Laura Walsh v. Michael Chez

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1006, 08-1522
L AURA W ALSH & D ANIEL W ALSH ,
individually and as administrators of
the Estate of Jason Walsh, deceased,
Plaintiffs-Appellants,
v.
MICH A EL G. CH EZ and AU TISM A N D
EPILEPSY SPECIA LTY SERVICES OF ILLINO IS ,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 4958—Joan B. Gottschall, Judge.
A RGUED D ECEMBER 12, 2008—D ECIDED O CTOBER 21, 2009
Before C UDAHY, F LAUM, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Jason Walsh suffered from autism.
When he was five-years-old, his parents sought help
from Dr. Michael D. Chez, who specialized in treating
autistic children and who did business through his clinic,
Autism and Epilepsy Specialty Services of Illinois. Jason’s
treatment went seriously awry shortly after he developed
2 Nos. 08-1006, 08-1522
pneumonia, and sadly, Jason died on May 9, 2003, of
complications from adrenal insufficiency. His mother
and father filed this diversity suit in the U.S. District
Court for the Western District of Pennsylvania (the state
of which they are, and Jason was, a citizen) against Dr.
Chez (a citizen of Illinois) and his clinic (which is incorpo-
rated and has its principal place of business in Illinois).
(We refer to them collectively as Dr. Chez.) At the eleventh
hour before trial, the district court granted the Walshes’
motion to transfer to the Northern District of Illinois.
There Dr. Chez moved for the first time to bar the
reports from the Walshes’ experts. Both initially and after
examining amended reports, the district court concluded
that the reports were insufficient and that the Walshes
could not prevail. It therefore dismissed their suit with
prejudice and later rejected their Rule 59(e) motion and
a motion for leave to file a new set of supplemental reports.
On appeal, the Walshes argue that the district court
abused its discretion and that they should have been
entitled to go to trial.
I
Because this is a medical malpractice case, the facts
relating to Jason’s treatment help to place the dispute over
the expert reports in context. Jason began to display signs
of autism as early as age two. Normally, autism is not a
life-threatening condition, and many of its symptoms can
be addressed with proper treatment. Jason’s parents, Laura
and Daniel Walsh, turned to Dr. Chez in 2003 for help.
He was of the opinion that autistic children could be
treated successfully with corticosteriods. After examining
Nos. 08-1006, 08-1522 3
Jason on January 8, 2003, he began treating him the next
day with 50 milligrams of prednisone (a powerful
corticosteroid) per day; that initial course of treatment
lasted for eight weeks. As Dr. Chez acknowledged, predni-
sone therapy can result in the suppression of cortisol
produced by the adrenal gland.
Although prednisone is useful for the treatment of
many conditions, it can also have negative side-effects.
S e e M e d l i n e P l u s , P r e d n i s o n e ,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a6
01102.html (last visited Aug. 31, 2009). One such side effect
is that it may decrease the person’s ability to fight infec-
tion. Id.; see also record doc. 184-2. A central question in
this case is whether it had such an effect on Jason.
Some time around February 11, 2003, Jason developed
pneumonia. This was during the time that he was
receiving the prednisone treatments supervised by Dr.
Chez. His pneumonia, however, was treated by his pri-
mary care physician and by personnel at the Children’s
Hospital of Pittsburgh. On February 25, 2003, approxi-
mately two weeks after the pneumonia was diagnosed, and
before Jason had fully recovered, Dr. Chez instructed his
parents to stop his daily 50 milligram dose and to cut
back to two doses a week (still 50 milligrams per dose), on
Tuesdays and Fridays. They complied with this order and
administered the drug to Jason on Tuesday, February 25,
Friday, February 28, and Tuesday, March 4.
On March 1, 2003, Jason developed a high fever of 103 or
104 degrees. His mother Laura called Dr. Chez’s office to
report this development. Someone from Dr. Chez’s office
called back on March 3, 2003, and instructed her not to
4 Nos. 08-1006, 08-1522
make any changes in the new prednisone schedule. That
evening, Laura took Jason to the emergency room at
Children’s Hospital. He was admitted the following day,
March 4, with a diagnosis of acute adrenal crisis, profound
hypotensive shock, and hypoxia. Complications followed,
including pulmonary failure, cardiac failure, and infection.
Jason was intubated and placed on a ventilator, but
eventually his doctors concluded that his chances of
recovery were remote, and the decision was made to
discontinue life support. Jason died on May 9, 2003, of
complications related to adrenal insufficiency.
II
The Walshes, as we have noted, filed this medical
malpractice action in the Western District of Pennsylvania,
their home, invoking the court’s diversity jurisdiction.
