Court: District Court of Colorado, La Plata County
Case Name: Jacobs v. Lawton
Citation: 2018 Colo. Dist. LEXIS 3549
The plaintiff suffered a permanent sciatic nerve palsy injury during a total hip arthroplasty performed by the defendants. During the arthroplasty procedure, the sciatic nerve was tethered by suture passing through tissue adjacent to the nerve but not through or around the nerve itself. After the surgery was performed, the sutures remained in the plaintiff for 3 days. After 3 days, the defendant performed a nerve decompression procedure removing one or more of the sutures. In this motion, the plaintiff requested that the court exclude the testimony of the defendant’s expert witness.
The defendants’ expert was disclosed as a clinical neurologist certified in general neurology, electrodiagnostic medicine, and sleep medicine. The expert was not an orthopedic surgeon. The defendants sought to have their expert offer testimony on his EMG and nerve conduction testing experience and opine about the standard of care as it applied to the defendants’ conduct with the plaintiff.
In his report, the expert described the results of his EMG testing “revealed absent distal motor responses with testing in the left peroneal and left tibial nerves and absent distal sensory response in the left sural nerve.” He interpreted this as an abnormal EMG demonstrating significant denervation changes in the left lower extremity. The expert noted that his nerve conduction study findings were nondiagnostic.
The court noted that the defendants’ expert was never qualified as an expert in orthopedic surgery in knowledge, skill, experience, training, or education. Thus, he had no authority or qualifications to testify in the form of opinions about or related to the standard of care when performing a total hip arthroplasty, postoperative treatment, or orthopedic surgery standards in general.
The court also discussed the difference between the meanings of the words “diagnosis” and “non-diagnostic”. The court noted that in medical terms, “diagnosis” means “the art of distinguishing one disease from another” (citing Dorland’s Medical Dictionary). On the other hand, “non-diagnostic” refers to an objective conclusion not distinguishing one disease from another. In 2013, the court opined that interpreting an EMG study involves no subjective conclusions. Four years into the present litigation, however, the court found problems with the expert witness’ opinion. The court noted that the expert’s report consisted of five bullet-pointed “opinions” which lacked reference to any scientific literature that would assist the plaintiff or the court in determining the reliability of his opinion as per the standard set in Daubert.
The court also pointed out the contradictions between the expert’s report and the defendant’s own post-op hand-written note. The court held that because of this, the expert’s testimony was not a professional expert witness presentation.
The court held that the expert was not qualified to offer testimony on the matter before the court and his opinion was entirely unreliable.
What We Can Learn From This Case
Failure to rely on proved theories and peer-reviewed studies may render an orthopedic expert witness testimony unreliable if it does not help the court determine its reliability.