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Petty v. United States

United States District Court, W.D. Texas, El Paso Division

September 26, 2019

AMBER PETTY, Plaintiff,



         On this day, the Court considered Defendant United States of America's ("Defendant") "Opposed Motion to Exclude the Testimony of Plaintiff s Expert, Dr. James Ingaglio" ("Motion") filed in the above captioned case on August 9, 2019. On September 9, 2019, Plaintiff Amber Petty ("Plaintiff") filed her "Response in Opposition to Defendant's Motion to Exclude Testimony of Dr. James Ingaglio, M.D." ("Response"). On September 16, 2019, Defendant filed its Reply. After due consideration, the Court is of the opinion that Defendant's Motion shall be denied.


         On April 10, 2019, Plaintiff filed her original complaint alleging an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and § 2671, against Defendant. Complaint 1, ECF No. 1. The Department of the Army is an agency of Defendant. Id. Thus, Defendant, through its agency, owns and operates the army hospital in El Paso, TX where Plaintiff received medical treatment. Id. Plaintiff alleges that Defendant was negligent in one or more of the following ways: "1. Causing a perforated uterus and injury to the broad ligament during the D&C procedure; and 2. Failing to timely recognize and treat a perforation of the uterus." Id. at 3. Plaintiff seeks damages for pain and mental anguish, physical impairment, and medical expenses. Id.

         On September 6, 2014, Plaintiff gave birth by cesarean section ("c-section") at a civilian hospital. Mot. 1, ECF No. 17. On September 16, 2019, she returned to the civilian hospital and was admitted out of concern for a post-surgical abscess and cellulitis. Id. (citing Ex. 1, THOP-East Campus medical records, at 000010). A pelvic ultrasound showed a bulky uterus and endometrial thickening. Id. On examination, Plaintiff had material coming out of part of the c-section surgical incision. Id. The following day, Plaintiff was taken to surgery and the incision was opened and drained. Id. Plaintiff was discharged; she went home with a vacuum-assisted closure of her wound. See Id . Ex. 2 at 2.

         Plaintiff transferred her gynecologic care to the army hospital on or about September 24, 2014, when she had concerns about her slow healing c-section incision. Id. at 2; Complaint 2, ECF No. 1. At an outpatient clinic visit on October 7, 2014, Plaintiff complained of continued vaginal bleeding and passing clots since her c-section. Mot. 2, ECF No. 17; Complaint 2, ECF No. 1. On October 14, 2014, at the army clinic Dr. Erin Keyser ("Dr. Keyser"), an attending physician, evaluated Plaintiff for the bleeding, performed a vaginal ultrasound, and noticed a thickened endometrial stripe that was four centimeters and irregular. Mot. 2, ECF No. 17. Dr. Keyser suspected retained products of conception and recommended that Plaintiff undergo a dilation and curettage ("D&C") after she explained the risks associated with the procedure. Id. The same day, Plaintiff underwent an ultrasound-guided D&C that Dr. Naima Khamsi ("Dr. Khamsi"), a third-year resident receiving training at the army hospital, primarily performed under the supervision of Dr. Keyser. Id. Plaintiff was discharged on October 15, 2014. Complaint 2, ECF No. 1.

         Plaintiff returned to the army hospital on October 19, 2014 and was seen in the ER where she complained of fever, chills, and pain. Id. A CT scan showed what was a suspected uterine hematoma and uterine perforation. Id. The next day Dr. Keyser took Plaintiff to the operating room. Id. at 30. Although Plaintiff went into surgery for an exploratory laparotomy, Dr. Keyser felt a hysterectomy was their only option because of the poor quality of the tissue. Id. The operative report noted evidence of a uterine perforation at the right posterior cornua, and a hematoma in the right broad ligament. Id. A pathology report prepared on October 20, 2014, noted "[t]he endometrial cavity is reddish brown and hemorrhage with gross penetration to the serosa of the lower uterine segment and fundus." Army.Hospital Surgical Pathology Report 2, ECF No. 17-6.

