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
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 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,
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?
THE WITNESS: No.
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.