United States District Court, W.D. Virginia, Charlottesville Division
SHERRY LYNN THORNHILL, for herself and as Administrator of the Estate of her son, Shawn Christopher Berry, deceased, individually and on behalf of all others similarly situated, Plaintiff,
F. GLENN AYLOR, et al., Defendants.
Glen E. Conrad, United States District Judge
action arises from an inmate's death while experiencing
drug and alcohol withdrawal during his confinement at a
Virginia regional jail in August 2014. The action is brought
pursuant to 42 U.S.C. § 1983 for deliberate indifference
to a serious medical need and Virginia Code § 8.01-50 et
seq. for wrongful death. The case is presently
before the court on the defendants' motions in limine to
exclude the testimony of plaintiff s experts, Licensed
Practical Nurse Kimberly Harvey and Dr. Russell Surasky. For
the reasons set forth below, the motion in limine as to
Harvey will be granted and the motion in limine as to Dr.
Surasky will be denied.
their motions, defendants argue that the proposed
experts' testimony should be excluded under the
substantive requirements of Virginia Code § 8.01-581.20
and under Rules 702 and 403 of the Federal Rules of Evidence.
Defendants contend that neither Harvey nor Dr. Surasky
maintained an active clinical practice within one year of the
date of the incident giving rise to this lawsuit, and
therefore, that they cannot testify on the standard of care
for the Virginia wrongful death claim. As to all other issues
at trial, the defendants argue that both proposed experts
lack the necessary qualifications and would render opinions
that would mislead or confuse the jury because they have
never practiced clinical medicine in Virginia, provided
regular care in a jail or correctional setting, or regularly
treated patients undergoing drug or alcohol withdrawal. On
October 17, 2017, the court held a hearing on the motions in
limine. The motions have been fully briefed and are now ripe
Code § 8.01-581.20 sets forth the substantive
requirements for a witness to qualify as an expert on the
standard of care in a Virginia medical malpractice claim
filed in federal court. Estate of Harvey ex rel. Dent v.
Roanoke City Sheriffs Office, 585 F.Supp.2d 844, 862
(W.D. Va. 2008). There are two requirements: (1) the
"knowledge requirement" and (2) the "active
clinical practice requirement." Wright v. Kaye,
593 S.E.2d 307, 311 (Va. 2004). The latter one requires a
witness to have maintained an "active clinical practice
in either the defendant's specialty or a related field of
medicine within one year of the date of the alleged act or
omission forming the basis of the action." Va. Code Ann.
Virginia Code §8.01-581.20 controls the substantive
requirements for an expert qualification in a Virginia
medical malpractice or wrongful death claim, Rule 702
otherwise controls the admissibility of expert testimony in
this case because it arises under federal law. See
Creekmore v. Maryview Hosp., 662 F.3d 686, 690 (4th
Cir. 2011). "Under Rule 702, a purported expert must
first hurdle the obstacle of being qualified to testify as an
expert." Va. Vermiculite Ltd. v. W.R. Grace &
Co.-Conn., 98 F.Supp.2d 729, 732 (W.D. Va. 2000). An
individual qualifies as an expert if the individual possesses
the requisite "knowledge, skill, experience, training,
or education . . . ." Fed.R.Evid. 702. The individual
need not "possess all five requisites - as long as he
possesses one, he may be deemed an expert." Va.
Vermiculite Ltd., 98 F.Supp.2d at 732.
expert's testimony to be admissible, it must offer
"scientific, technical, or other specialized
knowledge" that will "help the trier of fact to
understand the evidence or to determine a fact in issue . . .
." Fed.R.Evid. 702(a). However, to the extent the
testimony "has a greater potential to mislead than to
enlighten [it] should be excluded." Westberry v.
Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999).
Rule 403 permits a court to "exclude relevant evidence
if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative
evidence." Fed.R.Evid. 403.
Licensed Practical Nurse Harvey
Harvey has been a licensed practical nurse since 1991. She
treated patients experiencing withdrawal from drugs and
alcohol while working for the Logan Regional Medical Center
in West Virginia from 2003 to 2005. From 2005 to 2006, she
worked at the University of North Carolina hospital. During
that year, she also treated inmates at the Federal Medical
Center in Butner, North Carolina on approximately 52 days.
She testified that none of those inmates experienced drug or
alcohol withdrawal. Harvey is currently licensed in Virginia
and works for the Virginia Premier Health Plan in Roanoke,
Virginia, where she reviews medical records to determine
whether treatments are authorized for payment by Medicare or
Medicaid. Since she started in this role in 2008,
approximately 1-2% of the records she has reviewed have
involved heroin withdrawal and another 1-2% have involved
alcohol withdrawal. The plaintiff contends that Harvey is
qualified to testify on, among other issues, the following
matters: the training that nurses receive, nursing in a
correctional setting, whether the defendants acted with
deliberate indifference or recklessness to the inmate's
serious medical needs under § 1983, and the standard of
care applicable to nurses.
defendants argue that Harvey is not qualified to render such
opinions or to otherwise testify in this case because she
failed to maintain an active clinical practice as required
under Virginia law and she lacks experience or expertise in
treating patients undergoing drug or alcohol withdrawal. The
Harvey's deposition testimony, it is undisputed that she
has not engaged in clinical practice since 2008. Harvey
testified that, since 2008, her job has involved reviewing
medical charts and indicated that she has not had
"significant direct patient care and patient
interaction, " which satisfy the active clinical
practice requirement. See N.O. v. Alembik, 160
F.Supp.3d 902, 906 (E.D. Va. 2016), aff d sub nom. N.O.
by Orwig v. Alembik, 694 Fed.Appx. 895 (4th
Cir. 2017). She therefore did not have an active clinical
practice within one year of the inmate's withdrawal and
death in 2014. Accordingly, Harvey is not qualified to
testify as an expert on the standard of care in the
plaintiffs wrongful death claim. See Va. Code Ann. §
the other issues at trial, the court finds that although
Harvey has significant experience as a licensed practical
nurse, she has limited and distant experience with treating
patients undergoing drug or alcohol withdrawal. She testified
that for two years she worked at a hospital, in which she
believes approximately 15-20% of about 45 patients were
undergoing drug or alcohol withdrawal on an average day and
that she would treat some of those patients. This experience
from over 10 years ago does not suffice to establish the
"knowledge, skill, experience, training, or
education" required in this case. See Fed.R.Evid. 702.
Testimony regarding nursing in general would not provide the
type of specialized knowledge that would help a trier of fact
understand the defendants' response to the inmate's
medical risk in this case, which involved drug and alcohol
withdrawal. See Fed.R.Evid. 702(a). The court therefore finds
Harvey unqualified to testify under Rule 702.