UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

BHAKTAVATSALA R. APURI. M.D., )

)

Plaintiff, )

)

v. ) CAUSE NO.: 1:16-CV-363-TLS

)

PARKVIEW HEALTH SYSTEMS, INC., )

PARKVIEW HOSPITAL, INC., and )

ROY ROBERTSON, M.D., )

)

Defendants. )

OPINION AND ORDER

The Plaintiff, Dr. Bhaktavatsala R. Apuri, is a cardiologist of Indian descent. After his

privileges at Parkview Hospital were not renewed, he sued Parkview, alleging race

discrimination under 42 U.S.C. § 1981 and state law claims relating to the non-renewal of his

privileges. He also sued Dr. Roy Robertson for intentional interference with a business

relationship for the role Dr. Robertson had in the peer review process, which the Plaintiff

contends led to a tainted and biased review. Even before the discovery deadline passed, the

Defendants filed a Motion to Exclude [ECF No. 35], which centers on the expert witness report

of Dr. Jonathan Marmur.

Dr. Marmur assessed the Plaintiff’s competence as an interventional cardiologist by 

reviewing nineteen of his cases. Based on his review, Dr. Marmur concluded that the Plaintiff

should have no restrictions in the domain of diagnostic cardiac catheterization. Additionally, he

believed, based on the stenting procedures performed in the cases he was given to review, that

the Plaintiff was independently capable of successfully performing percutaneous coronary

intervention in at least moderate to high risk scenarios. The Defendants’ Motion does not seek to

prevent Dr. Marmur from offering his opinions on these matters, including the medical care and
procedures the Plaintiff provided to specific patients. The Defendant’s Motion targets the matters

contained in the last three paragraphs of Dr. Marmur’s report.

In the paragraphs at issue, Dr. Marmur suggests reasons, other than incompetence or

inability, why the Plaintiff may have requested consultation and assistance from his colleagues

while providing treatment. Dr. Marmur also writes:

There is a reason that our concept of justice has as its foundation the notion of

innocent until proven guilty. There is a reason that the basis of clinical research is

the null hypothesis; that establishing causality requires vigorous standards and

meaningful data that is verifiable and reproducible. In my opinion, the basis upon

which very harsh measures were brought to bear upon Dr. Apuri’s practice of

medicine did not meet these standards.

(ECF No. 35-1 at 42.) In closing, Dr. Marmur states that “it should be noted that asking for help

is behavior that should be encouraged in the medical community,” and points to the safety

conscious aviation industry as a model to follow.

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and

the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993). See Lees v. Carthage, 714 F.3d 516, 521 (7th Cir. 2013) (explaining that Rule 702 has

superseded Daubert, but that its standard of review is still applicable). In analyzing the reliability

of proposed expert testimony, the role of the court is to determine whether the expert is qualified

in the relevant field and to examine the methodology the expert has used in reaching his

conclusions. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999). An expert may be

qualified by “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. “The

purpose of [the Daubert] inquiry is to vet the proposed testimony under Rule 702’s requirements

that it be ‘based on sufficient facts or data,’ use ‘reliable principles and methods,’ and ‘reliably

appl[y] the principles and methods to the facts of the case.’” Lapsley v. Xtek, Inc., 689 F.3d 802,

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804 (7th Cir. 2012) (quoting Fed. R. Evid. 702). In evaluating whether an expert’s proposed

testimony meets the Daubert standard, the court is to “scrutinize the proposed expert witness

testimony to determine if it has ‘the same level of intellectual rigor that characterizes the practice

of an expert in the relevant field’ so as to be deemed reliable enough to present to a jury.” Id. at

805 (quoting Kumho Tire, 526 U.S. at 152); see also United States v. Herrera, 704 F.3d 480, 486

(7th Cir. 2013) (noting that “expert evidence is not limited to ‘scientific’ evidence . . . [but]

includes any evidence created or validated by expert methods and presented by an expert witness

that is shown to be reliable”). 

Whether to admit expert testimony rests within the discretion of the district court. See

Gen. Elec. v. Joiner, 522 U.S. 136, 142 (1997); Lapsley, 689 F.3d at 810 (“[W]e ‘give the district

court wide latitude in performing its gate-keeping function and determining both how to measure

the reliability of expert testimony and whether the testimony itself is reliable.’”) (quoting

Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)). “The proponent of the

expert bears the burden of demonstrating that the expert’s testimony would satisfy the Daubert

standard” by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698,

705 (7th Cir. 2009).

District courts apply the Daubert framework described above using a three-part analysis.

Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the court must determine

whether the proposed witness is qualified as an expert by knowledge, skill, experience, training,

or education. If so, the court must then decide whether the reasoning or methodology underlying

the expert’s testimony is reliable. If these two requirements are met, the court must assess

whether the expert’s proposed testimony will assist the trier of fact in understanding the evidence

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or to determine a factual issue. See id. (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,

904 (7th Cir. 2007)). Statements in an expert report that are not relevant to the issues to be tried,

will not be permitted. See Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 805–06 (7th Cir.

