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Faure v. Community Health Systems Professional Services Corp.

United States District Court, D. New Mexico

August 8, 2017

JOHN FAURE, as Personal Representative for the Wrongful Death Estate of GLORIA QUIMBEY, Deceased. Plaintiff,


         This matter comes before the Court upon Defendant Dr. Joel Michael Jones and Affilion, LLC's (together, “Affilion Defendants”) Motion for Summary Judgment on All Claims (“Motion for Summary Judgment”), filed April 29, 2016. (Doc. 134). Plaintiff John Faure (“Plaintiff”), as personal representative for the estate of Gloria Quimbey (“Ms. Quimbey”), filed a response on May 27, 2016, and a surresponse on September 27, 2016, while Affilion Defendants filed a reply on June 24, 2016, and a surreply on October 11, 2016. (Docs. 150, 174, 235, 236).

         Additionally before the Court is Affilion Defendants' Motion to Strike New or Undisclosed Expert Opinions Contained in the “Updated” Report of Plaintiff's Expert, Dr. John C. Stein, Jr. (“Motion to Strike”), filed on October 11, 2016. (Doc. 238). Plaintiff filed a response on October 25, 2016, and Affilion Defendants filed a reply on November 8, 2016. (Docs. 243, 258). Having reviewed the motions, the accompanying briefs, and relevant law, the Court GRANTS both Affilion Defendants' Motion for Summary Judgment and Motion to Strike.

         I. Background

         This is a wrongful death lawsuit concerning the death of Gloria Quimbey. Plaintiff originally filed his Complaint for Wrongful Death, Negligence, Misrepresentation, and Punitive Damages (“Complaint”) on May 9, 2014, in the First Judicial District Court of the State of New Mexico. (Doc. 1-1). Defendant Las Cruces Medical Center, LLC, d/b/a Mountain View Regional Medical Center (“MVRMC”), removed the case to this Court on June 17, 2014. (Doc. 1).

         The Complaint alleges six counts. Count I is a wrongful death claim against all defendants under the New Mexico Wrongful Death Act, NMSA 1978, § 41-2-1 (Rep. Pamp. 1996). (Doc. 1-1) at 14. Count II is a negligence claim against Community Health Systems Professional Services Corporation and MVRMC Defendants (together, “CHS Defendants”). Id. at 14-20. Count III is a negligence claim against Accountable Healthcare Staffing, Inc., Accountable Healthcare Holdings Corporation, MedAssets Workforce Solutions, and Ronald Lalonde (“AHS Defendants”). Id. at 20-22. Count IV is a negligence claim against Affilion Defendants. Id. at 22-24. Count V is a claim for negligent or intentional misrepresentation against CHS Defendants. Id. at 24-26. Finally, Count VI is a claim for punitive damages against all defendants. Id. at 26. Affilion Defendants now move to strike Plaintiff's expert report because it is untimely and contains new opinions and for summary judgment on all claims against Affilion Defendants.

         II. Standard of Review

         A. Standard of Review for Motion to Strike Expert Report

         Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of expert witnesses. Expert witnesses must provide a report that contains, among other requirements, “(i) a complete statement of all opinions the witness will express and the basis and reason for them; [and] (ii) the facts or data considered by the witness in forming them.” Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). Pursuant to Rule 26(a), a party may supplement expert reports, if the party discovers that a disclosure is “incomplete or incorrect” in a “material respect.” Id. at 26(e)(1)(A).

         B. Standard of Review for Motion for Summary Judgment

         Summary judgment is appropriate if the moving party shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013). A dispute over a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmoving party's favor. Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         III. Facts and Reasonable Inferences Viewed in the Light Most Favorable to Plaintiff[1]

         A. Ms. Quimbey's Hospital Care

         Ms. Quimbey was admitted to the MVRMC emergency room (“ER”) in the afternoon of December 11, 2012, after experiencing stroke like symptoms at home. (Doc. 24-1) at 11, ¶ 40. Defendant Dr. Joel Michael Jones (“Dr. Jones”) acted as Ms. Quimbey's attending emergency physician while she was in the ER. (Doc. 150-1) at 33:8-9. Dr. Jones performed an initial neurological examination to determine if Ms. Quimbey should receive tPA, which is a medication given to potential stroke victims in order to break up blood clots. Id. at 37:15-20, 38:9-24. At the time of his initial examination, Dr. Jones planned to give Ms. Quimbey tPA. Id. at 37:20-23.

