Ellison v. United States
753 F. Supp. 2d 468
E.D. Pa.2010Background
- Cheryl Ellison, guardian for Christopher Ellison, sues under the FTCA for medical malpractice arising from a VA medical center dental procedure that preceded a massive stroke.
- Ellison underwent eight dental extractions; intra-procedural hypotension and presyncope were observed but the procedure continued.
- Plaintiff proffers Dr. Stuart Super (standard of care) and Dr. Scott Kasner (causation) as experts; United States seeks to exclude them under Rule 702 / Daubert and for summary judgment.
- Dr. Abel (oral surgeon) and Dr. Bender (dental student) performed the extractions; Ellison had hypertension, diabetes, obesity, and other risk factors.
- After the procedure Ellison was observed briefly, picked up prescribed medication, and later suffered a left MCA ischemic stroke with substantial brain injury.
- The court addresses whether the experts’ testimony should be admitted and whether summary judgment is warranted based on their testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Super's standard of care opinion | Super offers general standard of care based on experience and literature. | Super's methods lack reliability; testimony reflects personal practice rather than general standard. | Denied; Super's testimony deemed reliable and fit. |
| Admissibility of Dr. Kasner's causation testimony | Kasner's differential diagnosis supports cardioembolic causation and hypotension-related injury. | Kasner relies on TOAST and tests not performed; methodology challenged but not found unreliable. | Denied; Kasner's causation testimony deemed admissible. |
| Impact of excluding experts on summary judgment | Without experts, plaintiff cannot prove breach or causation. | Exclusion warrants summary judgment if essential elements cannot be proven. | Denied; court will not grant summary judgment based on exclusion. |
| Whether differential diagnosis and clinical literature adequately support causation | Differential diagnosis and cited literature support link between hypotension and stroke. | Literature does not directly address presyncope; reliability questioned. | Denied; court finds methodology sufficiently reliable and literature supportive. |
| Judge’s gatekeeping under Rule 702 for medical expert testimony | Evidence is within established Third Circuit standards. | Daubert factors and reliability tests require exclusion. | Denied; gatekeeping found satisfied for both experts. |
Key Cases Cited
- Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396 (3d Cir. 2003) (Rule 702 reliability and fit; general standard of care can be proven by expert testimony)
- Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994) (Daubert factors; reliability of expert testimony)
- Heller v. Shaw Indus., Inc., 167 F.3d 146 (3d Cir. 1999) (differential diagnosis as a reliable methodology)
- Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802 (3d Cir. 1997) (trilogy of Rule 702 restrictions: qualification, reliability, fit)
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (S. Ct. 1993) (gatekeeping reliability standard for scientific testimony)
- United States v. Downing, 753 F.2d 1224 (3d Cir. 1985) (consideration of reliability factors in expert testimony)