Castro v. United States of America

Filing 34

ORDER denying 21 Plaintiff Initial Daubert Motion to Preclude Defendant's Experts from Testifying that the Plaintiff's Permanent Brachial Plexus Injury Was Caused by "Maternal Expulsive Forces". The United States of America& #039;s Cross Motion to Preclude Plaintiff's Experts from Testifying that Permanent Brachial Plexus Injuries Cannot be Caused by the Natural Forces of Labor (Doc. #28) is GRANTED as set forth herein. Signed by Judge Sheri Polster Chappell on 10/13/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WENDY CASTRO, M.C., a minor, by
and through his mother and natural
guardian
Plaintiff,
v.

Case No: 2:15-cv-378-FtM-38CM

UNITED STATES OF AMERICA,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff M.C.’s motion to preclude the
United States of America’s experts from testifying that the natural forces of labor, and not
the midwife, caused his birth injury. (Doc. #21). The Government has responded in
opposition to Plaintiff’s motion and filed its own cross motion to preclude Plaintiff’s experts
from testifying that the natural forces of labor could not have caused the injury. (Doc.
#28).

Unsurprisingly, Plaintiff opposes the Government’s motion.

(Doc. #32).

On

September 15, 2016, the Court held a hearing on the motions. For the reasons set forth
below, the Court denies Plaintiff’s motion but grants the Government’s motion.

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BACKGROUND
This medical malpractice case centers on Plaintiff’s birth injury. Around three
years ago, Wendy Castro gave birth to Plaintiff at Gulf Coast Medical Center. Barbara
Carroll, a certified nurse midwife (“CNM Carroll”), delivered him. Complications arose
during the delivery – specifically, shoulder dystocia.
Shoulder dystocia occurs when a baby’s shoulder is stuck behind either the
mother’s pubis symphysis or sacral promontory. When the shoulder is stuck behind the
pubis symphysis, i.e., a fixed joint where the two pubic bones meet, the condition is called
anterior shoulder dystocia. (Doc. #28-2). When the baby’s shoulder is obstructed by the
sacral promontory, which is part of the mother’s tailbone, the condition is called posterior
shoulder dystocia. Because the pubis symphysis is further along the birth canal, an
anterior shoulder dystocia occurs after a baby’s head crowns.

Plaintiff suffered a

posterior shoulder dystocia, which is less common. (Id. at 2; Doc. #28-17 at 2).
Upon delivery, Plaintiff showed no movement of his left arm, decreased movement
of his right arm, facial bruising, and overriding sutures. He was diagnosed with a brachial
plexus injury, a known complication of shoulder dystocia. The brachial plexus is the
network of nerves that run from the spinal cord to the shoulder and arm, and these nerves
can stretch or tear while a baby’s shoulder is caught behind his mother’s anatomy.
Because Plaintiff’s brachial plexus injury is permanent, he brings this suit against
the federal government who funded the health center that employed CNM Carroll.2
Plaintiff alleges, among other things, that CNM Carroll used excessive traction, i.e.,
pulling on his head and neck, after she encountered the shoulder dystocia, and that her

2

The Government concedes that it is the proper defendant in this suit, which Plaintiff brought under the
Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. (Doc. #28 at 5 n.2).

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negligent care caused his injury. To support his position, Plaintiff relies on the expert
opinions of Dr. Michael Kreitzer, an obstetrician, and Jody Perez, a certified nurse midwife
(“CNM Perez”).
The Government contests these claims. It argues that the natural forces of labor,
i.e., the forces associated with contractions and pushing, and not CNM Carroll applying
excessive traction, caused Plaintiff’s brachial plexus injury. To support its defense, the
Government relies on the expert opinions of Dr. Robert Gherman, a board certified
physician in maternal/fetal medicine and obstetrics/gynecology, and Carolyn Gegor, a
certified nurse midwife (“CNM Gegor”). Pending now is each party’s motion to preclude
the opinions and testimonies of the opposing experts.
I. LEGAL STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert testimony. It
provides that,
[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 or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. The proponent of expert testimony bears the burden of proving by a
preponderance of evidence that the opinions are reliable. See Kilpatrick v. Breg Inc., 613
F.3d 1329, 1335 (11th Cir. 2010).

