United States District Court, M.D. Georgia, Macon Division
MARY JO MCKINLEY, Individually and as Administrator of the Estate of HOWARD MCKINLEY, Plaintiff,
THE UNITED STATES OF AMERICA, Defendant.
LAWSON, SENIOR JUDGE.
the Court is Defendant's Motion for Summary Judgment
(Doc. 43), Plaintiff's Partial Motion to Exclude Expert
Testimony of Glenn Preminger, M.D. (Doc. 36), and
Defendant's Motion to Exclude the Expert Witness
Testimony of Drs. Mark Keaton and Maxwell White (Doc. 37).
For the reasons given herein, Defendant's motion for
summary judgment is granted in part and denied in part,
Plaintiff's motion to exclude is granted, and
Defendant's motion to exclude is denied.
FACTUAL AND PROCEDURAL BACKGROUND
a negligence action brought under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b)(1) (2013) and
28 U.S.C. §§ 2671-80 (2000). Plaintiff commenced
this action individually and as the administrator of the
estate of her now-deceased husband, Howard McKinley. (Doc.
7). Plaintiff is seeking compensation for damages resulting
from the death of Mr. McKinley. (Doc. 7). Plaintiff alleges
that Mr. McKinley died as a result of the negligence of
various personnel at the United States Department of Veterans
Affairs' Tennessee Valley Healthcare System
(“Nashville VA”) in Nashville, Tennessee. (Doc.
McKinley was first seen at the Nashville VA on July 29, 2010
in the emergency room, following an episode of gross
hematuria (blood in his urine). (Doc. 7-4, pp. 465-66). Mr.
McKinley was referred to the urology department at the
Nashville VA “for possible cystoscopy as soon as
possible.” (Doc. 7-4, p. 466). Mr. McKinley underwent
cystoscopy at the Tennessee VA on September 9, 2010, which
revealed urothelial carcinoma (cancer). (Doc. 7-4, pp. 150,
result of his urothelial carcinoma diagnosis, Mr. McKinley
underwent bladder biopsy and tumor removal surgery on
November 23, 2010. (Doc. 7-4, pp. 372-73). Pathology for the
removed tumor showed non-invasive high-grade papillary
urothelial carcinoma. (Doc. 7-4, p. 159). The two biopsies
taken during the procedure were “negative for
tumor.” (Doc. 7-4, p. 159).
December 17, 2010, Mr. McKinley returned to the Nashville VA
for a follow up appointment after his surgery, and cytology
again showed urothelial carcinoma as well as large amounts of
blood in his urine. (Doc. 7-4, p. 426). A resident physician
at the Nashville VA ordered Mr. McKinley to follow up in two
months for a surveillance cystoscopy. (Doc. 7-4, p. 426).
However, after a hospitalization for gross hematuria in late
December and multiple calls to the urology clinic by Mr.
McKinley and his wife with complaints of hematuria and
difficulty urinating, repeat cystoscopy was scheduled for
January 18, 2011. (Doc. 7-4, pp. 414, 418).
bladder biopsies taken during Mr. McKinley's January 18,
2011 cystoscopy revealed urothelial carcinoma in-situ. (Doc.
7-4, p. 399). At that point, Mr. McKinley's physicians
recommended that he undergo a course of Bacillus
Calmette-Guerin chemotherapy (“BCG”). (Doc. 7-4,
pp. 399-400). Mr. McKinley began a six week course of BCG on
February 15, 2011, which concluded on March 29, 2011. (Doc.
7-4, pp. 20, 400).
6, 2011, Mr. McKinley underwent cystoscopy again. (Doc. 7-4,
p. 654). The procedure revealed at least three velvety
lesions inside of Mr. McKinley's bladder that were
suspicious for carcinoma in situ, but could have also been
caused by his recent BCG. (Doc. 7-4, p. 655). As a result, an
additional cystoscopy and a biopsy were scheduled for June
28, 2011. (Doc. 7-4, p. 655). During the June 28 cystoscopy,
it was “extremely difficult to fully examine [Mr.
