United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
HONORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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
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).
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.
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.