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Applying these principles, district courts may admit expert testimony if three
requirements are met: (1) the witness is qualified to testify competently about the matter
he or she intends to address; (2) the witness employs a reliable methodology per a
Daubert inquiry; and (3) the testimony must assist the trier of fact to understand the
evidence or determine a fact in issue. See id. Here, both party’s motions hinge on
whether the methodologies used by the experts are reliable under Daubert.3
In deciding whether expert testimony is admissible, the Supreme Court has tasked
district courts to act as “gatekeepers” in order to ensure that only reliable and relevant
expert testimony reaches the jury. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589
(1993); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 157 (1999) (“We conclude
that Daubert’s general holding – setting forth the trial judge’s general ‘gatekeeping’
obligation – applies not only to testimony based on ‘scientific’ knowledge, but also to
testimony based on ‘technical’ and ‘other specialized’ knowledge.”). The Supreme Court
also articulated a non-exclusive list of factors to consider:


whether the expert’s theory can be or has been tested;



whether the theory has been subject to peer review and publication;



the known or potential rate of error of the theory when applied; and



whether the theory has been generally accepted in the scientific
community.

Daubert, 509 U.S. 593-94; see also Kilpatrick, 613 F.3d at 1335 (citations omitted).
Because a court’s “gatekeeping inquiry must be tied to the facts of a particular case,”

Neither party challenges the qualifications of the other party’s experts. Thus, the Court need not detail
nor review each expert’s credentials and experience in the medical field.
3

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Kumho, 526 U.S. at 150, it may consider other factors in deciding whether expert
testimony is reliable, including:


whether the experts have developed their opinions expressly for purposes of
testifying;



whether the expert has unjustifiably extrapolated from an accepted premise to
an unfounded conclusion; and



whether the expert is being as careful as he would be in his regular professional
work outside his paid litigation consulting.

Fed R. Evid. 702, Advisory Committee Note (2000 Amendment). At bottom, the court
must do “a preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or methodology properly
can be applied to the facts in issue.” Daubert, 509 U.S. at 593-94.
With these standards in mind, the Court turns to the parties’ respective Daubert
motions.
DISCUSSION
To recap, the parties agree that CNM Carroll encountered a posterior shoulder
dystocia during Plaintiff’s delivery, meaning that his shoulder was stuck behind his
mother’s tailbone before his head crowned. They also agree that Plaintiff has suffered a
permanent brachial plexus injury. They square off as to whether the natural forces of
labor or CNM Carroll’s delivery techniques caused Plaintiff’s injury. This is a
quintessential battle of the experts.
A. Expert Opinions
Before turning to the merits of the Daubert motions, the Court will review the expert
opinions, starting with Plaintiff’s side.

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1. Dr. Kreitzer and CNM Perez
Both Dr. Kreitzer and CNM Perez opine that CNM Carroll deviated from the
standard of care because she used excessive traction after she encountered the shoulder
dystocia. They reach this conclusion based on the severity and permanency of Plaintiff’s
brachial injury. (Doc. #28-5 at 80:11-81:17; Doc. #28-11 at 138:4-12).
While CNM Perez’s opinion stops there, Dr. Kreitzer goes one-step further. It is
Dr. Kreitzer’s opinion that Plaintiff’s brachial injury occurred because CNM Carroll used
upward traction to dislodge his shoulder. (Doc. #28-11 at 142:23-143:19). According to
him, CNM Carroll used upward traction because she attempted to deliver Plaintiff’s
posterior shoulder and she admitted to never taking her hands off his head after
encountering the shoulder dystocia. (Id. at 138:4-11, 143:8-23; Doc. #28-4 at 56:5-25).
From there, Dr. Kreitzer states that upward traction is the only explanation for the
overstretching of Plaintiff’s posterior arm, and that “[i]t is pure speculation and theory to
say that shoulder dystocia by itself can cause this injury, when tests and prospective
studies demonstrate it does not.” (Doc. #28-11 at 138:25-139:7, 143:20-23). Thus, Dr.
Kreitzer believes only one conclusion can be drawn in this case – excessive traction by
CNM Carroll caused Plaintiff’s brachial plexus injury.
2. Dr. Gherman and CNM Gegor
Dr. Gherman and CNM Gegor stand in direct contrast to Dr. Kreitzer and CNM
Perez. Neither Dr. Gherman nor CNM Gegor agrees that the mere presence of Plaintiff’s
permanent brachial plexus injury means that CNM Carroll applied excessive traction.
(Doc. #28-7 at 4; Doc. #28-9 at 6).

