2005. Moreover, this Court noted within the scheduling order that:
This Court will accommodate defendant's request that trial be held prior to May 23, 2005, and will not look favorably on delays created by plaintiff that prevent resolution of this action by that date.
Counsel for plaintiff will not be granted a further extension of the discovery deadline based on his inability to locate his client.
Def.'s Mot. 5-6.
Nevertheless, Defendant wrote to Rogers agreeing to extend the discovery deadline for three weeks beyond the Court-ordered deadline of February 28, 2005. Def.'s Mot. 7. Plaintiff, again, failed to respond. Id. Thereafter, on May 5, 2005, Defendant filed the instant Motion.
Attached to Plaintiff's Response to Defendant's Motion, without any identifying label or exhibit number, is a declaration of Barton Butterbaugh ("Butterbaugh Declaration") signed on April 12, 2005. This declaration states that Butterbaugh has performed lumbar spinal taps and epidural injections which require needle placement. It further states that he is qualified to render expert opinions on (1) the standard of care in administering lumbar spinal taps and epidural injections, (2) breaches in the standard of care, and (3) how breaches in the standard of care can cause injury to a patient. Butterbaugh declares that the standard of care for epidural administration of anesthesia requires careful placement of a touhy needle, and that in the case of Plaintiff, the epidural procedure had to be repeated three times. Butterbaugh declares that he is aware that Rogers' earlier medical records make referece to back pain, but that the back pain referenced is of a non-specific nature and not asociated with any radicular pain, lower extremity numbness, parathesis, or muscular weakness. Butterbaugh also states that the epidural needle placements occurred at L4-L5, the same location of her subsequently diagnosed herniated nucleaus pulposis. Finally, Butterbaugh declares that "[i]t is my opinion that poor technique in placement of the epidural needle caused injury to the disc at L4-L5. This is below the standard of care."
II. DISCUSSION
A. Plaintiff's Motion to Amend Scheduling Deadlines
Plaintiff moves, pursuant to Federal Rule of Civil Procedure 56(f), to continue summary judgment in order to obtain further discovery. Plf.'s Resp. ¶ 6. Plaintiff makes reference to the fact that he has approximately fifty (50) medical negligence cases pending in state and federal court. Id. Further, Plaintiff states that "[r]easonable time to conduct discovery, to include the deposition of the Plaintiff, and the experts, should afford the parties the opportunity to have a more complete pre-trial discovery package than exists at present." Id.
Federal Rule of Civil Procedure 56(f) provides a tool through which non-movants may keep the doors of discovery open in order to combat a motion for summary judgment. Wichita Falls Office Assoc. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992). To obtain relief pursuant to Rule 56(f), the non-movant must (1) request an extension of discovery prior to the court's ruling on summary judgment, (2) notify the trial court that further discovery pertaining to summary judgment is being sought, and (3) demonstrate to the trial court "specifically how the requested discovery pertains to the pending motion." Id.; see Baker v. Am. Airlines, Inc., 430 F.3d 750, 756 (5th Cir. 2005) (requiring a party to show (1) why it is currently unable to present evidence creating a genuine issue of fact and (2) how continuance would enable it to present such evidence). "The party may not simply rely on vague assertions that additional discovery will produced needed, but unspecified, facts in opposition to summary judgment." Baker, 430 F.3d at 756 (citing Access Telecomm., Inc. v. MCI Telcomms. Corp., 197 F.3d 694, 719-20 (5th Cir. 1999). Furthermore, the non-movant must have exercised due diligence during discovery. Id. (citing Wichita Falls Office Assoc., 978 F.2d at 919). An affidavit supporting continuance of discovery is preferred, though not required, as long as the non-movant submits "an `equivalent statement preferably in writing' that conveys the need for additional discovery." Wichita Falls Office Assoc., 978 F.2d at 919 (citing Fontenot v. Uphohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
As a preliminary matter, this Court can find no affidavit, let alone "equivalent statement" conveying a need for discovery, accompanying Plaintiff's Response. The only affidavits accompanying Plaintiff's Response are those of Butterbaugh and John Mundie, both untimely, and neither of which specifically detail to this Court how requested discovery pertains to the pending motion. More substantively, Plaintiff has failed to make the requisite showing under Wichita Falls. First, this request for an extension of time was made within Plaintiff's Response to Defendant's Motion, not at any time prior. Thus, it was considered as the Court ruled on summary judgment, indicating that Defendant would suffer severe prejudice were this Court to now extend the discovery deadline. Next, the Court has not been notified that further discovery is being sought — Plaintiff has merely requested additional time. Finally, there has been absolutely no demonstration of how requested discovery pertains to the pending motion. As such, this Court will deny an extension of the discovery deadline pursuant to Rule 56(f).
