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Cherry v. United States

United States District Court, D. Arizona

April 4, 2019

Lawrence N Cherry, et al., Plaintiffs,
United States of America, et al., Defendants.



         Plaintiffs Lawrence N. Cherry and Judy N. Cherry, (collectively, “Plaintiffs”), brought this medical malpractice action against the United States of America pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiffs allege Mr. Cherry received negligent medical care for his penile cancer from employees of the United States at Carl T. Hayden Veterans Affairs Medical Center (“VAMC”) in Phoenix, Arizona. From 2009 until 2013, Mr. Cherry received a series of treatments from medical practitioners at the VAMC, including dermatologist Dr. Christopher Reardon (“Dr. Reardon”), physician assistant Steven Carbonniere (“PA Carbonniere”), and urologist Dr. Paul Papoff (“Dr. Papoff”). Trial is set to begin in April 2019. Before the Court are the parties' motions in limine concerning expert testimony: five by the United States, (Docs. 218, 219, 220, 221, 229), and two by Plaintiffs (Docs. 230, 231).


         Mr. Cherry is a veteran of the Vietnam War. On February 19, 2009, Mr. Cherry saw Dr. Reardon of the VAMC's dermatology department for wart-like lesions on his legs, feet, and penis. Dr. Reardon diagnosed Mr. Cherry with benign keratosis and a history of porphyria cutanea tarda (a genetic photosensitive skin condition). At this appointment, Dr. Reardon used liquid nitrogen to freeze off six of the keratoses on Mr. Cherry's body and the keratosis on his penis. On April 21, 2009, Mr. Cherry visited Dr. Reardon again and told him the bump on his penis had returned. Dr. Reardon again froze off the bump with liquid nitrogen and advised Mr. Cherry to return in one month. On August 31, 2009, Mr. Cherry was seen in the VAMC's dermatology department by Steven Carbonniere, a physician assistant (“PA”). PA Carbonniere examined several bumps on Mr. Cherry's head and legs and treated them with liquid nitrogen. On January 13, 2010, Mr. Cherry saw PA Carbonniere for a lesion on the tip of his penis. Mr. Cherry was diagnosed with presumed squamous cell carcinoma and was prescribed Efudex-a topical cream containing a chemotherapy agent. Two days later, Mr. Cherry returned to the VAMC's dermatology clinic to obtain a biopsy. Mr. Cherry was diagnosed with squamous cell carcinoma in situ of the glans penis.

         A Licensed Practical Nurse directed Mr. Cherry to use Efudex as previously instructed by PA Carbonniere. In February 2011, Mr. Cherry reported a new lesion to PA Carbonniere, which PA Carbonniere reported as a “likely recurrence” of the squamous cell carcinoma on the tip of his penis. PA Carbonniere prescribed more Efudex treatment. Mr. Cherry reported yet another lesion on July 26, 2011, and was once again prescribed Efudex. In subsequent appointments in November 2011 and April 2012, Mr. Cherry reported he had not used the Efudex prescribed in July 2011. Mr. Cherry visited the VAMC's urology clinic on April 30, 2012. Dr. Papoff recommended re-biopsy, but by June 2012, Drs. Reardon and Papoff believed the lesion had cleared and the re-biopsy was not performed. Mr. Cherry visited the VAMC at least four more times during the remainder of 2012, reporting lesions on his penis.

         In January 2013, Dr. Theodore Mobley, (“Dr. Mobley”), of the VAMC urology department performed a urethroscopy and urethral biopsy of the penile lesion. Dr. Mobley found tumor involvement in the urethra and removed the visible tumor mass on Mr. Cherry's penis. Mr. Cherry was referred to the Mayo Clinic for further treatment. On March 21, 2013, Dr. Robert G. Ferrigni, (“Dr. Ferrigni”), performed a partial penectomy- amputation of a portion of the penis-and cystoscopy on Mr. Cherry.

         Plaintiffs sued the United States in February 2015. While this litigation was ongoing, squamous cell carcinoma was discovered in Mr. Cherry's left lung. On May 22, 2018, Mr. Cherry underwent a left upper lob segmentectomy and mediastinal and hilar lymph node dissection.

