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Stoner v. Fye

United States District Court, M.D. Georgia, Macon Division

March 31, 2017

WILLIAM STONER, Plaintiff,
v.
CHIQUITA A. FYE, M.D., NORMAN HOWARD FITZ- HENLEY, M.D., Defendants.

          ORDER ON DEFENDANTS MOTION TO EXCLUDE CERTAIN OPINIONS OF DR. SACHY

          C. ASHLEY ROYAL, SENIOR JUDGE

         Defendant Norman Howard Fitz-Henley, M.D. filed a Daubert motion objecting to Thomas Sachy, M.D.'s expert opinions. Dr. Sachy is one of Plaintiff's two experts. The parties have filed briefs, and the Court conferred by telephone with the lawyers to discuss legal issues and fact questions and gave them the opportunity to supplement the record and to direct the Court to important evidence.[1] After carefully reviewing the record, and reading Dr. Sachy's long deposition, and studying the law, the Court GRANTS Defendant's Motion to Exclude Certain Opinions of Dr. Sachy [Doc. 28].

         BACKGROUND

         Plaintiff William Stoner sued Norman Howard Fitz-Henley, M.D. and other defendants for failing to provide proper medical care for his serious medical condition while incarcerated at Macon State Prison (“MSP”). Dr. Fitz-Henley served as a private physician at MSP. Specifically, Plaintiff has sued Dr. Fitz-Henley for deliberate indifference to serious medical needs under 42 U.S.C. §1983, for medical malpractice under Georgia law, and for punitive damages. Plaintiff complains that he suffered multiple injuries because Defendants failed to properly treat his benzodiazepine withdrawals, and as a result of this bad care, Plaintiff allegedly suffered severe and permanent injuries. The Court will first summarize some important facts and some of Plaintiff's key contentions.

         Plaintiff was arrested for public intoxication and felony interference with law enforcement officers. He was .239 drunk and fought with and injured officers trying to arrest him.[2] Later, Plaintiff violated his probation terms by failing to complete a drug treatment program. As a consequence, a state court judge revoked his probation and sentenced him to 60 days in prison.[3]

         On February 11, 2013, Plaintiff reported to the Baldwin County Jail to begin his prison term and was transported to the Bleckley Probation and County Detention Center. After being assessed at the Detention Center, he was transferred to MSP that same day because his medical condition required the 24-hour nursing care available at MSP. He was taking Coumadin for blood clots to prevent Deep Vein Thrombosis.[4]

         On February 12, Dr. Fitz-Henley and several nurses saw Plaintiff at MSP.[5] On February 13, Plaintiff's mother talked to Codefendant Dr. Chiquita A. Fye to explain Plaintiff's benzodiazepine withdrawal risk.[6] Dr. Fye was the prison medical director and on duty that day, and although she reviewed Plaintiff's medical records, she did not see him.

         At some time during the late evening of February 13th or the early morning of February 14th, Plaintiff suffered medical problems that rendered him unconscious on the morning of February 14th when prison officials found him on the floor in his cell. His complaint alleges that at that time he was unresponsive, incontinent, breathing rapidly, and cyanotic. He was taken to Flint River Hospital for treatment and then later that day transferred to the Medical Center of Central Georgia in Macon. Plaintiff claims that he has suffered brain damage, memory loss, post-traumatic stress disorder, cognitive decline, and has lost teeth because of Defendant's medical negligence and deliberate indifference to his serious medical needs.

         LEGAL STANDARD

         Federal Rule of Evidence 702 governs the admissibility of expert testimony, and it states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.[7]

         Simply stated, under Rule 702, the trial court can admit relevant expert testimony only if it finds that: (1) the expert is qualified to testify about the matters he intends to address; (2) the methodology used by the expert to reach his conclusions is sufficiently reliable; and (3) the expert's testimony will assist the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or determine a fact in issue.[8]

         As the Supreme Court explained in Daubert v. Merrell Dow Pharmaceuticals, Inc., [9]Rule 702 imposes a duty on trial courts to act as “gatekeepers” to ensure that speculative and unreliable opinions do not reach the jury.[10] Acting as a gatekeeper, the trial court must make certain that expert witnesses employ in the courtroom the “same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”[11] The court's gatekeeping role is especially significant, since “the expert's opinion can be both powerful and quite misleading because of the difficulty in evaluating it.”[12]

