United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
following motion filed herein:
PLAINTIFFâS DAUBERT MOTION AS TO
ARTHUR HEROLD, M.D. (Doc. No. 183)
January 12, 2018
THEREON it is
RECOMMENDED that the motion be
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
Id. at 5.
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.
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.
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.
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.
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. Dr. Herold has since provided an updated
case list detailing his testimony from the last four years.
Doc. No. 240 at 10.
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
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
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. 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.
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. 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.
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.
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)).
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 ...