Dorman et al v. Anne Arundel Medical Center, Inc. et al

Filing 88

MEMORANDUM AND ORDER denying 62 Plaintiffs' Motion to Exclude the Defendant's Expert Causation Opinions; granting in part and denying in part 63 Defendants' Motion to Exclude Expert Testimony on Lost Future Income and Request for H earing; denying 65 Defendants' Motion to Preclude Opinion Testimony of Robert Allen, Ph.D. and Request for Hearing; denying 67 Defendant's Motion and Supplemental Memorandum Supplying Testimony and Supporting Exclusion of Causation Opinions of Fred Duboe, M.D. and Scott Kozin, M.D.; and denying Plaintiffs' 70 request for attorneys' fees. Signed by Judge Marvin J. Garbis on 5/4/2018. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHEENA DORMAN, et al.
Plaintiffs
vs.
ANNE ARUNDEL MEDICAL CENTER,
et al.
Defendants
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CIVIL ACTION NO. MJG-15-1102

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MEMORANDUM AND ORDER RE: DAUBERT MOTIONS

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*

The Court has before it the following motions and the
materials submitted relating thereto:
1. Plaintiffs’ Motion To Exclude The Defendants’ Expert
Causation Opinions [ECF No. 62];
2. Defendants’ Motion To Exclude Expert Testimony On Lost
Future Income And Request For Hearing [ECF No. 63];
3. Defendants’ Motion To Preclude Opinion Testimony of Robert
Allen, Ph.D. And Request For Hearing [ECF No. 65]; and
4. Defendants’ Supplemental Memorandum Supplying Testimony And
Supporting Exclusion Of Causation Opinions Of Fred Duboe,
M.D. and Scott Kozin, M.D. [ECF No. 67].
The Court has held two hearings, including testimony and
oral argument, on all pending motions.

I.

BACKGROUND 1
This is a personal injury case involving a birth emergency

and the subsequent injuries sustained by an infant during labor
1

The “facts” as stated herein are based on the Complaint and
are not necessarily agreed upon by Defendants.

and delivery.

Plaintiffs Sheena Dorman (“Dorman”), B.M., 2 and

Dillon Ming (together, “Plaintiffs”) bring a medical malpractice
action against Defendants Annapolis OB-GYN Associates and Dr.
Richard Welch (“Dr. Welch”). 3
On June 29, 2013, around 4:55 PM, Ms. Dorman, then 37 weeks
pregnant, was admitted to Dr. Welch’s clinic in active labor.
She was observed by Dr. Welch and Nurse Kristen Becker (“RN
Becker”).

The medical team noted dilations of her cervix until

approximately 1:05 AM on the following day.

At that point, Ms.

Dorman began to push with the contractions.
Before the baby was delivered, Dr. Welch noticed a “turtle
sign,” requiring him to perform a physical maneuver to prevent
damage to the fetus. 4

A “turtle sign” is a sign of an

obstetrical emergency called shoulder dystocia.

In the most

basic terms, it signifies that the fetus’s shoulder has become
lodged on either the mother’s public bone or her spinal sacrum
during delivery, and the head retreats back into the mother
slightly - like a turtle retreating into its shell.

This is an

emergency because the fetus continues move out of the birth
canal, yet the shoulder remains lodged, resulting in stretching

2

The injured minor, by his parents, Sheena Dorman and Dillon
Ming, as next friends.
3
Claims against Anne Arundel Medical Center have been
terminated from this case. See ECF No. 58.
4
The Court understands the medical statements in this
paragraph to be agreed upon by all parties.
2

to the nerves that come from the spinal cord and travel down the
arm (i.e., the brachial plexus nerves).

The stretching, if

severe, can cause certain injuries, including weakness or
paralysis of the side of the body corresponding to the injury
(i.e., “Erb’s Palsy”).

The injuries may lead to temporary or

permanent disabilities.
Dr. Welch wrote in his delivery notes at the time of the
birth that he performed the physical maneuver by applying
“downward traction” with minimal descent (called a “McRobert’s
maneuver”) to dislodge the fetus.

The fetus was successfully

delivered after the maneuver, and Dr. Welch recorded that the
shoulder dystocia had lasted about 30 seconds.
B.M. was delivered at 1:18 AM with respiratory problems,
hypotonia (low muscle tone), and cyanosis (bluish-colored skin).
He was admitted to the neonatal intensive care unit (“NICU”) and
discharged on July 4, 2013 with diagnoses of Erb’s Palsy and
respiratory distress syndrome.

