Failing to Examine Plaintiff and His Records Gets Medical Expert Tossed

Failing to examine a plaintiff, failing to review all of the plaintiff's medical records, and citing "facially irrelevant" medical literature can — unsurprisingly — get a medical expert witness tossed, as in this case. 

In Hargrove v. MedStar Washington Hospital Center (D.C. Cir. No. 25-7129, decided August 21, 2026), a medical malpractice action was brought on behalf of Kevin Welch, alleging that delays in treatment for a stroke suffered after an emergency Type A aortic dissection (TAAD) repair surgery (an event similar to that of the recently deceased Senator Lindsey Graham).

After the surgery, Welch developed neurological symptoms, and an MRI eventually confirmed he had suffered a stroke. Shana Hargrove, as power of attortney for Mr. Welch, sued MedStar Washington Hospital Center and several treating physicians, alleging that delays in performing an MRI, controlling blood pressure, and placing a lumbar drain worsened his neurological outcome. The case turned almost entirely on whether Welch's two causation experts could testify. The district court excluded both experts and granted summary judgment to the Hospital. The D.C. Circuit affirmed.

Exclusion of Dr. Elakil Under Rule 702

Welch's primary causation expert, Dr. Ahmad Elakil, a board-certified neurosurgeon, opined that earlier blood pressure management and lumbar drain placement would have led to better neurological outcomes for Welch. The district court excluded this testimony under Federal Rule of Evidence 702, and the appellate panel reviewed that decision for abuse of discretion, applying the 2023 amendments to Rule 702, which require the proponent to show by a preponderance of the evidence that expert testimony is helpful, based on sufficient facts or data, the product of reliable methods, and reliably applied to the case.

The court identified three problems with Dr. Elakil's testimony. First, his clinical experience was limited: he had performed few TAAD repairs and was a neurosurgeon rather than a cardiothoracic surgeon or vascular neurologist, the specialties more directly relevant to the causation question. The appellate court pushed back somewhat on this reasoning, reaffirming that physicians need not specialize in the exact field at issue to testify as experts, and finding that the district court placed "undue emphasis" on this factor alone. Still, it held that considering this deficiency was not improper, particularly in combination with more serious problems.

Second, and most significantly, Dr. Elakil had not examined Welch or reviewed any medical records generated after 2022, despite opining that Welch's deficits were permanent as of 2024. He admitted at deposition that, absent a current examination, it would be "really hard to say" how much Welch had improved. The court held this rendered his opinion insufficiently grounded in facts or data, though it clarified that a medical examination is not always required to support a causation opinion — the deficiency here was specific to opining on the *permanence* of injuries without reviewing intervening records.

Third, the medical literature Dr. Elakil relied upon undermined rather than supported his conclusions. Of four articles cited, three were "facially irrelevant," and the one directly on point — involving a TAAD patient with post-operative spinal cord injury — actually contradicted his testimony: the treating physicians in that article had rejected blood pressure management as unnecessary, and the lumbar drain in that case provided only "partial benefit," not the "complete resolution" Elakil claimed the literature supported.

Weighing these three factors together, the panel held the district court did not abuse its discretion, emphasizing that the deficient records review and unsupportive literature were the "weightier problems" justifying exclusion, even though the specialization critique alone would have been thinner ground.

Exclusion of Dr. Schulman Under Rules 26 and 37

Welch's second expert, Dr. Peter Schulman, had been disclosed solely as a standard-of-care expert, not a causation expert — a limitation Schulman himself confirmed at his deposition, stating he would defer causation opinions to "an expert in other areas such as neurology." When Welch's counsel later sought to use Schulman's testimony for causation, the district court excluded it under Rule 26(a)(2), which requires expert disclosures to include all opinions and their bases, and Rule 37(c)(1), which bars using an undisclosed opinion unless the failure to disclose was substantially justified or harmless. Because Welch made no such showing below, and the Hospital established it was unprepared to cross-examine Schulman on causation, exclusion was proper. The appellate court rejected Welch's argument that ambiguous references in the disclosure or deposition questioning gave the Hospital adequate notice, and noted that a related argument raised only in the reply brief was forfeited.

The Obvious Outcome

Because the District of Columbia, like most U.S. states, requires expert testimony on causation in medical malpractice cases, and both of Welch's causation witnesses were excluded, the Circuit affirmed summary judgment for the Hospital, holding that Welch could not establish an essential element of his claim without admissible expert support.