McKinley's] bladder, ” due to his body habitus and
high bladder neck. (Doc. 7-4, p. 650). Nonetheless, two
biopsies were taken, which revealed “largely denuded
urothelial mucosa with urothelial dysplasia” as well as
muscilaris propria. (Doc. 7-4, p. 340). As a result, it was
recommended that Mr. McKinley return in six weeks for another
course of BCG. (Doc. 7-4, p. 651). This round of BCG did not
begin until November of 2011. (Doc. 7-4, p. 313). The second
round of BCG concluded on November 22, 2011, and Mr. McKinley
was ordered to return in six weeks. (Doc. 7-4, p. 312).
December 20, 2011 appointment, a CT scan was performed of Mr.
McKinley's bladder, revealing a bladder mass consistent
with a clinical diagnosis of carcinoma, although there was no
metastatic disease at the time. (Doc. 7-4, p. 249). The scan
was difficult to evaluate, as the bladder appeared
decompressed. (Doc. 7-4, p. 309). On January 5, 2012, Mr.
McKinley underwent another cystoscopy, during which the
posterior bladder wall showed signs of either BCG changes or
carcinoma in situ, and the right lateral wall exhibited what
could have been either BCG changes or papillary superficial
bladder cancer. (Doc. 7-4, p. 640).
February 13, 2012, Mr. McKinley underwent cystoscopy,
urethral dilation, and bladder barbotage. (Doc. 7-4, pp.
286-87). During the procedure, there were “no obvious
bladder tumors seen.” (Doc. 7-4, p. 287). Mr. McKinley
returned to the Nashville VA on February 23, 2012. (Doc. 7-4,
p. 278). He had been experiencing periodic gross hematuria
since the February 13, 2012 procedure. (Doc. 7-4, p. 278).
The resident physician “[h]ad an extended conversation
with [Mr. McKinley] about [gross hematuria] following this
type of procedure, ” and instructed Mr. McKinley to
follow up as scheduled on May 17, 2012. (Doc. 7-4, p. 278).
McKinley continued to experience gross hematuria between
February and May of 2012. (Doc. 7-4, pp. 255, 278). He was
seen at the Nashville VA on May 17, 2012 and underwent
cystoscopy on May 31, 2012. (Doc. 7-4, pp. 256, 246). The
cystoscopy revealed no tumor recurrence, bullous edema, and a
high riding bladder neck. (Doc. 7-4, p. 246). Mr. McKinley
was scheduled for a follow up appointment in six months.
(Doc. 7-4, p. 249).
2012, Plaintiff and Mr. McKinley relocated to Bibb County,
Georgia. (Doc. 43-2, p. 4). Mr. McKinley visited the Dublin,
Georgia VA hospital to establish primary care on August 28,
2012. (Doc. 49-3, p. 17). During this visit, Mr. McKinley
told his physician that his bloody urination persisted. (Doc.
49-3, p. 17). He was referred to a non-VA urologist, and an
appointment was scheduled for October 2012. (Doc. 49-3, p.
17). On September 13, 2012, Mr. McKinley returned to the
Dublin VA due to continued bloody urination and the onset of
low blood pressure. (Doc. 49-3, p. 17). While hospitalized,
Mr. McKinley underwent an abdominal and pelvic CT scan at the
direction of a urologist, which revealed findings consistent
with advanced bladder cancer and metastatic disease. (Doc.
49-3, p. 18).
McKinley's diagnosis was confirmed after he underwent
tumor removal surgery on October 2, 2012. (Doc. 49-3, p. 18).
A large necrotic tumor was removed, and pathology results
revealed malignancy. (Doc. 49-3, p. 18). Despite aggressive
chemotherapy and radiation, Mr. McKinley's cancer
worsened, spreading to his brain and eventually killing him
on September 21, 2013. (Doc. 49-3, pp. 18-19). Mr. McKinley
died at his home in Georgia. (Doc 43-2, p. 4).
initially presented her claims to the VA for wrongful death,
medical expense, pre-death pain and suffering, loss of
consortium, and ordinary negligence on October 4, 2013. (Doc.
