Grenier et al v. United States of America

Filing 153

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE THE TESTIMONY OF EXPERT WITNESS THOMAS WISWELL M.D., [FILED 7/1/24 (DKT. NO. 112 )] - Signed by JUDGE LESLIE E. KOBAYASHI on 9/25/2024. (eta)

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
TYLER GRENIER, Individually, and
JENNA GRENIER, Individually and
as Next Friend of J.A.G., a
minor,

CIV. NO. 22-00396 LEK-KJM

Plaintiffs
vs.
UNITED STATES OF AMERICA,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO
STRIKE THE TESTIMONY OF EXPERT WITNESS
THOMAS WISWELL M.D., [FILED 7/1/24 (DKT. NO. 112)]
This matter arises out of a medical malpractice action
filed by Plaintiffs Tyler Grenier, individually, and Jenna
Grenier, individually and as next friend of J.A.G., a minor,
(collectively “Plaintiffs”) against Defendant United States of
America (“Defendant”) for alleged medical negligence at Tripler
Army Medical Center (“Tripler” or “TAMC”) related to the medical
care by Defendant’s employees for prenatal care and labor of
Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery
of J.A.G. See Complaint, filed 8/29/22 (dkt. no. 1). Severe
physical injuries sustained by Jenna Grenier and J.A.G. are
alleged as well as the negligent infliction of emotional
distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna;
Plaintiffs’ loss of filial consortium; and Tyler’s loss of

spousal consortium. [Id. at ¶¶ 59-73.] In the instant motion,
Plaintiffs seek to strike the testimony of Defendant’s expert
witness, Thomas Wiswell, M.D., in its entirety because he is a
neonatologist and is not qualified to render opinions regarding
causation of the injuries sustained by the minor plaintiff nor
the standard of care surrounding his delivery at birth. [Pls.’
Motion to Strike the Testimony of Expert Witness Thomas Wiswell,
M.D., filed 7/1/24 (dkt. no. 111) (“Wiswell Motion”), Mem. in
Supp. at 1-2.] They do not dispute his credentials as a
pediatrician and neonatologist.
Defendants filed its opposition on August 13, 2024.
[Def.’s Omnibus Opposition to Plaintiffs’ Motions to Strike the
Expert Testimony of Dwight Rouse, M.D., Cole Greves, M.D.,
Thomas Wiswell, M.D., and Thomas G. Burns, Psy.D., ABPP [ECF
Nos. 108, 109, 112, 114, 115, 116], filed 8/13/24 (dkt. no. 139)
(“Mem. in Opp.”).] Defendant challenges Plaintiffs’ assertion
that, because Dr. Wiswell is a neonatologist and not an OBGYN,
he is not qualified to offer opinions about Jenna’s labor and
delivery, and cannot meet the requirements of Rule 702, Federal
Rules of Evidence. [Id. at 6-7.] Defendant contends that lack of
specialization is a matter of weight and not admissibility so
long as Dr. Wiswell stays in his subject area. [Id. at 7
(citations omitted).]

