Pain Management Expert Witness Testimony Partially Allowed

Prisoner in correctional facility sued officers and nurse for injuries sustained after a gunshot wound.  The Plaintiff hired a pain management doctor to supply expert witness testimony.  The court allowed most of this testimony.

Facts: In this case (Gomez v. Palmer, et. al – United States District Court – Northern District of Illinois – January 19th, 2016), the Plaintiff Raul Gomez was injured by a gunshot when one of the prison correctional officers fired his gun.  The officer was attempting to break up a fight that had started between two other inmates.  Gomez sued the correctional officer, a Sergeant, and Nurse Andria Bacot, claiming that they were deliberately indifferent to his injuries.  After settling with the correctional officer and the Sergeant, the case continued against Bacot.  In order to assist in proving his case, Gomez hired Dr. Scott E. Glaser, (pain management expert witness) to provide testimony.

Dr. Glaser submitted an expert report with the following three conclusions:  1) A shotgun pellet wound is a serious medical condition that should be treated as an emergency by a physician; 2) A licensed practical nurse should have known the risks to Gomez from not treating the wound and should have taken him to a medical doctor immediately; and 3) Gomez suffered secondary pain to his serious medical condition and a doctor should have treated this pain with local anesthesia.

Bocat filed a motion to exclude Glaser’s testimony in numerous grounds including that Dr. Glaser is not qualified to be an expert in this case, that he used improper methodology, and offered a legal conclusion which is not allowed under Daubert.

Discussion: Regarding qualification, Dr. Glaser has 30 years of education, experience, and expertise dealing with pain management.  In addition, he has experience with pain as a result of penetrating wounds from foreign objects.  Currently, he treats cases of chronic pain secondary to penetrating wounds.  Bacot alleges that Dr. Glaser is not qualified to opine in this case as his experience with puncture wounds  was limited to his work prior to 2002.  The court pointed to a previous case in which Dr. Glaser’s testimony was challenged and was subsequently allowed as he has recently dealt with post-operative pain management.  In addition, Bacot states that Dr. Glaser is not qualified to opine on the treatment provided by a nurse in a prison setting.  The court pointed to caselaw that the standard of care of nurses is universal and does not require that he have knowledge of nursing in a prison setting.

Bacot also maintains that Dr. Glaser’s methodology is flawed in five ways, all which fall short of having the court exclude the testimony.  First, she maintains that Dr. Glaser did not review the testimony of the correctional officers disposed in the case.  Second, Bacot maintains that Dr. Glaser was required to perform an independent investigation of the case.  Third, Dr. Glaser accepted Gomez’s versions of the events and rejected Bacot’s, which is a flawed methodology.  Fourth, she states that Dr. Glaser’s methodology is flawed and incomplete.  Last, she states that Dr. Glaser has never met with Gomez to evaluate his pain.  The court either pointed to caselaw that disagreed with Bacot’s arguments or stated that she can attack the methodology on cross examination.

Bacot also contends that Dr. Glaser’s opinions are inadmissible because he sets forth a legal opinion that the plaintiff had a “serious medical condition”.  The court disagreed, pointing to cases in which courts have found that an expert may provide an opinion that the plaintiff had a “serious medical need”.  That said, this court did rule that Dr. Glaser can not testify about whether or not Bacot knew or should have known of a risk to Gomez by not taking him to a doctor immediately after being wounded.  This is a subjective test and not helpful to the jury.  In addition, Dr. Glaser may not testify on the subjective nature of Gomez’s pain.

Held: Most of the arguments in the Daubert motion to exclude the testimony of Dr. Glaser are denied.