United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
move to exclude certain opinions of Dr. Morris and evidence
that Ms. Tinlin's medical care was an intervening cause
of injury. Docs. 15077, 16576. The motions are fully briefed.
Docs. 15661, 16032, 16890. The parties request oral argument,
but it will not aid the Court's decision. See
Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For reasons stated
below, the Court will grant the motion to exclude Dr.
Morris's opinions and grant in part and deny in part the
motion in limine regarding medical care as an intervening
cause of injury.
7, 2005, Dr. Riebe implanted a Bard Recovery filter in
Plaintiff Debra Tinlin's inferior vena cava
(“IVC”). Ms. Tinlin had multiple chest scans
after the implantation, including one taken by Dr. Haller on
April 15, 2008.
Tinlin experienced cardiac tamponade on June 10, 2013. A
chest scan showed evidence of two fractured Recovery struts
in the right ventricle of her heart. Dr. Roitstein performed
emergency surgery to drain a large pericardial effusion. The
procedure - a subxiphoid pericardial window - involved
removing a small piece of the heart sac and inserting a
drainage tube through the incision.
31, 2013, Dr. Kress removed a fractured strut through open
heart surgery. A subsequent chest scan revealed multiple
fractured struts in the pulmonary arteries. These struts and
the filter have not been removed.
Motion to Exclude Dr. Morris's Opinions About Drs.
Roitstein and Kress.
case-specific report, Dr. Morris opines that an
interventional radiologist could have drained Ms.
Tinlin's pericardial effusion through percutaneous
placement of a drainage tube. Doc. 15081-2 at 18, ¶ 6.
He claims that this procedure “likely would have been
performed more expeditiously, with less morbidity and risk
than [Dr. Roitstein's] surgical procedure, using moderate
sedation rather than general anesthesia.” Id.
Morris further opines that the fractured strut Dr. Kress
removed potentially could have been retrieved percutaneously
by an interventional radiologist, which “might have
precluded open heart surgery, with all of its attendant risks
and morbidity, including tracheomalacia and epigastric
ventral hernia.” Id. at 18-19, ¶ 7. Dr.
Morris notes that a chest scan taken two days before the
surgery revealed no strut in the heart. Id. He
opines that the failure to perform a chest scan immediately
before surgery is significant because “it was possible
that neither arm fragment was still located in the heart, and
therefore, open heart surgery would have been
contraindicated.” Id. at 19, ¶ 7.
have filed a motion to exclude these opinions, arguing that
Dr. Morris is not qualified to opine on the standard of care
for cardiothoracic surgeons and his opinions are unreliable
and would be unhelpful and confusing to the jury. Doc.
15081-1 at 3-4. Defendants make clear that they are not
offering Dr. Morris to opine on the standard of care for the
surgeries performed by Drs. Roitstein and Kress, or any
related breach. Doc. 15661 at 6, 11. Defendants assert that
they are merely “exercising [their] right under
Wisconsin law to present expert testimony that may
‘weaken' Plaintiffs' claim of
injuries[.]” Id. at 11 (citations omitted).
Wisconsin law, “when a tortfeasor causes an injury to
another person who then undergoes unnecessary medical
treatment of those injuries despite having exercised ordinary
care in selecting her doctor, the tortfeasor is responsible
for all of that person's damages arising from any
mistaken or unnecessary surgery.” Hanson v. Am.
Family Mut. Ins., 716 N.W.2d 866, 871 (Wis. 2006)
(citing Butzow v. Wausau Mem'l Hosp., 187 N.W.2d
349, 351-52 (Wis. 1971)). The rule was first announced in
Selleck v. City of Janesville, 75 N.W. 975, 976
The plaintiff is not held responsible for the errors or
mistakes of a physician or surgeon in treating an injury
received by a defect[, ] providing she exercises ordinary
care in procuring the services of such physician. Where one
is injured by the negligence of another, . . . if her damages
have not been increased by her own subsequent want of
ordinary care she will be entitled to recover in consequence
of the wrong done, and the full extent of damage, although
the physician that she employed omitted to employ the
remedies most approved in similar cases, and by reason
thereof the damage to the injured party was not diminished as
much as it otherwise should have been.
Selleck rule remains good law in Wisconsin. See
Fouse v. Persons, 259 N.W.2d 92, 95 (Wis. 1977)
(“The rule for awarding damages for injuries aggravated
by subsequent mistaken medical treatment was established in
Selleck . . . and has been followed since.”);
Paddock v. United States, No. 16-CV-947, 2018 WL
3696618, at *3 (E.D. Wis. Aug. 3, 2018) (discussing the
“long-standing principle set forth in
Selleck”); see also Wis Civil-JI 1710
(citing Selleck to support the jury instruction for
aggravation of injury because of medical negligence).
do not dispute that the surgeries performed by Drs. Roitstein
and Kress were undertaken to treat injuries Ms. Tinlin
sustained from the Recovery arm fragment in her heart.
See Docs. 15081-2 at 6-7, 16952 at 5. Nor do
Defendants present any evidence or argument that Ms. Tinlin
was negligent in selecting the doctors to perform the
surgeries. Thus, even if the surgeries were unnecessary as
Dr. Morris ...