Powers v. Memorial Sloan Kettering Cancer Center

Background

Scott Powers brought a diversity action individually, as representative of the estate of Erika Zak, and as the natural guardian of L.P., a minor. He asserted New York-law claims for medical malpractice, wrongful death, and lack of informed consent against Memorial Sloan Kettering Cancer Center (MSK), Dr. Constantinos Sofocleous, and other defendants. The claims arose from an April 10, 2017, PET/CT-guided percutaneous microwave-ablation procedure on two of Zak’s liver lesions.

Zak had been receiving treatment at MSK after being diagnosed with advanced metastatic colon cancer. The opinion states that Dr. Sofocleous did not discuss alternatives and told Zak that ablation offered her the best chance of completely eliminating the tumors. After the procedure, he documented significant edema affecting the main and left portal veins and reduced blood flow. The parties disputed the extent of the injury and whether the procedure caused Zak’s later liver failure. Zak’s condition deteriorated, she was evaluated for an experimental liver-transplant protocol, and she died during transplant surgery on August 22, 2019.

Summary Judgment

The defendants moved for summary judgment on all claims. Summary judgment is entered before trial when the record shows no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment as a matter of law. The court evaluates the evidence in the light most favorable to the party opposing the motion. The court held that Powers identified evidence from which a reasonable jury could find for him on all three claims.

For the medical-malpractice claim, New York law requires proof that the defendants departed from accepted medical practice and that the departure was a substantial or proximate cause of the injury. Powers offered expert testimony that ablation was inappropriate because the central tumor was less than four millimeters from the liver hilum and close to the portal vein, bile duct, and hepatic artery. His experts also testified that the procedure used more energy and longer ablation times than recommended, created an unusually large ablation zone, and injured critical liver structures. The court concluded that this evidence created a genuine dispute about whether Dr. Sofocleous used reasonable care, diligence, and skill.

For wrongful death, the court explained that Powers had to show, among other things, that a wrongful act caused Zak’s death. The defendants argued that other factors, including prior surgeries, hepatic-arterial-infusion-pump therapy, and chemotherapy, caused the liver failure. Powers’s experts testified that the ablation caused catastrophic damage and was the most substantial factor in the cascade that led to liver dysfunction. The court found that this evidence could allow a reasonable jury to find that the ablation was a substantial factor in Zak’s death.

For lack of informed consent, New York law requires proof that the provider failed to disclose material risks and alternatives, that a reasonably prudent patient would have declined the treatment if fully informed, and that the lack of consent caused the injury. The defendants said that Dr. Sofocleous disclosed common risks and the risk of bile-duct injury. Powers relied on a recording and testimony from Chloe Metz, who said that the consultation contained no substantive discussion of the procedure or risks beyond a brief reference to bleeding, infection, and bile-duct injury. The court held that this evidence created a genuine dispute about whether Zak gave informed consent.

The defendants also sought summary judgment on damages. The court held that the evidence could support damages for loss of consortium on the medical-malpractice and informed-consent claims, as well as damages permitted under New York’s wrongful-death statute. The evidence included calculations of lost wages, testimony about Zak’s household services, and evidence of funeral expenses. The defendants’ motion for summary judgment on damages was denied. The court noted that the complaint did not assert separate claims for negligent hiring or supervision or spoliation, so it did not address those arguments.

Motion to Exclude Dr. Theise

Powers moved to exclude the opinions of Dr. Neil Theise under Federal Rule of Civil Procedure 37 and Federal Rule of Evidence 702. He argued that the defendants had not timely produced materials on which Theise relied and that Theise’s opinions were unreliable.

The court denied the discovery-related argument, explaining that the relevant pathology slides had been made available before discovery closed. The court also relied on its earlier rulings that Powers had not diligently disclosed his proposed rebuttal expert, Dr. Carlos Torres, and that Powers had other evidence concerning the cause of Zak’s liver failure.

Under Rule 702, expert testimony must come from a qualified witness, be based on reliable data and methods, and assist the factfinder. Theise opined that intrahepatic Floxuridine or hepatic-arterial-infusion-pump therapy caused Zak’s small-bile-duct loss and injury. He relied on his experience, textbooks, journal articles, pathology, and clinical information. The court held that the absence of supporting medical literature did not make the testimony inadmissible and that Powers’s criticisms went to the weight the jury should give the testimony, not whether it could be admitted. The motion to exclude Dr. Theise was denied.

Disposition

The defendants’ motion for summary judgment was denied. Powers’s motion to exclude Dr. Theise was denied. The court directed the clerk to close the two motions and stated that a trial scheduling order would follow. The ruling did not decide that either side ultimately wins; it decided that the identified factual disputes must be resolved through the next stage of the case, potentially by a jury.