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Superior Consulting Services, Inc. v. Shaklee Corp.

United States District Court, M.D. Florida, Orlando Division

May 31, 2018

SUPERIOR CONSULTING SERVICES, INC., Plaintiff,
v.
SHAKLEE CORPORATION and SHAKLEE U.S., LLC, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: PLAINTIFF’S DAUBERT MOTION AS TO ARTHUR HEROLD, M.D. (Doc. No. 183)
FILED: January 12, 2018
THEREON it is RECOMMENDED that the motion be DENIED.

         I. FACTUAL BACKGROUND

         On December 14, 2017, Plaintiff filed the operative complaint against Defendants. Doc. No. 159. Central to Plaintiff's claims is Defendants' alleged use of Plaintiff's marks for Healthprint. Id. at 4-14. Healthprint is an assessment tool created by Eleanor Cullen, which constructs a personalized plan to achieve better health for the user.[1] Id. at 5.

         On January 2, 2018, Defendants filed their answer, affirmative defenses, and counterclaim (the “Counterclaim”). Doc. No. 166. Count III of the Counterclaim alleges that Plaintiff violated Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. Id. at 40-41. Specifically, Count III of the Counterclaim alleges that Plaintiff, particularly Ms. Cullen, engaged in a deceptive practice by practicing medicine without a license and using Defendants' supplements for treating medical conditions. Id.

         In support of their allegation that Plaintiff engaged in the unlicensed practice of medicine, Defendants submitted the report of Dr. Arthur Herold (the “Report”), a licensed medical doctor and associate professor of medicine at the University of South Florida College of Medicine. Doc. No. 183-1. Dr. Herold concludes that because Ms. Cullen and her staff are not licensed to give medical advice, Plaintiff engaged in the unlicensed practice of medicine for three reasons. Id. at 1-6. First, Dr. Herold states that Ms. Cullen and her staff were prescribing supplements to the consuming public. Id. at 3-4. In support of this first reason, Dr. Herold notes Ms. Cullen's appearance on a television program and advising a person preparing for surgery to take alfalfa to prevent excessive bleeding during surgery. Id. at 4. Dr. Herold also notes Ms. Cullen's e-mails directing her staff to “verbally, NOT in writing” tell customers to take supplements to treat knee problems and cancer. Id. at 3-4.

         Second, Dr. Herold states that Plaintiff engaged in the unlicensed practice of medicine by stating that her blood tests can help customers detect diseases, such as cancer, fibromyalgia, heart disease, osteoporosis, and diabetes, well before standard blood tests are able to make such detections. Doc. No. 183-1 at 4-5. In support of this reason, Dr. Herold cites to portions of Ms. Cullen's book, which is entitled “Normal Blood Test Scores Aren't Good Enough”, and Plaintiff's advertisements. Id. at 5.

         Third, Dr. Herold states that Plaintiff engaged in the unlicensed practice of medicine by interpreting the results of customers' blood tests. Doc. No. 183-1 at 5-6. Specifically, Dr. Herold notes that those customers who took a Healthprint blood test received their results indicating whether their test scores were within a normal range and also received recommendations for supplements, dietary changes, and normalizing any abnormal blood test scores. Id. at 5. Dr. Herold also notes that the score ranges for such blood tests have not been published or verified against any accepted medical standards, but “are based on a secret database that Mrs. Cullen has prepared during her ‘career in healthcare.'” Id.

         On January 12, 2018, Plaintiff filed a motion (the “Motion”) requesting that the Court exclude the Report for four reasons. Doc. No. 183. First, Plaintiff argues that Dr. Herold is not competent to testify as to a nurse's standard of care. Id. at 2, 6-11. Second, Plaintiff argues that the Report should be stricken because it is based purely on Dr. Herold's personal opinion and not on any reliable methodology. Id. at 3, 11-12. Third, Plaintiff argues that the Report should be stricken as unhelpful to the jury because it is unfairly prejudicial and likely to cause confusion. Id. at 12-14. Fourth, Plaintiff argues that the Report should be stricken because it fails to list all other cases from the previous four years in which Dr. Herold testified, and thus, fails to comply with Federal Rule of Civil Procedure 26(a). Id. at 3, 14-17.[2] Dr. Herold has since provided an updated case list detailing his testimony from the last four years. Doc. No. 240 at 10.

