Expert Witness Blog
Plaintiff filed suit against defendants under the Federal Tort Claims Act. Plaintiffs hired a Family Practice/Family Medicine Expert Witness to provide testimony. Defendant filed a motion to exclude this testimony. The court granted the motion to exclude.
Facts: This case (Fulmer et al v. United States of America – United States District Court – Eastern District of Louisiana – May 6th, 2019) involves a claim of wrongful death and lost-chance-of-survival damages under the Federal Tort Claims Act (“FTCA”). The plaintiffs allege that the defendant negligently failed to prevent, diagnose, and treat the decedent’s breast cancer. The plaintiffs have hired Family Practice/Family Medicine Expert Witness Dr. Maxwell Axler to provide expert witness testimony. The Government has filed a motion to exclude this expert from testifying.
Discussion: The Government argues that Dr. Axler, who is triple-board certified in family medicine, bariatric medicine, and quality assurance, lacks the expertise of an oncologist. The Government claims that expertise of an oncologist is required for an expert to give an opinion of causation in this case, specifically, how a delay in cancer screenings and diagnosis caused the death of the decedent.
The court opines that, although Dr. Axler is not an oncologist, such experience is not required for him to provide an expert opinion about the standard of care applicable to evaluating the alleged negligence of a family medicine practitioner. However, the court notes that an expertise in oncology or pathology is required for an expert to render an opinion about the casual connection between the alleged delay in diagnosing the decedent’s cancer and any resulting harm, death, and lost chance of survival.
In addition, the court opines that the complex realms of oncology and pathology are beyond the purview of law jurors, and an expert is required to demonstrate causation in this failure-to-diagnose case. In addition, the court notes that the decedent’s complex medical history further complicates the difficult issue of causation. The court also opines that even though Dr. Axler practices in the fields of family, general, and occupational medicine, he does not have the requisite experience in oncology or pathology to opine that a failure to diagnose the decedent’s cancer caused he death.
The court also opines that even if Dr. Axler were qualified to offer an opinion on causation, his report fails to identify a methodology he applied to arrive at his conclusions about causation. The court continues by noting that Dr. Axler simply pronounces that the decedent’s death was a direct and proximate result of the defendant’s breaches in the standard of case and that such conclusions are not reliable as they do not articulate a methodology used to come to those conclusions.
Conclusion: The motion to exclude the expert witness testimony of Dr. Maxwell Axler is granted.