         The MVRMC stroke policy in effect at the time stated that when a “Code Stroke” was called, the pharmacy would prepare the tPA.[2] (Doc. 150-10). Although once a “Code Stroke” was initiated, tPA was prepared by the pharmacy and taken to the ER, it would not be given to a patient without a doctor's order. (Doc. 150-3) at 13-18; (Doc. 150-8) at 91:11-17, 102:23-103:4. Here, a “Code Stroke” was called for Ms. Quimbey and the pharmacy prepared the tPA per protocol.[3] (Doc. 134-2) at 104:2-10; (Doc. 134-7) at 144:18-23; (Doc. 174-1) at 148:21-149:1, 150:11-25.

         Once the “Code Stroke” was initiated, Rachel Bartlett (“Ms. Bartlett”), a MVRMC pharmacist, stated that she spoke to Dr. Jones on the phone and he told her “that the patient's condition seemed to be improving but (since we had already mixed the [tPA])[, ] we could bring it down to the [ER] for him to have if he needed it.”[4] (Doc. 235-1); (Doc. 235-2) at 74:19-75:18. Nonetheless, Ms. Bartlett also testified that, per hospital policy, the tPA would have been delivered to the ER even without Dr. Jones asking for it to be delivered. (Doc. 236-2) at 122:15-21. The tPA was delivered to the ER from the pharmacy; however, it is not clear who in the ER received the tPA.[5] (Doc. 150-3) at 310:23-311:5, 311:11-14, 312:1-5.

         Ms. Quimbey underwent a CT scan in the ER, which showed that she had not experienced a stroke and her stroke symptoms resolved within two hours after her arrival in the ER. (Doc. 24-1) at 12, ¶ 42. Dr. Jones examined Ms. Quimbey after her CT scan, found that her condition had improved, and determined that “marked improvement is one of the contraindications to giving tPA.” (Doc. 150-1) at 38:3-8. Dr. Jones did not administer tPA to Ms. Quimbey.

         After several hours in the ER, Ms. Quimbey was admitted to the telemetry unit for observation at 3:30 p.m. on December 11, 2012. (Doc. 134-2). The telemetry unit did not use the same electronic system as the ER, so all orders for medications from the ER were supposed to be automatically deleted once an individual transfers to a different unit of the hospital. (Doc. 134-7) at 71:20-21, 74:8-75:19, 109:13-20. However, in this case tPA was sent up to the telemetry unit when Ms. Quimbey was admitted. (Doc. 150-3) at 312:1-3; (Doc. 150-8) at 190:6-10. In the telemetry unit, an order for tPA was listed on Ms. Quimbey's Medication Administration Record (“MAR”), which is used in the Telemetry unit but not the ER. (Doc. 134-3) at 87:19-88:6; (Doc. 134-3) 76:11-77:1; (Doc. 150-7). It is the admitting physicians' job to ensure that a patient in the telemetry unit has the correct medication. (Doc. 134-7) at 75:7-11. Dr. Luis Rivera-Crespo is listed as the admitting physician on the MAR. Id.

