Scci Hosps. of Am., LLC v. Home-Owners Ins. Co.

571 F.Supp.3d 942

SCCI HOSPITALS OF AMERICA, LLC d/b/a Kindred Hospital Northern Indiana, Plaintiff,

v.HOME-OWNERS INSURANCE CO. et al., Defendants.

CAUSE NO. 3:18-CV-863 DRL

United States District Court, N.D. Indiana, South Bend Division.

Signed November 17, 2021

Adrianne J. Simon, PHV, Pro Hac Vice, Gregory S. Gowen, PHV, Pro Hac Vice, Matthew C. Williams, PHV, Pro Hac Vice, Benjamin C. Fultz, Fultz Maddox Dickens PLC, Louisville, KY, for Plaintiff.

Brian A. Catrinar, PHV, Pro Hac Vice, Lauren A. Frederick, PHV, Pro Hac Vice, Nicole E. Wilinski, Collins Einhorn Farrell PC, Southfield, MI, for Defendant Home-Owners Insurance Company.

OPINION & ORDER

Damon R. Leichty, Judge Home-Owners Insurance Company moves to exclude opinion testimony of SCCI Hospitals of America, LLC d/b/a Kindred Hospital Northern Indiana's medical causation witness, Dr. Drayton Graham, arguing the opinion is unreliable and unhelpful under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court denies the motion.

BACKGROUND

The morning of September 25, 2017, a 35-year-old woman, identified as "the patient" in the complaint, was driving in Michigan, talking on the phone with her husband, and telling him that she felt dizzy. Shortly after, though it remains unclear how long, the patient was involved in a significant car accident. She veered into oncoming traffic, off the road, and accelerated from 49 to 56 miles per hour before crashing headfirst into a utility pole. Her vehicle's crash computer recorded the collision at 8:23 a.m. When paramedics arrived at 8:30 a.m., the airbags had deployed, and the patient remained in the driver's seat—unresponsive, without a pulse, wearing her seatbelt.

Extracting her from the vehicle, paramedics started cardiopulmonary resuscitation (CPR) at 8:31 a.m. and defibrillated her at 8:34 a.m. after noting the presence of ventricular fibrillation (VF)—a dangerous abnormal heart rhythm when the lower heart chambers stop pumping blood to the body, which can lead quickly to death without treatment.¹ She was taken to the local emergency room and admitted for VF cardiac arrest. She was transferred to the University of Chicago's Neuro ICU where her care was medically complex before being transferred to Kindred Hospital Northern Indiana for long-term care. Treatment for damage to her brain from oxygen deprivation after the cardiac event, as well as other complications, required her to remain at Kindred until May 29, 2018.

The patient, insured through her husband by Home-Owners, submitted a claim under her Michigan no-fault automobile insurance policy for the costs incurred (including medical costs) from the accident. Home-Owners investigated the claim, concluded that the patient's cardiac event occurred before the accident, and denied the claim for medical expenses related to cardiac arrest and anoxic brain injury.

The patient's insurance benefits were assigned to SCCI, who does business as Kindred Hospital and who pursued this suit. Kindred retained Dr. Drayton Graham, a board-certified critical care pulmonologist and internist, to review the patient's medical records and other materials related to the accident. Dr. Graham concluded that the patient's cardiac event was caused by blunt force trauma and occurred after the accident, and that Kindred's medical care was clinically necessary. Home-Owners challenges the reliability and helpfulness of this opinion.

STANDARD

A witness may testify in the form of an expert opinion when (1) the witness is "qualified as an expert by knowledge, skill, expertise, training, or education;" (2) the testimony is "based on sufficient facts or data;" (3) the testimony is "the product of reliable principles and methods;" and (4) the witness has "reliably applied the principles and methods to the facts of the case" in such a way that the testimony will "help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. Although analysis under Rule 702 remains at all times flexible, Daubert , 509 U.S. at 594, 113 S.Ct. 2786, the fundamental considerations of what makes expert opinion admissible are well understood, see Constructora Mi Casita, S de R.L. de C.V. v. NIBCO, Inc. , 448 F. Supp.3d 965, 970-71 (N.D. Ind. 2020).

In short, the Federal Rules of Evidence strike a balance between two competing concerns: the apprehension for the free-for-all admission of unreliable theories that might baffle juries and a "stifling and repressive scientific orthodoxy" that might inhibit new truths or legitimate cases. Daubert , 509 U.S. at 596, 113 S.Ct. 2786. While preserving that balance, the Daubert analysis is not a substitute for crossexamination, contrary and compelling evidence, thoughtful jury instructions, and other methods inherent in federal trials to challenge shaky evidence. Id. ; see also Stollings v. Ryobi Techs., Inc. , 725 F.3d 753, 766 (7th Cir. 2013). The proponent of expert testimony must establish its admissibility by a preponderance of the evidence. Varlen Corp. v. Liberty Mut. Ins. Co. , 924 F.3d 456, 459 (7th Cir. 2019).