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Starting with Dr. Gherman, he is of the opinion that the posterior shoulder dystocia
itself caused Plaintiff’s injury, and not CNM Carroll using excessive traction while
managing the dystocia. (Doc. #28-7 at 4-5). Dr. Gherman relies on medical literature
from the American College of Obstetricians and Gynecologists (“ACOG”) and the Royal
College of Obstetricians & Gynaecologists that discusses the differences between
posterior and anterior shoulder dystocia. (Id. at 5). For posterior shoulder dystocia, like
that here, the literature indicates, “it is not possible for the clinician to apply extraction
forces that are often put forth as the cause of the injury because the head has not
delivered.” (Id.). In contrast to Plaintiff’s experts, Dr. Gherman also avers, “an expert
witness cannot conclude anything about the amount of traction that was applied during
the delivery/shoulder dystocia by using the basis of a permanent peripheral nerve injury.”
(Id. at 4).
Like Dr. Gherman, CNM Gegor finds it important that Plaintiff suffered a posterior
shoulder dystocia. (Doc. #28-9). She describes that condition as a “rare event” and “not
a situation where the clinician’s actions would cause damage to the brachial plexus;
instead, the damage is part of a process occurring in utero, out of control of the provider.”
(Id. at 6). Thus, CNM Gegor finds no fault in CNM Carroll’s delivery of Plaintiff.
B. Plaintiff’s Daubert Motion
Again, Plaintiff moves to preclude Dr. Gherman and CNM Gegor from testifying
that the natural forces of labor caused Plaintiff’s permanent brachial plexus injury and that
his injury could have occurred even in the absence of CNM Carroll applying traction.
(Doc. #21 at 2). Plaintiff maintains that the natural forces of labor theory is novel and
unscientific because it finds no support in medical methodology, texts, or literature. (Id.).

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Plaintiff also argues that the Government’s experts fail to distinguish between temporary
and permanent brachial plexus injuries.
The Government, however, maintains that Plaintiff is presenting nothing more than
a res ipsa loquitur theory of liability – namely, because Plaintiff suffered a permanent
brachial plexus injury, CNM Carroll must have acted negligently. (Doc. #28 at 2). The
Government recognizes that Florida law permits a res ipsa loquitur theory of negligence
when there is no other explanation of the injury, but it argues that this is not such a case.
Enter Dr. Gherman and CNM Gegor.

The Government in essence counterattacks

Plaintiff’s theory of the case with Dr. Gherman’s and CNM Gegor’s opinions that the
posterior shoulder dystocia coupled with the natural forces of labor caused Plaintiff’s
injury. With another explanation of Plaintiff’s injury, the Government deflates Plaintiff’s
res ipsa loquitur theory, or so it argues.
At this stage, the Court’s focus is not on the correctness or merits of Dr. Gherman’s
and CNM Gegor’s opinions. That issue is for the bench trial. Instead, the Court need
only decide whether their opinions are based on reliable methodology and principles. See
Daubert, 509 U.S. at 595 (stating the “focus, of course, must be solely on principles and
method, not on the conclusions they generate”).

They are.

The Government has

submitted upwards of five peer-reviewed and published articles and textbook excerpts.
Among other things, this medical literature backs the opinion that, because Plaintiff’s
injury occurred to his posterior, rather than anterior, shoulder, CNM Carroll’s actions are
not likely the cause of the injury. (Doc. #28-1 at 22, 27, 33-34, 36; Doc. #28-10 at 3; Doc.
#28-13 at 4; Doc. #28-14 at 3; Doc. #28-15 at 4; Doc. #28-17 at 2). Particularly persuasive

