Kerry Pickard, as the Executor of the Estate of John Cedar v. United States of America

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
KERRY PICKARD, as the Executor of the
Estate of John Cedar and individually as
the heir at law of John Cedar; SANDRA
CEDAR, an incapacitated person, by and
through her Next Friend, Kerry Pickard,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 21-3030
(D.C. No. 2:18-CV-02372-JWL)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, EBEL, and EID, Circuit Judges.
_________________________________
After John Cedar died during treatment from the United States Department of
Veterans Affairs (“V.A.”), Plaintiffs Kerry Pickard, individually and as executor for
decedent John Cedar, and Sandra Cedar, through her next friend Kerry Pickard,
brought a wrongful death action in federal district court in Kansas for medical
malpractice against the United States. The district court granted summary judgment
for the United States after determining that Dr. Joel Bartfield, a necessary standard-
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 5, 2022
Christopher M. Wolpert
Clerk of Court
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of-care expert witness for Pickard, failed to satisfy Kan. Stat. Ann. § 60-3412’s
requirement that standard-of-care experts in medical malpractice cases engage in
“actual clinical practice” for at least 50% of their professional time. (Aplt. App’x at
330.) Pickard now appeals to this court, arguing that summary judgment was
improper because the district court’s interpretation of “actual clinical practice” was
too narrow. (Aplt. Br. at 32.) The government argued that Pickard failed to
challenge the motion to strike her expert witness in her opening brief. We find that
Pickard has not waived her challenge as to the exclusion of Dr. Bartfield, but
ultimately AFFIRM.
I. BACKGROUND
John Cedar died after receiving medical treatment from the V.A. His
daughter, Kerry Pickard, and his spouse, Sandra Cedar, brought a wrongful death
action in federal district court in Kansas for medical malpractice against the United
States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 on July 18, 2018.
To demonstrate the standard of care in her malpractice action, Pickard sought
to use the expert testimony of an emergency room physician, Dr. Joel Bartfield. At
Dr. Bartfield’s deposition, he testified that he spent only 20% of his time on “patient
care” and the rest of his time “[d]oing non-direct clinical work” or “non-clinical
work.” (Aplt. App’x at 132, 134.) Based on his testimony, the United States filed a
motion to strike plaintiff’s expert witness and for summary judgment, arguing that
Dr. Bartfield should be struck for failure to meet the 50% “actual clinical practice”
qualification required by Kan. Stat. Ann. § 60-3412. Because Dr. Bartfield’s
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testimony provided Pickard’s only means to prove a breach of the standard of care,
the United States believed it was entitled to summary judgment.
In Pickard’s response, she included an affidavit of Dr. Bartfield, which stated
that he was unaware at the time of his deposition that “actual clinical practice”
included his indirect patient care as well as his direct care. (Id. at 212.)
Additionally, he noted: “[w]hen my activities considered indirect patient care are
considered along my work in direct patient care, more [than] 50% of my professional
time is spent in actual clinical practice.” (Id. at 213.) Based on this affidavit,
Pickard argued that Dr. Bartfield satisfied the Kan. Stat. Ann. § 60-3412 standard.
The district court entered a Memorandum and Order taking the expert witness
issue under advisement pending an evidentiary hearing. After both parties and the
court examined Dr. Bartfield at the evidentiary hearing, the district court granted the
motion to strike and for summary judgment, finding that Dr. Bartfield only spent 12–
15 hours out of his 40-hour work week on activities in “actual clinical practice.”
Pickard then filed a Rule 59 motion to alter/amend the judgment, which was denied
by the district court. Pickard now appeals to this court.
In her opening brief, Pickard lists only one issue: “Whether the District Court
erred in granting Defendant’s Motion for Summary Judgment.” (Aplt. Br. 6.)
However, her brief specifically argues that summary judgment was improper because
Dr. Bartfield satisfied the 50% “actual clinical practice” requirement of Kan. Stat.
Ann. § 60-3412. (See Aplt. Br. at 17.)
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II. DISCUSSION
A. Waiver
We reject the United States’ contention that Pickard waived any challenge to
the motion to strike her expert witness by failing to address it in her opening brief
and instead framing the issue as a challenge to summary judgment. It is true that
“[t]he omission of an issue in an opening brief generally forfeits appellate
consideration of that issue,” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007), but Pickard’s opening brief did not omit the issue as to her expert. In fact, the
entirety of her opening brief—including both subheadings—is devoted to arguing
with citations to the proper Kansas authorities that the district court should not have
disqualified Dr. Bartfield under Kan. Stat. Ann. § 60-3412. This was more than
sufficient to give the United States an opportunity to respond to her contentions and
for this court to address her arguments. See Stump v. Gates, 211 F.3d 527, 533 (10th
Cir. 2000). Her framing of the issue in terms of a challenge to the motion for
summary judgment is likewise sufficient. The district court’s order granting
summary judgment depended entirely on its decision to strike Dr. Bartfield, and thus,
Pickard’s statement of the issue in terms of summary judgment should be read to
include the embedded issue of the exclusion of her expert witness.
