Docket No. 28-2-00 Oecv DOUGLAS J. WOLINSKY, Trustee of the Estate of Donna Nelson and Clarence Nelson, and CLARENCE NELSON and DONNA NELSON, individually v. JEAN MARIE PRUNTY, PHILLIP G. KIELY and COPLEY HOSPITAL, Inc.

Orange Superior Court April 12, 2002

DAVENPORT, J. In this medical malpractice case, Defendant Phillip G. Kiely, M.D., (Defendant) moves for summary judgment on three counts of the amended complaint, and related loss of consortium claims, based on Plaintiff's asserted inability to sufficiently establish all of the elements of these claims. Plaintiff has filed a motion to strike the motion for summary judgment. For the reasons stated below, Plaintiff's motion to strike is hereby DENIED, and Defendant's motion for summary judgment is GRANTED in part and DENIED in part.

The following facts are undisputed unless otherwise noted. Donna Nelson injured her cervical region in November, 1995 while lifting a bag of grain at the store that she and her husband owned. Thereafter, Plaintiff sought treatment from myriad healthcare providers for what became agonizing, chronic pain. Among others, she treated with neurologists, neurosurgeons, and physical therapists. Nearly two years after the injury occurred, in October, 1997, Plaintiff sought treatment from Defendant Dr. Kiely, a board-certified family practitioner, upon a referral by Dr. Jean Marie Prunty. Around February, 1998, Dr. Kiely prescribed treatment with hydrocodone, a short-acting narcotic agent that also contains Tylenol. The hydrocodone dosage was increased at times and Plaintiff continued the hydrocodone treatment until February, 1999, by which time its efficacy had ceased or decreased. Dr. Kiely then prescribed treatment with methadone, a longer acting narcotic agent. Plaintiff started on a daily dose of 15 mg. of methadone on February 23, 1999, a lower equianalgesic dosage than Plaintiff's last dosage of hydrocodone. The following month, Plaintiff reported by telephone that the methadone worked well, and Dr. Kiely sent Plaintiff three months worth of prescriptions. Dr. Kiely coordinated much of Plaintiff's care over the telephone. Plaintiff continued taking methadone by prescription of Dr. Kiely. In September, 1999, Dr. Kiely learned that Plaintiff had ceased taking antidepressants prescribed by Dr. Prunty. On October 20, 1999, Dr. Kiely referred Plaintiff to the Dartmouth Hitchcock Medical Center (DHMC) Pain Management Center. Plaintiff, who continued taking methadone throughout, requested another methadone prescription on December 30, 1999. Dr. Kiely gave her that prescription and shortly thereafter learned that Plaintiff had not gone to her DHMC appointment. On March 3, 2000, Plaintiff declined to make a follow-up appointment with Dr. Kiely.

The parties dispute the substance of conversations between Dr. Kiely and Plaintiff, particularly insofar as those conversations do or do not reflect "close monitoring" of Plaintiff's prescribed use of methadone. The parties also dispute whether Plaintiff in fact developed a narcotics addiction, as Plaintiff alleges, as a result of Dr. Kiely's treatment.

Plaintiff filed her complaint on February 17, 2000 and her amended complaint on October 4, 2000. The Amended Complaint alleges in Count IV (medical malpractice) that Dr. Kiely's methadone treatment violated the standard of care, as did Dr. Kiely's failure to refer Plaintiff "to a physician who could provide appropriate care and treatment." Amended Complaint at 4. As a result, Plaintiff alleges that she experienced pain, suffering, emotional distress, was unable to work, and eventually had to seek bankruptcy protection. Count IV includes a loss of consortium claim by Plaintiff's husband. Count V characterizes the same general allegations set forth under Count IV as medical malpractice by a "lack of informed consent." That is, Plaintiff did not give her informed consent to the treatment prescribed by Dr. Kiely. Plaintiff alleges in Count IV that Dr. Kiely is liable for "misrepresentation" for failing to disclose that the treatment he prescribed was motivated at least in part "by a desire to protect the professional reputations and licenses of Jean Marie Prunty and Copley Hospital, Inc." Amended Complaint at 4. Final judgment was entered in Defendant Jean Marie Prunty's favor on August 2, 2001 after a summary judgment decision filed July 23, 2001 resolved all relevant claims in her favor. Separately, the stipulated dismissal of Copley Hospital was ordered on February 13, 2002.