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Plaintiffs filed their reply on August 20, 2024, and
repeat their assertations that: Dr. Wiswell is not qualified to
opine on the standard of care surrounding the minor plaintiff’s
delivery because that opinion is outside his expertise; his
opinions are not helpful to the trier of fact; and his opinions
duplicate standard of care opinions from Defendant’s experts,
Drs. Rouse and Greves. [Pls.’ Reply Memorandum to Defendant
United States of America’s Omnibus Opposition to Plaintiffs’
Motions to Strike the Expert Testimony of Dwight Rouse, M.D.,
Cole Greves, M.D., Thomas Wiswell, M.D., and Thomas G. Burns,
Psy.D., ABPP, filed 8/20/24 (dkt. no. 145), at 10-11.]
As follows, the Wiswell Motion is granted as to
Dr. Wiswell’s opinions on standard of care for Jenna, and labor
and delivery because he is not qualified to render opinions in
these areas. The Wiswell Motion is denied in all other respects.
STANDARDS
Rule 702 of the Federal Rules of Evidence provides
that expert opinion evidence is admissible if: (1) the witness
is sufficiently “qualified as an expert by knowledge, skill,
experience, training, or education”; (2) the “scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in
issue”; (3) “the testimony is based on sufficient facts or
data”; (4) “the testimony is the product of reliable principles
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and methods”; and (5) the expert has reliably applied the
relevant principles and methods to the facts of the case. Fed.
R. Evid. 702. A trial judge is required to apply a gatekeeping
role to expert witness testimony. White v. Ford Motor Co., 312
F.3d 998, 1007 (9th Cir. 2002) (citing Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993)), opinion amended on denial
of reh’g, 335 F.3d 833 (9th Cir. 2003). The Rule 702 inquiry
under Daubert, however, “‘is a flexible one,’” and the “‘factors
identified in Daubert may or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expert’s
particular expertise, and the subject of his testimony.’” Id.
(quoting Kumho Tire, Ltd. v. Carmichael, 526 U.S. 137, 150
(1999)). To determine reliability,
[s]cientific evidence is reliable “if the
principles and methodology used by an expert are
grounded in the methods of science.” Clausen v.
M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir.
2003). The court’s focus “must be solely on
principles and methodology, not on the
conclusions that they generate.” Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 595
(1993). Courts must determine whether the
reasoning or methodology underlying testimony is
scientifically valid and whether that reasoning
or methodology can be applied to the facts in
issue. Id. at 592-93. Among the factors
considered in determining whether to admit expert
testimony under Rule 702 are: (1) whether the
expert’s theory or method is generally accepted
in the scientific community; (2) whether the
expert’s methodology can be or has been tested;
(3) the known or potential error rate of the
technique; and (4) whether the method has been

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subjected to peer review and publication. Id. at
593-94.
Zucchella v. Olympusat, Inc., CV 19-7335 DSF(PLAx), 2023 WL
2628107, at *1 (C.D. Cal. Jan. 10, 2023). “[A] trial court has
broad latitude in determining whether an expert’s testimony is
reliable,” as well as in deciding how to determine the
reliability of that testimony. Hangarter v. Provident Life &
Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (citation and
internal quotation marks omitted). In applying Daubert to
physicians’ testimony,
“A trial court should admit medical expert
testimony if physicians would accept it as useful
and reliable,” but it need not be conclusive
because “medical knowledge is often uncertain.”
“The human body is complex, etiology is often
uncertain, and ethical concerns often prevent
double-blind studies calculated to establish
statistical proof.” Where the foundation is
sufficient, the litigant is “entitled to have the
jury decide upon [the experts’] credibility,
rather than the judge.”
Primiano v. Cook, 598 F.3d 558, 565–66 (9th Cir. 2010), as
amended (Apr. 27, 2010) (alteration in Primiano) (footnotes and
citations omitted).
To be admissible, evidence must be relevant. See Fed.
R. Evid. 402. “‘Expert opinion testimony is relevant if the
knowledge underlying it has a valid connection to the pertinent
inquiry.’” Primiano, 598 F.3d at 565 (quoting United States v.
Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)). The facts

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that the expert relies upon for his or her opinion is not an
issue of admissibility:
“[T]he factual basis of an expert opinion
goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party
to examine the factual basis for the opinion in
cross-examination.” Hangarter v. Provident Life
and Acc. Ins. Co., 373 F.3d 998, 1017 n.14 (9th
Cir. 2004) (quoting Children’s Broad. Corp. v.
Walt Disney Co., 357 F.3d 860, 865 (8th Cir.
2004)). “Only if the expert’s opinion is so
fundamentally unsupported that it can offer no
assistance to the jury must such testimony be
excluded.” Children’s Broad. Corp., 357 F.3d at
865. The Court agrees many of Nutten’s
assumptions about Dykzeul’s lost earnings with
Charter are rosy. But they are not entirely
unfounded and Charter’s concerns about the basis
of the report can be raised and addressed on
cross examination. See Primiano, 598 F.3d at 564
(“Shaky but admissible evidence is to be attacked
by cross examination, contrary evidence, and
attention to the burden of proof, not
exclusion.”).
Dykzeul v. Charter Commc’ns, Inc., CV 18-5826 DSF(GJSx), 2021 WL
4522545, at *7 (C.D. Cal. Feb. 3, 2021) (alteration in Dykzeul).
DISCUSSION
Dr. Wiswell reviewed the Complaint filed in the
instant action, Tripler records for Jenna and the minor
plaintiff, various medical records from medical facilities for
the minor plaintiff, Plaintiffs’ expert reports, the deposition
transcripts for Jenna and Tyler as well as those for various
individuals involved in Jenna’s labor and the delivery of the
minor plaintiff. [Wiswell Motion, Declaration of Jed Kurzban,