B. Defendant's Motion to Dismiss
1. Standard
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. FED.R.CIV.P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true, and view them in a light most favorable to the plaintiff. Id.; Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002). A court will dismiss a complaint pursuant to Rule 12(b)(6) only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir. 2001).
2. Plaintiff's Medical Malpractice Claim
The Federal Tort Claims Act (FTCA) authorizes civil actions for damages against the United States for personal injury caused by the negligence of government employees when private individuals would be liable under the substantive law of the state in which the negligent acts occurred. 28 U.S.C. §§ 1326(b)(1), 2674; Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003). Texas authorizes suits for medical malpractice when the plaintiff can prove: (1) a duty by the physician or hospital to act according to an applicable standard of care, (2) a breach of that standard of care, (3) an injury, and (4) a causal connection between the breach of care and the injury. Quijano, 325 F.3d at 567. Generally, expert testimony is required to prove the applicable standard of care. Id.
In the instant case, Plaintiff has alleged all of the requisite elements for establishing a prima facie case of medical malpractice. Plf.'s Original Compl. 2. Though Defendant titled its motion "Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment," Defendant focuses on the sufficiency of Plaintiff's evidence and the Motion for Summary Judgment to the exclusion of the Motion to Dismiss. In fact, Defendant did not include a section discussing the Motion to Dismiss, the standard to be applied by the Court, or any relevant case law supporting its position. Accordingly, Defendant's Motion to Dismiss is denied.
C. Defendant's Motion for Summary Judgment
1. Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the non-moving party's claim or defense, or, if the crucial issue is one for which the non-moving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the non-movant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries the initial burden, the burden shifts to the non-movant to show that summary judgment is inappropriate. See Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c)); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the non-movant, or, in other words, that the evidence favoring the non-movant is insufficient to enable a reasonable jury to return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986).
2. Plaintiff's Medical Malpractice Claim
Defendant argues that it is entitled to summary judgment because Plaintiff has provided no competent summary judgment evidence sufficient to create a genuine issue of fact as to whether Defendant breached its duty in rendering medical care. Def.'s Mot. 2. First, Defendant argues that the Butterbaugh Declaration, which supplements the earlier Butterbaugh Report, should be stricken as untimely. Def.'s Reply 2. Second, Defendant argues that even if the Court does not strike the Butterbaugh Declaration as untimely, the Butterbaugh Report and Declaration ("Butterbaugh Evidence") should be stricken as violative of Federal Rule of Civil Procedure 26(a)(2)(B). Def.'s Mot. 7-8. Third, Defendant argues that Butterbaugh is not qualified to render expert testimony as to the standard of care and breach of duty in this case. Def.'s Mot. 11. Finally, Defendant raises a Daubert objection to the Butterbaugh Evidence. Def.'s Mot. 12.
Without the Butterbaugh Evidence, Defendant argues that Plaintiff has failed to produce any evidence creating a genuine issue of fact as to whether Defendant breached its duty of care. Def.'s Mot. 15-16. Thus, the admissibility of the Butterbaugh Evidence is crucial to this Court's decision of whether or not to grant summary judgment.
a. Motion to Strike
Defendant requests that this Court strike the Butterbaugh Declaration because (1) it is untimely and (2) it, in combination with the Butterbaugh Report, does not comply with Federal Rule of Civil Procedure 26(a)(2)(B), specifically because it is not "`a complete statement of all opinions to be expressed and the basis and reasons therefore.'" Def.'s Mot. 8. Plaintiff responds by noting that she disclosed Butterbaugh's identity and report during discovery, and even though she did not respond to Defendant's numerous letters requesting a date and time to depose Butterbaugh, Defendant never pursued the proper discovery remedy of a motion to compel or a motion for sanctions. Plf.'s Resp. ¶ 2.
Without the Butterbaugh Declaration, the Butterbaugh Report would be inadmissible as the Butterbaugh Report would not satisfy Federal Rule of Civil Procedure 56(e)'s requirement that affidavits be sworn to or certified.