Plaintiff disclosed Dr. Beach Conger, a board-certified internist, as an expert witness in a letter to opposing counsels dated February 15, 2001. See Plaintiff's Response to Phillip G. Kiely, M..D.'s Motion for Summary Judgment filed January 16, 2002, Appendix 2. In general, "Dr. Conger will testify that although the use of narcotics in the management of chronic pain resulting from terminal diseases is appropriate, even when large doses are necessary, the use of narcotics, particularly methadone, for pain not associated with terminal disease requires careful patient selection and careful and regular assessment of 'the addiction problem.'" Plaintiff's Appendix 2 at 6. Among other things, Dr. Conger is expected to testify that Dr. Kiely deviated from the standard of care: failing to consider whether Mrs. Nelson had an addictive personality; failing to consider other resources, such as pain clinics; failing to evaluate the effectiveness of methadone in relieving Mrs. Nelson's pain; failing to realize that methadone was not effective in relieving Mrs. Nelson's pain; failing to assess "the addiction problem," although addiction is a known major side effect of methadone treatment. Id. Lastly, the disclosure states that Dr. Conger will testify that Mrs. Nelson experienced many, if not all, of the problems associated with an addiction to narcotics, all of which caused a significant impairment of her physical and mental health. As a result, the defendants' conduct had a negative impact on her relationship with her husband, children and friends. He will testify that because she was addicted to narcotics, Mrs. Nelson should not take narcotics in the future and must be regularly involved in treatment programs for the rest of her life. Id. at 6-7.

I. Preliminary Issues

Defendant filed a summary judgment motion on December 12, 2001. Before the court addresses the substance of Defendant's summary judgment motion, four preliminary issues must be resolved: (1) whether the motion should be stricken as untimely filed; (2) which of Plaintiff's claims are within the scope of the summary judgment motion; (3) whether Plaintiff's claims as argued now are in the scope of the amended complaint; and (4) whether the affidavit of Dr. Beach Conger submitted in reply to the summary judgment motion must be disregarded as impermissibly contradicting his deposition testimony.

     A.  Plaintiff's Motion to Strike

First, on December 13, 2001, Plaintiff filed a motion to strike the summary judgment motion as untimely filed four months after the deadline in the scheduling order. However, Defendant Kiely was not a party when the August 1, 2001 motions deadline was set. The summary judgment motion was filed shortly after discovery closed; no prejudice is evident. The motion to strike is DENIED.

     B.  Scope of Summary Judgment Motion

Second, Plaintiff asserts that the informed consent claim is outside the scope of the summary judgment motion. Defendant Dr. Kiely's summary judgment motion addresses Plaintiff's "medical malpractice claims" and her "'failure to disclose' misrepresentation claim" without specifying the applicable counts. See Defendant Kiely's Motion for Summary Judgment filed Dec. 12, 2001.

Plaintiff interprets Defendant Kiely's motion and memorandum as addressing the Count IV medical malpractice claim and that Count VI misrepresentation claim but not the Count V medical malpractice by lack of informed consent claim. See Plaintiff's Response to Phillip G. Kiely, M.D.'s Motion for Summary Judgment filed Jan. 16, 2002 at 5 n.34 ("Dr. Kiely does not challenge Mrs. . Nelson's claim that Dr. Kiely was negligent in providing her informed consent....").

In his reply brief, Dr. Kiely nonetheless seeks summary judgment on the informed consent claim, asserting that Plaintiff failed to address the issue in her response to the summary judgment motion. See Defendant Kiely's Reply Memorandum in Support of Motion for Summary Judgment at 1 ("In their opposition brief, they do not even bother to make an argument to support the claim in Count V - Lack of Informed Consent").

The summary judgment motion does not address Count V, the lack of informed consent claim. See generally 12 V.S.A.1909 (limitation of medical malpractice action based on lack of informed consent). Neither the phrase "informed consent" nor any citation to 1909, or their substantive equivalents, appears anywhere in Defendant's motion or supporting memorandum.