         To fulfill its role, the trial court must determine whether the expert has the requisite qualifications to offer his or her opinions.[13] The trial court must also “‘conduct an exacting analysis' of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702.”[14] Finally, the court must ensure the relevancy of expert testimony, meaning that it must determine whether the testimony will assist the trier of fact.[15] In undertaking this analysis, the court must remember that the party offering the expert opinions has the burden of proof by a preponderance of the evidence.[16]

         The court performs its gatekeeping role consistent with Rule 104(a), which commits preliminary evidentiary questions to the court's decision and which further empowers courts in answering these questions to rely on evidence without being constrained by the rules of evidence.[17] In sum, in acting as a gatekeeper, the court must keep “unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value.”[18] Although Daubert involved scientific experts, the Supreme Court has made it clear that the strictures of Rule 702 and Daubert apply with equal force to non-scientific expert witnesses.[19] Also, in all cases the proponent of the expert witness bears the burden of establishing that the expert's testimony satisfies the qualification, reliability, and helpfulness requirements of Rule 702 and Daubert.[20] Finally, “any step that renders the analysis unreliable renders the expert's testimony inadmissible.”[21]

         Beginning with the qualification requirement, the Eleventh Circuit has explained that “experts may be qualified in various ways.”[22] Certainly, an expert's scientific training or education may provide one means by which an expert may qualify to give certain testimony; however, experience in a particular field may also qualify an expert to offer an opinion on a particular matter.[23] Indeed, “experts come in various shapes and sizes, ” and, consequently, “there is no mechanical checklist for measuring whether an expert is qualified to offer opinion evidence in a particular field.”[24] In all cases, the court must focus its inquiry on whether the expert has the requisite skill, experience, training, and education to offer the testimony he intends to introduce.[25]

         Regarding the reliability requirement, the Eleventh Circuit directs trial courts to assess “whether the reasoning or methodology underlying the testimony is . . . valid and whether that reasoning or methodology properly can be applied to the facts in issue.”[26] This inquiry must focus “solely on the principles and methodology [of the experts], not on the conclusions that they generate.”[27]

         Daubert offers four non-exclusive factors that courts may consider in evaluating the reliability of an expert's testimony: (1) testability; (2) error rate; (3) peer review and publication; and (4) general acceptance.[28] These four factors most readily apply in cases involving scientific testimony and may offer little help in other cases, particularly those involving non-scientific experts.[29] Accordingly, these factors merely illustrate rather than exhaust the factors or tests available to the trial court. The trial court has “considerable leeway” in deciding which tests or factors to use to assess the reliability of an expert's methodology.[30]

         The advisory committee's notes for Rule 702 offer an additional list of factors or tests. These tests are:

(1) Whether the expert is proposing to testify about matters growing naturally and directly out of research he has conducted independent of the litigation, or whether he has developed his opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(3) Whether the expert has adequately accounted for obvious alternative explanations;
(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting;
(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.[31]

         Like the four Daubert factors, these factors do not comprise a definitive checklist, nor is any single factor dispositive of reliability; instead, the tests articulated in the advisory committees notes merely illustrate the issues a court may consider in evaluating an expert's testimony.[32]

         Finally, for admission, the expert testimony must assist the trier of fact. Expert testimony assists the trier of fact “if it concerns matters that are beyond the understanding of the average lay person.”[33] “[E]xpert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.”[34] Nor does expert testimony help the trier of fact if it fails to “fit” with the facts of the case.[35] Expert testimony lacks “fit” when “a large analytical leap must be made between the facts and the opinion.”[36] “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”[37] Thus, the court may exclude otherwise reliable testimony if it does not have “sufficient bearing on the issue at hand to warrant a determination that it [is ‘helpful' to the trier of fact].”[38]At all times when scrutinizing the reliability and relevance of expert testimony, a court must remain mindful of the delicate balance between its role as a gatekeeper and the jury's role as the ultimate fact-finder. A district court's “gatekeeper role . . . is not intended to supplant the adversary system or the role of the jury.”[39] “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”[40] A court may not “evaluate the credibility of opposing experts” or the “persuasiveness of competing scientific studies;”[41] instead, its duty is limited to “ensur[ing] that the fact-finder weighs only sound and reliable evidence.”[42]