Their theory was that Dr. Chez committed malpractice by
cutting off Jason’s prednisone so abruptly—to a “pulse”
dose—instead of weaning him more gradually. The abrupt
cessation of the drug left him susceptible to infection, and
he in fact succumbed to pneumonia. To support their case,
the Walshes submitted expert reports from Dr. James
Tucker and Dr. Ira Cheifetz. The case moved forward in
the Pennsylvania court until it was almost ready for
trial. At that point, the Walshes moved to transfer the
case to the Northern District of Illinois, and the court
obliged them.
After the transfer, Dr. Chez filed a motion in limine
asking the court to bar the Walshes’ experts from testify-
ing, on the ground in part that they were not qualified
to opine on standard of care or causation, and that in
Nos. 08-1006, 08-1522 5
any event they had not identified the relevant standard of
care. The last paragraph of the motion asked the court
to grant summary judgment in Dr. Chez’s favor, if it
found that the expert reports had to be excluded. The
district court expressed its concern about the lack of
articulation of a baseline standard of care and allowed the
Walshes to file supplemental reports to remedy this
deficiency. They did so, but the court found that the
reports were still insufficient. It therefore excluded them
from evidence and then dismissed the case for failure to
present evidence on the critical element of standard of care.
After the case was dismissed, the Walshes moved under
F ED. R. C IV. P. 59(e) for reconsideration and they proffered
yet more supplemental reports from their experts. The
district court denied that motion, too, and the Walshes
have now appealed.
III
The central question we must decide is whether the
expert reports submitted by Drs. Tucker and Cheifetz were
so lacking with respect to standard of care that they were
inadmissible, or if instead any weaknesses in those reports
should have gone to the weight of the evidence before
the jury. If we find that the district court’s initial ruling
was correct, we must then decide whether the court
abused its discretion when it denied the Walshes’ Rule
59(e) motion and refused to consider the new set of supple-
mental reports they proffered with it.
The duty to disclose reports from experts who are
expected to testify comes from FED. R. C IV. P. 26(a)(2) and
6 Nos. 08-1006, 08-1522
(b)(4)(A). Rule 26(a)(2)(B) outlines detailed requirements
for such a report:
(B) Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be
accompanied by a written report—prepared and
signed by the witness—if the witness is one
retained or specially employed to provide expert
testimony in the case or one whose duties as the
party’s employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all opinions the
witness will express and the basis and reasons
for them;
(ii) the data or other information considered by
the witness in forming them;
(iii) any exhibits that will be used to summa-
rize or support them;
(iv) the witness’s qualifications, including a list
of all publications authored in the previous 10
years;
(v) a list of all other cases in which, during the
previous four years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid
for the study and testimony in the case.
This language was added to Rule 26 as part of the 1993
amendments to the rule. The Committee Note explains
that “[t]his paragraph imposes an additional duty to
disclose information regarding expert testimony suffi-
Nos. 08-1006, 08-1522 7
ciently in advance of trial that opposing parties have
a reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony
from other witnesses.” 1993 Comm. Note, para. (2).
See Romero v. Drummond Co., 552 F.3d 1303, 1323-24
(11th Cir. 2008) (rejecting one-paragraph reports that did
not provide an adequate basis for rebuttal or cross-exami-
nation).
The district court’s decision in the Walshes’ case loses
sight of the purpose of the expert’s report. At a pretrial
conference held on August 8, 2007, the court said, reason-
ably enough, that the doctors had to “say what the stan-
dard of care is.” It explained further that “He has to tell
us what would make this legitimate . . . . If there are 20
different ways of doing it, he has to tell us what they
are, or at least what the principles are that guide that.” At
that point, the court granted the Walshes an opportunity
to amend their reports, and warned that if the amended
reports were also unsatisfactory, the case was over.
On September 13, 2007, the Walshes submitted a new
three-page report from Dr. Cheifetz; that report included
the following passage:
The standard of care for all licensed physicians practic-
ing medicine and prescribing corticosteriods with
children is the same with regard to discontinuing the
use of Prednisone . . . . Because corticosteroids sup-
press a child’s endogenous steroid production, the
weaning of Prednisone after subacute or chronic usage
must allow the child time to resume his/her own
steroid production . . . . The standard of care for
discontinuing subacute and chronic use of Prednisone
8 Nos. 08-1006, 08-1522
is a national standard . . . . Dr. Chez negligently in-
structed Mrs. Walsh that daily Prednisone be discon-
tinued and doses be given only on Tuesdays and
Fridays . . . . This negligent order on February 25, 2003,
resulted in Prednisone being discontinued for two
days, 50 mg being given on February 28th, and then
discontinued again for three days. This protocol is not
accepted in any recognized textbook, is negligent,
and not consistent with accepted practice in this
circumstance. Because of the decrease in Prednisone
dosing, the child’s body was deprived of steroids
since his own adrenal glands were not producing the
necessary steroids after eight weeks of exogenous
suppression.
