Disagreement among experts regarding methodology does not necessitate exclusion under Daubert; Nursing expert witness testimony admitted

This case involved a putative class action lawsuit brought by Plaintiff Gail Parrish against Defendant Gordon Lane Healthcare, LLC (Gordon Lane), which operated a long-term skilled nursing facility where Parrish resided. Parrish, by and through his daughter and successor in interest, Monica Parrish, alleged that Gordon Lane failed to adequately staff the facility in violation of California law. Specifically, Parrish claimed that Gordon Lane gave residents an admission agreement stating it would provide adequate staffing, but concealed the fact that staffing was inadequate.??

Parrish filed this action in the Superior Court of the State of California on August 17, 2022. On September 29, 2022, Gordon Lane removed the action to federal court. On November 15, 2022, Parrish filed the complaint against Gordon Lane and several other Defendants, requesting injunctive and monetary relief. Defendants moved to dismiss the Complaint. The Court dismissed the claims as to all Defendants except Gordon Lane, and it struck Parrish’s prayer for injunctive relief. The claims for monetary relief against Gordon Lane remain.

Parrish asserted two claims against Gordon Lane: (1) violation of California’s Consumer Legal Remedies Act (CLRA) by making misrepresentations in the admission agreement and concealing inadequate staffing levels; and (2) violation of California Health and Safety Code Section 1430(b) for violating residents’ rights through inadequate staffing.

Parrish moved to certify three classes under Federal Rule of Civil Procedure 23(a) and 23(b)(3) and one of the classes, alternatively, under Rule 23(b)(2), consisting of Gordon Lane residents within the three years prior to the filing of the complaint. In support, Parrish offered expert testimony from Dr. Charlene Ann Harrington on determining adequate staffing levels. Gordon Lane moved to exclude Harrington’s testimony and opposed class certification, arguing Parrish lacked Article III standing and most potential class members, including Parrish, signed arbitration agreements waiving participation in class actions.??

Nursing?Expert Witness?

Charlene Ann Harrington is a Professor Emerita of Sociology and Nursing, Department of Social & Behavioral Sciences, School of Nursing at the University of California, San Francisco (“UCSF”). She earned her Bachelor of Science in Nursing from the University of Kansas, her Master’s degree in Community Health Nursing from the University of Washington, and her joint Ph.D. in Sociology and Higher Education from the University of California, Berkeley. She has been a Registered Nurse in California since 1970. She has held several positions relevant to nursing home care over the course of her career.

Discussions by the Court?

Gordon Lane moved to exclude the expert opinion of Charlene Harrington, who proposed to analyze the adequacy of staffing levels at Gordon Lane’s facility. In her declaration, Dr. Harrington outlined her method for evaluating the sufficiency of staffing levels at the Gordon Lane facility. Her approach involved four steps: first, determining the collective acuity level of residents at the facility; second, evaluating the actual staffing levels per resident per day of the facility; third, comparing these levels with recognized staffing requirements and standards; and finally, determining the overall adequacy of facility nurse staffing levels. Dr. Harrington’s analysis relied on data from the Centers for Medicare and Medicaid Services (CMS), Gordon Lane’s staffing reports, federal and state regulations, and her extensive experience. Notably, she used “Resource Utilization Group” (RUG) scores which is a facility-wide measure of acuity, derived from data submitted using the Minimum Data Set (MDS) form to CMS. Her method involved converting Gordon Lane’s RUG scores into expected staffing hours and comparing them to actual staffing hours to ascertain if the facility met adequacy standards.

Read the complete analysis of this case on the Expert Witness Profiler blog.

Disagreement among experts regarding methodology does not necessitate exclusion under Daubert; Nursing expert witness testimony on adequate staffing admitted.