He continues to suffer from

continuing health problems related to the birth injury,
including limited mobility in his left arm and hand.

II.

DAUBERT STANDARD
“[T]he trial judge must ensure that any and all scientific

testimony or evidence admitted is not only relevant, but
reliable.”

United States v. Crisp, 324 F.3d 261, 265 (4th Cir.
3

2003), citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 589 (1993).
(1)
(2)
(3)
(4)

(5)

Id.

There are five factors in this analysis:

whether the particular scientific
theory “can be (and has been) tested”;
whether the theory “has been subjected
to peer review and publication”;
the “known or potential rate of error”;
the “existence and maintenance of
standards controlling the technique's
operation”; and
whether the technique has achieved
“general acceptance” in the relevant
scientific or expert community.

This is not a definitive or exhaustive list, but only

“illustrates the types of factors that will ‘bear on the
inquiry.’”

Id.

The analysis must be flexible.

Id.

III. OVERVIEW OF PARTIES’ CONTENTIONS
The Court understands the main issue at trial to be the
cause of B.M.’s birth injury.
Plaintiffs contend that the injuries in this case could
only be caused by Dr. Welch’s violation of the standard of care,
specifically, by performing a “lateral” maneuver that involved
bending of the baby’s neck. 5

Plaintiffs do not contend that

5

“Lateral” traction involves bending of the baby’s neck,
which, if found, could be a standard of care violation in this
case. By contrast, “axial” or “downward” traction involves
force applied to the baby’s head when the head and neck are in
the same plane, i.e., without bending the neck. Parties appear
to agree that axial traction, if properly conducted, would not
be a standard of care violation in this case.
4

maternal forces of labor 6 could never contribute to this type of
injury, only that they could not have caused the injuries in
this case.

Hearing Tr. 4, ECF No. 86 (Apr. 25, 2018).

Defendants contend that application of lateral force or
bending of B.M.’s neck cannot be found based upon the evidence
in this specific case.

And because the evidence does not

support a finding of lateral force or bending, they argue,
maternal forces are more likely than not the cause of B.M.’s
injury in this case. 7

Hearing Tr. 5-6, ECF No. 86 (Apr. 25,

2018).

IV.

CAUSATION EXPERTS
Plaintiffs wish to exclude Defendants’ causation expert

opinions, specifically, the opinions of Drs. Michele J. Grimm,
Kenneth Silver, and Stephanie Green.

See ECF No. 62.

Defendants wish to exclude Plaintiffs’ causation expert
opinions, specifically, the opinions of Drs. Robert Allen, Fred
J. Duboe, and Scott H. Kozin.

See ECF Nos. 65 and 67.

The Court has heard testimony from Dr. Grimm and Dr. Allen.
Based upon the record and the testimony presented, the Court

6

Maternal forces of labor including involuntary uterine
contractions and quasi-voluntary maternal pushing. Hearing Tr.
99, ECF No. 86 (Apr. 25, 2018).
7
If the evidence showed that Dr. Welch did perform lateral
traction, Defendants’ experts would not be able to support this
contention. Hearing Tr. 7, ECF No. 86 (Apr. 25, 2018).
5

will not exclude the opinions of any of the parties’ causation
experts.

A. MICHELE J. GRIMM, PH.D
Dr. Grimm is a biomedical engineer 8 who has published many
peer-reviewed articles in the field of neonatal brachial plexus
palsy.

Her research is based upon data collected from computer

simulations of labor and delivery.

She was part of a Task Force

on Neonatal Brachial Plexus Palsy that culminated in a 2014
report published by the American College of Obstetricians and
Gynecologists that summarized the state of knowledge regarding
causes and outcomes of neonatal brachial plexus palsy. 9

The

report, supported by many organizations in the obstetrics
community, 10 rejected the theory that a permanent neonatal
brachial plexus injury could occur only as a result of
physician-applied forces (i.e., exogenous forces).
8