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is the ACOG compendium titled “Neonatal Brachial Plexus Palsy,” published in 2014.
(Doc. #28-1). The stated purpose of the ACOG compendium was
[t]o review and summarize the current state of the scientific knowledge, as
set forth in the peer-reviewed and relevant historical literature, about the
mechanisms which may result in neonatal brachial plexus palsy. The
purpose of conducting such review is to produce a report which will
succinctly summarize the relevant research on the pathophysiology of
neonatal brachial plexus palsy. Although primarily intended to inform the
College’s Fellows about the existing state of knowledge as to the etiology,
as well the prediction, management, and treatment of neonatal brachial
plexus palsy, this report also is meant to serve as a resource for all health
care providers involved in this subject matter area.
After completing this review, the ACOG found, among other things, that


“Stretch in the brachial plexus occurs during the birth process itself, as
shown by both computer and physical models (1, 2), and it can occur in the
nerves of either or both anterior and posterior shoulders. This stretch
results from differential motion between the fetal head and shoulders after
some element of the maternal antimony halts or retards the progression of
the larger shoulders through the birth canal (1, 3).” (Id. at 22);



“During a posterior shoulder impaction at the level of the sacral promontory,
it is not possible for the clinician to apply extraction forces that are often put
forth as the cause of the injury because the head has not delivered. The
high rate of posterior shoulder involvement in deliveries that do not involve
shoulder dystocia indicates that severe and persistent injuries may occur to
the brachial plexus without the clinician’s application of traction during
delivery (13).” (Id. at 27);



“There is some evidence that the cardinal movements of labor alone may
cause stretch in the brachial plexus (2), but the extent of this stretch requires
more investigation. Thus, the clinical and biomedical engineering evidence
supports the assertion that when a shoulder is restrained either transiently
or during a more significant impaction, both maternal forces and clinician
forces, if applied, will stretch the brachial plexus.” (Id. at 33-34);



“In addition to research within the obstetric community, the pediatric,
orthopedic, and neurologic literature now stress that the existence of
[neonatal brachial plexus palsy] following birth does not a priori indicate that
exogenous [clinician] forces are the cause of this injury. The pediatric
neurologic community also has reviewed the literature on causation and has
similarly concluded that, ‘The obstetrician’s efforts to relieve shoulder
dystocia are not the whole explanation for brachial plexus birth injuries.

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Expulsive forces (ie, endogenous forces) generated by the uterus and the
abdominal wall . . . may be contributory in many cases’ (57)” (Id. at 36); and


“Neither high-quality nor consistent data exist to suggest that NBPP can be
caused only by a specific amount of applied force beyond that typically used
by health care providers and experienced during a delivery without NBPP.”
(Id.).

In addition, the Government cites to a 1997 article in a medical textbook that
supports the proposition that maternal forces of labor can cause permanent, as
opposed to temporary, brachial plexus injuries. (Doc. #28-14 (stating “[i]n the
cases with permanent Erb palsy in the posterior shoulder of the delivering infant,
we hypothesize that the injury was not a product of traction applied at delivery but
rather preceded expulsion of the fetal head”). This article, as well as the ACOG
compendium, was peer reviewed and published, and thus signals reliability. See
Daubert, 509 U.S. at 593-94.
Although not binding, case law from other jurisdictions supports the
conclusion that Dr. Gherman’s and CNM Gegor’s natural forces of labor theory is
reliable under Daubert. See Silong v. United States, No. CV F 06-0474, LJO DLB,
2007 WL 2535126, at *3-4 (E.D. Cal. Aug. 31, 2007) (denying plaintiffs’ motion to
exclude expert testimony regarding the maternal forces theory in a case involving
a brachial plexus injury); Potter v. Bowman, No. 05-cv-00827-REB-PAC, 2006 WL
3760267, at *3 (D. Col. Dec. 18, 2006) (“[A]lthough plaintiffs couch their objections
in the language of Daubert and its progeny, their complaint boils down to an
argument that . . . [the] defense experts’ opinions should be excluded because
they are ‘novel,’ that is, that they are not generally accepted in the field of
obstetrics.