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Esq., Exh. A (letter report from Dr. Wiswell to Dana Barbata,
Esq., dated 5/8/24 (dkt. no. 112-3) (“Wiswell Expert Report”)).]
In his report, he states that he is “board certified in
Pediatrics and Neonatal-Perinatal Medicine,” and he is “a
neonatologist . . . recently retired from clinical practice.”
[Id. at PageID.940.] The American Board of Medical Specialties
has set the standard of professionalism and care for physicians
and specialists since 1933 and has twenty-four certifying
boards. See https://www.abms.org (last visited Sept. 24, 2024).
The American Board of Pediatrics states that “[p]ediatricians
practice the specialty of medical science concerned with the
physical, emotional, and social health of children from birth to
young adulthood.” https://www.abms.org/board/american-board-ofpediatrics (last visited Sept. 24, 2024). Subspecialties
certified by the American Board of Pediatrics include neonatalperinatal medicine, which it describes as “act[ing] as the
principal care provider for sick newborn infants.” Id. In
addition, “[t]his specialist’s clinical expertise is used for
direct patient care and for consulting with obstetrical
colleagues to plan for the care of mothers who have high-risk
pregnancies.” Id.
Dr. Wiswell lists 17 opinions regarding the instant
matter. The following ten opinions are excluded on the basis
that Dr. Wiswell does not present qualifications in the specific
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medical practice areas to render opinions regarding the standard
of care for obstetrics, and labor and delivery, certain opinions
are generalized and overly broad, and he did not provide any
methodology or principles supporting his conclusions:
1.

None of the Tripler Army Medical Center
providers breached the standard of care.

2.

J.A.G.’s medical problems were not caused by
negligence by any TAMC providers.