Dr. Tucker’s amended report, dated August 17, 2007, was
similar:
I am familiar with the use of prednisone in children,
including five-year-old children. I use prednisone in
my office, and I am familiar with the safety concerns
a physician must be aware of when discontinuing
prednisone after weeks of use. The issue of adrenal
crisis brought on by an abrupt withdrawal from
high dose prednisone is the same regardless of
the physician’s additional training and specialty.
Because prednisone suppresses the child’s own pro-
duction of endogenous cortisone, discontinuation of
prednisone after sub-acute or chronic usage must
give the child’s body time to resume its own produc-
tion of cortisol. . . . Dr. Chez’s protocol for high-dose
daily prednisone followed by twice weekly pulse
Nos. 08-1006, 08-1522 9
dosaging . . . was not consistent with that which
a reasonably careful physician would do in this circum-
stance.
Both of the Walshes’ experts, in these supplemental
reports, expressed the opinion that the abrupt discontinua-
tion of prednisone is not consistent with the relevant
standard of care. The purpose of these reports is not to
replicate every word that the expert might say on
the stand. It is instead to convey the substance of the
expert’s opinion (along with the other background infor-
mation required by Rule 26(a)(2)(B)) so that the opponent
will be ready to rebut, to cross-examine, and to offer
a competing expert if necessary.
We note as well that the district court may have been
under the misapprehension that the expert reports had
to be excluded if they were somehow incomplete. That is
not the case: people often put a case together with testi-
mony on one point from one expert, testimony on a second
point from a second expert, etc., and evidence from non-
experts. Thus, even if the court had been correct that
these reports did not suffice by themselves to support the
Walshes’ entire case, that was no reason to strike them
from the record. What the court thought, however, is
important: in its view, without these reports, the Walshes
had no evidence at all on standard of care. Standard of
care is one element that a plaintiff must show in a medical
malpractice case. With a failure of proof on one element,
a plaintiff cannot prevail, and summary judgment in the
defendant’s favor is proper.
But, in our view, a careful look at the supplemental
reports of Drs. Turner and Cheifetz shows that there
10 Nos. 08-1006, 08-1522
was evidence of standard of care in this record. The
weight of that evidence might be disputed, but a rational
trier of fact would have been entitled to credit these two
doctors and conclude that no responsible doctor would
cut back a powerful drug like prednisone so abruptly.
These expert reports provided Dr. Chez ample notice of
the theory against which he had to defend, and they
alerted him to the kind of rebuttal and cross-examination
he would need to undertake. The fact that there might
have been 19 or 20 other responsible ways to handle the
drug is of no moment, if these experts were prepared to
say that the avenue Dr. Chez chose fell below the standard
of care. It also does not matter that there might be a variety
of weaning protocols that would be accepted, if the
experts express the opinion that the one that Dr. Chez
chose was not.
We conclude with a word or two about the remainder
of the Walshes’ case. In order to prove a medical malprac-
tice case in Illinois (and we note that the district court
relied on Illinois law without objection from either party,
thus eliminating from the case any possibility that Pennsyl-
vania choice-of-law rules might have dictated a different
substantive rule, see Van Dusen v. Barrack, 376 U.S. 612(1964)), a plaintiff must prove “(1) the proper standard of
care by which a physician’s conduct may be measured,
(2) a negligent failure to comply with the applicable
standard, and (3) a resulting injury proximately caused
by the physician’s lack of skill or care.” Massey v. United
States, 312 F.3d 272, 280 (7th Cir. 2002), citing Simmons
v. Garces, 745 N.E.2d 569, 577 (Ill. App. 2001), and Diggs
v. Suburban Med. Ctr., 548 N.E.2d 373, 377 (Ill. App. 1989).
Nos. 08-1006, 08-1522 11
If the standard of care indeed requires a physician not
to stop high doses of prednisone abruptly, as Dr. Chez
did, then there is no dispute that element 2 of this test
is met. At least in his briefs before this court, Dr. Chez
has not argued that there was insufficient evidence to
reach a jury on causation. So the case does boil down to
the standard of care, as the district court recognized.
In our view, the district court erred in concluding that
whatever flaws existed in the expert reports that the
Walshes submitted went to their admissibility, as opposed
to their weight. When one bears in mind the purpose of
the Rule 26 reports, there is no reason to find that these
reports were insufficient to alert the defendants to the
best strategy for combating the Walshes’ case.
Because we have concluded that the Walshes were
entitled to proceed to trial based on the information they
submitted prior to the district court’s dispositive ruling,
we have no occasion to consider whether the court abused
its discretion in denying the motion under Rule 59(e). We
observe, however, that there is nothing that would prevent
the plaintiffs at trial from submitting any evidence that
is consistent with their pretrial disclosures.
The judgment of the district court is R EVERSED and the
case is R EMANDED for further proceedings consistent with
this opinion.
10-21-09