This standard, commonly known as the Frye test . . . although

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potentially relevant to the calculus, is no longer the sole touchstone of admissibility
under Fed. R. Evid. 702.”); Estate of Ford v. Eicher, 250 P.3d 262 (Colo. 2011)
(concluding that the trial court erred in excluding the opinions of the defense
experts that the child’s permanent brachial plexus injury was caused by maternal
forces); Bayer ex rel. Petrucelli v. Dobbins, 371 Wis. 2d 428 (Ct. App. 2016)
(concluding that the trial court erroneously excluded the defense experts’
testimony that maternal forces of labor caused the baby’s permanent brachial
plexus injury).
Finally, Plaintiff’s arguments affect the weight of Dr. Gherman’s and CNM
Gegor’s opinions, not admissibility. Plaintiff may fully examine the issues raised in
his motion on cross-examination or by presenting competing evidence.

See

Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” (citation omitted)).
“These conventional devices, rather than wholesale exclusion under an
uncompromising ‘general acceptance’ test, are the appropriate safeguards where
the basis of scientific testimony meets the standards of Rule 702.” Id.
In conclusion, the Government has met its burden of proving that Dr.
Gherman’s and CNM Gegor’s expert opinions satisfy the requirements of Rule
702 and Daubert, and are thus admissible. Accordingly, the Court denies Plaintiff’s
Daubert motion (Doc. #21).

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C. The Government’s Daubert Motion
The Government cross-moves to preclude Plaintiff’s experts, Dr. Kreitzer and CNM
Perez, from testifying that permanent brachial plexus injuries cannot be caused by the
natural forces of labor and that those injuries must result from the clinician applying
excessive traction to a baby’s head and neck during delivery. (Doc. #28 at 18-21).
Simply, the Government does not want Plaintiff’s experts testifying that the natural forces
of labor are not a possible cause for Plaintiff’s injury, as that would be contrary to the
current peer-reviewed medical literature on posterior shoulder dystocia.
The Government draws the Court’s attention to Lawrey v. Good Samaritan Hosp.,
751 F.3d 947 (8th Cir. 2014), a similar medical negligence case involving shoulder
dystocia and a permanent brachial plexus injury. In Lawrey, the trial court precluded
plaintiff’s experts
from offering any opinion that maternal expulsive forces cannot cause
permanent brachial plexus injuries, or that birth-related brachial plexus
injuries are always the result of traction applied to an infant’s head and neck
by the birth-attendant, or that the injury to [the plaintiff] was caused by [the
physician] applying excessive traction to [the plaintiff’s] head and neck.
Lawrey v. Kearney Clinic, P.C., No. 8:11-cv-63, 2012 WL 3583164, at *4 (D. Neb. Aug.
20, 2012) (emphasis in original). The Eighth Circuit affirmed. It found that the opinions
of plaintiff’s experts did not fit the facts of that cause because, in part, the “[plaintiff’s]
injury resulted from a posterior shoulder dystocia, which, as previously noted, occurs
before a baby’s head has crowned.

This means the force which could cause [the

plaintiff’s] injury must have been applied while her head and neck were still in the birth
canal.” Lawrey, 751 F.3d at 953.

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The Court finds Lawrey to be instructive. All credible evidence before this Court
suggests that brachial plexus injuries can and do occur in a fixed percentage of births
where the clinician applies no traction. And the fact that this case involves a posterior
shoulder dystocia cuts against the relevancy of Plaintiff’s experts testifying that because
he suffered a permanent brachial plexus injury, CNM Carroll acted negligently. The
Court, therefore, grants the Government’s motion thereby precluding Plaintiff’s experts
from testifying that the natural forces of labor is not a possible cause for Plaintiff’s injury.
Accordingly, it is now
ORDERED:
(1) Plaintiff Initial Daubert Motion to Preclude Defendant’s Experts from Testifying
that the Plaintiff’s Permanent Brachial Plexus Injury Was Caused by “Maternal
Expulsive Forces” (Doc. #21) is DENIED.
(2) The United States of America’s Cross Motion to Preclude Plaintiff’s Experts
from Testifying that Permanent Brachial Plexus Injuries Cannot be Caused by
the Natural Forces of Labor (Doc. #28) is GRANTED as set forth herein.
DONE and ORDERED in Fort Myers, Florida this 13th day of October, 2016.

Copies: All Parties of Record

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