Dr. Grimm earned a Bachelor of Science in engineering
mechanics and biomedical engineering at Johns Hopkins and a M.A.
and Ph.D. in bioengineering at the University of Pennsylvania.
9
Pls.’ Opp. Ex. 6 at 19-22, ECF No. 71-7, entitled “Neonatal
Brachial Plexus Palsy,” American College of Obstetricians and
Gynecologists (2014).
10
The American Academy of Pediatrics, American Academy of
Physical Medicine and Rehabilitation, American College of
Nurse Midwives, American Gynecological and Obstetrical
Society, American Society for Reproductive Medicine, Child
Neurology Society, Japan Society of Obstetrics and Gynecology,
the Royal Australian and New Zealand College of Obstetricians
and Gynecologists, Society for Maternal-Fetal Medicine, and the
Society of Obstetricians and Gynecologists of Canada. Hearing
Tr. 88, ECF No. 86 (Apr. 25, 2018).
6

Dr. Grimm will not testify as to the standard of care. 11
Rather, her opinions in this case proceed on the assumption that
Dr. Welch did not apply lateral traction or bending of the neck
(i.e., that he did not violate the standard of care). 12

In other

words, she will opine that absent proof there was lateral
traction or bending, the only remaining cause that could have
caused the stretching injury are the maternal forces of labor.
Hearing Tr. 10, ECF No. 86 (Apr. 25, 2018).
She distinguishes between posterior and anterior shoulder
injuries.

She explains that in a posterior shoulder injury, the

head has not yet been delivered so the doctor’s hands are not
yet on the baby’s head and all of the injury should be due to
maternal forces of labor.
2018).

Hearing Tr. 99, ECF No. 86 (Apr. 25,

In her opinion, an anterior shoulder injury could be

caused by maternal forces of labor in conjunction with normal
physician-applied traction, but that maternal forces would
contribute to more of the stretch and could be sufficient on
their own to cause a permanent injury.
11

Hearing Tr. 99, ECF No.

Plaintiffs argue that because Dr. Grimm bases her opinion
on the assumption of a lack of lateral traction in this case,
she is somehow opining on the standard of care. However, that
is not the case. Dr. Grimm is not opining on whether Dr. Welch
did or did not perform lateral traction (i.e., violate the
standard of care); rather, she is opining as to the cause of the
injury in the event that he did not perform lateral traction.
12
In fact, she states that if she saw evidence in this case
that Dr. Welch applied lateral traction or bent B.M.’s neck, she
would not be able to support Defendants’ contentions. Hearing
Tr. 143, ECF No. 86 (Apr. 25, 2018).
7

132 (Apr. 25, 2018).

There is no record of which shoulder was

lodged in this case (i.e., the posterior or anterior shoulder).
Using commercially available software, MADYMO (standing for
“mathematic dynamic model”), Dr. Grimm developed a computer
model using a “50th percentile” maternal pelvis and a “90th
percentile” fetus to model what was happening to the brachial
plexus during delivery.
25, 2018).

Hearing Tr. 104-05, ECF No. 86 (Apr.

The model was based upon specific standards,

including tissue properties obtained from validated animal
studies (e.g., stiffness of infant goat necks and the nerve
properties of the tibial nerve in rabbits).

The computer model

was then used to simulate deliveries and delivery outcomes.

Dr.

Grimm would change parameters in the model as part of her
studies, including adding physician-applied forces and maternal
forces to estimate the resulting stretch to the brachial plexus.
Hearing Tr. 106, ECF No. 86 (Apr. 25, 2018).
Through the results of the model, Dr. Grimm concluded that
bending of the neck causes significant stretch to the brachial
plexus and can be an accepted cause of the injury, but that
absent such bending, the greatest amount of stretch occurs due
to maternal forces.
2018).

Hearing Tr. 120, ECF No. 86 (Apr. 25,

In other words, she concludes that maternal forces alone

are able to cause a permanent brachial plexus injury, even with
normal amounts of physician-applied traction.
8

Hearing Tr. 121,

ECF No. 86 (Apr. 25, 2018).

The data collected from her

computer model has been the basis of many peer-reviewed
articles.
She also adapted her opinion to the facts of this
particular case.

Three main facts are consistent with her

opinion that maternal forces could have been the sole cause of
the injury: (1) Dr. Welch’s notes state that he performed axial
traction (and not lateral bending), (2) B.M.’s muscle tone was
low upon birth so his brachial plexus was more prone to
stretching injuries, and (3) there was 15 minutes of pushing in
this delivery so maternal forces were applied over that time.
Hearing Tr. 125, 129-130, 132, ECF No. 86 (Apr. 25, 2018).
Dr. Grimm has been criticized by Plaintiffs for using
animal nerves and animal tissue properties in her studies, which
they claim could introduce error into the results.