         Part 1: ANALYSIS OF DR. SACHY'S OPINIONS

         Dr. Thomas Sachy is a psychiatrist practicing in Gray, Georgia, a small town approximately 15 miles east of Macon. Dr. Sachy, however, does not have the typical psychiatric practice because he runs a pain clinic. Seventy percent of his patients receive treatment for pain, and he prescribes large amounts of benzodiazepines, opiates, and other psychotropic drugs for many of his patients, including Plaintiff.[43] Although Dr. Sachy is board-certified in psychiatry, he never did a pain management fellowship, so his only training comes from three continuing education seminars.[44]

         Dr. Sachy started treating Plaintiff in 2007 and continued to treat him up to the time of Dr. Sachy's deposition for pain and psychiatric problems by prescribing multiple drugs. Consequently, Dr. Sachy is Plaintiff's treating physician; but Plaintiff's counsel has presented him to the Court as an expert witness, so the Court will treat his opinions accordingly. With that in mind, the record shows that Dr. Sachy has limited opinions in this case-limited in number and limited in the data and reliable methodology used to support those opinions. Furthermore, beyond the 702 failures, Plaintiff has also not satisfied the Fed. R. Civ. Proc. 26(c) report and notice requirements for expert witnesses, which is the second basis for excluding his opinions.

         To outline his opinions, Dr. Sachy wrote Plaintiff's counsel a letter dated July 12, 2015, [45] supposedly summarizing his views about the doctors' care and the Plaintiff's injuries, and Plaintiff's counsel sent it to Defense counsel. Plaintiff's counsel also provided a defective Rule 26(a) report to them.[46] Dr. Sachy's opinions are both simple and vague, and the vagueness arises from that simplicity, which the Court can better characterize as inadequacy. They are mostly overgeneralized and unfocused opinions.

         First, Dr. Sachy contends in his letter that MSP “staff apparently withheld critical medications from William.”[47] Second, as a result of Defendants' withholding medications, Plaintiff had at least one major seizure during the night hours of February 13/14. Third, and like the first opinion, “the seizure[s] William suffered is/are a direct result of the failure of medical personnel within the Georgia Department of corrections to authorize appropriate and adequate medical treatment for his physical and mental conditions ….”[48] Fourth, these failures amount to careless and inhumane [medical] decisions that guaranteed he would suffer seizures.[49] He also describes these failures as gross negligence, reckless indifference, medical malpractice, or some combination of these.[50] Fifth, Dr. Sachy opines that a MRI performed on March 14, 2014, over a year after the incident at MSP, shows brain injury.[51] Finally, Dr. Sachy describes all the medical, psychiatric, emotional and personal problems caused by Defendant's bad care at MSP.[52] But most of these medical problems are outside the scope of his medical specialty, practice, and training; and more important, he does not base his diagnoses on good data or a reliable methodology.

         The Court can summarize his opinions in this way: because of Defendant's negligent care or deliberately indifferent care at MSP for his benzodiazepine withdrawals, Plaintiff suffered one or more seizures, and those seizures caused serious and permanent injuries. The Court, however, will not base its analysis on the faulty Rule 26 report or the conclusory letter, but rather on 240 pages of his deposition in which defense counsel deeply probed, thoroughly sifted, and ultimately exposed the failure of Dr. Sachy's expert opinions. In other words, because much of what Dr. Sachy said in his letter is not supported by testimony he gave under oath in his deposition, the Court will rely on his sworn testimony. And in examining the deposition, the Court is analyzing the reliability of his opinions, not their correctness, and also keeping in mind that Plaintiff has the burden of proof for admitting the opinions.

         To analyze his opinions, the Court will use the factors described in the Daubert opinion, and then turn to the factors outlined in the Fed.R.Evid. 702 Advisory Committee Notes, and one other test that this Court has found useful in past cases.[53]And finally, the Court will apply the text of Rule 702. But first the Court notes that the Supreme Court decided Daubert in 1993, and that the Eleventh Circuit Court of Appeals has an extensive Daubert/Rule 702 jurisprudence. As a consequence, lawyers have had ample opportunity to understand the Rule 702 requirements, to help their experts write proper Rule 26(a) reports, and to prepare expert witnesses to testify at depositions and at trials. Of course, the Court recognizes that even the best lawyers cannot always get their experts to cooperate. The Court begins with the non-exclusive Daubert factors or tests.

