United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on Defendant Jeffrey Metcalf, M.D.'s Motion to Strike Plaintiff's Expert Glenn Flores, M.D. and to Strike Language Opinions by Plaintiff's Experts Laurence Huffman, M.D. and David Glaser, M.D. [Docket No. 164] filed by defendant Jeffrey Metcalf, M.D. Defendants Jason Rozeski, M.D. and Platte Valley Medical Center join in the motion. Docket No. 174; Docket No. 186.
This is a medical malpractice action arising from defendants' treatment of plaintiff Dalip Basanti. Ms. Basanti, a native of India, claims that her primary language is Punjabi and that she was a person with limited English proficiency ("LEP"). Docket No. 192 at 1. Ms. Basanti claims that defendants missed opportunities to diagnose a congenital cyst on her thoracic spine, a condition which ultimately resulted in paraplegia of her lower extremities. Docket No. 164 at 1; Docket No. 226 at 4-5. As relevant to this motion, Ms. Basanti alleges that defendants failed to engage a qualified interpreter as required by federal law and that, as a result, defendants were unable to obtain full and accurate information about her condition. Docket No. 226 at 4. Ms. Basanti claims that the failure to engage a qualified interpreter was a cause of her injuries because an earlier diagnosis of her condition would have allowed quicker, more effective treatment and would have prevented paralysis. Docket No. 164 at 1-2. Defendant claims that he was able to effectively communicate with Ms. Basanti regarding her medical condition. Docket No. 226 at 5.
Ms. Basanti has designated Glenn Flores, M.D. as an expert on language issues in healthcare. Docket No. 164-1 at 11, 15. Dr. Flores opines, in part, that the provision of adequate language services "likely would have resulted in timely diagnosis and treatment of her thoracic intradural cyst and in preventing her subsequent cord compression, paraplegia and neurogenic shock." Docket No. 164-1 at 15. Ms. Basanti has designated Laurence Huffman, M.D. and David Glaser, M.D. as experts on the appropriate standard of care regarding the use of interpreters. Docket No. 164 at 12-13. According to defendant, Dr. Huffman and Dr. Glaser both opine that the standard of care required defendants to use an interpreter when treating Ms. Basanti. Id. Defendant moves to exclude Dr. Flores' opinions in their entirety and to exclude Dr. Huffman's and Dr. Glaser's language-related opinions. Id. at 1.
I. FEDERAL RULE OF EVIDENCE 702
Rule 702 of the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Rather, the Court must "perform[ ] a two-step analysis." 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). After determining whether the expert is qualified, the specific proffered opinions must be assessed for reliability. See id.; Fed.R.Evid. 702 (requiring that the testimony be "based on sufficient facts or data, " be the "product of reliable principles and methods, " and reflect a reliable application of "the principles and methods to the facts of the case").
Rule 702 imposes on the district court a "gatekeeper function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To perform that function, the Court must "assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts." Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). When examining an expert's method, however, the inquiry should not be aimed at the "exhaustive search for cosmic understanding but for the particularized resolution of legal disputes." Daubert, 509 U.S. at 597. It is the specific relationship between an expert's method, the proffered conclusions, and the particular factual circumstances of the dispute that renders testimony both reliable and relevant.
In addition to the witness having appropriate qualifications and methods, the proponent of the witness' opinions must demonstrate that the process by which the witness derived his or her opinions is reliable. United States v. Crabbe, 556 F.Supp.2d 1217, 1220 (D. Colo. 2008). When assessing reliability, "the court may consider several nondispositive factors: (1) whether the proffered theory can and has been tested; (2) whether the theory has been subject to peer review; (3) the known or potential rate of error; and (4) the general acceptance of a methodology in the relevant scientific community." 103 Investors I, 470 F.3d at 990 (citing Daubert, 509 U.S. at 593-94). These considerations are not exhaustive. Rather, "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Ultimately, the test requires that the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id.
While a plaintiff, as the proponent of the challenged testimony, has the burden of establishing admissibility, the proffer is tested against the standard of reliability, not correctness, see Allstate Sweeping, LLC v. City & Cnty. of Denver, No. 10-cv-00290-WJM-MJW, 2011 WL 2173997, at *3 (D. Colo. June 2, 2011); a plaintiff need only prove that "the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as ...