Mobius v. Quest Diagnostics Clinical Labs., Inc.

687 F.Supp.3d 357

Dana MOBIUS and Hans Mobius, Plaintiffs, v. QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC.,Quest Diagnostics Incorporated, Quest Diagnostics of Pennsylvania Inc.,Quest Diagnostics Holdings Incorporated, and John Doe #1, Defendants.

Case No. 1:19-cv-00499

United States District Court, W.D. New York

Signed August 18, 2023

Anne B. Rimmler, Philip L. Rimmler, Elizabeth Katherine Bacher, William A. Quinlan, Paul William Beltz, P.C., Buffalo, NY, for Plaintiffs.

Michael T. Hensley, Carlton Fields, P.A., New York, NY, Lauren Elizabeth Fenton-Valdivia, Carlton Fields, P.A., Tampa, FL, V. Christopher Potenza, Patrick B. Curran, Hurwitz Fine P.C., Buffalo, NY, for Defendants Quest Diagnostics Clinical Laboratories, Inc., Quest Diagnostics Incorporated, Quest Diagnostics of Pennsylvania Inc.

Michael T. Hensley, Carlton Fields, P.A., New York, NY, Patrick B. Curran, V. Christopher Potenza, Hurwitz & Fine, P.C., Buffalo, NY, Lauren Elizabeth Fenton-Valdivia, Carlton Fields, P.A., Tampa, FL, for Defendant Quest Diagnostics Holdings Incorporated.

Patrick B. Curran, V. Christopher Potenza, Hurwitz & Fine, P.C., Buffalo, NY, for Defendant John Doe # 1.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' EXPERT NEAL BLAUZVERN AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Christina Reiss, District Judge

Plaintiffs Dana Mobius ("Ms. Mobius") and Hans Mobius ("Mr. Mobius," or collectively with Ms. Mobius, "Plaintiffs") bring this action against Defendants Quest Diagnostics Clinical Laboratories, Inc., Quest Diagnostics Incorporated, Quest Diagnostics of Pennsylvania Inc., Quest Diagnostics Holdings Incorporated, and John Doe #1 (collectively, "Defendants"), alleging that on November 2, 2015, John Doe #1 negligently drew Ms. Mobius's blood at one of Defendants' locations in Orchard Park, New York, "causing [her] severe, serious[,] and permanent injuries." (Doc. 1-2 at 9, ¶ 25.) Plaintiffs assert three causes of action: (1) medical malpractice; (2) failure to obtain Ms. Mobius's informed consent; and (3) loss of consortium on behalf of Mr. Mobius as a result of Ms. Mobius's injuries.

Pending before the court are Defendants' January 31, 2023 motion to strike Plaintiffs' expert Neal Blauzvern, D.O. ("Dr. Blauzvern"), and motion for summary judgment. (Doc. 75.) After receiving leave from the court to file an untimely response, Plaintiffs opposed the pending motions on March 27, 2023. (Doc. 89.) Defendants replied on April 7, 2023 (Doc. 91), at which time the court took the motions under advisement.

Plaintiffs are represented by Anne B. Rimmler, Esq., Philipp L. Rimmler, Esq., Elizabeth Katherine Bacher, Esq., and William A. Quinlan, Esq. Defendants are represented by Michael T. Hensley, Esq., Lauren Elizabeth Fenton-Valdivia, Esq., V. Christopher Potenza, Esq., and Patrick B. Curran, Esq.

I. Whether to Strike Plaintiffs' Expert Dr. Blauzvern.

Plaintiffs seek to introduce the expert opinion of Dr. Blauzvern in support of their claim that Defendants negligently performed Ms. Mobius's blood draw on November 2, 2015. Defendants ask the court to strike Dr. Blauzvern's opinion on the grounds that his recently disclosed opinions are untimely. Pursuant to Fed. R. Evid. 702, they further argue he is not qualified to opine regarding the applicable standard of care for blood draws and whether that standard of care was breached.

Dr. Blauzvern is a Doctor of Osteopathic Medicine who is board-certified in anesthesiology and licensed by the State of Texas to practice anesthesiology and pain management. He has more than thirty years of experience in those fields. In 1983, he graduated from the New York College of Osteopathic Medicine before completing an internship in internal medicine at Long Island College Hospital and a residency and fellowship in pain management and pediatric anesthesiology at the State University of New York at Stony Brook.

Dr. Blauzvern practiced at the Pain Management Practice of Central Texas Spine Institute from 1994 until 2016, when he began practicing at the Capitol Pain Institute in Austin, Texas. Since 2018, he has served as the medical director for the Center for Speciality Surgery.

