Pulmonary Disease Expert Witness’ Opinions on the Reliability of the DOH Investigations are Barred
Posted on October 29, 2024 by Expert Witness Profiler
Plaintiff Lori LaRock filed a medical malpractice and negligence against Albany County Nursing Home (“ACNH”), the County of Albany, Larry Slatky, Debbie Gossman, Rhonda Lyga, and John and Jane Does #1-5 (collectively “Defendants”).
Plaintiff asserted that she and her family often found Sanford unfed, unbathed, ungroomed, and covered in his own urine and vomit. On February 24, 2018, about a week prior to Sanford’s passing, LaRock noticed a change in her father: he seemed lethargic; was coughing more than usual; and his breathing sounded raspy.
On March 1, 2018, LaRock, after receiving a voicemail message from Gossman regarding Sanford’s condition, went to the nursing home, where she found her father “laying unattended in his room in agony,” “drenched in sweat,” “violently gasping for air,” with “an oxygen tube hanging from his nose.”
LaRock called 911, and, according to “contemporaneous records from emergency paramedics,” Sanford was “found laying in the hospital bed unresponsive in obvious respiratory failure near respiratory arrest, was pale and sweating excessively, and was in need of immediate airway support.”
Sanford was transferred to Albany Medical Center, where doctors assessed that he “likely aspirated on his own vomit,” and “medical care was too late.” Sanford passed away on March 3, 2018 of aspiration pneumonia.
Plaintiff sought to exclude and/or limit the testimony of Defendants’ experts, Steven Salzman and Beth Anne Maas.
Pulmonary Disease Expert Witness
Steven Henry Salzman has over 35 years of experience in the fields of Pulmonary Disease and Critical Care Medicine. He is board-certified in Internal Medicine, Pulmonary Disease, Critical Care Medicine and Sleep Medicine. Salzman held the position of Chief, Pulmonary and Critical Care Medicine, NYU Winthrop Hospital in Mineola, Long Island, NY. He received his medical degree from New York University Grossman School of Medicine.
Nursing Expert Witness
Beth Anne Maas graduated from Thomas Jefferson University with a Bachelor of Science Nursing. She received a Master’s in Health Administration degree from Saint Joseph’s University. Her professional concentration has been long-term care since graduating in 1988.
Discussion by the Court
Steven Salzman
Parties’ Position
Plaintiff sought to prohibit Steven Salzman from 1) offering legal conclusions, 2) testifying as to ACNH’s staff training or the Department of Health’s investigation, and 3) offering unreliable opinions.
Defendants 1) agreed that experts may not offer legal conclusions but 2) argued that Salzman’s experience as a physician qualified him to testify as to the contested topics and 3) asserted that Salzman’s testimony is thoroughly reliable because it is based on a wider set of considerations and data than Plaintiff’s experts.
Legal Conclusions
First, the Court found that the Plaintiff’s cited opinions in Salzman’s expert report illustrated Salzman offering a legal conclusion, and thus, ruled that they are barred from being elicited during his testimony. In the expert report, Salzman asserted that “the staff at the Albany County Nursing Home was not deliberately indifferent to the needs of Sanford,” and that he has “seen no evidence to demonstrate there was a persistent and widespread pattern and practice of violating Sanford or any other residents’ rights.”
Such statements “track the exact language” of the legal issues at issue in this case, and thus, they “couch his opinions in terms that derive their definitions from judicial interpretations.” Salzman’s statements in the expert report also relied on “his assessment of the testimony and credibility of other witnesses” and are “not based on personal knowledge.” Therefore, they constituted legal conclusions, rather than factual conclusions, which must be excluded. To the extent the Salzman offered further potential legal conclusions in his testimony, the Court reserved judgment.
Qualifications
Salzman is a pulmonary and critical care physician, a “general field” which is closely related to the subject of running an effective medical facility, including staff training and the use of SBAR strategies. Indeed, this Court is hesitant to impose “an overly narrow test of Salzman’s qualifications,” particularly where his opinion as a physician with a sub-specialty in critical care might at least provide some assistance to the jury in determining the factual issues.
So long as Salzman “explains how his experience leads to the conclusions he reaches, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts,” the Court will not exclude his testimony on staff training or the use of SBAR strategies due to a lack of expertise.
The Court barred certain opinions highlighted by Plaintiff in which Salzman opines on the appropriateness of the ACNH’s policies and the thoroughness or reliability of the DOH investigation. For instance, his opinion that the “policies in place at the ACNH were appropriate” appears to rely entirely on the fact that “the DOH did not request that any policies be altered, modified or changed in any way.”
The Court held that such opinions are mere regurgitations of “facts that the jury is ‘fully capable of understanding” and “offer nothing more than what ‘lawyers representing [Defendants] could provide during their closing arguments'” and thus must be excluded.
Beth Anne Maas
Plaintiff argued that Defendants’ Nursing Expert Beth Anne Maas should be precluded from testifying on medical diagnosis or causation, DOH investigatory policies, procedures, and findings, and legal conclusions.
The Court agrees with the parties that Maas may not offer opinions on causation or legal conclusions but reserves its decision on whether Maas’ testimony on the DOH investigation is permissible as reliant on her professional experiences.
Legal Conclusions
The Court precluded Maas precluded from testifying as to whether the ACNH was “deliberately indifferent” to Sanford, whether a “pattern and practice of violating Sanford or any other residents’ rights” exists, and whether staffing levels “violated New York State regulations.” The cited portions of the report explicitly state ultimate legal conclusions using language which “couches her opinions in terms that derive their definitions from judicial interpretations.”
Causation
The Court agreed that medical causation is outside of a nurse’s expertise, and therefore, found Maas may not testify as to the causes of Sanford’s death. Moreover, Maas may not simply restate findings which can be independently introduced by Defendants through other evidence.
As to the testimony regarding the DOH investigation, the Court finds that in the portions of the report cited by Plaintiff, Maas is not merely referencing the record in front of her, as Defendants asserted. Instead, Maas appears to be expressing independent opinions based on the record. However, as provided in the report, such opinions heavily regurgitate “facts that the jury is ‘fully capable of understanding'” and do not explicitly state any other basis for the opinions. For this reason, they must be excluded unless Maas can adequately tie her conclusions to her personal or professional experiences.
The Court reserved judgment on the admissibility of Maas’ various opinions until they are presented at trial but warned that such opinions may not concern medical causation or offer legal conclusions. Additionally, to the extent Maas’ testimony involved repeating facts established by other witnesses for purposes of summary or explanation, the Court will hear objections as to whether that testimony is needlessly cumulative and should be excluded per FRE 403.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude and/or limit the testimony of Defendants’ experts, Steven Salzman and Beth Anne Maas.
Key Takeaways:
- Certain opinions offered by Salzman offer his own assessment of the record unmoored from any expertise.
- Testimony merely restating the facts which can be presented independently through other evidence will be barred and expert witnesses may not be offered as mere summarizers.
Case Details:
| Case Caption: | Larock V. Albany County Nursing Home Et Al |
| Docket Number: | 1:19cv604 |
| Court: | United States District Court for the Northern District of New York |
| Order Date: | October 24, 2024 |
