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Delbert Heard v. Illinois Department of Corrections

June 29, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Delbert Heard is a prison inmate who filed suit against Wexford Health Sources, Inc. ("Wexford"), an Illinois Department of Corrections' (IDOC) healthcare contractor, Dr. Partha Ghosh, a Wexford employee, and Dr. Williard Elyea, IDOC's medical director, alleging that they ignored his worsening hernias for years, choosing to treat them with ibuprofen and "watchful waiting" rather than surgery. After several years of this watching, Heard's hernias strangulated and he had emergency surgery to correct them. He now sues Defendants, alleging that they were deliberately indifferent to his serious medical condition thereby causing him severe pain. Wexford and the doctors assert that they were following an established policy that comports with the medical standard of care and that the case is nothing more than Heard disagreeing with their medical judgment about how to treat the hernias. Based on the Court's prior rulings, (Doc. 314), Heard's claim for deliberate indifference to his medical needs will proceed to trial, at which Heard seeks to admit expert testimony from Dr. Scott Glaser on pain management. Presently before the Court is the Defendants' motion in limine to bar Dr. Glaser's testimony in its entirety. (Docs. 334, 336). For the following reasons, the Court grants in part and denies in part the Defendants' motions.


The admissibility of expert testimony is governed by Federal Rule of Evidence 702 ("Rule 702") and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and its progeny. See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Rule 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The Seventh Circuit has developed a three-step admissibility analysis for expert testimony under Rule 702 and Daubert. See Ervin, 492 F.3d at 904. First, "the witness must be qualified 'as an expert by knowledge, skill, experience, training, or education.'" Id. (quoting Fed.R.Evid. 702). Second, "the expert's reasoning or methodology underlying the testimony must be scientifically reliable." Id. (citing Daubert, 509 U.S. at 592-93). Courts are, however, granted "broad latitude when [they] decide[] how to determine reliability." Kumho Tire Co. v. Carmichael, 526 U.S 137, 142 (1999) (emphasis in original). Finally, the expert's testimony must be relevant; in other words, it must "assist the trier of fact to understand the evidence or to determine a fact in issue." Ervin, 492 F.3d at 904. "'The focus of the district court's Daubert inquiry must be solely on principles and methodology, not on the conclusions they generate.'" Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007) (quoting Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)). "The goal of Daubert is to assure that experts employ the same 'intellectual rigor' in their courtroom testimony as would be employed by an expert in the relevant field." Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho, 526 U.S. at 152).


Dr. Glaser, who is an anesthesiologist board-certified in pain management, will opine that:

1) Heard suffered pain; 2) the pain was not necessary; 3) the physicians' refusal to allow Heard a low-risk surgery in light of his pain violated the canons of medical ethics; 4) the physicians' conclusion that Heard was not suffering sufficient pain to merit a low-risk surgery lacked any reasonable basis; and 5) the physicians' conclusion that Heard was not suffering sufficient pain to merit a low-risk surgery endangered Heard's life. (Doc. 336, Ex. A, p. 2). Defendants argue that Dr. Glaser's opinions should be barred because he is an anesthesiologist and therefore is not qualified to render an opinion on whether and when surgery should be performed to repair inguinal hernias. In addition, they argue that Dr. Glaser cannot opine on the IDOC procedures for granting and performing surgery because he is not qualified to do so.

A. Qualifications

Dr. Glaser's curriculum vitae indicates that he graduated from medical school in 1986 and completed his residency and fellowship in anesthesiology at Northwestern Memorial. He worked as an anesthesiologist and developed pain clinics, first in Michigan until 1992, then in Illinois until 2000, during which he delivered anesthesia to more than one hundred patients undergoing herniorrhaphies. Soon after the American Board of Anesthesiology began offering board certification in pain management in 1996, Dr. Glaser was certified and then re-certified in 2005. Since 2001, Dr. Glaser has been a founding member of the Pain Specialists of Greater Chicago and currently serves as the President of the physician group. In that capacity, he currently specializes in the management of pain through precision injections and other treatments using live X-ray guidance to diagnose and treat the source of a patient's pain. Since 2006, he has been a diplomat of the American Board of Anesthesiology's pain management board, was elected twice to the board of the American Society of Interventional Pain Physicians, and served as its President and currently serves as its Vice-President. Dr. Glaser has published several articles on pain management in a peer-reviewed publication entitled Pain Physician Journal, and has lectured publicly on pain management before other physicians, primary care physicians and students. (6/25/12 Transcript, p. 37). The Court's review of Dr. Glaser's credentials indicates that he has more than twenty years of career experience in diagnosing patients' sources of pain, reviewing medical records and discussing the risks and benefits of treatment options with patients, then creating a treatment plan for patients.

