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Pinnix v. SSC Silver Stream Operating Co. LLC

United States District Court, E.D. North Carolina, Southern Division

March 1, 2017

GWENDOLYN JACKSON PINNIX, Executor of The Estate of David W. Jackson, Sr. and; WARREN IVAN JACKSON, Executor of The Estate of David W. Jackson, Sr., Plaintiffs,


          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on plaintiffs' motion to strike testimony of defendant's experts Gregory A. Compton, M.D. (“Compton”) and William R. Oliver, M.D. (“Oliver”) (DE 68), and defendant's motion to strike testimony of plaintiffs' expert Thomas D. Owens, M.D. (“Owens”) (DE 70), pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The motions have been briefed fully, and in this posture, the issues raised are ripe for ruling. For the reasons that follow, the motions are denied.


         Plaintiffs, executors of the estate of David W. Jackson (“decedent”), filed this wrongful death action in the Superior Court of New Hanover County, North Carolina on June 27, 2014, against defendants SSC Silver Stream Operating Co., L.L.C. (“SSC”) and Sava SeniorCare L.L.C. (“Sava”). Plaintiffs also assert claims against defendants for administrative and corporate medical malpractice, in violation N.C. Gen. Stat. § 90-21.11(2), and common law negligence. Defendants timely removed the action on August 6, 2014, invoking this court's diversity of citizenship jurisdiction under 28 U.S.C. §§ 1332, 1441, and 1446.

         On August 20, 2014, defendant SSC answered the complaint, denying liability and raising a number of affirmative defenses. (DE 12). That same date, defendant Sava filed a motion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). (DE 13). The parties voluntarily dismissed defendant Sava as party to the action on September 11, 2014. (DE 18).

         During discovery, plaintiffs identified Dr. Owens as an expert to testify as to decedent's cause of death. Defendant identified Drs. Compton and Oliver as experts to testify as to certain events surrounding decedent's death.[1] On September 30, 2016, plaintiffs filed the instant motion to strike the testimony of Drs. Compton and Oliver on the basis that the doctors' opinions are unreliable and will not assist the trier of fact. On October 7, 2016, defendant SSC filed the instant motion to strike testimony of Dr. Owens on the basis that Dr. Owens's opinion is unreliable.


         According to the complaint, defendant SSC owns and operates Silver Stream Health and Rehabilitation Center (“Silver Stream”), a nursing home and rehabilitation center located in Wilmington, North Carolina. (DE 1-1 ¶ 19). Decedent was admitted to Silver Stream on April 15, 2013, for rehabilitation and physical and occupational therapy. (Id. ¶ 19). At the time of admission, decedent was 83 years old and had multiple medical conditions including dementia, obesity, anemia, and diabetes, among others. (Id. ¶ 20) When he was admitted to Silver Stream, decedent was assessed as being at risk for falls. (Id.). In fact, decedent was admitted to Silver Stream, in part, to learn how to use a motorized wheelchair. (Id. ¶ 21).

         From April 15, 2013, until approximately June 10, 2013, an occupational therapist taught decedent how to use a motorized wheelchair. (Id. ¶ 22). By June 10, 2013, decedent no longer required occupational therapy for wheelchair mobility, (Id. ¶ 23), however he did still require supervision when using his motorized wheelchair. (Id. ¶ 24).

         At approximately 12:10 p.m. on July 21, 2013, decedent was operating his motorized wheelchair at Silver Stream unsupervised. (Id. ¶ 25). While unsupervised, decedent drove his motorized wheelchair out the front door of Silver Stream. (Id.). No one on Silver Stream's staff saw decedent exit the facility. (Id.). According to plaintiffs, once decedent exited the facility, he attempted to drive himself down a wheelchair ramp that led to the parking lot. (Id.). However, the wheelchair ramp was not clearly marked. (Id.). As a result, decedent's wheelchair rolled over the curb and became unstable. (Id.). This instability caused decedent to fall out of the wheelchair, directly onto his face and head. (Id.).

         As a proximate result of injuries sustained from his fall on July 21, 2013, decedent passed away on July 26, 2013. (Id. ¶ 26).


         A. Standard of Review

         Federal Rule of Evidence 702 governs the admissibility of expert opinion testimony. Under Rule 702, expert testimony is appropriate when “the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. A witness qualified as an expert may be permitted to testify where “(b) the testimony is based upon 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.” Id.

         Courts have distilled the requirements of Rule 702 into two crucial inquiries: 1) whether the proposed expert's testimony is relevant; and 2) whether it is reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert, 509 U.S. at 589; see Nease v. Ford Motor Co., ___F.3d___, 2017 WL 437665, at *6 (4th Cir. 2017). The trial court must carry out the special gate-keeping obligation of ensuring that expert testimony meets both requirements. Kumho Tire, 526 U.S. at 147.

         The test of “relevance” considers whether the proposed expert testimony will help the jury in resolving a factual dispute. Daubert, 509 U.S. at 591. Expert testimony “is presumed to be helpful unless it concerns matters within the everyday knowledge and experience of a lay juror.” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).

         The reliability inquiry is a “flexible one focusing on the principles and methodology employed by the expert, not on the conclusions reached.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (internal quotations omitted). In assessing whether expert testimony is “reliable, ” the court may consider:

(1)whether a theory or technique can be (and has been) tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the techniques' operation; and (5) whether the technique has received general acceptance within the relevant scientific or expert community.

United State v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (quoting Daubert, 509 U.S. at 593-94) (quotation marks omitted); see also Nease, 2017 WL 437665, at *6. These factors, however, are not exclusive and “the court has broad latitude to consider whatever factors bearing on validity that the court finds to be useful[, ] . . . depend[ing] upon the unique circumstances of the expert testimony involved.” Westberry, 178 F.3d at 261 (citing Kumho Tire, 526 U.S. at 151).

         The proponent of expert testimony must establish its admissibility by a preponderance of proof. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001). Review by the advisory committee indicates that rejection of expert testimony is the exception rather than the rule. Fed. R. Evid.702 advisory committee's note to 2000 amendment.

         B. Analysis

         1. Drs. Compton and Oliver

         Plaintiffs move to exclude testimony from Drs. Compton and Oliver that decedent suffered a cardiac event prior to falling from his wheelchair on July 21, 2013.[2] Plaintiffs assert four grounds for exclusion: 1) the doctors' opinions will not help the jury; 2) the opinions are not based on sufficient facts or data; 3) the opinions are not based on reliable principles and methods; and 4) the doctors did not reliably apply appropriate ...

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