United States District Court, D. Arizona
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT
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).
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
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
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.
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.
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.
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
The United States' Motion in Limine No. 1
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.
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.
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.
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 ...