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Joe-Cruz v. United States

United States District Court, D. New Mexico

March 14, 2018

LAURA JEAN JOE-CRUZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

         This case is before the Court on Plaintiff's Motion to Exclude Defendant's Expert, George A. Diaz [Doc. 79] and Defendant's Motion for Leave to File Surreply [Doc. 89]. In addition to the motion to exclude the expert, the Court has considered the response [Doc. 84], the reply [Doc. 88], and the surreply [Doc. 89-1], as well as the motion to exclude the expert. Although the motion for leave to file surreply is opposed, Plaintiff filed no response in opposition to it. As set forth below, the Court concludes that Defendant should be permitted to file its surreply, and the Plaintiff's motion to exclude the expert should be denied.

         DISCUSSION

         I. Motion for Surreply

         “The filing of a surreply requires leave of the Court.” D.N.M.LR-Civ. 7.4(b). When a movant includes new material or new arguments in its reply brief, the court must either permit the nonmovant to file a surreply, or disregard the new material or arguments in ruling on the motion. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 n.13 (10th Cir. 2003); S.E.C. v. Goldstone, 2014 WL 6065611 at *2 (D.N.M. 2014) (“A surreply is appropriate and should be allowed where new arguments are raised in a reply brief.”).

         The Court agrees with Defendant that the Plaintiff, Laura Jean Joe-Cruz (“Joe-Cruz”), has raised new issues in her reply brief that the Defendant should be permitted to address. Therefore, the Court will consider Defendant's proposed surreply, filed as Doc. 89-1.

         II. Motion to Exclude Expert

         A. Background

         In this medical malpractice case, Joe-Cruz moves the Court for an order excluding from evidence all opinions by the Defendant's expert, Dr. George A. Diaz, pursuant to Rule 702 of the Federal Rules of Evidence. As grounds for this motion, Joe-Cruz contends that Dr. Diaz is not qualified to express an opinion regarding whether Defendant met the standard of care in her treatment because he is an expert in infectious diseases instead of emergency medicine.

         Joe-Cruz has alleged that on January 9, 2014, after feeling ill for two days, she went to the Acoma-Canoncito-Laguna Service Unit (hereafter, “CHC”), located in Cibola County, New Mexico, for medical treatment. Amended Complaint, Doc. 27. According to the Amended Complaint, she presented with symptoms common to influenza and was discharged that day with instructions to take Tylenol and fluids. The next day, Joe-Cruz returned to CHC feeling weak, feverish, and having difficulty breathing. Donita Demontiney, P.A.-C, evaluated Joe-Cruz. Noting that Joe-Cruz appeared ill, had yellow pulmonary expectorate, bilateral wheezing, and rhonchi, Demontiney refilled Joe-Cruz's asthma inhaler prescription and wrote a new prescription for the antibiotic Azithromycin. Demontiney also performed a flu swab on Joe-Cruz, which was negative. Doc. 27; Doc. 79 at 2. On January 13, 2014, Joe-Cruz traveled by ambulance to Presbyterian hospital in Albuquerque, New Mexico. She was in acute respiratory failure and fulminant septic shock. There, she was diagnosed with H1N1 influenza and secondary bacterial pneumonia. Joe-Cruz was intubated and put on ventilator support. She was discharged from the hospital on February 28, 2014.

         Dr. Diaz is a physician who specializes in infectious diseases. Among other qualifications, he is presently the Section Chief for Infectious Diseases at Providence Regional Medical Center Everett; the owner of Everett Infectious Diseases, PLLC; and a lecturer for University of Washington medical students. Doc. 84-1. From 2010 to 2014, Dr. Diaz served as the Co-Chair for the Clinical Advancement Team, Infectious Diseases. Id. He has completed a fellowship in infectious diseases, and from 2002-2005 he served as Medical Officer of the Day at Fort Harrison Veteran's Administration in Helena, Montana. Id. He has worked in urgent care and emergency room settings. Doc. 89-1 at pp. 10-15 of 15.

         B. Legal Standard

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. Fed.R.Evid. 702. A witness, qualified by knowledge, skill, experience, training, or education, may offer an opinion so long as the following conditions are met:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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