43-2, p. 4). The VA denied her claims initially and on
appeal. (Doc. 43-2, p. 5). Plaintiff filed this lawsuit on
March 20, 2015, just over one month after her request for
reconsideration was denied. (Doc. 1).
THE PARTIES' DAUBERT MOTIONS
Court will address the Parties' respective motions to
exclude before turning to Defendant's Motion for Summary
Judgment because whether the Parties' proposed experts
will be allowed to testify relates to the summary judgment
Plaintiff's Partial Motion to Exclude the Expert
Testimony of Glenn Preminger, M.D. (Doc. 36)
filed a motion to exclude testimony by Dr. Preminger
regarding the films from any of Mr. McKinley's CT scans.
(Doc. 36). Plaintiff claims that following the December 20,
2011 CT scan, the providers at the Nashville VA failed to act
upon a new bladder tumor that was identified by the
radiologist, and as a result, Mr. McKinley's bladder
cancer went undiagnosed until September 19, 2012. During his
deposition, Dr. Preminger testified that he had not been
provided with any of the CT scan films, and that he would
“defer to radiologists or - or to someone with more
expertise in managing the cancer to opine about those
specific films.” (Doc 36-1, p. 18). As a result of this
testimony, Plaintiff argues that Dr. Preminger should be
precluded “from testifying at trial regarding the CT
scan films or their contents because by his own admission, he
is not qualified to give such opinions and no such opinions
have been disclosed to Plaintiff.” (Doc. 36, p. 5).
June 26, 2017 hearing, Defendant conceded that it does not
intend to offer any expert testimony about the interpretation
of any of Mr. McKinley's CT scan films. (See
also Doc. 45, p. 2). Dr. Preminger's testimony
regarding the CT scans will apparently be limited to the
content of the films, as discussed in the radiologist's
reports. As a result, the Parties agree that this motion has
been resolved. Plaintiff's Partial Motion to Exclude the
Expert Testimony of Glenn Preminger, M.D. (Doc. 36) is
Defendant's Motion to Exclude the Expert Witness
Testimony of Drs. Mark Keaton and Maxwell
moves to exclude the testimony of Dr. Mark Keaton and Dr.
Maxwell White, arguing that neither physician is competent to
testify under Tennessee law. Further, Defendant argues that
Dr. Keaton's testimony is not relevant under Tennessee
law or credibly reliable under federal law.
Standard of Review
analyzing a FTCA claim, [federal courts] appl[y] the law of
the state in which the alleged tort was committed.”
Duque v. United States, 216 Fed.Appx. 830, 832 (11th
Cir. 2007) (per curiam) (citation omitted). “In state
medical malpractice actions brought in Georgia federal
courts, ‘state law governs substantive issues and
federal law governs procedural issues.'” Adams
v. Lab Corp. of Am., No 1:10-cv-3309-WSD, 2012 WL
370262, at *8 (N.D.Ga. Feb. 3, 2012) (citation omitted)
(quoting McDowell v. Brown, 392 F.3d 1283, 1294
(11th Cir. 2004)). “Whether a medical expert is
competent to testify is a substantive issue[, ] governed [in
this case] by [Tennessee law] . . . .” Id.
(citations omitted); see also Dukes v. Georgia, 428
F.Supp.2d 1298, 1313 (N.D.Ga. 2006) (“The Eleventh
Circuit stressed in McDowell that when determining
the competency of an expert witness in state medical
malpractice claims, federal courts first should apply the
competency standard under state law.”).
a district court determines that a medical expert is
qualified to offer an opinion under [Tennessee law, ] the
proposed expert testimony is [ ] screened under Federal Rule
of Evidence 702 and Daubert to determine if it is
otherwise admissible.” Adams, 2012 WL 370262,
at *8 (citation omitted). In sum, when determining
admissibility of an expert witness's testimony,
“[t]he analysis . . ., is first whether the expert is
qualified to render an opinion regarding the standard of care
(the competency component) [under state substantive law, via
Fed.R.Evid. 601], and second, whether the expert's
causation theory meets the strictures of Rule 702.”