         Trial is set to begin on April 16, 2019. The parties have a number of disputes, including whether the VAMC practitioners performed below the standard of care during their treatment of Mr. Cherry's penile lesions, whether there was informed consent for the prescribed Efudex treatments, whether Dr. Reardon's supervision of PA Carbonniere was below the standard of care, and whether the practitioners' recommendations and treatments were the proximate cause of Mr. Cherry's harm. Before the Court are motions in limine to exclude certain expert testimony.


         Fed. R. Evid. 702 governs expert testimony: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) 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; (b) the testimony is based on 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.” Substantive Arizona law imposes additional requirements on expert testimony concerning the standard of care for medical professionals. See, e.g., Wright v. United States, No. CV06-01788, 2008 WL 820557, at *4 (D. Ariz. Mar. 25, 2008). A.R.S. § 12-2604 provides: “If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, [the expert witness must] specializ[e] at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony 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.”


         1. The United States' Motion in Limine No. 1

         The United States moves to preclude Plaintiffs from arguing that Dr. Boaz Rabin's Compensation and Pension Examination Report, (the “Rabin C&P Report”), contains admissions of liability and causation by the United States. The United States also moves to exclude Dr. Boaz's testimony under A.R.S. § 12-2604 and Fed.R.Evid. 403. (Doc. 218.)

         Prior to filing this lawsuit, Mr. Cherry submitted a disability claim under 38 U.S.C. § 1151, under which a veteran may receive compensation if his disability was caused by negligent or otherwise improper medical care provided by the Department of Veterans Affairs (the “VA”). 38 U.S.C. § 1151(a)(1) (a veteran may qualify for disability benefits if the proximate cause of the disability was “carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination”). Mr. Cherry's disability claim sought compensation for the same injuries as the ones at issue in this litigation. The VA selected Dr. Rabin, an internal medicine doctor and a staff physician at the Southern Arizona Veterans Medical Center, to evaluate Mr. Cherry and prepare the C&P Report for his disability claim. Dr. Rabin conducted an in-person examination of Mr. Cherry and reviewed his medical records, and subsequently prepared the C&P Report, dated March 19, 2014. (Doc. 218-1.) The C&P Report concluded, among other things, that “[t]he disability (loss of penis shaft, i.e. loss of a creative organ) resulted from lack of skill by the VA dermatology provider, ” and “there was failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability, and allowed the disease or disability to continue to progress.” (Doc. 218-1 at 11.) After Mr. Cherry's § 1151 disability claim was granted, he sued the United States under the FTCA.

         The parties dispute whether portions of the Rabin C&P Report are admissions of liability and causation by the United States. Plaintiffs argue that because Dr. Rabin was chosen by the VA-an agency of the United States-to prepare the C&P Report, and because his opinions were authorized and ratified by the VA, Dr. Rabin's opinions in the C&P Report are admissions against interest by the United States under Fed.R.Evid. 801(d)(2). The United States argues the opinions in the Rabin C&P Report are not admissions because the § 1151 process for disability claims is more lenient than litigation in federal court.

         The United States is correct. Plaintiffs shall not argue at trial that the opinions in the Rabin C&P Report are admissions against interest by the United States. The § 1151 process is non-adversarial and employs a lower standard of proof. The Rabin C&P Report was prepared pursuant to this process for disability claims. As the Ninth Circuit has observed: “Disability hearings are ex parte and non-adversarial. Evidence presented in a § 1151 benefits hearing is limited to information presented by the claimant and certain types of information discovered by the VA. The VA is not authorized to develop evidence for the purpose of challenging the claimant, but rather is required to ‘assist a claimant in developing the facts pertinent to [his or her] claim.'” Littlejohn v. United States, 321 F.3d 915, 920 (9th Cir. 2003) (holding that a § 1151 decision cannot be used as a sword, through issue and claim preclusion, to establish tort liability). Here, although Dr. Rabin was selected by the VA to evaluate Mr. Cherry, the VA was not allowed to develop evidence to challenge Mr. Cherry's § 1151 claim. Such a claimant-friendly process bears little ...

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