2013) (No matter the nature of the witness’s expertise, Rule 702 establishes not only a standard

of evidentiary reliability, it requires a valid connection to the pertinent inquiry as a precondition

to admissibility).

The Court, at this juncture, has limited facts about the litigation before it. The Motion to

Exclude was not filed in connection with a dispositive motion or an impending trial. Although

discovery has closed, motions to compel are still pending. This procedural posture, however

impacts only the relevance prong of the gatekeeping function. The Court need not reach the

relevance inquiry unless if first finds that the proposed testimony is reliable. To that end, the

Court has sufficient information to make a determination. 

The Court agrees with the Defendant that the challenged portion of Dr. Marumur’s report

is not admissible as expert testimony, regardless of the legal claims the Plaintiff advances or the

facts that will ultimately be in dispute. For example, Dr. Marmur’s conjecture about what might

have prompted the Plaintiff to request consultation and assistance is not an appropriate subject

for expert testimony. It is not based on Dr. Marmur’s specialized knowledge, not based on

sufficient facts or data, not the product of reliable principles and methods or a reliable

application of those principles and methods to the facts of the case. Fed. R. Evid. 702. There was

no “intellectual rigor,” Kumho Tire, 526 U.S. at 152, involved in the speculation about the

Plaintiff’s potential motives. Thus, the following statement from Dr. Marmur’s report is not

admissible as expert testimony:

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The fact that Dr. Apuri requests consultation and assistance from his colleagues does

not constitute proof of inability nor incompetence. There may be other, totally

legitimate and appropriate reasons, for such behavior. Perhaps, Dr. Apuri is not

familiar with the equipment or precise operating procedure in that particular cath lab;

perhaps he is trying to establish new relationships with colleagues and wants to learn

from their experience; perhaps we [sic] had other urgent obligations and requested

that a colleague stand in for him.

(Report 16–17, ECF No 35-1 at 42.)

Likewise, Dr. Marmur’s statements about the fairness of the peer review process that was

applied to the Plaintiff is not a reliable expert opinion. In support of his conclusions about the

Plaintiff’s peer review, Dr. Marmur references standards from other contexts, such as

establishing guilt in a criminal case and causation in clinical research. He then opines that the

peer review process that was applied to the Plaintiff did not meet these unrelated standards. Dr.

Marmur’s training and experience in cardiac catheterization and interventional cardiology

qualify him to opine, based on his review of cases involving stenting procedures that the Plaintiff

had performed, whether the Plaintiff “appears to possess the skills needed to perform PCI

independently.” (Report 16.) His assessment of the peer review process, however, was not based

on reliable reasoning or methodology. 

The peer review process, and what it entailed, is not even the subject of Dr. Marmur’s

report. His comments on the matter appear to be an add-on to an entirely separate analysis.

“Talking off the cuff—deploying neither data nor analysis—is not an acceptable methodology.”

Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000) (noting that the Seventh

Circuit has “[m]any times . . . emphasized that experts’ work is admissible only to the extent it is

reasoned, uses the methods of the discipline, and is founded on data” ). The Plaintiff’s Response

in opposition to the Motion to Exclude does not address these deficiencies. Rather, the Plaintiff’s

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position appears to be that, because Dr. Marmur has experience with medical peer reviews in his

role as Chief of Cardiology, he should be permitted to offer his opinion that “the basis upon

which very harsh measures were brought to bear upon Dr. Apuri’s practice of medicine did not

meet [criminal justice and clinical research] standards.” (Report 17.) Dr. Marmur’s experience

does not change the fact that his conclusion was not based on principles and methods that are

standard in the area of medical peer review. See Huey v. United Parcel Serv., Inc., 165 F.3d

1084, 1087 (7th Cir. 1999) (noting that proponent of an expert whose briefing “assume[d] that

anyone with ‘expertise” may testify as an expert” failed to meet requirement that experts provide

analysis to substantiate an opinion). Because Dr. Marmur did not follow a reliable methodology

in reaching his conclusions and reliably apply it to the specific facts of this case to arrive at his

conclusion about the application of the peer review process to the Plaintiff, the statements are not

admissible as expert testimony.

CONCLUSION

For the reasons stated above, the Court GRANTS the Defendant’s Motion to Exclude

[ECF No. 35]. The Plaintiff has requested, by way of his Response, that if the Court grants the

Motion he be permitted to “disclose another witness with expertise in the field of medical

credentialing/medical peer review.” (Resp. 2.) If the Plaintiff believes that an extension of the

deadline for expert disclosures is warranted, he must file the appropriate motion with the Court.

SO ORDERED on February 5, 2018.

 s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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