Dr. Blauzvern's current clinical practice focuses on pain management, including diagnosing and treating chronic regional pain syndrome ("CRPS"). Although he treats patients with all types of pain, including pain associated with nerve injuries, he is particularly interested in spinal cord stimulation, neuropathic pain, and pediatric pain. In his previous practice, Dr. Blauzvern administered "all types of anesthesia" and supervised nurses and anesthesia students. (Doc. 75 at 8, ¶ 25.)

It is "very rare" that Dr. Blauzvern or any other doctor performs blood draws at the Capitol Pain Institute, because they "attempt, as a surgery center, to have all of that preoperative evaluation done ahead of time" and "blood is just not drawn there." (Doc. 75-5 at 12-13.) Dr. Blauzvern does not recall the last time he performed a blood draw. He believes that it has been "[p]robably months to years" since he last performed a blood draw, although he "do[es] start IVs . . . , which is basically the same technique." Id. at 12. He remembers performing one blood draw during 2022 but cannot approximate how many times he performed blood draws in the five years prior to 2022 because "[i]t's just a very routine kind of thing" and "[i]t's just not . . . an event, it's not an action, it's not a clinical duty that registers as anything special that I would remember to any extent." Id. at 13. In his previous position at the Central Texas Spine Institute, he "was responsible" for performing blood draws and starting IVs for his patients when necessary, although he does not remember how frequently he did so. Id.

Dr. Blauzvern testified in deposition that he received training in performing blood draws and starting IVs during medical school, which he attended from 1979 to 1983, and as part of his residency from 1984 to 1986, and of his fellowship from 1986 to 1987. He has not received further phlebotomy training or been licensed as a phlebotomist or nurse. He has not attended any phlebotomy conferences, given presentations on venipuncture, or read or drafted any publications¹ or standard operating procedures on blood draw requirements for phlebotomists.

Dr. Blauzvern is unaware of whether Capitol Pain Institute maintains any policies related to venipuncture performance. He has not reviewed any venipuncture performance policies at the local hospitals where he maintains privileges, nor has he participated in drafting standard operating procedures related to venipunctures. He has never supervised phlebotomists or managed a medical laboratory.

Although Dr. Blauzvern has served as an expert witness in cases related to nerve injuries and CRPS, he has not served as an expert witness, provided an expert report for, been deposed in, or otherwise reviewed any cases related to phlebotomy. No court has qualified him to serve as an expert on the standard of care for a phlebotomist performing a blood draw. There is no evidence that he has practiced osteopathic medicine in New York after his fellowship or that he remains knowledgeable regarding the phlebotomy standard of care in New York, although he contends the standard of care is a national one.

Dr. Blauzvern opined that Ms. Mobius's November 2, 2015 blood draw breached the venipuncture standard of care because the phlebotomist who performed the blood draw did not use a tourniquet; caused injury to the surrounding nerves and tissues; and failed to immediately withdraw the needle when Ms. Mobius complained of severe pain. Because the phlebotomist did not use a tourniquet, Dr. Blauzvern opined that "the location of the venipuncture, towards the top of the forearm, did not follow the standard of care either." Id. at 32 (internal quotation marks omitted). He concluded that the blood draw caused severe and permanent nerve injury to Ms. Mobius, which developed into CRPS.

In opposition to the pending motions, Plaintiffs submitted a sworn Declaration from Dr. Blauzvern dated March 27, 2023 (the "March 2023 Declaration"), in which he averred:

Venipuncture for blood sampling is a basic medical procedure, and the related standards of care are universal. Anesthesiologists, such as myself, as well as many other medical professionals, aside from Phlebotomists, regularly perform such blood draws . . . . Most notably, medical professionals of all types must follow the same standard of care when conducting such venipunctures, including blood draws. Thus, a Phlebotomist must adhere to the very same protocol and standard of care as I do as an Anesthesiologist. By virtue of my knowledge and familiarity with the applicable medical literature and the procedure to be followed, as well as the fact that standards for venipunctures are the very same for doctors and Phlebotomists, I am qualified to testify to the standard of care applicable to the Phlebotomist, who performed the subject blood draw on Dana Mobius.

(Doc. 89-3 at 3, ¶¶ 3-4.)

He further averred that he was "fully trained in performing all types of venipunctures, including blood draws, starting IVs, and intravenous injections" during his medical training. Id. ¶ 5. According to his March 2023 Declaration, Dr. Blauzvern has used these skills throughout his career, including by "routinely" starting and inserting IVs in his current practice, "which is essentially the same technique as blood draw, as both require a venipuncture." Id. at 4, ¶ 6. Because his work with CRPS patients requires him to be aware of the causes of CRPS, "including negligently performed venipunctures[,]" his "practice requires that [he] be cognizant of the standards of care concerning blood draws, in order to recognize the causative effects of deviations from due care, which result in certain conditions, such as CRPS." Id. ¶ 7.

A. Whether to Strike Dr. Blauzvern's March 2023 D...