McDowell, 392 F.3d at 1295.
Mark Keaton and Maxwell White Are Competent to Testify Under
Tennessee Law To prevail on a claim for medical malpractice
in Tennessee, a plaintiff must prove by
competent opinion evidence:
The recognized standard of acceptable professional practice
in the profession and the specialty thereof, if any, that the
defendant practices in the community in which the defendant
practices or in a similar community at the time the alleged
injury or wrongful action occurred[.]
Tenn. Code Ann. § 29-26-115(a)(1).
essential element of a claimant's proof is the
“recognized standard of acceptable professional
practice . . . in the community in which the defendant
practices or in a similar community.” Tenn. Code. Ann.
§ 29-26-115(a)(1). This requirement is known as the
“locality rule.” Shipley v. Williams,
350 S.W.3d 527, 537 (Tenn. 2011). “The statute does not
require a particular means or manner of proving what
constitutes a ‘similar community, ' nor does it
define that term.” Id. at 552. The Tennessee
Supreme Court has observed that, “[g]enerally, an
expert's testimony that he or she has reviewed and is
familiar with pertinent statistical information such as
community size, hospital size, the number and type of medical
facilities in the community, and medical services or
specialized practices available in the area; has discussed
with other medical providers in the pertinent community or a
neighboring one regarding the applicable standard of care
relevant to the issues presented; or has visited the
community or hospital where the defendant practices, will be
sufficient” to establish the expert's competency in
a medical malpractice action. Id. An expert is not
required to have “personal, firsthand, direct
knowledge” of the applicable standard of care to meet
the competency requirement. Id. at 552-53.
“an expert may utilize a national or regional standard
of care in formulating an opinion in a medical malpractice
case, but only if that expert first establishes familiarity
with the relevant local community and then explains that the
local and national standard are the same.” Miller
v. Chinenye Uchendu, M.D., No. 13-CV-2149-SHL-DKV, 2016
WL 4524306, at *2 (W.D. Tenn. July 21, 2016 (citing
Shipley, 350 S.W.3d at 553)). “[I]n many
instances[, ] the national standard is representative of the
local standard.” Shipley, 350 S.W.3d at 553
Motion to Exclude, Defendant argues that Drs. Keaton and
White base their testimony on the national standard of care,
and that neither has established familiarity with the
Nashville community or that they practice in a similar
community. As a result, Defendant argues that Plaintiff's
experts fail to meet the requirements of Tennessee's
locality rule and are not qualified to testify under
response, Plaintiff submitted supplemental
affidavits from each of her experts, which
purportedly establish that both experts have familiarized
themselves with the Nashville community since their
depositions, and have determined that Nashville is a similar
medical community to both Atlanta and Augusta, respectively.
Accordingly, Plaintiff contends that both experts are
qualified to testify as to the recognized standard of care in
the Nashville medical community and at the Nashville VA. The
Court agrees with Plaintiff.
Dr. Mark Keaton
Keaton is the Principal Investigator for Augusta Oncology
Associates (“Augusta Oncology”) in Augusta,
Georgia, where he has been employed since 2002. (Doc. 49-2,
p. 4). In addition, Dr. Keaton serves as an Associate
Professor of Medicine at Augusta University, a position that
he has held since 2015. (Doc. 49-2, p. 4). During his time at
Augusta Oncology, he has worked on approximately five to six
clinical trials at the Sarah Cannon Research Institute in
Nashville, Tennessee. (Doc. 49-2, p. 5). This facility is
located across the street from Vanderbilt University. (Doc.
49-2, p. 5). In addition, in his position as Associate
Professor at Augusta University, he is currently working to
reestablish a partnership with the Sarah Cannon Research
Institute for new clinical trials. (Doc. 49-2, p. 5).
Further, Dr. Keaton has referred approximately ten patients
to the Sarah Cannon Research Institute for treatment. (Doc.