She explains

that animal nerves are the “gold standard” for these types of
studies because human nerves deteriorate rapidly after death and
data obtained from human cadavers are therefore inaccurate.

For

ethical reasons, it is not possible to test the biomechanics of
nerves in living humans.

Hearing Tr. 89, ECF No. 86 (Apr. 25,

2018).
Plaintiffs also criticize Dr. Grimm for not having
published papers about injuries that are exactly like B.M.’s
particular injuries (i.e., rupture of the C5 and C6 nerves,
9

partial rupture of the C7 nerve, and some injury to the C8 and
T1 nerves), or conducting a model of B.M.’s specific delivery.
Hearing Tr. 150-51, ECF No. 86 (Apr. 25, 2018).

The Court

understands that a computer model of B.M.’s specific delivery is
impossible and does not agree that this criticism undermines her
opinion in this case.
Dr. Grimm’s testimony has been deemed reliable under the
Daubert standard by other courts. 13

See, e.g., Silong v. United

States, No. CVF06-0474 LJODLB, 2007 WL 2535126, at *3 (E.D. Cal.
Aug. 31, 2007) (“The evidence provided by the Government shows
that Dr. Grimm’s expert opinion is reliable for purposes of Rule
702 and Daubert.”); Bayer ex rel. Petrucelli v. Dobbins, 2016 WI
App 65, ¶¶ 1, 25 (reversing trial court that excluded Dr.
Grimm’s testimony).
The Silong court based its decision on Dr. Grimm’s peerreviewed articles, references to Dr. Grimm’s work in obstetric
textbooks and the 2014 publication by the American College of
Obstetrics and Gynecology, her status as a course instructor on
this subject, her receipt of multiple awards for research
13

Other courts have disallowed Dr. Grimm’s testimony under
the Frye-Parker standard which does not apply here. These
courts had concerns about the applicability of her model to the
specific case at hand, as well as whether “animal models” could
apply to humans. See Nobre ex rel. Ferraro v. Shanahan, 2013
N.Y. Slip Op. 23433, *13 (N.Y. Sup. Ct. 2013), Sutryk v. Osula,
Index No. 91904 (N.Y. Sup. Ct. 2013). But see Ruffin ex ref.
Sanders v. Boler, 890 N.E.2d 1174 (2008) (allowing Grimm’s
testimony under a Frye standard).
10

excellence on this issue, her presentation of findings at
multiple conferences, and the support of her theory in other
literature.

Silong, 2007 WL 2535126, at *3.

The Bayer

appellate court was impressed with Dr. Grimm’s academic record
and publications and found that the lower court erroneously
ignored Dr. Grimm’s explanation that animal studies were
necessary under the circumstances because it would be impossible
to conduct studies using live human children.
Petrucelli, 2016 WI App 65, ¶¶ 25, 29-30.

Bayer ex rel.

The Court also finds

these decisions persuasive for the reasons stated above.
Accordingly, the Court shall deny Plaintiffs’ request to
exclude Dr. Grimm’s testimony in this case.

B. ROBERT ALLEN, PH.D
Dr. Allen is a biomedical engineer 14 with a research focus
in obstetrics.

He has been publishing in the area of brachial

plexus injuries and shoulder dystocia since 1988.
Dr. Allen will not offer an opinion about the standard of
care.

Hearing Tr. 177, ECF No. 86 (Apr. 25, 2018).

His opinion

is that it would be speculative for anyone to conclude that
maternal forces of labor alone could cause B.M.’s injury.
14

Dr. Allen has an engineering science degree from the State
University of New York at Stony Brook, a M.A. in engineering
from the University of California at Berkeley, and a Ph.D in
civil engineering from Carnegie-Mellon University.
11

Hearing Tr. 171, ECF No. 86 (Apr. 25, 2018).

He opines that no

amount of physician-applied axial or downward traction could
have caused this injury.
2018).

Hearing Tr. 192, ECF No. 86 (Apr. 25,

And because there were no other abnormalities observed

in the labor and delivery process, he concludes that the only
remaining explanation is that Dr. Welch applied lateral traction
or bending of B.M.’s neck (even though Dr. Welch’s notes stated
that he applied axial traction).
(Apr. 25, 2018).

