Medical malpractice claim against VA falls short due to speculative expert opinion testimony

A medical malpractice case is usually a battle of the experts. But the battle sometimes ends prematurely when the plaintiff’s experts don’t make the grade under F.R.E. 702 and Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). That happened last week in a case filed by the late Ricky Allan Port.

Mr. Port was diagnosed with pulmonary fibrosis by a VA doctor in Arizona in 2015. Later that year, Mr. Port moved to Spokane and was seen by a different VA doctor. That doctor confirmed the diagnosis and advised Mr. Port that the only viable treatment option was a lung transplant.

Problematically, however, Mr. Port was morbidly obese. By the time the diagnosis was made, he was too obese to qualify for the lung transplant donor list. The VA therefore declined to place him on the donor list. Mr. Port passed away from complications from the disease in 2016.

Mr. Port’s estate sued the VA for medical malpractice under the Federal Tort Claims Act (FTCA). The estate argued that the VA was negligent in failing to explain the necessity of a lung transplant when Mr. Port was first diagnosed in Arizona. Had that explanation been provided earlier, the estate claimed, Mr. Port could have reduced his weight through diet and exercise until he qualified for the donor list. The estate retained an expert witness who submitted a declaration to that effect.

Judge Rice concluded that the expert’s opinion did not pass muster under F.R.E. 702 and Daubert. Opining that Mr. Port would have lost weight if the necessity of a lung transplant had been explained to him sooner, Judge Rice explained, was “speculative, at best, and [was] contradicted by Mr. Port’s express unwillingness to join a weight loss program when later prompted by medical professionals.” Having nixed the estate’s only expert, Judge Rice entered summary judgment for the VA.

The case is Estate of Ricky Allan Port v. United States, Case No. 17-CV-0280-TOR. The United States was represented by Joseph Derrig and Rudy Verschoor of the U.S. Attorney’s Office.