Anesthesiology Expert’s Testimony on Unprofessional Conduct Excluded
Posted on October 14, 2025 by Expert Witness Profiler
This is an employment discrimination case brought by a former employee of the U.S. Department of Veterans Affairs (“VA”). The Plaintiff, Dr. Elizabeth Schacht, was employed by the VA as an anesthesiologist from 2015 until August 20, 2018, when her supervisors revoked her clinical privileges and removed her from federal service. Schacht claimed the VA discriminated against her based on her sex (female and pregnancy) and national origin (Colombian), in violation of Title VII. She further alleged that the VA discriminated against her based on her disability (pregnancy-related complications) in violation of the Rehabilitation Act, and in retaliation for her statutorily protected activities.
Schacht initially appealed her termination and the revocation of her clinical privileges to the VA Disciplinary Appeals Board (the “DAB”). In December 2019, the DAB heard Schacht’s appeal and upheld the VA’s decision.
Schacht appealed the DAB’s decision to the United States District Court for the District of Columbia. On August 11, 2022, after remand, the D.C. District Court found that the DAB provided a “sufficient, reasonable explanation” for its evidentiary decisions. On March 20, 2023, Schacht filed this case. Schacht asserted four claims arising out of her employment with the VA: (1) a disparate treatment claim and hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”) for discrimination based on sex, pregnancy, and national origin; (2) a retaliation claim under Title VII; (3) a disability discrimination claim under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act; and (4) a retaliation claim under the ADA and the Rehabilitation Act.
Schacht endorsed Mercedes Susan Mandell, a highly qualified and well-respected anesthesiologist and academician, to testify as to her expert opinion regarding pretext evidence in this case. Defendant filed a motion to exclude each and every one of Mandell’s opinions.
Anesthesiology Expert Witness
Mercedes Susan Mandell, M.D., Ph.D. served as the Director of the Liver Transplant Program at the University of Colorado for 30 years. She received her medical degree from University of Toronto Faculty of Medicine. She has a long history of supervising anesthesiologists.
Discussion by the Court
Mandell’s report has four “objectives;” (1) “to determine if Schacht met the standard of care and if the cases supported the VA’s claims of unprofessional behavior;” (2) “if the disciplinary investigation and actions followed policy published by the VA;” (3) “the quality and reliability of the claims made against Schacht;” and (4) “if the actions taken against Schacht were consistent with the standards of clinical care and professional conduct enforced by state organizations responsible for medical licensing (Medical Board)”.
The Court first turned to the VA’s argument that Mandell’s report should be excluded because her opinions are barred by collateral estoppel, also known as issue preclusion.
The VA argued that Mandell’s opinions should be excluded on the basis of issue preclusion because “Mandell addresses an issue already decided; the DAB action has now been finally adjudicated on the merits; Plaintiff was a party in the DAB and the appeals; and she had a full and fair opportunity to litigate.”
The Court found that the DAB proceedings have been fully adjudicated because the D.C. District Court affirmed the DAB’s findings and the D.C. Circuit affirmed the D.C. District Court’s judgment. Furthermore, Schacht was a party to the DAB proceedings.
Therefore, the Court will determine, for each of Mandell’s opinions, whether the issue that is the subject of her opinions was identical to the issue presented in the DAB proceedings, and whether she had a full and fair opportunity to litigate the issue in the DAB proceedings.
Mandell’s Report
In a section entitled “Objective 1: Specifications,” Mandell’s report first examined the claims described in the specifications to determine whether Schacht met the standard of care and whether the cases supported the VA’s claims of unprofessional behavior.
Subsequently, the Court found that Mandell’s opinions—that the specifications did not support the VA’s claims that Schacht engaged in unprofessional conduct—were identical to the issues already decided in the DAB proceedings.
Furthermore, Mandell’s report attempted to resurrect these issues by opining that Schacht did not breach the standard of care and by providing additional facts that allegedly showed that Schacht’s conduct was not unprofessional.
Finally, for each specification, Mandell’s report conducted a similar analysis that effectively relitigated the issue of whether there was substantial evidence to support the specifications and, by extension, the VA’s charge of unprofessional conduct.
Schacht did not have a full and fair opportunity to litigate her discrimination claims
The Court turned to Schacht’s argument that she did not have “a full and fair opportunity to litigate her discrimination claims . . . because the Board refused to admit evidence pertaining to Schacht’s discrimination case.”
Whether Schacht had a full and fair opportunity to litigate her discrimination claims, while relevant to claim preclusion, is not relevant to the inquiry under issue preclusion.
To the extent that Schacht argued that she did not have a full and fair opportunity to litigate whether substantial evidence supported the specifications because she could not introduce supplemental evidence in the DAB proceedings, the Court rejected that argument.
The DAB explained that it excluded Schacht’s supplemental evidence because it was untimely and the evidence was not relevant.
The Court turned to Mandell’s opinions that the evidence supporting the specifications “lacked credibility” and that “there were not enough facts to support the deficiency claims.”
In upholding the charge of unprofessional conduct against Schacht, the DAB necessarily decided that the evidence supporting the specifications was credible.
Therefore, Mandell’s opinions relitigated credibility determinations that were already made by the DAB and which were upheld on review in federal court.
The Court found that Schacht had a full and fair opportunity to litigate these issues in the DAB proceedings.
Because Mandell’s opinions are barred by issue preclusion, the Court granted the VA’s motion to exclude the opinions in her report.
Held
The Court granted the Defendant’s motion to exclude the opinions of Dr. Mercedes Susan Mandell.
Key Takeaway:
The consideration of a party’s prior full and fair opportunity to litigate an issue often will focus on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties.
The Court did not find, and Schacht did not point to, any significant procedural limitations in the DAB proceedings, a lack of incentive to litigate the issue fully, or that the nature or relationship of the parties limited effective litigation.
Case Details:
| Case Caption: | Schacht V. Collins |
| Docket Number: | 1:23cv709 |
| Court Name: | United States District Court for the District of Colorado |
| Order Date: | September 24, 2025 |