Hearing Tr. 178, ECF No. 183

He also opines that even if the injury was to

the baby’s posterior arm, it would have been caused by “upward
traction” by the physician, not the maternal forces of labor.
Hearing Tr. 184, ECF No. 86 (Apr. 25, 2018).

Dr. Allen also

adjusted his opinion to B.M.’s particular injury, explaining
that injury to C8 and T1 nerves are more consistent with lateral
traction or bending of the baby’s neck.

Hearing Tr. 178, ECF

No. 86 (Apr. 25, 2018).
His opinions appear to derive in part from several studies
that he performed when publishing literature in the field.

In

one study, he used fingertip sensors placed on the gloves
physicians wore during delivery, in order to measure the amount
of contact force between the physician’s hand and the baby’s
head.

Hearing Tr. 184, ECF No. 86 (Apr. 25, 2018).

This study

supported the finding that physicians often apply far more force
in a shoulder dystocia delivery than during a normal delivery.
12

Hearing Tr. 185, ECF No. 86 (Apr. 25, 2018).

In another study,

he used a physical simulator model to simulate delivery.

He

used a “pelvis encased in soft tissue replicas” with “legs that
can rotate” at the hip joint and a “pelvis that also rotates.”
Hearing Tr. 187, ECF No. 86 (Apr. 25, 2018).

He states that the

resistance of delivery in the model has been determined
“quantitatively by obstetricians to be realistic.”
178, ECF No. 187 (Apr. 25, 2018).

Hearing Tr.

It is not entirely clear how

this physical model relates to B.M.’s case.
Dr. Grimm criticizes Dr. Allen’s studies as being not
scientifically reliable because they are based upon inaccurate
or unrealistic parameters and assumptions.
No. 86 (Apr. 25, 2018).

Hearing Tr. 114, ECF

She criticizes his glove sensor study

for having data limitations (e.g., by not sufficiently
distinguishing between pulling and squeezing forces and by
simplifying the data by choosing an arbitrary midpoint to be a
routine or normal amount of force).
86 (Apr. 25, 2018).

Hearing Tr. 118-19, ECF No.

Moreover, according to Dr. Grimm, his

physical model was flawed because it was has significant
limitations for modeling a live birth.
No. 86 (Apr. 25, 2018).

Hearing Tr. 116-17, ECF

In fact, the mannequin “baby” in the

physical model could not even be physically “delivered.”
Defendants also criticize Dr. Allen’s studies as based on

13

extremely small sample sizes and criticize his opinions as based
upon outdated literature dating back to the early 1900s.
The Court finds that Dr. Allen’s physical models and glove
sensor studies, while imperfect, do show that his theory
regarding physician-applied forces has been tested and that his
methodology follows a set of standards.

He has published a

significant number of articles in this area and relies on enough
articles to support his theory about the impact of lateral
traction on brachial plexus injury.

His high number of

publications on the subject suggests that his studies have
achieved a level of acceptance in the relevant scientific
community.
Moreover, at least one court has spoken highly of Dr.
Allen’s work, although it was in the context of explaining why
Dr. Grimm’s testimony should not be allowed under the New York
Frye-Parker standard.

See Nobre ex rel. Ferraro v. Shanahan, 42

Misc. 3d 909, 914, 976 N.Y.S.2d 841, 846 (Sup. Ct. 2013) (“For
more than 25 years, Dr. Allen has performed collaborative
research with obstetricians specializing in high-risk births of
shoulder dystocia and related mechanical injuries.

He has

written a great deal on the subject of shoulder dystocia and
brachial plexus injuries, with many of his articles being
subject to peer-review.”).

14

There could be concerns about the possibility that some of
the literature upon which he relies is outdated.
would be properly raised on cross-examination.

However, this
For the reasons

stated above, the Court finds that Dr. Allen’s opinion in this
case is reliable enough to survive judicial scrutiny under
Daubert, and will deny Defendants’ request to exclude his
testimony.

C. OTHER CAUSATION EXPERTS
The Court understands that the remaining causation experts
in this case (Drs. Silver, Greene, Duboe, and Kozin), would be
called to either provide obstetric-specific opinions about this
case - such as the precise nature of B.M.’s injury and his
subsequent disabilities - or to opine on causation in a way that
is consistent with the opinion of the two main causation
experts, Drs. Grimm and Allen. 15
Because the Court will allow the testimony of the two main
causation experts from both sides, it does not now find a basis
to exclude the supporting opinions for either side.