         On May 25, 2018, the undersigned held an evidentiary hearing on the Motion. Doc. No. 318. Dr. Herold testified that he based his findings on his education, training, and experience.[3] Dr. Herold's testimony primarily focused on three specific issues. First, Dr. Herold testified about why he believes he is qualified to testify about the proper scope of practice for a registered nurse. Plaintiff cross-examined Dr. Herold regarding his qualifications to opine upon this issue. Dr. Herold testified that he is not a registered nurse, but he has experience both in training registered nurses and working with them. Dr. Herold states that based on such experience, he is able to opine upon the appropriate scope of practice for a registered nurse and whether an act falling outside that scope constitutes the practice of medicine.[4]

         Second, Dr. Herold testified that registered nurses are generally not allowed to: 1) interpret blood test results; 2) prescribe medication; or 3) diagnose and treat disease.[5] Dr. Herold then testified that a doctor may adopt a qualifying written protocol that allows a registered nurse to communicate blood test results with a patient. On cross-examination, Plaintiff asked Dr. Herold whether his opinion would change if it produced such a protocol. Dr. Herold stated that his opinion may change provided that he is given an opportunity to review the protocol and finds it to be sufficient. Dr. Herold testified that he requested any similar protocol from Plaintiff but did not receive one. Plaintiff represented that it has a protocol allowing Ms. Cullen to interpret Healthprint blood test results and communicate with her clients regarding the same, but such protocol was not produced. The undersigned issued an ore tenus order directing Plaintiff to produce such protocol.

         Third, Dr. Herold testified that there is a national standard of care providing for distinct scopes of practice between registered nurses and physicians. Plaintiff cross-examined Dr. Herold as to whether he was familiar with certain states' laws regarding the proper scope of practice for a registered nurse. Dr. Herold testified that he reviewed those laws and found no material differences.[6] While Dr. Herold recognized that each state has law governing the proper scope of practice for a registered nurse, he testified that the national standard of care he applied is based on education, certification, and the practice of nursing. Specifically, Dr. Herold testified that such national standard of care and distinct scopes of practice are taught in medical schools throughout the country, and such schools are accredited by national boards setting such standards.

         The Court also inquired whether Dr. Herold testified about the practice of medicine within the last four years. Dr. Herold stated that he provided testimony regarding what constitutes the practice of medicine in two other cases. Defendants represented that such testimony was not fully produced in this case. The undersigned issued an ore tenus order directing Defendants to produce all of Dr. Herold's expert reports and transcripts of his deposition and trial testimony in those cases by May 30, 2018, the same date Plaintiff was ordered to produce the above-referenced protocol. See supra p. 4.

         The parties have filed notices of supplemental authority. Doc. Nos. 315, 321. Defendant's notice provides supplemental authority standing for the proposition that a failure to produce a complete case list with an expert report does not warrant exclusion under Rule 26. Doc. No. 315 (citing Foreman v. Am. Rd. Lines, Inc., 623 F.Supp.2d 1327 (S.D. Ala. 2008); Malibu Media, LLC v. Harrison, 1:12-CV-01117-WTL, 2014 WL 5598582 (S.D. Ind. Nov. 3, 2014)). Plaintiff's notice provides supplemental authority in which the Missouri Supreme Court held that the acts of certain nurses were authorized under Missouri's nursing statute, Mo. Rev. Stat. § 335.011 et seq., and thus, did not constitute the unlicensed practice of medicine. Doc. No. 321 (citing Sermchief v. Gonzales, 660 S.W.2d 683, 689 (Mo. 1983)).

         II. APPLICABLE LAW

         Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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