Obstetrical Medical Malpractice Plaintiff Wins Two Key Rulings

by David Cosgrove

Both the plaintiff and the defendants took a trial court’s key pre-trial rulings to the Michigan Court of Appeals. Both rulings dealt with defense motions intended to curb the admissibility of expert testimony. One motion and order dealt with the cerebral palsy plaintiff’s causation expert. The other dealt with plaintiff’s economic expert. In Figurski v. Trinity Health – Michigan, et al., 2015 WL 966269 (Mich. App.) the appeals court sided with the plaintiff on both issues — affirming the denial of one motion in limine, and reversing the granting of another.

The Court’s 44-page opinion provides a detailed review of the law on expert testimony as well as the complex medical and economic issues at play in perinatal arterial ischemic stroke/hypoxic ischemic injury cases. And, if nothing else, the case includes a transcript citation where the trial court literally gives one of the attorneys a time out:

THE COURT: This is a case report involving a

vacuum extraction. So when I read this, I take it

in its entirety from the beginning to the end. I’m

told it’s a vacuum extraction. So that’s what

mechanical birth trauma [ ][means] to me. You

tell me where in this article it describes

mechanical birth trauma as anything other than a

vacuum extraction?

THE WITNESS: The next paragraph, the next

sentence where it says the trauma, mechanical

birth trauma, they say, has been recognized as a

direct cause of intracranial arterial injury leading

to ischemic or hemorrhagic stroke in the

newborn. The trauma could result from the process

of natural birth or from assisted instrumentation

with forceps or [vacuum]. So the authors are

laying out the three types of mechanical birth

trauma that can affect a baby and lead to—

THE COURT: I just—

THE WITNESS:—stroke.

THE COURT: It says from the natural birth

THE WITNESS: Yes. That’s without—

THE COURT: That’s one.

THE WITNESS: Yes, that’s without instruments.

THE COURT: Or wait a minute. You said

THE WITNESS: Right. Vacuum, forceps, and

the natural forces of labor were the three.

THE COURT: I don’t know where you get

MR. FIEGER: It says it in the last sentence,

your Honor.

THE COURT: Mr. Fieger, don’t even. No.

MR. FIEGER: The last sentence says it.

THE COURT: No. Mr. Fieger, you’re not to

testify. You, and you don’t get to help your wit-

ness. I’m trying to understand. It says the trauma

could result from the process of natural birth—to

me, that’s one—or from assisted instrumentation

with forceps or—[vacuum] …

* * *

THE COURT: So in other words, how I take

this is it could happen naturally. It could happen

to, God help us, any baby; not the Doctor’s fault.

MR. FIEGER: Judge, is that what we’re doing


THE COURT: Oh for heaven’s sakes. Okay.

Five minutes because you are not going to

interrupt. Five minutes.

Id. at 21.

It was also refreshing to see some unfortunate trial-court behavior actually come out in to the sunlight of an appellate opinion:

THE COURT: Are you acknowledging that

that’s not what the Tison article says? I want to

make sure my notes aren’t wrong. I’m not asking

you what she’s saying in the article. I’m asking

specifically are you acknowledging that’s not

what the Tison article says?

THE WITNESS: I’m saying I should have had,

as I said before, I should have had another

footnote there which would be the Cushing.

THE COURT: Boy, you’re like some lawyers.

THE WITNESS: Excuse me?

THE COURT: Not wanting to answer the

question. Is that what her article says?


; and:

THE COURT: It doesn’t, the article doesn’t go

so far as to say exactly at what point this Cushing

effect doesn’t work anymore and there’s going to

be a stroke. That’s all I’m trying to get at with 14.

THE WITNESS: Okay, you, what it says is that

you interrupt, this kind of pressure can interrupt

and does interrupt cerebral blood flow. Now if

you do it long enough, which is not what they

wanted to do—they just wanted to show that—

THE COURT: No, please don’t—

THE WITNESS:—this is an effect—

THE COURT:—tell me you think if you do it

long enough it’s going to happen. All I’m trying

to figure out is 14. It, it never concludes if you do

it long enough there’s going to be a stroke.

THE WITNESS: You have to go to—

THE COURT: All right, no. No.

Id. at 25. Not exactly a pleasant day in the courtroom. Later that summer the trial court issued its lengthy order, concluding as to the plaintiff’s causation expert:

Because the Plaintiff has failed to carry his

burden to demonstrate that the opinion of his

causation experts are reliable, this Court must

exclude the testimony…

That being said, because the literature

and scientific evidence relied on by the

Plaintiff fails to actually stand for the conclusions

that Plaintiff’s experts purportedly draw from it,

this Court finds that the gap between Dr.

Crawford’s testimony/opinion and the scientific/

medical evidence and literature from which she

extrapolates it is too great.

Id. at 32.

The Court of Appeals wasted no time in rebuking the trial court’s “logic” and usurpation of the jury’s role as to this expert:

The trial court’s opinion perhaps would have

been appropriate had the trial court been sitting as

the trier of fact. However, the trial court went well

beyond her gatekeeping function and, instead of

determining whether Crawford could offer an opinion

on causation, the trial court actually resolved the

issue of causation. No doubt the trial court was

encouraged by defendants, who were also functioning

under an erroneous view of plaintiff’s burden and

the trial court’s gatekeeping function… [P]laintiff’s

burden at the Daubert hearing was to show that Crawford

was qualified to render an opinion on causation and

that her opinion was reliable and relevant. Such an

inquiry must focus on principles and methodology,

not the conclusions they generate.”

Daubert, 509 U.S. at 594–595(emphasis added.)

The trial court failed to heed Chapin’s admonishment

that, as gatekeeper, the trial court’s analysis must

not hinge on discovering absolute truth or resolving

genuine scientific disputes. Chapin, 274 Mich.App

at 139. Although the trial court repeatedly stated that

it was aware of its role to not seek absolute truth behind

the science, the record reveals that it simply failed to

heed its own warning.

Id. at 32-33. And:

Particularly glaring is the trial court’s failure

to refer to Crawford’s Daubert testimony in its

opinion and order. Crawford explained that no

single article supported her theory, but that the sum

of all the articles supported her conclusion that

injudicious use of Pitocin, compounded by the other

factors at birth, resulted in compression of

plaintiff’s head and lack of blood flow to the brain,

or ischemia.The trial court also completely

ignored that Crawford’s opinion was based, not

only on the literature provided, but on her own

extensive professional experience.

Id. at 33. And so there you have it.

I intend to come back to this opinion in the near future and share with you some of my observations regarding the courts’ approach to the plaintiff’s expert testimony on potential future earnings and home health aide costs. But for now — food for thought on the critical legal standards and factual complexities we confront in these types of cases.