         At 11:30 p.m. on December 11, 2012, a telemetry nurse, Ronald LaLonde (“Nurse LaLonde”) administered tPA to Ms. Quimbey. (Doc. 134-2), (Doc. 134-9), (Doc. 134-10) at 93:9-12. Nurse LaLonde gave Ms. Quimbey the medication without looking for a doctor's order, although it was hospital protocol to do so, and without consulting with a doctor or a charge nurse. (Doc. 134-10) at 101:8-10, 143:24-144:2, 231:8-232:9. Nurse LaLonde testified that he knew tPA was only supposed to be given in the ER within three hours of the onset of stroke symptoms. Id. at 73:1-9, 96:9-12, 143:3-9, 214: 18-22. After Ms. Quimbey was given the tPA she fell into a coma and eventually died. (Doc. 24-1) at 13, ¶ 48. The Autopsy Report states that Ms. Quimbey “died of intracerebral hemorrhage due to inadvertent administration of anticoagulant therapy [tPA].” (Doc. 150-13).

         B. Dr. John C. Stein, Jr's Expert Report

         Plaintiff's expert disclosure deadline was March 17, 2016, and subsequently extended to March 24, 2016, at which time Plaintiff timely served Dr. John C. Stein, Jr.'s (“Dr. Stein”) original expert report. (Docs. 85, 117, 125). Expert disclosures for all Defendants were due on April 25, 2016. (Doc. 117). On September 27, 2016, Plaintiff served an updated expert report written by Dr. Stein. (Doc. 238-3). Plaintiff intends to introduce the testimony of Dr. Stein to discuss tPA protocol. (See Docs. 238-1, 238-3).

         In his original expert report, Dr. Stein first summarizes the materials he reviewed, including Mr. Quimbey's medical records and MVRMC's stroke and emergency department policies and protocol. (Doc. 238-1) at 1. Dr. Stein next lays out a chronology of events from the time Ms. Quimbey entered the ER on December 11, 2012, to her death on December 12, 2012. Id. at 1-2. Dr. Stein discusses the administration of tPA in general and the use of tPA in this case. Id. at 2-3. Finally, Dr. Stein states his conclusions. Id. at 3. With regard to Dr. Jones, Dr. Stein opined that “the hospital stroke protocol for the initiation of tPA and the initial physician order for the preparation of the tPA were appropriate.”[6] Id. However, Dr. Stein concluded in his original expert report that “[t]he order for TPA that was initiated in the emergency department was never cancelled, which is below the standard of care.” Id.

         In drafting his updated expert report, Dr. Stein reviewed thirteen depositions and the briefing for Affilion Defendants' Motion for Summary Judgment. (Doc. 238-3) at 1. Dr. Stein again described the chronology of events and administration of tPA. Id. at 3-6. Whereas in the original expert report, Dr. Stein determined that Dr. Jones ordered the tPA; in the updated report, Dr. Stein states “the hospital stroke protocol for the initiation of a code stroke, including the tPA preparation was appropriate.” Id. at 3. Further, Dr. Stein noted that “[a]fter Dr. Jones determined the patient was no longer a candidate for tPA therapy, the onus was on him to assure that the protocol for its administration was clearly terminated.” Id. Dr. Stein concluded that “[t]he order for TPA that was initiated in the emergency department was never cancelled definitively, ultimately a responsibility of the treating physician, which is below the standard of care.” Id. at 4.

         IV. Discussion

         A. Motion to Strike

         Affilion Defendants now move the Court to strike Dr. Stein's updated expert report in its entirety. Affilion Defendants contend that the report should be excluded because the report was untimely and introduces new opinions.

         As an initial matter, Plaintiff contends that a motion to strike is “not the proper mechanism to exclude expert testimony.” (Doc. 243) at 1, n. 1. Plaintiff cites Peshlakai v. Ruiz, in which the Court held that Rule 12(f) did not permit the Court to strike a non-retained witness, because Rule 12(f) only permits the Court to strike materials in pleadings. No. CIV 13-0752 JB/ACT, 2013 WL 6503629, *1, *21 (D.N.M.) (unpublished). Affilion Defendants did not bring the Motion pursuant to Rule 12(f), but instead pursuant to Rule 26(a)(2). Although typically styled as a Motion to Exclude Expert Testimony, the Motion to Strike is appropriate.

         1. Dr. Stein's Opinions in the ...

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