United States v. Asare

Background

The United States brought this action against Emmanuel O. Asare, M.D., and Springfield Medical Aesthetic P.C., doing business as Advanced Cosmetic Surgery of New York. Mark Milano was an intervening plaintiff. After a bench trial from October 15 through October 17, 2018, the court appointed Timothy Wilkin, M.D., M.P.H., as a neutral expert under Federal Rule of Evidence 706(a). The parties agreed that Dr. Wilkin would address universal precautions; HIV testing before surgery; New York requirements for consent to HIV testing; treatment of people living with HIV; whether people living with HIV are appropriate candidates for surgery; and whether defendants’ practices complied with relevant standards.

The parties agreed to use Dr. Wilkin’s deposition testimony as his trial testimony, while preserving the specific objections raised by defendants. The court therefore considered defendants’ objections to that testimony.

Legal Standard

Federal Rule of Evidence 702 governs expert testimony. An expert may testify when the expert is qualified, the testimony will help the fact-finder understand evidence or decide an issue, the testimony is based on sufficient facts or data, and the methods and application of those methods are reliable. Under the principles commonly associated with Daubert, the court acts as a gatekeeper by deciding whether expert testimony has a reliable foundation and is relevant. Challenges that concern an expert’s background or the strength of the expert’s conclusions generally affect the testimony’s weight, meaning how persuasive it is, rather than its admissibility, meaning whether it may be considered at all.

Analysis

Testimony concerning Mark Milano. Defendants argued that Dr. Wilkin’s testimony concerning Milano exceeded the assignment’s scope and was unnecessary because the court had already granted summary judgment on liability concerning Milano. The government argued that the testimony was relevant to defendants’ treatment of people living with HIV generally. The court agreed with the government. It held that the testimony fell within Dr. Wilkin’s assignment because it addressed subjects raised by the plaintiffs’ earlier expert, including HIV testing before surgery and treatment of patients with HIV. The court also held that the testimony remained relevant to the government’s case, even though it was not relevant to Milano’s damages, because it could help show how defendants treated people living with HIV.

Preoperative HIV testing. Defendants argued that Dr. Wilkin was not qualified to testify about the medical standard for HIV testing before surgery because he lacked training in cosmetic or plastic surgery and had not identified relevant secondary sources in his report. The court rejected the objection. It found that Dr. Wilkin was a board-certified physician in internal medicine and infectious diseases, an associate professor at Weill Medical College of Cornell University, a primary care provider for people living with HIV, and experienced in performing minor surgical procedures. The court concluded that his experience was sufficiently related to preoperative HIV-testing protocols. Any concerns about the limits of his background could be addressed by giving the testimony less weight rather than excluding it.

Testing without knowledge or consent. Defendants argued that Dr. Wilkin improperly made factual findings about whether Dr. Asare complied with New York law when testing J.G. and S.V. for HIV. The court held that an expert may give an opinion based on facts the expert assumes to be true, including facts drawn from disputed trial testimony. Dr. Wilkin’s opinion was based on his review of New York law, his experience, and the trial testimony. The court stated that it could disregard the opinion if it later determined that the assumed facts were untrue, but that possibility did not make the testimony inadmissible.

Use of HIV status in deciding whether to operate. Defendants made a similar objection to Dr. Wilkin’s opinion that Dr. Asare used HIV status alone as a reason not to perform surgery. They also argued that the opinion was baseless because Dr. Wilkin had testified that postponing S.V.’s surgery based on laboratory results was reasonable. The court held that these issues went to the testimony’s weight, not its admissibility. Cross-examination and contrary evidence were appropriate ways to challenge the opinion.

Disposition

Judge Analisa Torres overruled defendants’ objections in their entirety and admitted Dr. Wilkin’s deposition testimony as trial testimony. The parties were ordered, by November 13, 2019, to file a redacted version of the deposition transcript on the public docket and submit a joint proposed schedule for post-trial briefing.