Orthopedic Surgery Expert Allowed to Opine on the Medical Necessity of the Care

This is a personal injury action before the Court pursuant to its federal question jurisdiction resulting from a motor vehicle accident that took place in April of 2021 (the "Accident"). Lorena Dominguez ("Plaintiff") commenced this action against the United States of America ("Defendant"), alleging negligence pursuant to the Federal Tort Claims Act ("FTCA").

Plaintiff sought to preclude the expert testimony of Defendant's medical experts, Jonathan S. Garay, M.D., and Neil S. Roth, M.D., on the basis that their testimony does not utilize reliable principles or methodologies, is unduly prejudicial, and relies on materials that were not disclosed in their expert reports.

Orthopedic Surgery Expert Witness

Neil Stuart Roth, M.D. is an orthopedic surgeon specializing in sports medicine, shoulder, knee and elbow surgery and founder/director of the The New York Sports Medicine Institute (NYSMI).

Want to know more about the challenges Neil Roth, has faced? Get the full details with our Challenge Study report.

Physical Medicine and Rehabilitation Expert

Jonathan Seth Garay is a medical doctor board-certified in physical medicine and rehabilitation. He received his medical degree from NYIT College of Osteopathic Medicine.

Get the full story on challenges to Jonathan Garay’s expert opinions and testimony with an in-depth Challenge Study.

Discussion by the Court

A. Relevance of Expert Testimony

The Court first must determine whether Garay's and Roth's proposed expert testimony is relevant. While it is not entirely clear from Plaintiff's brief, which is riddled with typos and contains pages of irrelevant cases and excerpts of deposition testimony, Plaintiff appeared to suggest that Garay's and Roth's expert testimony is irrelevant because "even if the Defendant could prove medical malpractice as against any of the Plaintiff's multiple treating doctors, Defendant would still be responsible for the pain and suffering associated with the surgeries." Plaintiff's argument is without merit. Garay's and Roth's purported expert testimony is clearly relevant to, among other things, the extent of Plaintiff's injuries, whether the surgeries Plaintiff received were medically necessary, and to rebut the expert testimony of Plaintiff's proposed expert witnesses. Accordingly, the Court found that Garay's and Roth's expert testimony is relevant.

B. Expert Methodology

Next, the Court turns to the reliability of Garay's and Roth's methodology. Plaintiff argued that Garay and Roth employed "plainly insufficient methodology . . . in coming to their highly specious conclusions."

Specifically, Plaintiff contended that: (1) Garay's conclusions as to causation and the severity of Plaintiff's injuries are "directly inapposite" to Roth's conclusions; (2) Garay's and Roth's conclusions are not supported by Plaintiff's medical records; and (3) neither Garay nor Roth "provided any admissible evidence proving that the injuries are not causally related to the accident" or "directly alleged medical malpractice on the part of Plaintiff's treating doctors."

The Court found that Garay and Roth's testimony is not unduly speculative and is based on reliable methodology. First, that Garay's and Roth's testimony may be contradictory in some manner has no bearing on the admissibility of their testimony. Second, Plaintiff's general contention that Garay's and Roth's conclusions are not supported by the medical records (i.e., that Plaintiff disagrees with their conclusions) is insufficient to preclude their expert testimony. Finally, Garay's and Roth's apparent "failure" to "provide admissible evidence" or "directly allege medical malpractice on the part of Plaintiff's treating doctors" does not warrant preclusion of their expert testimony. Garay's and Roth's expert testimony itself is the evidence. They are not required to provide additional evidence in order for their expert testimony to be admissible, and Plaintiff failed to cite a single case to support such a proposition. Neither does their "failure" to allege medical malpractice by Plaintiff's treating doctors warrant preclusion because, as a general rule, "an expert's testimony on issues of law is inadmissible."

C. Prejudice

Plaintiff contended that Garay's and Roth's expert testimony also should be precluded because it is unduly prejudicial. Plaintiff's argument that the proposed expert testimony may "confuse a potential trier of fact into believing that the surgeries were unnecessary" is without merit. As Plaintiff's claims arise under the FTCA, the Court is the factfinder, not a jury, and there is no risk of prejudice from expert testimony in a bench trial.

Accordingly, there is no risk of prejudice from Garay's and Roth's proposed expert testimony.

D. Diagnostic Images and Photographs

Finally, Plaintiff sought to preclude Garay and Roth from testifying regarding specific images and/or diagnostic studies that Plaintiff contends were not included in their expert reports.

Plaintiff's argument failed because Garay and Roth do not purport to testify regarding any documents that they did not review. Whether some documents or photographs exist that were not reviewed by Garay or Roth goes, at best, to the weight of their testimony, not the admissibility.

Further, neither expert relies on any documents that they failed to disclose. Indeed, Defendant represents that all records reviewed and relied on by Garay and Roth were disclosed timely to Plaintiff's counsel.

Held

The Court denied Plaintiff's motion to preclude the expert testimony of Dr. Jonathan Garay and Dr. Neil Roth.

Key Takeaway

Any action against the United States under the FTCA shall be tried by the Court without a jury. This is especially true in the context of a bench trial, where there is no possibility of prejudice, and no need to protect the factfinder from being overawed by expert analysis.

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