B. Kan. Stat. Ann. § 60-3412
We now turn to Pickard’s contention that the district court improperly
excluded the testimony of Dr. Bartfield. Kan. Stat. Ann. § 60-3412 requires that
standard-of-care experts in medical malpractice cases must spend at least 50% of
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their professional time in the two years preceding the injury in “actual clinical
practice.” Pickard argues that in disqualifying Dr. Bartfield the district court
interpreted “actual clinical practice” too narrowly, excluding indirect patient care
from its definition. In particular, Pickard points to Bartfield’s testimony where he
indicated that he spent 20% of his time (8 additional hours) advising residents on
patient care. Pickard argues that this time was improperly excluded from the court’s
calculation. If those 8 hours are added to the 12–15 hours the district court already
found, the tally reaches at least 20 hours out of the 40 total hours, and thus, Dr.
Bartfield would qualify under the statute. We review de novo this question of
whether the district court applied the proper legal test under Kansas law in excluding
Dr. Bartfield’s testimony. See Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.
2003); Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 727 (10th Cir. 1991).
Pickard is incorrect that the district court failed to account for indirect care in
its definition of “actual clinical practice.” In its Memorandum and Order, the district
court reviewed the relevant Kansas cases and correctly determined that “actual
clinical practice” means “patient care” and that “[s]uch care is not limited to direct
patient care, in the sense that the practitioner is physically with a patient; it can also
include indirect patient care, such as when the practitioner advises or consults to
benefit a patient.” (Aplt. App’x 290 (citing Schlaikjer v. Kaplan, 293 P.3d 155, 165
(Kan. 2013)).) Contrary to Pickard’s contentions, the district court excluded the
eight hours Dr. Bartfield spent advising residents in the emergency department
because he was not advising residents regarding the ongoing care of a specific
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patient. Instead, Dr. Bartfield testified that this time was generally spent critiquing
care already rendered to teach a lesson for potential and general future care. 1 This
type of advising was retrospectively educational in nature and does not constitute
“patient care” under Kansas law. Compare Endorf v. Bohlender, 995 P.2d 896, 903
(Kan. Ct. App. 2000) (excluding teaching and educational activities that did not
involve care for a specific patient) with Schlaikjer, 293 P.3d at 165 (allowing
educational activities regarding specific patients to count where the activities “were
equivalent to hands-on apprenticeships” and the expert’s “‘classroom’ was the
operating theater”). We believe that the Kansas Supreme Court would agree. Clark
v. State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240 (10th Cir. 2003) (“This court
must determine issues of state law as we believe the highest state court would decide
them.”).
In response to the argument that this time did not benefit the care of specific
current patients, Pickard points to a variety of instances in the record where Dr.
Bartfield referred to his indirect care for specific patients. 2 (R. Br. at 18 (citing Aplt.
1 When asked by the court whether the purpose of consulting and critiquing
medical students and residents on care already rendered was to “affect the current
existing care of that particular patient” or “to learn a lesson for future application,”
Dr. Bartfield responded “[g]enerally the latter.” (Aplt. App’x at 322).
2 Pickard also points to an unspecified period of time that Dr. Bartfield
provided advice to medical students, and Dr. Bartfield’s contentions that “[his] entire
job involves indirect patient care,” (Aplt. Br. at 34 (citing Aplt. App’x at 307)), and
more than “50% of [his] professional time is spent in actual clinical practice.” (Aplt.
Br. at 10 (citing Aplt App’x at 212–213.) As the burden is on Pickard to demonstrate
that her expert qualifies under the statute, Endorf, 995 P.2d at 903, it was not an
abuse of discretion for the district court to conclude that the burden had not been met
by an unspecified length of time. Broad, sweeping statements in testimony as to
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App’x at 304, 307, 313–14).) This argument, however, takes us from a question of
statutory interpretation—receiving de novo review—to a question of factual findings
by the district court—reviewed for clear error. Smith v. Diffee Ford-Lincoln-
Mercury, Inc., 298 F.3d 955, 964 (10th Cir. 2002). It was not clearly erroneous for
the district court to find that Dr. Bartfield spent 12–15 hours a week on patient care
consistent with his testimony after he was informed of the relevant legal definition of
“actual clinical practice” notwithstanding Dr. Bartfield’s earlier more generalized
testimony. The district court properly interpreted and applied the statute. We
AFFIRM.
CONCLUSION
Based on the foregoing, the district court’s grant of summary judgment to the
United States is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
“actual clinical practice” are not dispositive on this issue; Schlaikjer directly advises
to examine the specific qualities and nature of the activities rather than crediting an
expert’s conclusory statements. Schlaikjer, 293 P.3d at 165.
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