         The trial for this case is scheduled for November 19, 2019. In preparation for trial, Plaintiff designated Dr. James Ingaglio, M.D. ("Dr. Ingaglio"), aboard-certified obstetrician and gynecologist, to provide an expert opinion with regard to the "standard of care for physicians in the performance of D[&]C." PL's Designation of Experts 1, ECF No. 12; Dr. Ingaglio Report 2, ECF No. 17-8. In his expert report, Dr. Ingaglio opined that the army hospital breached the standard of care by causing the perforation in the cornual region and not timely recognizing the perforation, which is a known complication of the D&C procedure with a heightened risk in the post-partum patient. Dr. Ingaglio Report 3, ECF No. 17-8. Based on the extent of the injury to the right posterior uterine wall and into the right broad ligament, Dr. Ingaglio deems it most likely that due care was not taken when one of the army doctors inserted a sharp curette during the D&C procedure. Id. Also, according to Dr. Ingaglio, the injury was not timely recognized given that the D&C was performed with ultrasound guidance and Plaintiff was administered multiple medications in order to control significant bleeding during the procedure. Id. Then she was discharged and only diagnosed four days later. Id. According to Dr. Ingaglio, the hysterectomy was not necessary both because a quicker diagnosis would have led to a better prospect for a less invasive solution and because the uterus that the army doctors removed was healthy. Dr. Ingaglio Report 3, ECF No. 17-8. Although Dr. Ingaglio acknowledges that there was a foul odor near the right broad ligament noted in the medical records during the hysterectomy, he attributes this, and the possible infection that the odor indicated, to the previous c-section site that was described as likely necrotic in pathology report. See Dr. Ingaglio Dep. Tr., ECF No. 17-9, at 50:7-8; 65:7-8; Dr. Ingaglio Report 3, ECF No. 17-8. Defendant filed its Motion to exclude Dr. Ingaglio's testimony because his opinions are based on insufficient evidence, his opinions are unreliable, and he is not qualified to offer an expert opinion on pathology. Mot. 3, ECF NO. 17. For the reasons that follow, the Court disagrees.


         Federal Rule of Evidence 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., provide a framework for determining whether expert testimony is admissible. 509 U.S. 579 (1993); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). In Daubert, the Supreme Court assigned to trial courts the duty of deciding whether expert testimony under Rule 702 is "not only relevant, but reliable." Daubert, 509 U.S. at 589. "In the vast majority of cases, the district court first should decide whether the factors mentioned in Daubert are appropriate. Once it considers the Daubert factors, the court then can consider whether other factors, not mentioned in Daubert, are relevant to the case at hand." Black v. Food Lion, Inc., Ill. F.3d 308, 311-12 (5th Cir. 1999).

         The Advisory Committee notes to Rule 702 speak to the problem in today's case: when facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts. Pipitone v. Biomatrix, Inc., 299 F.3d 239, 249 (5th Cir. 2002). The emphasis in the amendment on "sufficient facts or data" is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other. Id. (citing Fed.R.Evid. 702 advisory committee's note). It bears reminding that 'the trial court's role as gatekeeper [under Daubert ] is not intended to serve as a replacement for the adversary system." Id. (citing Fed.R.Evid. 702 advisory committee's note, citing United States v. 14.38 Acres of Land More or Less Situated in Leflore County, MI, 80 F.3d 1074, 1078 (5th Cir. 1996)). Rather, as Daubert makes clear, "[v]igorous 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." Id. (citing Daubert, 509 U.S. at 596).


         Defendant moves to exclude the testimony of Dr. Ingaglio because he is unqualified and his opinions are unreliable and irrelevant. Mot. 3, ECF No. 17. According to Defendant, Dr. Ingaglio's opinion that the Plaintiffs uterus was healthy is based entirely on his own interpretation of the uterus pathology report, despite not being a pathologist, and despite not being able to adequately explain the report. Id. Further, in forming this opinion, he disregards the hysterectomy operative note, and dismisses Dr. Keyser's deposition testimony, rather than explaining why his opinion is valid notwithstanding this evidence to the contrary. Id. at 3-4. Additionally, Defendant moves to exclude this testimony as irrelevant because Plaintiffs Complaint does not allege Defendant unnecessarily removed a healthy uterus. Id. at 4.

         Plaintiff counters that Dr. Ingaglio has based his opinion on her pertinent medical records from the army hospital and he has taken into consideration the deposition testimony of Dr. Keyser and Dr. Khamsi. Resp. 1, ECF No. 20. Thus, there is enough evidence to support his opinions. Id. And Dr. Ingaglio's opinions are reliable because they are based on the pertinent medical records produced in this case, and based on his education, training and experience as a Board Certified OBGYN physician. Id. Dr. Ingaglio properly indicates his reliance on the pathology reports, authored by another Defendant employee (pathologist from army hospital). Id. at 1-2. Dr. Ingaglio also addresses conflicting testimony in the deposition of Dr. Keyser. Id. at 2. ...

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