Attacking Witness’s Memory, Expert Excluded, Erroneously: U.S. 6th Cir.

In federal court, expert witnesses may not question the credibility of other witnesses; that's the province of judges and juries. However, excluding the entirety of an expert witness' testimony based on an error in a portion of the testimony is, in the words of the U.S. 6th Circuit Court of Appeals, using “a sledgehammer, when the law required that it use only a scalpel.”

In Babb v. Maryville Anesthesiologists, P.C., No. 19-5148 (6th Cir. 2019), Paula Babb, a Certified Registered Nurse Anesthetist (“CRNA”) sued her former employer, Maryville Anesthesiologists, under the Americans With Disabilities Act, claiming that it fired her because it thought she was visually disabled, even though, in reality, she was not. Maryville Anesthesiologists contended that it fired her because she committed two serious clinical errors that placed patients at grave risk.

A month into her employment, one of Maryville's physician-owners, Dr. Cheryl Coleman, saw Babb “placing her face very close to a computer screen,” and asked here why. Babb said she suffered from a “degenerative retinal condition” that made it hard for her to read certain screens and medical records. She assured Dr. Coleman that it did not affect her ability to do her job. Dr. Coleman passed on what she had learned to Dr. Candace Robertson, the Maryville physician-owner who handled personnel decisions, adding that, as she understood it, Babb “would be blind in ten years.”

Babb denied telling Dr. Coleman that she would go blind and asserted that it was untrue. Babb contended that her condition was stable and merely meant that she needed to hold written records “close to [her] eyes” to be able to read them. Her condition did not inhibit her ability to read medical records or her ability to perform anesthesiology.

Soon after, two other Maryville physician-owners expressed concern to Dr. Robertson about Babb's vision. A meeting was held with Babb to discuss her vision where she was asked to have an ophthalmologist exam, which she agreed to. At the meeting, Dr. Robertson asked Babb if she had disability insurance, as she might have a disability. After the meeting, Dr. Robertson emailed her fellow physician-owners to tell them that, since an ophthalmologist couldn't issue an opinion definitively “clearing” Babb to practice anesthesiology, they might need to “talk to [their] attorney.”

Babb's annual evaluation, made by Maryville physician-owners, noted worry about Babb's eyesight, with one physician noting that “I see her questionable ability to see reflect on how surgeons and medical staff lack accepting her.”

Then, over a two month period Babb made two allegedly serious clinical errors. In the first incident, Dr. Wilma Proffitt, another Maryville physician-owner, was telling a nurse named Charles Price about Babb's vision problems when Price told Dr. Proffitt that Babb had began waking up an obese patient too early, risking the patient falling off the operating room table. In the second incident, Babb's patient had an unusually high number of “twitches” during robotic arm surgery, suggesting that Babb had not sufficiently paralyzed the patient.

A week later, at their regular monthly meeting, Maryville's physician-owners' decided to fire Babb.

Babb retained Jennifer Hultz, an experienced CRNA, as her anesthesiology expert witness. Hultz opined that “even assuming the two incidents happened exactly as Price and Dr. Luhn contended, Babb did not violate the standard of care applicable to CRNAs in the area.”

Hultz explained that it was routine practice to begin emerging the patient while still on the operating room table, any unexpected movements “were almost certainly due to the patient's obesity.” As for the robotic arm surgery, Hultz opined that there were a number of factors at play and that a total of four “twitches” during surgery did not “necessarily indicate that the CRNA did anything wrong.”

Maryville moved to exclude Hultz's expert testimony and for summary judgment, arguing in part that that Hultz's testimony was improper because “the facts surrounding the two incidents were ‘simple' and did not warrant expert explanation” and that Hultz intended to tell the jury “what result to reach.”

The district court granted summary judgment, agreeing with Maryville that Hultz's expert testimony was inadmissible in its entirety because Hultz had improperly “question[ed] the credibility of other witnesses,” and had “couched” her opinions “in terms of whether [Babb] performed properly in the two surgical cases,” improperly “telling the jury what result to reach.” With Hultz's testimony excluded and no other expert witness to support Babb's claims, the district court found Maryville entitled to summary judgment.

Babb appealed.

The appellate court agreed that some statements in Hultz's proposed testimony “appear to be nothing more than attacks on Price's and Dr. Luhn's memory and, by extension, their credibility.” However, on several occasions, Hultz assumed the truth of Price and Dr. Luhn's factual testimony. The district court did not explain why that testimony should also be excluded. The appellate court found that to be an error.

The appellate court also found that the district court erred when it treated as an improper legal conclusion Hultz's key opinion, that “Babb's behavior during the two critical incidents accorded with the relevant ‘standard of care.'” This district court reasoning that it was a legal conclusion, the appellate court said, overstated Hultz's proposed testimony:

[T]here is a “subtle,” but “nonetheless important” distinction between “opin[ing] on the ultimate question of liability” (impermissible), and “stating opinions that suggest the answer to the ultimate issue or that give the jury all the information from which it can draw inferences as to the ultimate issue” (permissible)

The appellate court cited the example of a fingerprint expert in a criminal case who would not be allowed to opine that a defendant was guilty (a legal conclusion), but “we would allow him to opine that the defendant's fingerprint was the only one on the murder weapon (a fact).”

While Hultz's testimony could perhaps lead a juror to infer that Maryville's use of “clinical errors” was merely a pretext for firing Babb, the appellate court found that it did not make Hultz's testimony inadmissible in toto.

The appellate court reversed and remanded the case.

Attacking a witness's memory — even suggesting that a witness's memory might be faulty in an off-hand “assuming … incidents happened exactly as” — is likely to go afoul of the court. Given that this was done in a written expert opinion, it seems that Babb's attorney dropped the ball.

This appeal might have been unnecessary without the unforced error.