The Defendants argue that Dr. Glaser's medical experience as a specialist in pain management does not extend to the diagnosis and treatment of hernias, which is rather within the purview of general practitioners and internists. While a physician in general practice is competent to testify about problems that a medical specialist typically treats, Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010), the Defendants argue that here, a specialist is incompetent to testify about problems that an internist or generalist treats. However, "[t]the question we must ask is not whether an expert witness is qualified in general, but whether his qualifications provide a foundation for him to answer a specific question." See Id. The fact that Dr. Glaser is not a surgeon does not automatically prevent him from testifying about hernias and their treatment. Dr. Glaser testified that he has diagnosed hernias, referred patients to surgeons for herniorrhaphy, administered anesthesia during nearly 100 herniorrhaphies and seen patients with post-operative pain from herniorrhaphies. (6/25/12 Transcript, p. 51). His clinical training, professional practice and publications have made him experienced in the risks and benefits of surgeries such as herniorrhaphy. Consequently, he has the adequate medical knowledge, experience, training and education qualify him as an expert.

B. Methodology

Turning to the second step in the analysis, the Court must determine whether the expert's methodology in reaching his conclusions is scientifically reliable. Dr. Glaser's report states that his opinions are based upon his review of Heard's medical records and medical history, Heard's original and amended complaints, the Defendants' original and amended answers, the transcripts of depositions of Heard, Dr. Liefer, Dr. Elyea, Dr. Darbandi, Dr. Funk, Dr. Ghosh and Dr. Ngu. Dr. Glaser also read two reports: "Surgical Options in the Management of Groin Hernias" by Tim Bax, MD, Brett Sheppard, MD, Richard Crass, MD, in American Family Physician, Oregon Health Sciences University, Portland Oregon (1999), and "Watchful Waiting v. Repair of Inguinal Hernia in Minimally Symptomatic Men: A Randomized Clinical Trial" by Robert Fitzgibbons, Jr., MD, et al., in Journal of the American Medical Association Vol. 295, No. 3 (2006). The Defendants argue that Dr. Glaser's failure to review IDOC procedures and unfamiliarity with correctional medicine undermine the credibility of his opinions that Heard's pain was not necessary, or that the physician's failure to provide him with corrective surgery violated the canons of medical ethics and lacked any reasonable basis. However, Dr. Glaser's review comports with the accepted methodology in clinical medicine of reliance on a patient's medical history and available medical treatments. See Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir. 2000) (reversing exclusion of physician's expert testimony because "in clinical medicine, the methodology of physical examination and self-reported medical history . . . is generally appropriate."). The purpose of the rule announced in Daubert "was to make sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work." Id. at 1020 (citing Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)). In fact, Federal Rule of Evidence 703 explicitly permits reliance on material "reasonably relied upon by experts in the particular field in forming opinions or inferences." In the field of clinical medicine, Dr. Glaser's review was sufficiently thorough to opine on the appropriateness of surgery, without determining whether surgery was available at that time and place. The Daubert analysis of an expert witness's reliability rests on the expert's process rather than his conclusions. See Mid-State Fertilizer Co., 877 F.2d at 1339 (Daubert requires "a process of reasoning beginning from a firm foundation"); see also Winters v. Fru-Con Inc., 498 F.3d at 742 ("The focus of the district court's Daubert inquiry must be solely on principles and methodology, not on the conclusions they generate."). Dr. Glaser's process comports with the method deemed sufficient by the medical community, by which he concluded that surgery was appropriate given Heard's self-reported pain. If Dr. Glaser's testimony is lacking in familiarity with prison procedures for delivering surgery that he deemed appropriate, then the Defendants may certainly cross-examine him on those short-comings. "Daubert acknowledged the continuing vital role that 'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof,' 509 U.S. at 596, are to play in the trier of fact's ultimate evaluation of admissible but shaky evidence." Id. at 1021.

C. Relevance

The Defendants do not object generally to Dr. Glaser's proposed testimony as irrelevant or unhelpful to the jury's determinations of contested issues of fact. The Defendant object on specific grounds to certain portions of Dr. ...

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