Expert Witness Testimony in Laser Surgery Partially Allowed

In this medical malpractice action, the plaintiff sued her doctor after having a deleterious reaction to a procedure performed by the SmartLipo laser.  The plaintiffs hired an expert to opine on causation and accepted medical practices.  The defendant filed motions to exclude the testimony and it was partially granted.

Facts:  This case (Clayton et al v. Katz et al – United States District Court – District of Southern New York  – March 31st. 2015) is a medical malpractice action involving the use of a SmartLipo laser to perform a facial cosmetic procedure.   The plaintiffs (husband and wife) claim that Dr. Bruce E. Katz did not get informed consent by the wife (Nancy) and that he negligently recommended and performed the procedure, which caused Mrs. Clayton to sustain serious burns on her face.  The plaintiff’s hired Dr. Douglas Hendricks, a laser surgery expert, and the defendant filed a motion to exclude his testimony pursuant to three rules of federal procedure (Rules 26, 104, and 702).

In his expert report, submitted on March 8th, 2010, Dr. Hendricks formed three opinions:  1) That Mrs. Clayton was not a good candidate for the performed procedure; 2) Mrs. Clayton suffered from a fourth-degree burn due to excessive energy to her face, which was a departure from generally accepted medical practices; and 3) Dr. Katz was negligent in his post-operative care of the plaintiff.  Dr. Hendricks also testified in August and September 2011 and provided more testimony on the issues in the case and accepted medical practices.

Discussion: The defendant filed a Rule 26 motion against Dr. Hendricks to preclude him from testifying on issues that were beyond what was included in his expert report, specifically on whether the surgery was contraindicated by a history of heart issues and whether Dr. Katz sufficiently retrieved informed consent.  The court agreed with the defendants that the heart issue was not included in Dr. Hendricks’s report and should not be allowed during his testimony.  However, the issue of informed consent will be allowed.

The defendant also filed a Daubert motion, stating that Dr. Hendricks is not qualified nor is his testimony reliable.   They state that he is not qualified because he has never utilized the SmartLipo for the procedure performed on the plaintiff.  The court disagreed, stating that even if he hasn’t utilized the SmartLipo for the same procedure, that doesn’t disqualify him to testify in this case.  That argument goes to the weight of the testimony, not the admissibility.

Regarding the reliability of Dr. Hendricks testimony, the court looked at each statement for the analysis.  First, the court stated that Dr. Hendricks’s conclusion that Mrs. Clayton was a poor candidate for this procedure is reliable as it is grounded in sufficient facts an data.  Second, the court found that Dr. Hendricks’s opinion on Dr. Katz’s excessive use of energy is reliable, based on Daubert.  Third, Dr. Hendricks’s opinion that Dr. Katz failed to timely diagnose Mrs. Clayton’s injuries will also be allowed.

However, Dr. Hendricks’s opinion on the potential interaction between silicone droplets and laser energy will not be allowed as it is speculative.

Held: The motion to exclude the testimony of Dr. Hendricks is granted in part and denied in part.