Mandate Issued: 04/17/2017
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
MARY F. FITZGERALD, TRIAL JUDGE
Ted Ledford, LEDFORD LAW FIRM, Owasso, Oklahoma, for
Marthanda J. Beckworth, Rachael F. Hughes, ATKINSON, HASKINS,
NELLIS, BRITTINGHAM, GLADD & FIASCO A PROFESSIONAL
CORPORATION, Tulsa, Oklahoma, for Defendants/Appellees Warren
Clinic, Inc. and Joe Reese
L. Brittingham, James N. Edmonds, ATKINSON, HASKINS, NELLIS
BRITTINGHAM, GLADD & FIASCO, A PROFESSIONAL CORPORATION,
Tulsa, Oklahoma, for Defendants/Appellees Thomas David
Schiller, M.D. and Gastroenterology Specialists, Inc.
F. FISCHER, JUDGE
Appellant Billie Winham appeals an order granting summary
judgment in favor of Joe Reese, M.D. and Thomas David
Schiller, M.D. The appeal has been assigned to the
accelerated docket pursuant to Oklahoma Supreme Court Rule
1.36(b), 12 O.S.Supp. 2013, ch. 15, app. 1, and the matter
stands submitted without appellate briefing. Because the
expert witness tendered by Ms. Winham was not qualified to
offer an opinion regarding the negligence of the physician
defendants, the district court did not err in granting their
motion for summary judgment and we affirm.
Ms. Winham underwent surgery in 2011 to remove a suspected
bile duct stone. The surgery was performed by Dr. Schiller.
Dr. Schiller performed an endoscopic retrograde
cholangiopancreatography (ERCP) which is a diagnostic tool
used to view and diagnose problems in the system of vessels
between the gallbladder, pancreas, and duodenum. The ERCP
procedure allows the gastroenterologist to proceed with
further treatment, such as the endoscopic sphincterotomy at
issue in this case.
Complications arose during Ms. Winham's procedure and she
was hospitalized. Tests showed a possible perforation of her
duodenum and she underwent additional surgery. Ms.
Winham's post-operative care was provided by Dr. Schiller
and Dr. Reese, among others who are not parties to this
Ms. Winham was readmitted to the hospital five times after
her initial surgery. During this time she was often confused,
disoriented and agitated. During each of her admissions she
was seen by a number of physicians, including Dr. Reese. Her
doctors determined that she had developed abscesses in her
abdomen and was malnourished and suffering from dementia. She
was eventually moved to a skilled nursing facility.
Ms. Winham filed suit, alleging that Dr. Schiller and Dr.
Reese were negligent and did not satisfy the standard of care
during her initial surgery and her post-operative care. Ms.
Winham intended to offer the testimony of Dr. Bernard M.
Jaffe as her medical expert. Dr. Schiller filed a motion in
limine and a Daubert challenge to exclude and/or
limit Dr. Jaffe's testimony, arguing that Dr. Jaffe was
not qualified to testify as to the standard of care
applicable to Dr. Schiller since Dr. Jaffe was not trained to
and had never performed the procedure at issue. Further, Dr.
Schiller argued that Dr. Jaffe's testimony was conjecture
and was not reliable under a Daubert analysis. Dr.
Reese filed a motion in limine to strike and/or limit the
testimony of Dr. Jaffe and a motion for summary judgment. Dr.
Reese asserted that Dr. Jaffe's testimony was not
competent to prove either a breach of the standard of care or
The district court granted Dr. Schiller's and Dr.
Reese's motions in limine, limiting Dr. Jaffe's
testimony to the standard of care for a "physician in
general" and excluding any testimony regarding the
standard of care for a specialist in internal medicine or
gastroenterology. On the day of trial, Dr. Schiller and Dr.
Reese re-urged their motions for summary judgment and the
district judge granted them, finding that Dr. Jaffe was not