Initially, this Court recognizes that the Butterbaugh Declaration and other documents attached to Plaintiff's Response were untimely as they were filed on April 12, 2005 — twelve days after the expiration of the discovery deadline contained within this Court's scheduling order. However, Defendant expressed a willingness to continue discovery for three weeks beyond the February 28, 2005 deadline, illustrating that it was willing to be somewhat flexible. DEX 12. Moreover, Plaintiff timely disclosed the identity of Butterbaugh, and thus Defendant was on notice of Butterbaugh's role in this litigation. Accordingly, this Court will not strike the Butterbaugh Declaration or the John Mundie affidavit with attachments as untimely.
Defendant next moves this Court to strike the Butterbaugh Declaration, arguing that it violates Federal Rule of Civil Procedure 26(a)(2)(B). Rule 26(a)(2)(B) requires that when a party plans to rely upon expert testimony or an expert report, she must disclose not only the identity of the expert, but also include a written report prepared and signed by the witness. FED.R.CIV.P. 26(a)(2)(B). "The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years . . ." Id. The purpose of this requirement is to avoid disclosure of "sketchy and vague" information. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996).
Defendant relies upon Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996) to support its contention. In Sierra Club, the Fifth Circuit held that the district court did not abuse its discretion in striking the defendant's designation of experts because the defendant did not comport with the district court's accelerated discovery order. Id. at 570-71. Specifically, the district court found the following defects with the reports: (1) one expert's statement of opinions was merely a one-and-one-half page outline listing his "points of testimony," (2) one expert's statement of opinions consisted of two paragraphs of his opinions, and (3) two other experts' statement of opinions consisted of only one paragraph each. Id. The Court recognized that the defendant later reinforced the statements with rebuttal and supplementary disclosures, but that Rule 26(a) itself clearly requires the initial disclosures to be "complete and detailed." Id.
The Court's accelerated order required the parties to produce: "a written report prepared and signed by the witness which includes a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information relied upon in forming such opinions; any exhibits to be used as a summary of or support for such opinions; the qualifications of the witness; and a listing of any other cases in which the witness has testified as an expert at trial or in deposition within the preceding four years." Sierra Club, 73 F.3d at 570. Similarly, Federal Rule of Civil Procedure 26(a)(2)(B) requires that: "with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." FED.R.CIV.P. 26(a)(2)(B).
The Fifth Circuit also rejected the argument that plaintiff was required to file a motion to compel before seeking sanctions (i.e., before filing the motion to strike), because defendants were already under an obligation to produce by virtue of the accelerated discovery order. Id. at 572. The Court held that Rule 37 itself does not require that a party file a motion to compel before moving for sanctions. Id. Rather, the Advisory Committee Notes to Rule 37 contemplate that in certain situations it may be more effective to impose sanctions for failure to disclose rather than to compel production. Id. Sierra Club remains good law, but is not used as a carte blanche to exclude expert reports that allegedly fail to comply with the "detailed and complete" standard. See Michaels v. Avitech, Inc., 202 F.3d 746, 749 (5th Cir. 2000) (distinguishing Sierra Club). For example, in Michaels, the Fifth Circuit held that the district court did, in fact, abuse its discretion in excluding an expert report when the report, although providing no direct evidence of negligence, at least implicated the defendant. Id. at 749. The Fifth Circuit distinguished Michaels from Sierra Club by noting first, that the defendant in Sierra Club practically admitted that it had failed to comply with the Court's order so that the matter at issue concerned the sanction for noncompliance more so than the issue of noncompliance itself. Id. The Fifth Circuit next distinguished Michaels by recognizing that there was an "explicit and unambiguous discovery order" in place in Sierra Club, while the order at issue in Michaels did not, on its face, require complete disclosure. Id. at 749-50. Accordingly, in Michaels the Fifth Circuit held that although "[a] district court has wide latitude in determining whether disclosure is `detailed and complete . . . when a discovery order fails to specify complete disclosure, no current or accelerated discovery schedule is in place, and the plaintiff has some reason to believe that less than full disclosure is required, then the discretion to find a violation must likewise be reduced." Id. at 750.
In its discussion of Sierra Club, the Fifth Circuit refers to the plaintiff's admission of noncompliance with the order and failure to provide complete disclosure. However, a reading of Sierra Club indicates that it was Cedar Point — the defendant — who failed to comply with the Court's order and whose expert reports were eventually stuck. Compare Sierra Club, 73 F.3d at 569-73, with Michaels, 202 F.3d at 749.