49-2, p. 5). As a result of his work with the Sarah Cannon
Research Institute and through his medical training, Dr.
Keaton has formed relationships with several physicians who
practice in Nashville. (Doc. 49-2, p. 5). He has had numerous
conversations with these physicians about their patients,
clinical trials, and other medical issues. (Doc. 49-2, p. 5).
addition to Dr. Keaton's firsthand knowledge of the
Nashville medical community, he has since familiarized
himself with relevant statistical data. As the Tennessee
Supreme Court concluded in Shipley, a proffered
medical expert need not “demonstrate
‘firsthand' and ‘direct' knowledge of a
medical community . . . in order to qualify as competent to
testify in a medical malpractice case.”
Shipley, 350 S.W.3d at 552. It is sufficient for the
expert to educate himself about the characteristics of the
medical community by “reading reference materials on
pertinent statistical information such as community and/or
hospital size and the number and type of medical facilities
in the area, conversing with the other medical providers in
the pertinent community or a neighboring or similar one,
visiting the community or hospital where the defendant
practices, or other means.” Id. at 553. As
described in paragraphs ten and eleven of Dr. Keaton's
supplemental affidavit, he has “reviewed extensive
information” about the medical community in Nashville,
Tennessee, and has cited several statistics about the size of
the community, the size of the Nashville VA, the number and
type of medical facilities in the Nashville area, and the
medical services or specialized practices available in the
area. (Doc. 49-2, pp. 7-13).
on his firsthand knowledge and review of reference materials
on pertinent statistical information about the Nashville
medical community, Dr. Keaton has concluded that Nashville is
a similar medical community to Augusta, where he practices,
and thus, that the standard of care applicable in Augusta is
also applicable to the physicians at the Nashville VA, who
allegedly breached the standard of care in this case.
Specifically, Dr. Keaton explains that, while Augusta is a
smaller metropolitan area than Nashville, both cities have
“significant” catchment areas, several
hospitals, one VA hospital, and a large population
of veterans. (Doc. 49-2, pp. 8-9). Both Augusta and
Nashville have highly regarded medical schools, students from
which are trained at the local VA hospitals. (Doc. 49-2, pp.
8-9). With respect to the medical specialties and equipment
available, Dr. Keaton stated that the “equipment,
techniques, reference materials, practices, and
procedures” that he uses in his practice in Augusta are
“the same if not very similar to those utilized in and
by the Nashville medical community.” (Doc. 49-2, p. 9).
Finally, the Nashville VA and the Augusta VA both have 17
specialties and subspecialties represented. (Doc. 49-2, p.
Although the medical communities in Nashville and Augusta are
distinct in many ways, as detailed in Defendant's Reply
Brief (Doc. 60, pp. 7-8), “[a]n exact match between the
two communities and medical institutions is not
required.” Nevels v. Contarino, No.
M2012-00179-COA-R3-CV, 2013 WL 5844751, at *7 (Tenn. Ct. App.
Nov. 16, 2012). The Court is satisfied with Dr. Keaton's
conclusion that Nashville is a similar medical community to
Augusta. Accordingly, the Court finds that Dr. Keaton is
qualified to testify as to the standard of care in Nashville
and at the Nashville VA, pursuant to Tenn. Code Ann. §
Dr. John Maxwell White
John Maxwell White is a urologist practicing with Piedmont
Physicians Urology Specialists in Atlanta, Georgia. (Doc.
49-1, p. 4). Dr. White's practice involves caring for
patients with bladder cancer, among other ailments. (Doc.
49-1, p. 4). He also “regularly perform[s] the
following surgical procedures: cystoscopies, in the office
and operating room, bladder resection, prostate resection and
radical prostatectomy.” (Doc. 49-1, p. 5).
preparing to offer expert testimony in this case, Dr. White
reviewed reference materials to familiarize himself with
the medical community in Nashville. Through his research, Dr.