The burden is on the moving party to properly and specifically identify the counts upon which summary judgment is sought. The overwhelming thrust of Defendant's substantive arguments center on the alleged insufficiency of Dr. Conger's qualifications and testimony in general. However, Defendant's arguments only apply to the informed consent claim by unstated inference; Defendant never actually makes the argument. As a consequence, Plaintiff reasonably never responded to that issue. The informed consent claim is outside the scope of the summary judgment motion.

     C.  Scope of Amended Complaint

Third, Defendant argues in his reply memorandum that the Count IV medical malpractice claim should be dismissed because it "is beginning to mutate in a radical and illegitimate way." Defendant Kiely's Reply Memorandum in Support of Motion for Summary Judgment at 2.

Defendant claims that the complaint alleges two specific deviations from the standard of care: (1) the initial decision to prescribe methadone; and (2) the failure to make a referral to a pain clinic prior to prescribing methadone. Defendant argues that the complaint clearly alleges that Dr. Prunty's actions alone caused the addiction in contrast to Plaintiff's evolved claim that Dr. Kiely caused the addiction. Dr. Kiely argues that Plaintiff's mutative "gamesmanship" violates the Rules of Civil Procedure generally and causes severe prejudice to him, evidently by radically shifting the basis of the lawsuit on the eve of trial. See id. at 4.

The complaint generally alleges that Dr. Kiely prescribed methadone to Plaintiff contrary to the standard of care, and failed to refer her to a physician who could provide appropriate care and treatment. See Amended Complaint filed October 4, 2000 at 4. A count against Dr. Prunty alleges that addiction resulted from Dr. Prunty's negligence. See id. at 2. This allegation, however, is not incorporated into the allegations against Dr. Kiely.

Contrary to Defendant's argument, nowhere does the complaint state or imply that Dr. Prunty's negligence caused Plaintiff's addiction to the exclusion of Dr. Kiely's negligence. Additionally, the allegations are neither explicitly nor impliedly limited to the initial decision to prescribe methadone as opposed to the course of treatment.

The substance of Plaintiff's expert disclosure letter specifically contradicts Defendant's argument in this regard. If Defendant found the complaint confounding, he had resort to a motion for a more specific statement. Plaintiff's claims against Dr. Kiely are within the scope of the complaint.

     D.  Affidavit of Plaintiff's Expert

Fourth, Defendant argues that the affidavit of Dr. Beach Conger submitted by plaintiff in response to the summary judgment motion must be disregarded in is entirety as impermissibly contradicting his deposition testimony merely for the purpose of defeating summary judgment. See Defendant Kiely's Reply Memorandum in Support of Motion for Summary Judgment at 4-6.

Specifically, Defendant states that at deposition Dr. Conger, though asked, never stated that Dr. Kiely breached the standard of care by causing Plaintiff to become addicted to methadone and by failing to withdraw Plaintiff after the addiction developed. See id. at 5. Defendant argues that testimony regarding these claimed breaches appears first and only in the affidavit submitted in response to the summary judgment motion. This, Defendant argues, violates the "axiom" against raising "sham" issues in response to summary judgment motions.

The "axiom" on which Defendant relies precludes the creation of a "sham fact issue." Pierce v. Riggs, 149 Vt. 136, 139 (1987) (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)). A mere conflict between a deposition and affidavit itself, however, does not render a legitimately disputed fact a "sham."  See Northern Security Ins. Co., Inc. v. Rossito, 171 Vt. 580, 581 (2000) (mem.).