The case at hand is more analogous to Michaels than Sierra Club. Like Michaels, the parties to the instant litigation were under no specific discovery order aside from this Court's scheduling order requiring completion of discovery by February 28, 2005. Moreover, although Rule 26(a)(2)(B) itself requires "a complete statement of all opinions to be expressed and the basis and reasons therefor," Michaels illustrates that implying a defendant's negligence may be sufficient to satisfy this standard. This Court finds that the Butterbaugh Evidence is sufficient to meet this standard. Finally, this Court notes that the proper remedy for failure to make required disclosures is a motion to compel, which was not sought by Defendant at any time. This Court does not condone Plaintiff's behavior in failing to respond to Defendant's repeated requests for depositions. However, neither does this Court look favorably on Defendant's attempt to now strike Plaintiff's expert report without having first availed itself of the remedies afforded under the 13 Federal Rules. This Court is cognizant of Sierra Club's holding that it was not necessary for the Sierra Club plaintiff to file a motion to compel before seeking to exclude defendant's experts reports; however, the defendant in Sierra Club was under a clear obligation to produce by virtue of the accelerated discovery order, which is noticeably absent in this case. As such, this Court finds that the imposition of sanctions in the form of striking Plaintiff's expert report would be too great a sanction in light of the fact that Plaintiff was under no analogous "clear obligation" to produce, and in light of the fact that Defendant failed to avail itself of the remedy of a motion to compel.
In addition to the reasons stated above, this Court finds that Defendant has failed to make the requisite showing that the exclusion sanction is justified under these facts. In order to exclude expert testimony as a sanction for violation of a discovery order, the district court must examine four factors, including: (1) the explanation for the party's failure to comply with the discovery order, (2) the prejudice to the opposing party of allowing the witness to testify, (3) the possibility of curing such prejudice by granting continuance, and (4) the importance of the witness' testimony. Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996) (citing Sierra Club, 73 F.3d at 572). For example, in Sierra Club, the Fifth Circuit held that the district court properly excluded expert reports when (1) the court was not persuaded by the disclosing party's reasons for failure to comply with the accelerated discovery order because it had been given over nine months to solicit and prepare reports, (2) the prejudice to opposing party of allowing the witnesses to testify was high due to the severe delay in making the required disclosures, and (3) the content of the expert testimony ultimately proved to be unimportant to the case because harm was proved through different evidence. Sierra Club, 73 F.3d at 572-73. Similarly, in Barrett v. Atl. Richfield Co., 95 F.3d 375 (5th Cir. 1996), the Fifth Circuit held that the district court did not abuse its discretion in excluding expert reports when (1) the importance of the excluded testimony was high, but such importance merely underscored the need for plaintiff to comply with court-ordered deadlines or at least inform the court if good faith compliance was not possible, (2) the prejudice to opposing counsel (i.e., additional expense and delay) was high, (3) the court could have ordered a continuance but such continuance was never requested, and (4) the disclosing party engaged in dilatory conduct in violation of court orders, even after the court warned the plaintiff that failure to complete expert depositions by the court-ordered deadline would result in the court striking the expert reports. Barrett, 95 F.3d at 380-82.
In fact, the disclosing party argued that exclusion of the expert witnesses was tantamount to dismissal of their claims. Barrett, 95 F.3d at 381.
Applying this four-pronged test to the instant case, this Court finds that the exclusion sanction is not warranted under these facts. First, this Court finds that Plaintiff has provided meager excuse for her failure to timely comply with Rule 26(a)(2)(B). Plaintiff's counsel merely makes reference to his large case-load and the fact that he lost contact with his client at some point. Second, this Court finds that the prejudice to opposing party of allowing this witness to testify is low. Although, as stated above, this Court does not condone Plaintiff's failure to respond to Defendant's repeated requests to make Butterbaugh available for a deposition or Plaintiff's delay in supplementing her initial disclosures, Defendant was nonetheless on notice of the existence of Butterbaugh and Plaintiff's intent to rely upon him as an expert. Moreover, Rule 37(a) specifically provides the remedy of a motion to compel for a party's failure to make initial 26(a) disclosures, and Defendant failed to take advantage of this remedy before seeking the extreme remedy of sanctions. Third, this Court finds that although it might be possible to cure some prejudice to Defendant by granting a continuance and allowing more time for discovery, it would not be possible to cure the prejudice resulting from undue expense and delay. Finally, this Court finds that the importance of this expert witness is paramount. In fact, Plaintiff's evidence consists solely of the Butterbaugh Evidence, the affidavit of John Mundie with attachments, and the pleadings on file. Plf.'s Resp. ¶ 7. If this Court were to strike the Butterbaugh Declaration, such action would indeed be tantamount to dismissing Plaintiff's claims. Accordingly, upon balancing these four factors, the Court finds that exclusion of the Butterbaugh Evidence is too severe a sanction.