         The Daubert Factors

         The Supreme Court offered four non-exclusive factors to test an expert's opinions: (1) testability, (2) effort rate, (3) peer review and publication, and (4) general acceptance.[54] The Court finds nothing in Dr. Sachy's deposition to support any of these factors. That, however, is not fatal to Dr. Sachy's opinions on 1 through 3; rather, he could have bolstered his opinions had he given the Court a basis for satisfying these factors. That he failed to do so is not serious in a case like this that does not involve strict scientific evidence.

         On the other hand, failing the general acceptance factor is important. For many of his diagnostic opinions that lie outside his area of practice and training, Dr. Sachy has not shown that doctors who do practice in the field generally accept his opinions. This is true about his opinions in the fields of radiology and neuroradiology-especially his opinions about Plaintiff's March 2014 MRI, which is very important for Plaintiff's damage claims.

         For example, he claims that the radiologists who read the March 2012 study “missed [it]”-missed the fact that the scan showed that Plaintiff has brain atrophy, which Dr. Sachy does diagnose.[55] Yet, he has not explained why his opinion about the MRI is generally accepted or why the radiologist's contrary opinion is not generally accepted.

         And Dr. Sachy fails a second time on this factor. He says that withholding Plaintiff's drugs at MSP violated the standard of medical care and amounted to deliberate indifference to Plaintiff's serious medical needs, but he has not shown that the medical community generally accepts that opinion. In fact, Plaintiff's other expert, Dr. Herrington, does not agree. He testified that he did not question withholding the drugs; he thought Plaintiff should have been monitored.[56] So, on the fourth Daubert factor, Dr. Sachy has a major failure, which the Court will describe in more detail below.

         The Advisory Committee Factors

         In the next step of the analysis, the Court applies the five factors found in the Advisory Committee Notes.[57] The Court will apply them one at a time.

         First, whether the expert is proposing to testify about matters growing naturally and directly out of research he has conducted independent of the litigation, or whether he has developed his opinion expressly for purposes of testifying.

         Dr. Sachy developed his liability and causation opinions for purposes of testifying. He did no research, despite the fact that he testified that he planned to do research to support his opinions before he testified at trial. Moreover, he did not reach his opinions independently of the litigation. The Court has always understood that this first factor implies that opinions reached outside the litigation context are more reliable than those devised for the case, so Dr. Sachy fails this test. The Court, however, does not find this factor very significant standing alone.

         Second, whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.

         The key accepted premise in this case is that benzodiazepine withdrawals can cause serious injury and even death. The Court does not doubt this. But from this premise Dr. Sachy draws too many unfounded conclusions about Plaintiff's injuries. Dr. Sachy wants to blame most of Plaintiff's current problems on the incident at MSP. As the Court will show below, he draws unfounded conclusions because he does not have the requisite skill and training to give such opinions and because he lacks good data and a reliable methodology.

         Also, that benzodiazepine withdrawals raise grave medical problems does not lead to the conclusion that the only way to treat those withdrawals is by continuing to medicate Plaintiff with Xanax or taper the drug. This goes back to the general acceptance problem, and Dr. Sachy fails this test.

         Third, whether the expert has adequately accounted for obvious alternative explanations.

         Dr. Sachy also fails this factor. He does not have enough understanding of the record to account for obvious alternative explanations, especially about Dr. Fitz-Henley's and Dr. Fye's explanation for the way they cared for Plaintiff. Although Plaintiff's counsel deposed Dr. Fye well before Dr. Sachy's deposition, Dr. Dr. Sachy never read that deposition to learn the facts and circumstances of his care. Also, he has not looked at the medical record. Furthermore, he does not know what happened to Plaintiff at MSP, so he can't address alternate theories about the incident.