The court needn't conduct an evidentiary hearing here. No party has requested one. The briefing, proffered expert reports, medical records, accident report, exhibits, and deposition testimony also permit the court to rule. See , e.g. , Kirstein v. Parks Corp. , 159 F.3d 1065, 1067 (7th Cir. 1998) ; Target Mkt. Pub., Inc. v. ADVO, Inc. , 136 F.3d 1139, 1143 n.3 (7th Cir. 1998).

DISCUSSION

This case presents largely a single question for trial next month: whether the patient's cardiac arrest and subsequent anoxic brain injury, precipitating then a great deal of treatment and cost, occurred before the accident or because of the accident. Dr. Graham proposes to testify that her injuries occurred as a result of the accident—either from direct trauma to the patient's chest or from the biophysical trauma of being in a significant car accident. Home-Owners says this opinion isn't helpful, based on sufficient facts or data, or methodologically reliable.

A. Dr. Graham's Opinion Will Help the Jury Decide an Issue of Consequence.

A court should exclude testimony unless it speaks, without confusing or misleading the jury, to a relevant issue that the jury must decide. See Fed. R. Evid. 403, 702 ; see , e.g. , Hartman v. EBSCO Indus. , 758 F.3d 810, 819 (7th Cir. 2014). To be helpful, the opinion must aid the jury to decide an issue of consequence. The court must determine whether an expert's "reasoning or methodology properly can be applied to the facts in issue," Daubert , 509 U.S. at 593, 113 S.Ct. 2786, and whether the witness's knowledge "will help the trier of fact to understand the evidence or to determine a fact in issue," Fed. R. Evid. 702(a). Opinions must be tied to case facts and issues. See Kumho Tire Co. v. Carmichael , 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). This is what is commonly called fit. See Daubert , 509 U.S. at 591, 113 S.Ct. 2786.

An opinion must be "something more than what is obvious to the layperson," Ancho v. Pentek Corp. , 157 F.3d 512, 519 (7th Cir. 1998) (internal quotation omitted), though an "opinion may overlap with the jurors’ own experiences or cover matters that are within the average juror's comprehension, so long as the expert uses some kind of specialized knowledge to place the litigated events into context," Viamedia, Inc. v. Comcast Corp. , 951 F.3d 429, 484 (7th Cir. 2020), cert. denied, ––– U.S. ––––, 141 S. Ct. 2877, ––– L.Ed.2d –––– (2021) (internal quotations and alterations omitted). Home-Owners argues that Dr. Graham's testimony won't assist the jury because it is based on common sense, basic logic, and what everybody knows already. Kindred responds that some of an expert's testimony can be within the scope of a lay jury's knowledge, but that Dr. Graham used phrases such as "common sense" and "logic" in the context of medical expertise, not in the lay sense.

Dr. Graham is a medical doctor with almost fifty years of experience. After his undergraduate degree at Columbia College, he graduated from Harvard Medical School in 1973. He completed his internship and residency in internal medicine at Harbor UCLA Medical Center and a separate fellowship in pulmonary disease there. He has worked at various hospitals over decades in practice and has held leadership positions at many. He is a board-certified pulmonologist who specializes in pulmonary critical care and internal medicine. He regularly treats patients with cardiac arrest, including from trauma.

Unsurprisingly, his passing references to common sense and common knowledge are cast in light of his significant medical experience. He is plain spoken, but his opinion is no less erudite. For example, Dr. Graham testified that "everybody knows" that cardiac arrhythmia can be caused by chest trauma from an automobile accident because serious heart injury can occur from even lesser forces to the chest. "Everybody" wasn't meaningfully intended to mean the common layperson on the street. Though most every critical care pulmonologist or internist worth his or her salt may know this, it proves beyond a layperson's knowledge. What conditions, forces, or trauma may cause cardiac arrhythmia, or what the dynamics of cardiac arrhythmia are, well exceeds a typical jury.²

Dr. Graham also testified that it was "common knowledge" that an individual almost immediately loses consciousness upon ventricular fibrillation, thus the patient could not have been speaking to her husband or accelerating her vehicle when this event occurred. The latter may be understandable to a jury but only after the jury understands what ventricular fibrillation is, what effect it has on the human body, its relationship to consciousness and motor control, and the speed by which one precipitates the other. Despite Dr. Graham's plain verbiage, his concept of "common knowledge" is demonstrably common...