Experts are free to rely upon the opinions of other experts; Court limits the testimony of the Chiropractic Expert Witnesses on account of drawing impermissible conclusions
Posted on October 12, 2023 by ewp_staff_writer
This case arises from a stroke allegedly caused by a chiropractic adjustment performed by Dr. Frederick Stinner. In February 2015, Justin Brutosky began experiencing chronic back, neck, and head pain. To treat these issues, he periodically saw Stinner, a chiropractor at Madison Avenue Chiropractic Center. From early 2015 to September 17, 2018, Stinner performed 39 chiropractic cervical manipulation procedures on Justin. Though a cervical manipulation procedure is a non-invasive one, it does carry risks, including cervical artery dissection that can lead to stroke.
On September 17, 2018, Stinner performed another cervical manipulation on Justin. Within weeks, the 37-year-old Justin suffered an embolic stroke resulting from a cervical artery dissection in the same area of his neck where Stinner had performed the procedure. At the time, Stinner was aware Justin had a family history of stroke but did not know cervical manipulation could cause artery dissection and stroke. As such, he never informed Justin of these risks or suggested alternative treatments.
On September 29, 2020, Justin and his wife Suzana filed suit against Stinner for professional negligence and against Madison Avenue Chiropractic Group for vicarious liability. Suzana also brought a loss of consortium claim against all Defendants.
Defendant filed successive motions to bar the testimony of Plaintiff’s expert witnesses- Santosh B. Murthy and Eric G. Chesloff while the Plaintiff responded by filing a motion for partial summary judgment.
Medical Expert Witnesses
Dr. Santosh Murthy is an Associate Professor of Neurology at Weill Cornell Medical College and serves as the Associate Chief of the Division of Neurocritical Care at New York-Presbyterian Hospital/Weill Cornell. He earned his medical degree from Bangalore Medical College in India and completed his Neurology residency at Baylor College of Medicine. Murthy has a fellowship in Neurocritical Care from the Johns Hopkins University School of Medicine and holds a Masters in Public Health from the University of Texas. He is board certified in Neurology, has authored numerous publications, and received various awards and scholarships in his field.
Dr. Eric Chesloff is a licensed chiropractor in Pennsylvania. He earned his Doctor of Chiropractic degree from the Pennsylvania College of Chiropractic. He also holds a Doctor of Higher Science Education degree from Walden University and a Master of Science degree in Chemistry from Indiana State University. Chesloff has nearly 40 years of experience in private chiropractic practice.
Discussions by the Court
The Court first considered Stinner’s motion to exclude the testimony of Santosh Murthy. Stinner argued that Murthy, a neurologist, could not testify because he is not a chiropractor. He contended New Jersey’s Medical Care Access and Responsibility and Patients First Act (Patients First Act) requires experts to have the same specialty as the Defendant. The Patients First Act used to provide that an expert had to have the same type of practice and possess the same credentials as the Defendant health care provider, unless waived by the Court. However, the Court found that the same-specialty rule only applied if the party against whom or on whose behalf the testimony was offered was a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, and the care or treatment at issue involved that same specialty or subspecialty. Stinner had failed to show that he, being a chiropractor, fell within the category of medical practitioners covered by the Patients First Act. In fact, neither the American Board of Medical Specialties nor the American Osteopathic Association recognized a chiropractic specialty or subspecialty. Stinner did not raise any further arguments in support of his motion to bar Murthy’s testimony, and as a result, the motion was denied.
The Court next examined Stinner’s motion to exclude the testimony of Eric Chesloff. Chesloff is a chiropractor with nearly 40 years of experience. Stinner argued his conclusions improperly relied on other experts’ findings, lacked specificity about the September 17, 2018 procedure. Stinner also pointed to his failure to provide a detailed explanation of his opinion instead of offering a mere conclusion, which was a violation of New Jersey’s net opinion rule.
The Court upheld eight factors which are crucial in assessing the reliability of the expert testimony:
- Whether the method had a testable hypothesis.
- If the method has undergone peer review.
- The known or potential rate of error.
- The existence and maintenance of standards controlling the technique’s operation.
- Whether the method is generally accepted.
- The relationship of the technique to established reliable methods.
- The qualifications of the expert witness testifying based on the methodology.
- The non-judicial uses of the method.
After the District Court establishes that the testimony of the expert is based on “good grounds”, it is advisable to subject its validity to the adversary process, involving competing expert testimony and thorough cross-examination instead of excluding it from the scrutiny of jurors due to concerns about their ability to comprehend its intricacies or grasp its complexities.