A review of Dr. Conger's deposition and affidavit testimony does not reveal any material conflicts or sham issues. Defendant's argument that Plaintiff's legal or factual claims appear for the first time in Dr. Conger's affidavit submitted in response to the summary judgment motion, and that they significantly conflict with his deposition testimony, is without merit. The claims are mentioned prominently in the disclosure of Dr. Conger's anticipated testimony. They also appear throughout Dr. Conger's deposition testimony. For instance, Dr. Conger testifies that: The standards - to attempt to answer your question about what the standards are that I used in this case, it refers - it is particularly focussed [sic] on the issue of Methadone as a narcotic with strong addiction potential. And I - because of that my opinion is, that the standard of care requires that a physician be particularly careful in several respects before prescribing Methadone for a patient who has chronic pain, that is, to distinguish the use of Methadone for narcotic addiction which is a different issue and which is not something that physicians in private practice are customarily allowed to do by law. And that was not the intent of Dr. Kiely. My opinion of the standard of care is, that a physician has several obligations. One of them is to assess carefully the patient's emotional state before prescribing Methadone and while prescribing Methadone to ensure that the patient does not show behaviors that may indicate that he or she is at high risk for addiction to the drug. And in that sense I am referring to psychological addiction to the drug rather than physical addiction to the drug, because, by definition, the drug is physically addicting and that is true of all narcotics. In addition, because Methadone is a long acting and very potent narcotic, the physician should frequently assess the patient for the possibility of reducing the dose so as to reduce the degree of physical dependence and reduce the risks of significant withdrawal symptoms if the patient is to be removed from the drug at a later date. Finally, I think that the standard of care dictates that if a physician has prescribed Methadone for a patient and within a reasonably short period of time - I would say in the range of one to two months at most - the patient shows that he or she is not responding to the treatment and there are - and the dose requirements are increasing, that that patient should be evaluated by a pain specialist because, that, in my opinion, is an indication that this may be a person for whom narcotic dependency or any drug dependency from a psychological point of view, is likely. And those patients are much more difficult to manage. Plaintiff's Response to Philip G. Kiely, M.D.'s Motion for Summary Judgment filed Jan. 16, 2002, Appendix 4 at 23-26.

Dr. Conger describes a "slippery slope," id. at 29, in Dr. Kiely's treatment resulting in deviations from the standard of care at 29, 47-48, 54, 67-69, among others. The following dialogue begins on page 67:

Q. I'm sorry, was that an appropriate thing for Dr. Kiely in October of 1999?

A. Yes.

Q. To try to schedule Mrs. Nelson?

A. Yes.

Q. To go to the Dartmouth Hitchcock Pain Clinic?

A. Yes. Q. You just claimed it should have occurred earlier?

A. That's not the only thing I claim but that is one of the things I claim.

 Q. What else do you claim?

A. I claim that he should not have continued her on Methadone.

Q. Why not?

A. Because of the strong possibility that she is an addict. If she has become an addict, what she is going to want is Methadone and not a Pain Clinic. So, as long as he continues to supply her, and this can either be conscious or unconscious, but as long as he continues to supply her with what she feels she needs, which is the narcotics, she is not going to seek better treatment.

Q. So, he should have - Dr. Kiely, in your opinion, should have stopped prescribing Methadone in October, 1999 when he -

A. Well, of course, he has dug a fairly deep hole here. He has got her addicted to Methadone. He could bring her in the hospital and take her off of that, yes, that's what I would recommend. But assuming that's not something he is going to do, he should bring her and say - having put her on this drug for eight months, having increased the dose, having not addressed - having been unsuccessful in addressing her pain, he should have been more directive about what her treatment options were. But, instead, when she didn't go to the Pain Clinic he gave her - well, no, I guess he have her another three-month prescription for Methadone in December . . .

Id. at 67-68.

In short, Dr. Conger testified at deposition on the same alleged breaches discussed later in the affidavit. To the degree inconsistencies do exist between Dr. Conger's deposition and affidavit, they do not rise to the level of inappropriately creating a sham issue. Defendant's request that the court disregard the affidavit of Dr. Conger is DENIED.

II.  Substantive Summary Judgment Claims

Having resolved these preliminary issues, the court addresses the substantive issues seriatim: first, whether Defendant is entitled to judgment as a matter of law on the Count IV medical malpractice claim; and second, whether Defendant is entitled to judgment as a matter of law on the Count IV misrepresentation claim.

