United States District Court, D. Arizona
ORDER AND OPINION
[Re: Motion at Docket 97]
JOHN W. SEDWICK, Senior District Judge.
I. MOTION PRESENTED
At docket 97 defendant United States of America ("United States") asks to exclude or limit the testimony and opinions of several of plaintiff Jacob Amrani's ("Dr. Amrani") experts. Dr. Amrani opposes at docket 109. United States replies at docket 119. Oral argument was requested but would not assist the court.
Dr. Amrani is a board certified orthopedic surgeon who specialized in spine surgery. Dr. Amrani's practice in Phoenix was conducted at his own clinic, the Deer Valley Spine Center. Because he is a veteran, Dr. Amrani is eligible to receive his own medical care from the Veteran's Administration ("VA"). Some time after he suffered a severe injury to his right should while weightlifting, Dr. Amrani sought treatment at the VA hospital in Phoenix. Dr. Amrani was placed under the care of Dr. Cranford, a board certified orthopedic surgeon who performed right shoulder rotator cuff surgery on Dr. Amrani. The surgery included excision of a soft tissue mass in the shoulder. Dr. Amrani claims that, as a result of the medical negligence of Dr. Cranford, he has experienced a substantial loss of function in his right shoulder and right arm which has negatively affected his ability to practice surgery and thus reduced his income. In this lawsuit Dr. Amrani seeks more than $6 million in damages.
Among others, Dr. Amrani has named Dr. Corrie Yablon ("Dr. Yablon"), Dr. Scott Nelson ("Dr. Nelson"), Dr. David Mohler ("Dr. Mohler"), and Alan Burke as expert witnesses. These witnesses' testimony and opinions are at issue in the motion at hand.
A. Dr. Yablon
Dr. Yablon is a board certified radiologist with a subspecialty in "Musculoskeletal (MSK) Imaging." Dr. Yablon has prepared an expert report regarding the MRI findings on Dr. Amrani's right shoulder and the subsequent care he received for the soft tissue mass found on his pre-operative MRI. The United States seeks to exclude Dr. Yablon as an expert witness or, alternatively, limit her testimony, because: (1) Dr. Yablon does not meet the criteria of A.R.S. § 12-2604; (2) Dr. Yablon's opinions regarding what may have happened if the mass had been malignant are irrelevant; (3) Dr. Yablon's testimony would be duplicative of Dr. Stephen Kay; and (4) Dr. Yablon is not competent to testify as to whether Dr. Amrani's axillary nerve was injured, how it was injured, or the cause of that injury.
1. Dr. Yablon may not testify regarding the appropriate standard of care
In pertinent part A.R.S. § 12-2604 provides that if a party in a medical malpractice action against whom expert testimony on "the appropriate standard of practice or care" is offered "is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty." The Arizona legislature enacted this statute to ensure that "only physicians with comparable training and experience may provide expert testimony regarding whether the treating physician provided appropriate care."
The parties agree that because Dr. Yablon is not a specialist in orthopaedic surgery, A.R.S. § 12-2604 forbids her from testifying regarding the standard of care applicable to Dr. Cranford. The United States argues that Dr. Yablon opines on the appropriate standard of care, however, with her following three conclusions: (1) "it was standard operating procedure for an orthopedic surgeon to refer a mass such as [Dr. Amrani's] to an orthopedic oncologist for evaluation and treatment;" (2) "[i]t was a grave error on the part of the treating orthopedic surgeon to assume that the soft tissue mass was benign and that the etiology was secondary to the rotator cuff tear;" and (3) "[b]ecause the assumption was made that the mass was benign, it was not approached with the care that would be taken if the mass had been suspected to be malignant." Dr. Amrani argues that "Dr. Yablon is not providing a standard of care opinion against Dr. Cranford; she is providing a causation opinion that a radiologist would have recommended a referral to an orthopedic oncologist."
A.R.S. § 12-2604 does not preclude Dr. Amrani from offering Dr. Yablon's testimony to show causation-that Dr. Cranford's breach of the appropriate standard of care resulted in injury. Thus, Dr. Yablon may testify about how a radiologist may have prevented injuries caused by Dr. Cranford's alleged breach. The court agrees with the United States, however, that Dr. Yablon's report goes beyond this, and express her opinion of what a prudent orthopedic surgeon would have done under the circumstances. Such opinions, including the three ...