The Court affirmed the reliability of Chesloff’s testimony due to his 40 years of extensive experience. Chesloff had examined pleadings, depositions, interrogatories, photographs, various medical records, and other documents, drafted a report, and opined that the standard chiropractic manipulative procedure was unlikely to cause vascular deficits, but applying excessive force during chiropractic manipulation increased the risk of harm, including arterial dissection. Stinner sought to exclude this testimony, but failed to provide a valid basis under Daubert for doing so.
Stinner’s argument that Chesloff improperly relied on the opinions of other medical practitioners was unfounded. There was no precedent or case law indicating that an expert couldn’t partially rely on the opinions of other experts and medical practitioners. Courts in the district routinely held that experts could consult a mix of objective data and subjective analysis from other experts to create an admissible report, citing I.B.E.W. Local Union 380 Pension Fund v. Buck Consultants. Furthermore, Chesloff’s lack of knowledge regarding the underlying facts went to the weight accorded to his report and testimony, rather than its admissibility.
Chesloff’s testimony was allowed by the Court to help the jury understand three key points: (a) the chiropractic standard of care, (b) the potential harm resulting from failure to adhere to this standard, including arterial dissection and stroke, and (c) the likelihood that Stinner had deviated from the standard of care by using excessive force. The Court deemed testimony from a chiropractor regarding the chiropractic standard of care relevant to the case and therefore permissible.
However, the Court ruled that Chesloff’s conclusions about Stinner’s September 17, 2018 cervical manipulation violating the standard of care and directly causing Justin’s arterial dissection and stroke were impermissible. The Court cited an analytical gap between the manipulation and these conclusions, asserting that they were based primarily on Chesloff’s personal assertions rather than concrete factual evidence. Chesloff’s report relied heavily on his lack of awareness regarding any other “medical predisposition that [Justin] may have had for cervical artery dissection and stroke.”
In summary, the Court allowed Chesloff’s testimony concerning the chiropractic standard of care, the consequences of non-compliance, and the likelihood of Stinner deviating from the standard of care. However, the Court found Chesloff’s testimony asserting that Stinner had indeed violated the standard of care on September 17, 2018, and caused Justin’s stroke to be inadmissible. As a result, the Court granted Stinner’s motion to bar Chesloff’s testimony in part and denied it in part.
In the case at hand, to establish a claim for negligence based on a lack of informed consent, the Plaintiff needed to prove four key elements:
- The physician’s failure to meet the reasonably-prudent-patient standard for disclosure.
- The occurrence of the undisclosed risk, leading to harm for the Plaintiff.
- The decision not to consent to the operation or surgical procedure by a reasonable person under the circumstances, had they been adequately informed.
- The operation or surgical procedure being a proximate cause of the Plaintiff’s injuries.
It was uncertain whether the Plaintiffs had sought summary judgment on all four elements of their claim for negligence based on a lack of informed consent. The Court determined that summary judgment was appropriate for the first element but had to be denied for the remaining elements.
The Court denied Stinner’s motion to bar the expert testimony of Santosh B. Murthy. The Court after considering Stinner’s motion to bar the expert testimony of Eric Chesloff, granted this motion in part and denied it in part. Chesloff was permitted to testify regarding the chiropractic standard of care, the consequences of failing to comply with it, and the likelihood of Stinner had deviating from the standard of care. However, Chesloff was not allowed to testify that Stinner had, in fact, violated the standard of care on September 17, 2018, and caused Justin Brutosky’s stroke. Lastly, the Court addressed Plaintiffs’ motion for partial summary judgment. The Court granted this motion with regard to Stinner’s failure to comply with the reasonably prudent patient standard for disclosure. However, the Court denied the motion as it pertained to the remaining elements of Plaintiffs’ claim for professional negligence based on a lack of informed consent.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
This case demonstrates several important considerations for expert witness testimony. First, experts can rely on a mix of objective data and other experts’ analyses, as Chesloff permissibly did. Second, while experts can testify to causation generally, Courts may exclude opinions with too great an analytical gap between the facts and conclusions. Moreover, compliance with the applicable legal standards determines admissibility, including requirements for reliability, fit, and factual support. Here, the Court conducted a robust analysis of these standards. Finally, appropriate expert testimony should aid the factfinder on the disputed issues without invading its role to make ultimate determinations.
Posted In: Expert Challenges, Medical Expert Witness
Tagged In: Chiropractic, Expert Testimony, Reliable, standard of care, summary judgment