"Summary judgment is appropriate only when the moving party has demonstrated that there are no genuine issues of material fact and it is entitled to judgment as a matter of law." O'Donnell v. Bank of Vermont, 166 Vt. 221, 224 (1997). Where the moving party does not bear the burden of persuasion at the trial, it may satisfy its burden of production by indicating an absence of evidence in the record to support the non-moving party's case. The nonmoving party then has the burden of persuading the court there is a triable issue. See Mello v. Cohen, 168 Vt. 639, 639-40 (1998).

     A.  The Count IV Medical Malpractice Claim

With regard to the Count IV medical malpractice claim, Plaintiff has the burden of proving: (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances whether or not within the state of Vermont. (2) That the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. 12 V.S.A. 1908.

Normally, a plaintiff's burden of proving these elements is "satisfied only by expert testimony." Larson v. Candlish,144 Vt. 499, 502 (1984), quoted in Deyo v. Kinley, 152 Vt. 196, 204 (1989). "This rule has been adopted because normally a complicated medical procedure, not easily evaluated by a lay person, is at issue." Deyo, 152 Vt. at 204.  However, "whether the plaintiff has met the burden of proof sufficient to send the case to the jury is a matter of law for the court to decide." Id. (citing Utzler v. Medical Center Hospital, 149 Vt. 126, 128-29 (1987).

Plaintiff has made a prima facie showing, supported by the testimony of Dr. Conger, of the essential elements of 12 V.S.A. 1908. In short, Dr. Conger, an experienced physician engaged in a practice similar to that of Defendant Kiely, has testified that: (1) the treatment of chronic pain with narcotics such as methadone requires close attention to the possibility of physician-induced addiction and the exercise of reasonable care to prevent addiction; (2) Dr. Kiely deviated from the standard of care by prescribing methadone to Plaintiff without close supervision and in a manner likely to result in addiction, and ultimately by failing to recognize and treat the addiction that developed; and (3) the addiction and its repercussions in fact resulted substantially from Dr. Kiely's deviations.

Defendant makes several arguments which serve only to highlight disputes of fact, which are of course anathema to summary judgment. For instance, Defendant disputes the actual foundation of much of Dr. Conger's testimony by castigating it as necessarily contingent upon absences in Dr. Kiely's notes rather than personal, specific knowledge of the underlying events. See Defendant Kiely's Reply Memorandum in Support of Motion for Summary Judgment filed Jan. 30, 2002 at 15. Dr. Conger does not have personal knowledge of the underlying events because he is an unrelated third party. The substance of the conversations between Plaintiff and Dr. Kiely is a material factual issue hotly disputed by the parties. Summary judgment must be predicated on the lack of disputes of fact, not their prevalence.

Defendant also has submitted an affidavit from his own expert witness in an effort to demonstrate, among other things, a lack of causation under 12 V.S.A. 1908(3). That affidavit testimony stands for the proposition that a physician at the DHMC Pain Management Center also would have prescribed methadone to Plaintiff, at least at the outset. Defendant reasons that because the Pain Management Center would have treated Plaintiff in the same manner as Defendant, Defendant's treatment cannot be the proximate cause of Plaintiff's injuries.

Dr. Savage states in the affidavit that "Had Mrs. Nelson been referred to me for a second opinion in February 1999, I would have concurred in Dr. Kiely's prescription of methadone." Affidavit of Seddon R. Savage, M.D., filed Feb. 8, 2002 at 1. Dr. Savage also states cursorily that Dr. Kiely "did not deviate from reasonable and appropriate care in his treatment of Mrs. Nelson's chronic pain complaints including his choice of methadone as an analgesic agent." Id. at 2. Dr. Savage's testimony merely expresses general disagreement with certain of Dr. Conger's opinions; it provides no basis for summary judgment.

Defendant's primary argument, however, is that the medical expert testimony on which Plaintiff relies, that of Dr. Conger, is per se inadmissible under V.R.E. 702 and the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and State v. Streich, 163 Vt. 331 (1995), and progeny. Therefore, Defendant concludes, Plaintiff cannot make a showing of any elements under 12 V.S.A. 1908 and judgment should be granted as a matter of law to Defendant. Specifically, Defendant argues that Dr. Conger is per se unqualified to testify as an expert because he is not a pain specialist, and that Dr. Conger's testimony is per se inadmissible ipse dixit. Plaintiff disputes Dr. Conger's qualifications to testify as an expert, and asserts that Daubert applies only to novel scientific theories, not those involved in this case.