This Court notes that neither party specifically addressed the four prongs of the test articulated in Sierra Club; a test this Court must consider before making a decision as to whether or not to strike the Butterbaugh Declaration.
In light of these findings, the Court declines to exercise its discretion to strike the Butterbaugh Declaration as violative of Rule 26(a)(2)(B).
b. Butterbaugh's Qualifications as an Expert Witness
Defendant next argues that, even if the Butterbaugh Evidence satisfies Rule 26(a)(2)(B), the Court should nonetheless exclude it because as an emergency room doctor, Butterbaugh is not qualified to render expert testimony regarding epidural anesthesia rendered by an anesthetist. Def.'s Mot. 11.
As stated above, the FTCA authorizes civil actions for damages against the United States for personal injury caused by the negligence of government employees when private individuals would be liable under the substantive law of the state in which the negligent acts occurred. 28 U.S.C. §§ 1326(b)(1), 2674; Quijano, 325 F.3d at 567. However, the issue of whether Defendant is qualified to render an expert opinion is an evidentiary question, procedural in nature, and thus governed by the federal rules of evidence. See Morris v. LTV Corp., 725 F.2d 1024, 1030 (5th Cir. 1984) ("Evidentiary questions are procedural in nature and governed by the law of the forum."); see also Exxon Corp. v. Burglin, 42 F.3d 948, 950 (5th Cir. 1995) ("Federal courts apply state substantive law `when adjudicating diversity-jurisdiction claims, but in doing so apply federal procedural law to the proceedings.'"); Conway v. Chem. Leaman Tank Lines, Inc., 540 F.2d 837, 838 (5th Cir. 1976) (noting the instances are rare when evidentiary rules are so intertwined with state substantive law that federal courts sitting in Texas should apply state evidentiary law). Under the Federal Rules, a district court has broad discretion in determining whether a witness is qualified as an expert. United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992); Ludlow Corp. v. Textile Rubber Chem. Co., 636 F.2d 1057, 1060 (5th Cir. 1981); Langham, Langston Burnett v. Blanchard, 246 F.2d 529, 534 (5th Cir. 1957). To qualify as an expert, the witness must have such knowledge or experience in his field as to make it appear that his opinion will probably aid the trier of fact in his search for the truth. Bourgeois, 950 F.2d at 987. Moreover, Federal Rule of Evidence 702 provides:
Nonetheless, even if this Court were to apply Texas evidentiary law to the issue of Butterbaugh's qualification as an expert, he would still pass muster. Under Texas law, a person qualifies as an expert witness on whether or not another physician departed from accepted standards of medical care only if the testifying physician is: (1) practicing medicine at the time such testimony is given or at the time the claim arose, (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the injury in the claim, and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Tex. Civ. Prac. Rem. Code § 74.401 (2005). Moreover, in determining whether a witness is qualified on the basis of training or experience, the court shall consider whether the witness is: (1) board certified or has other substantial training or experience in an area of practice relevant to this claim, and (2) whether the witness is actively practicing medicine in rendering medical care relevant to the claim. Id.
In the instant case, Plaintiff has presented evidence that (1) Butterbaugh maintains a full time practice of medicine in Scottsdale, Arizona, at least as of the date of his declaration, (2) he has knowledge of accepted standards of care for lumbar spinal taps and epidural injections, and (3) he is board certified in emergency room medicine and has performed lumbar spinal taps and epidural injections requiring needle placement. Butterbaugh Dec. 1. Therefore, the evidence appears sufficient to satisfy section 74.401.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
FED.R.EVID. 702 (emphasis added).
