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Megan E. Baan, as personal representative v. Columbia County, Case No. 1D15-0092 (1stDCA)

In Baan, the plaintiff appealed a summary judgment entered in favor of the defense following a trial court order excluding the plaintiff’s expert testimony. The expert testified at deposition as to the standard of case when emergency personnel respond to a 911 call seeking help for an infant reported to be struggling to breathe. The defendant conceded that if the exclusion of the expert testimony was error, then entry of summary judgment was error.

On November 17, 2007, Columbia County Emergency Medical Services (EMS) responded to a 911 call reporting an 11 month old child to be respiratory distress. EMS arrived at the scene and left within 10 minutes, after showing the child’s aunt how to use a nebulizer. Through at least one neighbor, evidence existed that EMS did not examine the child. The EMS report stated otherwise. Within one hour, a second 911 call was made, reporting that the child was no longer breathing and was turning blue. EMS returned again and never detected a pulse. The child was pronounced dead the following day.

The plaintiff retained Dr. David Tulsiak, an emergency room physician, who executed an affidavit in 2010 in which he offered two opinions. First, he opined that EMS breached the prevailing professional standard of care by failing to put the child in the ambulance, which was equipped with oxygen, on their first run and take the child to the hospital for evaluation and treatment. He also opined that had the prevailing professional standard of care been met by EMS, more likely than not, the child would have been treated for a lack of oxygen and he would have survived. Years later, at deposition, Dr. Tulsiak said much the same thing, and stated that he reviewed all of the material provided to him in forming his opinion. He testified that the most critical breach of the standard of care was the failure to transport the child to a medical facility for further definitive care after the first 911 call. He further testified that EMS violated its own protocol for respiratory distress.

EMS later moved to exclude Dr. Tulsiak’s testimony arguing that it was insufficiently reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc. because his opinions were rooted in one assumption: that because the child experienced a respiratory arrest within one hour of the first EMS call, he must have been experiencing a detectable respiratory problem at the time of the first call. The trial court concluded that Dr. Tulsiak had rejected evidence he should have accepted as true – the EMS report which the trial court found was the only evidence of the child’s true respiratory status. The trial court therefore found that the opinions were premised on speculation.

The First District noted that “an expert is entitled to rely on any view of disputed facts the evidence will support.” Drawing all factual inferences in favor of the plaintiff, the record provides adequate support for Dr. Tulsiak’s opinion that, when EMS responded to the first 911 call, it did not perform an adequate evaluation of the child. The First District found that the trial court made a factual determination that should have been left for the jury in deeming the EMS report accurate. The First District noted that Dr. Tulsiak’s testimony clearly passed the Frye test. However, the court also noted that the Legislature has adopted the Daubertstandard with the intend to “tighten the rules for admissibility of expert testimony” and “to prohibit pure opinion testimony.” UnderDaubert, the trial court not only evaluates a putative expert’s credentials, but also serves as a gatekeeper in ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. “When expert scientific testimony is proffered, the trial court must, under Daubert, assess whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.”

Here, the First District found that Dr. Tulsiak’s opinions amounted to much more than ipse dixit. He reviewed the child’s medical records, the autopsy report, the EMS records, and statements from witnesses who observed the child’s medical condition in the last hours and minutes of his life. In support of his opinion that the ambulance should not have left the child behind on its first run, Dr. Tulsiak invoked, in addition to his knowledge of the child’s respiratory problems, his 30 years of experience and his 25 years as an advisor to emergency personnel, the fact that EMS violated its own protocol requiring transport to a hospital in the event an infant is experiencing respiratory distress. The First District found that the record made clear that Dr. Tulsiak’s testimony was the product of reliable principles and methods, and those principles and methods were applied reliably to the facts of the case. His opinions were therefore admissible under Daubert. The First District noted that the court’s gatekeeping function was not intended to supplant the adversary system or the role of the jury.

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