Dr. Conger is a board-certified internist with a long career in a practice apparently similar to that of Dr. Kiely. The existing record of Dr. Conger's testimony includes his affidavit and the transcript of his deposition. Defendant argues that this testimony is per se inadmissible because: Dr. Conger does not describe the methodology he used in coming to his opinions. He does not link his opinions to any specific facts. He never describes how, or why, he concluded that Plaintiff was "addicted," or why he might have come to such a conclusion. "Turning to the factors articulated in Daubert and its progeny, having failed utterly to describe his methodology, Dr. Conger necessarily (1) fails to prove that his methodology involves testable hypotheses, and that he has tested them, (2) fails to prove that his methodology has been subject to peer review, and survived that process, (3) fails to prove his methodology's known or potential rate of error, (4) fails to prove the existence and maintenance of standards controlling the methodology's operation,(5) fails to prove that the methodology is generally accepted, (6) fails to prove that his methodology bears a relationship to methods that have been established to be reliable, and (7) fails to prove the non-litigation uses to which the scientific methodology has been put. Plaintiffs cite no case in which such proposed testimony has survived a Daubert challenge. In short, Dr. Conger's opinions are conclusory and non-scientific. . . . Suffice it to say that Dr. Conger's affidavit is no more than proscribed ipse dixit, and fails to reflect usage of the scientific method.  Defendant Kiely's Reply Memorandum in Support of Motion for Summary Judgment, filed Jan. 30, 2002 at 10-11 (citation omitted) (emphasis in original).

In Daubert, the United States Supreme Court determined that the adoption of the federal rules, and particularly F.R.C.P. 702 (testimony by experts), displaced the analogous test of admissibility applied in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (the so-called Frye test). See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 2794 (1993). As the Streich Court describes, "[t]he Daubert Court concluded that Rule 702 relaxed the traditional barriers to admission of expert testimony, Daubert, 509 U.S. at 588-89, and replaced the Frye "general acceptance" requirement with a flexible standard governed by two principles: reliability and relevance."  State v. Streich, 163 Vt. 331, 342 (1995).

Though admission of expert testimony is relaxed, parties still have resort to the "conventional devices," such as cross-examination, contrary evidence, careful jury instructions, and directed verdicts, in dealing with "shaky but admissible" expert testimony. Daubert 509 U.S. at 596. Nonetheless, the trial court is the gatekeeper under Daubert and must determine under Rule 104(a) whether the threshold level of relevance and reliability is met with regard to any particular expert testimony.

The Vermont Supreme Court adopted the reasoning of Daubert in State v. Brooks, 162 Vt. 26, 30 (1993). Plaintiff's argument that the trial court's gatekeeping function under Rule 702 and Daubert applies exclusively to novel scientific theories, and not all "expert" testimony, was rejected squarely in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). The Kumho Court stated that Rule 702 applies to all expert testimony of any origin, and "requires a valid . . . connection to the pertinent inquiry as a precondition to admissibility." And where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has "a reliable basis in the knowledge and experience of [the relevant] discipline."  Kumho, 526 U.S. at 149.

In so concluding, the Kumho Court carefully emphasized the flexibility of the inquiry by stating that the list of factors discussed in Daubert is non-exclusive as circumstances suggest, see id at 150-151, and that trial court rulings under Daubert are subject only to abuse-of-discretion review, see id at 152-153, affording the trial court "broad latitude." See, generally, General Electric Co. v. Joiner, 522 U.S. 136, 146-47 (1997) (discussing the standard of review for Daubert decisions and adopting the abuse-of-discretion standard).

Defendant's arguments in this case suffer several defects. First, Defendant's argument that Dr. Conger's testimony is per se inadmissible ipse dixit because he has not specifically cited treatises for principled statements amounts to an overly broad proscription against expert testimony based on the experience of the expert. Daubert by no means proscribes expert testimony merely because it is based on the experience of the expert. See Kumho, 526 U.S. at 151-52. As the Advisory Committee Notes to F.R.E. 702, 2000 Amendment, state: [n]othing in this amendment is intended to suggest that experience alone - or experience in conjunction with other knowledge, skill, training or education - may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. A trial court may conclude that an impermissibly large "analytical gap between the data and the opinion proffered" should be rejected as impermissible ipse dixit. Joiner, 522 U.S. at 146.