. . . .
5. As many as 44% or more of women are colonized
with the E. coli bacterium during pregnancy.
It would be pure speculation that Jenna
Grenier’s birth canal was inadequately
cleansed during her labor with J.A.G. and that
this was the cause of her child’s infection.
Additionally, there is no medical literature
supporting the concept that an elective
cesarean section instead of a vaginal delivery
will prevent systemic bacterial infections
with E. coli in the offspring of mothers who
are colonized with the organism.
. . . .
10. The management of Jenna Grenier met the
American College of Obstetrics and Gynecology
(ACOG) Practice Bulletin #178 published
recommendations for pregnant diabetic women
for considering elective cesarean section when
there is possible fetal macrosomia. The ACOG
recommendations are to attempt a vaginal
delivery in such patients and not consider a
cesarean section unless the estimated fetal
weight is ≥ 4500 gm. The two estimates of the
fetal weight closest to J.A.G.’s delivery were
done less than 4 days before induction of
labor: a) 3 3/4 days prior to induction (a
4013 gm estimate via ultrasound) and b) on the
day of induction (3500 gm estimate from
clinical examination findings using the
Leopold maneuvers). As such, one could not
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“reasonably” estimate that Jenna’s fetus would
weigh 4500 gm or greater prior to her
induction. In fact, using standard fetal
growth charts to plot the serial ultrasound
assessments of fetal weight in this child
demonstrates a projected birth weight hundreds
of grams less than 4500 gm on the day when
induction of labor was started (redacted). The
standard of care in decision-making is based
on the estimate weight of the fetus, not on
the percentiles on fetal growth charts where
the estimated fetal weight plots.
11. A plaintiff obstetrician (Dr. Levy) suggested
that presenting delivery options to
Ms. Grenier was “both foolish and below the
standard of care”. He stated that the TAMC
providers should have only given her the
single “recommendation” for a cesarean
section. However, presenting a single
treatment option is an incorrect proposition
and would have been considered a breach of the
standard of care in 2021. Counseling a
laboring mother and presenting options, as
well as discussing potential risks and
benefits, are the basis for a cornerstone of
medical practice, informed consent counseling.
Solely presenting a single recommendation is a
paternalistic form of medical practice that
has been considered unethical for more than 25
years. The latter approach does not include
crucial ethical concepts such as true informed
consent, patient autonomy, and shared decision
making. True informed consent counseling
involves a partnership in decision making
between the patient and the physician.
12. The aforementioned plaintiff expert stated
that since Ms. Grenier’s diabetes was not well
controlled, a “reasonable” OB/GYN provider
should have advised a cesarean section without
including forceps-assisted vaginal delivery as
an option. However, this is an incorrect
assessment of Ms. Grenier’s status during the
latter part of her pregnancy. At an early
point in her pregnancy in early December 2020
(more than seven months before delivery),
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Jenna was considered to have poor glucose
control reflected by a hemoglobin A1c level of
9.1. Nevertheless, subsequently during her
pregnancy various healthcare providers worked
with this patient and adjusted her insulin
dosing so that by the last trimester her
diabetes was described as being both
“moderately well-controlled” and “wellcontrolled”. The drop in her hemoglobin A1c
level to 6.4 on 5/11/2021 reflects this
improved control.
13. ACOG supports the training in both low- and
mid-forceps deliveries and does not recommend
that they not be performed. Reputable OB/GYN
providers continue to successfully perform the
procedure when indicated. There is no
indication in the medical records that Dr.
Pilgrim was not qualified to perform or
supervise the forceps-assisted delivery or
that said delivery breached the standard of
care.
14. The criteria for mid-pelvis arrest of descent
is not more than 2 hours of pushing. The ACOG
criteria for arrest of descent were changed
ten years ago (2014) to a duration of 4 hours
or more.
. . . .
16. Dr. Levy refers to Ms. Grenier’s comments that
in post-op physician’s notes in which this
woman stated that she had read the medical
records and did not find that she had given
consent for a forceps-assisted delivery. Dr.
Levy also claims that Ms. Grenier had clearly
stated that she requested a cesarean delivery,
This expert is is [sic] incorrect. Ms. Grenier
signed a consent form on the day of induction
(redacted) in which she specifically agreed to
the procedure of a vaginal delivery with the
possibility her doctor might need the “help”
of forceps. Additionally, there is no
documentation that Ms. Grenier requested a
cesarean section either in the prenatal
records or during the period of time between
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her (redacted) admission for induction of
labor and the subsequent delivery of J.A.G. on
(redacted). In her caregiver notes made on
7/16/2021, Dr. Mada reminded Jenna that during
late labor prior to J.A.G.’s birth, the two of
them had discussed the possibility of a
cesarean section, but that the two of them had
decided to proceed with a forceps delivery.
17. Several of Dr. Levy’s opinions are pure
conjecture. There is no evidence in the
records that Dr. Mada needed to perform this
operative delivery in order to complete her
ACGME requirements. There is no evidence in
the records that the physicians delivering the
child failed to exercise skill and
thoughtfulness in their operative vaginal
delivery. There is no evidence in the records
that the repair of Ms. Grenier’s 4th degree
laceration was not skillfully done.
The remaining seven opinions expressed in the Wiswell
Expert Report (found in paragraphs numbered 3, 4, 6, 7, 8, 9,
and 15) are not excluded because he is qualified as a
pediatrician and neonatologist to opine on the standard of care
for and medical treatment of newborn infants and children.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to
Strike the Testimony of Expert Witness Thomas Wiswell, M.D.,
[filed 7/1/24 (dkt. no. 111),] is GRANTED IN PART AND DENIED IN
PART. Specifically, it is GRANTED as to any opinions about the
standard of care for obstetrics, and labor and delivery, and is
DENIED in all other respects.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, September 25, 2024.

TYLER GRENIER, ETC., ET AL VS. UNITED STATES OF AMERICA; CV 2200396 LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO STRIKE THE TESTIMONY OF EXPERT WITNESS
THOMAS WISWELL M.D., [FILED 7/1/24 (DKT. NO. 112)]

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