         Next, a state court judge obviously thought that Plaintiff needed drug treatment, and he failed to complete it. Dr. Sachy prescribed him large doses of drugs known to have severe side effects, but especially the side effects of benzodiazepine and opiate addiction. It is an important question about which of his injuries or symptoms that allegedly arose at MSP were caused by what happened there versus his long-standing drug side effects and addictions. Indeed, he was still taking high doses of benzodiazepines and opiates at the time of his deposition.[58] This matters on Plaintiff's damages claim because the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition describes Opioid Use Disorder and Anxiolytic Intoxication, and both disorders have signs and symptoms that Plaintiff experienced before and after the incident at MSP.[59]

         Furthermore, he had a history of alcohol abuse, cocaine abuse, PCP abuse, and marijuana abuse.[60] In fact, he said in an October of 2012 visit to River Edge Behavioral Health that “I feel different but not better; didn't realized how clearer things would be when sober, I'm feeling a lot steadier.”[61] Dr. Sachy does not adequately differentiate the serious problems Plaintiff had before the incident at MSP versus what happened there. He has also not distinguished what side effects his ongoing use of benzodiazepines, oxycodone, and fentanyl causes.

         Likewise, Plaintiff suffered three seizures, and Dr. Sachy does not explain how he can distinguish the effects of one seizure over the other or the cumulative effects of the three versus what happened at MSP on February 14, 2013. For example, the seizure that occurred in September of 2012 required hospitalization.[62] In fact, in a letter Plaintiff wrote to Jean Boone at River Edge about this earlier seizure, he said:

Things did not turn out well & the consequences of their having turned out so terribly badly, I will have to deal with daily for the rest of my life. I had a grand mal seizure (tonic clonic) and developed blood clots. . . my life has forever been altered. Words cannot express how dismaying and distressing it is to know I was ordered to do something that nearly cost me my life, twice, and on-going.[63]

         This sounds like what Plaintiff has said about his medical problems that arose because of what happened at MSP, so this is an important causation issue.

         Also, Dr. Sachy does not account for how monitoring Plaintiff's drug withdrawals, which is Dr. Herrington's opinion, rather than either continuing the drugs or tapering him off them, which is Dr. Sachy's opinion, is not acceptable medical care.[64]

         But Dr. Sachy does account for one obvious alternative. He ably defends his years of treating Plaintiff's symptoms with opiates, benzodiazepines, and psychotropic drugs.[65] He understood that the amount of drugs he prescribed Plaintiff was controversial.[66] Furthermore, Plaintiff was admitted to River Edge Behavioral Health in September of 2012 for drug treatment to detox him off the drugs Dr. Sachy prescribed for him-Xanax and oxycodone.[67] The amount of drugs he prescribed Plaintiff is significant and can cause significant side effects. This implicates the damages/causation issue in this case. This one alternate explanation, however, is not enough to counterbalance his other failures on this factor, so he fails this test.

         Fourth, whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting.

         Dr. Sachy fails this factor. In his deposition he describes all the care that he exercises in treating his patients. He also testifies about what he would do to prepare to testify at trial-in other words, what he has not done for this case. Consequently, he has not been as careful in preparing his opinions in this case as he customarily is in his medical practice; or what, by his own standards, should be done in preparing for trial.[68]In fact, he has been sloppy and offered broad generalizations, not focused opinions; consequently, he has not shown “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”[69]

         Fifth, whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

         Psychiatrists are known to reach reliable results about the use of benzodiazepine, opiates and various psychotropic drugs and the uses, benefits, and side effects of such drugs. They also understand benzodiazepine and opiate withdrawals and the wide spectrum of psychiatric illnesses. Psychiatrists, however, are not normally known to interpret and make diagnoses based on MRI scans, CT scans or other radiological techniques. A psychiatrist by definition is not a neurosurgeon, orthopedic surgeon, neuropsychologist, otolaryngologist, or family practitioner and psychiatrists are not known to reach reliable results in the fields in which they don't practice. Dr. Sachy has given important opinions that are within the province of other medical specialties, so they cannot be admitted. The Court has already described some of his out-of-specialty opinions and will describe them further in the rest of this order. He fails this test for all out-of-specialty opinions, but of course, this ruling is in conjunction with all the other findings in this order.

         The Court's Test

         This Court has used another test in medical cases that helps analyze the reliability of expert opinions. The test considers what experts normally do in preparing opinions for and testifying in cases against doctors. The Court has had considerable practice in this arena.[70]

         As the Court has shown, Dr. Sachy has not reviewed essential records. Also, he has done no medical research. Defense counsel on deposition asked him if he intended to do research before trial Dr. Sachy said: “Oh, I do. If this goes to trial, you bet I do.” He went on to say that “I haven't looked up anything yet.”[71] Hence, Dr. Sachy admits the importance of ...


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