Expert testimony is not, however, impermissible ipse dixit merely because it is based on the experience of the expert. Dr. Conger states in his deposition that he is basing his testimony largely on experience, which he claims is consistent with relevant treatises. Defendant's argument that his testimony is inadmissible in principle for that reason is insufficient.

Also, Defendant has not sufficiently called into question Dr. Conger's "factual basis, data, principles, methods, or their application," Kumho, 526 U.S. at 149. Defendant has attempted to undermine Dr. Conger's testimony solely by pointing to the absence of testimony which, if it existed, would resolve the Daubert issues. Defendant has offered no evidence of any kind that the factual basis, data, principles, or methods upon which Dr. Conger relies, or their application, is per se inadmissible under Daubert. Indeed, Defendant does not point to any specific Daubert inquiry made of Dr. Conger; Defendant only offers the argument of counsel. Thus, the court has little ability to distinguish between authentic Daubert issues from an insufficient record.

Neither party has discussed the unusual posture in which Defendant for the first time has raised this Daubert challenge to Dr. Conger's testimony, "the junction where summary judgment principles and the standards governing the admissibility of expert scientific evidence intersect." Cortes-Irizzary v. Corporacion Insular de Seguras, 111 F.3d 184, 187 (1st Cir. 1997). Daubert analyses must be carefully tempered a the summary judgment stage: The fact that Daubert can be used in connection with summary judgment motions does not mean that it should be used profligately. A trial setting normally will provide the best operating environment for the triage which Daubert demands. Voir dire is an extremely helpful device in evaluating proffered expert testimony and this device is not readily available in the course of summary judgment proceedings. Moreover, given the complex factual inquiry required by Daubert, courts will be hard-pressed in all but the most clearcut cases to gauge the reliability of expert proof on a truncated record. Because the summary judgment process does not conform well to the discipline that Daubert imposes, the Daubert regime should be employed only with great care and circumspection at the summary judgment stage. Id. at 188.

The record currently is truncated, at best, with regard to the sort of factual inquiry necessary to support a fair Daubert ruling. Voir dire has not been made available, and Dr. Conger has not even addressed many of the specific detailed questions eliciting facts which might close the gaps cited to by Defendant. In short, Defendant has not pointed to any particular defect in Dr. Conger's testimony so obviously fatal that judgment as a matter of law on the Daubert analysis can be supported. The facts are acutely disputed and the record otherwise is wholly insufficient for Daubert purposes. Defendant¿s motion for summary judgment on Count IV is DENIED.

     B.  The Count VI Misrepresentation Claim

Plaintiff's Count VI describes a so-called "misrepresentation" claim. The asserted factual basis of the claim is that Dr. Kiely "failed to disclose to Donna Nelson that the decisions he made during his care and treatment of her were, at least in part, motivated by a desire to protect the professional reputations and licenses of Jean Marie Prunty and Copley Hospital, Inc." Amended Complaint at 5.

In Plaintiff's most recent filing, she stipulates to judgment for Defendant on Count VI. See Plaintiff's Supplemental Memorandum in Opposition to Defendant Kiely's Motion for Summary Judgment at 3 n.5. Defendant's motion for summary judgment on Count VI is GRANTED.

ORDER For the reasons stated above: Plaintiff's motion to strike is DENIED; Defendant's motion for summary judgment is DENIED with regard to Plaintiff's Count IV medical malpractice claim; By stipulation, Defendant's motion for summary judgment is GRANTED with regard to Plaintiff's Count VI "misrepresentation" claim, which is hereby DISMISSED.

Michael F. Hanley and Paul J. Perkins, Plante & Hanley, White River Junction, for plaintiff.

Ritchie E. Berger, Dinse Knapp & McAndrew, Burlington, for Defendant Kiely