This Court finds that Butterbaugh is qualified as an expert witness in this case based upon his experience, training, and education — all permissible criteria by which to qualify a witness as an expert pursuant to Rule 702. Butterbaugh Dec. 1; Curriculum Vitae of Barton W. Butterbaugh. Moreover, this Court rejects Defendant's arguments that Butterbaugh is not qualified as an expert because (1) he is not of the same school or practice as Defendant and (2) he has no training or experience in the administration of epidural injections to women who are in labor or preparing for a cesarian section. Def.'s Mot. 12. Butterbaugh has declared that he has performed lumbar spinal taps and epidural injections requiring needle placement, which indicates that he has the requisite experience and training to testify as to epidurals. Butterbaugh has also included a curriculum vitae indicating that (1) he has a medical degree, (2) he has participated in two residencies and an internship, and (3) he has engaged in numerous other medical-related activities; all indicating he has the requisite education to testify as to epidurals. As such, Butterbaugh is qualified as an expert under Rule 702.
c. Daubert Motion
Defendant finally argues that, even if Butterbaugh is qualified to render an expert opinion, his report cannot survive a Daubert analysis because there is no medical literature or data to support his opinion that an epidural can cause disk herniation. Def.'s Mot. 12-13. In support of this contention, Defendant provides four expert reports questioning Butterbaugh's findings and conclusions. DEX 13. Plaintiff objects to these expert reports, arguing that Defendant cannot rely upon the interpretation of unsworn medical expert reports in challenging Plaintiff's expert. Plf.'s Resp. ¶ 7.
Notably, Defendant fails to address this objection in its Reply.
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment with or without supporting affidavits. FED.R.CIV.P.56(a). When a party moves for summary judgment with the aid of affidavits, "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." FED.R.CIV.P. 56(e); Prado Alvarez v. R.J. Reynolds Tobacco Co., 405 F.3d 36, 41 (1st Cir. 2005) (noting that unsworn nature of expert report diminished its potency as probative evidence for purposes of summary judgment and quoting from Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) that "Documents supporting or opposing summary judgment must be properly authenticated. . . . `To be admissible at the summary judgment stage, `documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).''")); Fowle v. C C Cola, 868 F.2d 59 (3d Cir. 1989) (finding that because expert report was unsworn, it did not constitute competent summary judgment evidence); see also Brady v. Blue Cross Blue Shield, Inc., 767 F. Supp. 131, 135 (N.D. Tex 1991) (rejecting unsworn and unverified interrogatory answers as improper summary judgment evidence in violation of Rule 56(e)). In the instant case, Plaintiff raises a valid objection that the four expert reports offered into evidence by Defendant are unsworn and uncertified. Accordingly, under the plain terms of Rule 56(e) and accompanying case law, this Court cannot consider Defendant's proffered expert reports in ruling on the Daubert motion or summary judgment.
Having determined preliminary evidentiary issues, this Court may now turn to the substance of Defendant's Daubert challenge. A Daubert inquiry, derived from the famous case Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993), provides an analytical framework for determining whether expert testimony is admissible under Rule 702. Burleson v. Tex. Dep't of Criminal Justice, 393 F.3d 577, 583 (5th Cir. 2004). Under Daubert, trial courts act as gate-keepers, monitoring the admission of expert testimony. Id. The job of the trial court is to determine (1) whether the reasoning or methodology underlying the expert testimony is scientifically valid, and (2) whether the reasoning or methodology underlying the expert testimony may properly be applied to the facts at issue. Id. at 583-84.
Put simply, under Daubert a trial court determines whether the expert testimony is "both reliable and relevant." Id. at 584. In determining whether expert testimony is reliable, the trial court looks to several factors, including, but not limited to whether the expert's theory: (1) can or has been tested, (2) has been subjected to peer review and publication, (3) has a known or potential rate of error or standards controlling its operation, and (4) is generally accepted in the relevant scientific community. Id. The court must make certain that an expert, whether basing his testimony upon professional studies or personal experience, employs the same level of intellectual rigor in the courtroom as he applies in the field. Id.
As discussed above, this Court has already found that Butterbaugh is qualified to testify as an expert witness and the Butterbaugh Evidence is otherwise admissible. Defendant has failed to produce competent summary judgment evidence challenging the relevance and reliability of the Butterbaugh Evidence. Accordingly, the Daubert motion should be denied.
In light of the foregoing, this Court finds that the Butterbaugh Evidence is admissible. Defendant has not shown that Plaintiff has failed to create a genuine issue of fact as to whether or not Defendant breached its duty of care towards Plaintiff. Accordingly, Defendant's Motion for Summary Judgment should be denied.
III. CONCLUSION
Defendant's Motion (Doc. No. 26) is DENIED. Plaintiff's request to amend the scheduling deadlines is also DENIED (Doc. No. 21).
SO ORDERED.