Plastic Surgery Malpractice: District Court Applies Sixth Circuit’s Daubert Ruling To Prevent Exclusion Of Relevant Testimony From Podiatric Surgeon

Plastic Surgery Expert

Court – United States District Court for the District of Kentucky
– United States District Court
Daubert Factor Involved –
Case Stage – Pre-Trial
Ruling Type – 
Daubert ruling, Dickenson Ruling
Case Name – 
Griffey v. Adams
Citation – 
2018 U.S. Dist. LEXIS 105680

The task for the district court in deciding whether an expert’s opinion is reliable is not to determine whether it is correct, but rather to determine whether it rests upon a reliable foundation, as opposed to unsupported speculation.

Sherrie Griffey sought treatment from the defendant plastic surgeon, Dr. William Adams, II for pain in her left foot. Dr. Adams diagnosed Griffey with chronic plantar fasciitis and a large left inferior calcaneal heel spur and recommended surgical intervention. During the surgery, Dr. Adams began operating on Griffey’s right leg and ankle until the anesthesiologist present in the operating room relayed that the chart indicated the patient was to receive surgery on her left ankle. Dr. Adams stitched up Griffey’s right foot and commenced the correct operation on the patient’s left foot.

Griffey sued Dr. Adams alleging that the erroneous incision made into her right foot rendered her immobile, as both her left and right feet had surgical wounds and weight-bearing restrictions.

The defendants retained Dr. John Grady, a podiatric surgeon with experience in peripheral vascular disease and plastic surgery, to testify regarding the standard of care provided by Dr. Adams to Griffey. Griffey moved to exclude Dr. Adams’ testimony.

In her motion, Griffey proposed that the central issue of the case concerned Dr. Adams’ decision not wake her up and inform her of his error before performing the proper procedure. She argued that Dr. Grady’s opinion on the matter was irrelevant because it focused on the medical reasonableness of Dr. Adams’ decision-making rather than what she argued was the key issue — consent to operate. Griffey also argued that Dr. Grady was not an anesthesiologist and was, therefore, unqualified to testify.

To decide the motion, two issues were framed by the district court:

  1. Whether the court should accept the opinion of the proposed expert witness
  2. If yes, how far can the opinion be reliable?

With respect to the expert’s relevance, the court noted that because Dr. Adams had not woken the patient up before performing the proper procedure, an opinion on the medical reasonableness of Dr. Adams’ decision-making was indeed relevant.

Regarding Dr. Grady’s qualifications, the court observed that he was a doctor of podiatric medicine, with 40 years of experience as a foot and ankle surgeon, who worked as a clinical professor in the Department of Podiatric Surgery and Applied Biomechanics at the Rosalind Franklin University of Medicine and Science.

The court also noted that during an exchange with the plaintiff’s attorney, the expert witness repeatedly stated that his opinion for this case was based on his experience as a surgeon, and proffered that his opinion did not specifically relate to anesthesia, but rather, the podiatrist’s decisions in such situations.

The district court relied on the Sixth Circuit’s ruling in Dickenson v. Cardiac and Thoracic Surgery of E. Tennessee, 388 F.3d 976 (6th Cir. 2004) where the court held that Daubert’s intent to exclude “junk science” from the courtroom would not be served by excluding testimony that is supported by extensive relevant experience. Such exclusion is rarely justified in cases involving medical experts as opposed to supposed experts in the area of product liability.

The district court observed that Dr. Grady’s extensive relevant experience as a podiatrist, as well as his significant experience with foot and ankle surgery, qualified him as an expert for the purposes of this case. The court found him to have extensive experience in operating rooms where general anesthesia was commonly administered, and it was upon this experience that the district court rested its decision to admit the expert’s testimony. The motions to exclude were denied.


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