White has concluded that Nashville and Atlanta are similar
medical communities. Specifically, he explains that both
Atlanta and Nashville are the largest cities in their states,
each with multiple hospitals, and large catchment
areas. (Doc. 49-1, pp. 6-7). Further, both
cities have large VA hospitals where resident physicians from
local medical schools are trained. (Doc. 49-1, p. 6). The VA
hospitals in both Atlanta and Nashville have 11 board
certified urologists on staff, as does Piedmont Hospital
where Dr. White practices. (Doc. 49-1, p. 7). Finally, Dr.
White notes that “[n]early every specialty and
subspecialty of medicine, including urology and its
subspecialties, are represented in the Nashville medical
community as well as the Atlanta medical community.”
(Doc. 49-1, p. 8). The Court is satisfied with Dr.
White's conclusion that Nashville is a similar medical
community to Atlanta. Accordingly, the Court finds that Dr.
White is qualified to testify as to the standard of care in
Nashville and at the Nashville VA, pursuant to Tenn. Code
Ann. § 29-26-115(a)(1).
Keaton's Testimony is Relevant Under Tennessee Law
further challenges the relevancy of Dr. Keaton's
testimony under Section 29-26-115(b) of the Tennessee Code,
which states that:
No person in a health care profession requiring licensure
under the laws of this state shall be competent to testify in
any court of law to establish the facts required to be
established by subsection (a), unless the person was licensed
to practice in the state or a contiguous bordering state a
profession or specialty which would make the person's
expert testimony relevant to the issues in the case and had
practiced this profession or specialty in one (1) of these
states during the year preceding the state that the alleged
injury or wrongful act occurred.
Tenn. Code Ann. § 29-26-115(b).
As to the standard of care
contends that Dr. Keaton is not competent to offer standard
of care testimony because he does not practice “a
profession or specialty which would make [his] expert
testimony relevant to the issues in the case, ” as
required by Section 29-26-115(b) of the Tennessee Code.
Defendant points to the following facts in support of its
argument: Dr. Keaton primarily treats breast cancer patients;
he does not currently treat any bladder cancer patients; in
previous years, he saw a couple of patients with bladder
cancer each year; all of the patients he has treated with
bladder cancer were in an advanced stage of cancer; his only
experience treating bladder cancer in its initial stages was
during his fellowship in the late 1980s; he has never
performed a cystoscopy; he has never performed a perineal
cystoscopy or had a patient undergo one; he has never ordered
a percutaneous biopsy on a bladder cancer patient; he has
never taken a bladder biopsy; he has never performed a
bladder barbitage; he has never performed a cystectomy or any
surgery; and he is not versed in the risks of complications
following a cystectomy. (Doc. 37-1, pp. 9-10). As a result,
Defendant argues that Dr. Keaton “has a complete lack
of experience with the procedures and treatment at issue in
this case and is clearly not competent to testify regarding
whether Mr. McKinley's physicians complied with the
standard of care.” (Doc. 37-1, p. 10).
Court disagrees. Dr. Keaton has offered limited testimony as
to the standard of care that should have been followed in
this case. Specifically, Dr. Keaton plans to testify that the
standard of care was breached when doctors at the Nashville
VA delayed Mr. McKinley's initial urology work up;
delayed removing the tumor and taking a biopsy; took only two
random biopsies during the tumor removal operation; delayed
further action after BCG chemotherapy and subsequent abnormal
cytology; failed to take appropriate action to rule out
bladder cancer after the December 20, 2011 CT scan result;
and poorly coordinated Mr. McKinley's care at the
Dr. Keaton is an oncologist, whereas the Nashville VA
physicians who allegedly breached the standard of care were
urologists, there is “no requirement that the witness
practice the same specialty as the defendant.”
Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn.
1987). Rather, the expert need only be “sufficiently
familiar with the standard of care of the profession or
specialty and be able to give relevant testimony on the issue
in question.” Id. Dr. Keaton stated that,
“as an oncologist[, he] ha[s] sufficient familiarity
with the treatment of cancer patients, like Howard McKinley,
[ ] so as to testify to certain standards of medical practice
for any medical doctor, including urologists, who are
treating cancer patients in regards to appropriate wait times
for medical appointments, surgical ...