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Ellison v. United States

United States District Court, S.D. Indiana, Terre Haute Division

May 11, 2018

KYLE ELLISON, Plaintiff,


          Hon. Jane Magnus-Stinson, Chief Judge United States District Court

         Defendant United States of America's motion to exclude the opinion of Dr. De La Rosa in support of plaintiff Kyle Ellison's claims at a bench trial, dkt [89], is denied.

         The United States argues that Dr. De La Rosa's opinions will not assist the trier of fact, are unreliable, or concern areas on which she is not qualified to opine and should be excluded at trial pursuant to Federal Rules of Evidence 403 and 702.

         For the reasons explained below, the United States arguments border on the frivolous given its theory of defense and are summarily rejected. The Court will consider Dr. De La Rosa's expert opinion when making factual determinations at the bench trial of this action.

         I. Dr. De La Rosa's Qualifications

         Dr. Rebecca J. De La Rosa, DDS, is a licensed dentist who has run her own private practice, Avon Family Dentistry, since 1990. Dr. De La Rosa received her degree in dentistry from Indiana University School of Dentistry in 1990. According to Dr. De La Rosa, the first two years of dental school were at the medical school, taking the same courses as the medical students. After these first two years, the dental students separated from the medical students and received education focused on dentistry. During the summers of dental school, Dr. De La Rosa had externships, all of which were related to dentistry and dental care.

         Additionally, during dental school, Dr. De La Rosa did rotations through hospitals; one time she removed an appendix and another time she placed or removed sutures in the scalp area. She also learned how to place sutures in dental school, practicing on different cloths and receiving lectures before placing and removing sutures on patients, in both intraoral and extraoral areas. Every time she placed and removed sutures she was clinically evaluated. Dr. De La Rosa completed these rotations and received this training approximately 30 years ago.

         In trauma cases, like from falls, Dr. De La Rosa has placed sutures on areas surrounding the mouth, such as the lip and nose. Dr. De La Rosa testified that, in over 30 years, she has placed sutures on the structures surrounding the mouth “several times.” She could not provide the number of times she had done this, but testified that it was more than 20; she could not recall if it was more than 30. In her practice, she does not place sutures extraorally on a weekly basis; it is possible that she does so on a monthly basis, but she could not provide a further estimate.

         Dr. De La Rosa is an emeritus member and former president of the Indiana State Board of Dentistry.

         II. Dr. De La Rosa's Opinion Testimony

         In this case, among other opinions, Dr. De La Rosa testified to the following:

         1. Dr. De La Rosa opined that a licensed dental hygienist removing sutures does so outside the permissible scope of his or her license and is an act in violation of the Dental Hygienist Act of Indiana (“IDHA”), Indiana Code § 25-13-1- 1 et seq. But more specifically, she stated that with respect to Rhoads's removal of Ellison's sutures, it was her opinion that “the dental hygienist operated outside the scope of practice for a hygienist when removing the facial sutures from Mr. Ellison's forehead.” 2. Additionally, Dr. De La Rosa opined that when removing sutures, a healthcare professional must have the “ability to examine the wound and evaluate if healing is complete and free of infection.” Further, she stated that the wound's severity and the patient's medical history, including whether he or she is diabetic or a smoker, are considerations for a professional in determining whether it is proper to remove sutures or allow them to remain.

         3. Dr. De La Rosa opined that specific training is necessary to properly remove both intraoral and extraoral sutures. According to Dr. De La Rosa, such training can consist of the training that she had in dental school, in which she was given lectures and clinical demonstration and clinically evaluated on her placement and removal of sutures.

         4. Finally, she opined that the premature removal of Ellison's sutures by a dental hygienist most likely damaged his healing site based upon the wound's dehiscence twice following removal. When asked what damage to the healing site she believed was caused, Dr. De La Rosa testified, “[f]rom what I reviewed, it states . . . the wound opened up again sometime between . . . the 30th and August 9th or something like that, August 7th or 9th it opened up again, and that led me to believe that something was done when the sutures was removed.” Similarly, Dr. De La Rosa also opined that ...

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