Neither

side has presented sufficient evidence or argument to persuade
the Court that these experts’ opinions are unreliable under the
Daubert standard.
15

Indeed, one of Defendants’ contentions is that the Kozin
and Duboe opinions suffer from the same flaws as does Dr.
Allen’s opinion. Defs.’ Reply at 7, ECF No. 75.
15

For example, issues raised by the Plaintiff regarding Drs.
Silver and Greene mostly relate to whether they based their
opinions on the facts of this specific case or whether their
opinions conflict with other Defendant experts.

These are

issues that would be properly raised on cross-examination.
Issues raised by the Defendants regarding Drs. Kozin and
Duboe are almost directly linked to the same problems they
raised with Dr. Allen’s opinions.
ECF No. 65.

See Defs.’ Mot. at 2 n. 1,

Under the circumstances, the Court finds that Dr.

Kozin’s and Dr. Duboe’s proposed supporting opinions could also
reliably aid the jury in this case.

Dr. Kozin is B.M.’s

treating orthopedic surgeon and has personal knowledge of the
specific injuries, 16 and Dr. Duboe is well qualified as an
obstetrician, with over 32 years of clinical practice, 7000
deliveries, and at least 70 shoulder dystocia cases. 17

Pls.’

Opp. at 2, ECF No. 71.
Accordingly, the Court will not exclude the expert opinions
of Drs. Silver, Greene, Duboe, and Kozin.

16

Indeed, Dr. Kozin’s expert report does not indicate that he
will offer a causation opinion at all. Rather, it appears that
his opinion will focus on the severity of B.M.’s injuries and
the future prognosis of his disability. Report of Scott H.
Kozin, M.D., dated April 22, 2016.
17
Dr. Duboe’s testimony appears to focus on the standard of
care for a treating obstetrics physician. Report of Dr. Fred
Duboe, dated April 20, 2016.
16

V.

ECONOMIC EXPERTS
Defendants wish to exclude the expert opinions of Dr.

Patricia Pacey, Ph.D, and Dr. Tanya Rutherford Owen, Ph.D,
regarding B.M.’s future lost income and lost earning capacity,
respectively.
Dr. Pacey is an economist 18 and has testified in other
courts on economic issues.

In this case, she used earnings data

in the Current Population Survey (“CPS”), prepared by the Census
Bureau, as well other data and published literature to calculate
future lost income.

Her methodology involved comparing able-

bodied college-educated males with their “moderately disabled”
counterparts.

See Pacey Aff. ¶ 19, ECF No. 70-6.

She intends

to opine that B.M. will sustain a 16.9% loss of earnings over
his lifetime due to his disability, id. ¶ 28, and a $454,600
loss of future wages.

Updated Pacey Report at 3, ECF No. 70-11.

She considered other data surveys in her calculation and
determined they come to similar results.
Dr. Owen is a rehabilitation counselor 19 and specializes in
vocational rehabilitation and life care planning.

She prepared

a Vocational Worksheet explaining the factors she used to find

18

Dr. Pacey has a B.A. and Ph.D in economics from the
University of Florida.
19
Dr. Owen has a B.A. from Millsaps College in Philosophy, a
M.A in Counseling Psychology from the University of Southern
Mississippi, and a Ph.D in Rehabilitation from the University of
Arkansas.
17

that B.M. would sustain some loss of earnings capacity.
Pls.’ Opp Ex. 7, ECF No. 70-8.

See

The four factors include a loss

of access or loss of opportunity, loss of competitiveness,
decreased time in the labor market, and difference in wages for
jobs.

Id.

Pacey used.

Dr. Owen relied on the same set of CPS data that Dr.
Hearing Tr. 50, ECF No. 86 (Apr. 25, 2018).

At the Daubert hearing, Defendants called Dr. John
Scarbrough, Ph.D, a labor economist, to present testimony
regarding the alleged unreliability of the Plaintiffs’ economic
experts. 20

He testified to his opinion that Dr. Pacey’s proposed

testimony is unreliable because it does not take into account a
number of important factors specific to B.M. (including age of
onset of disability) and therefore does not follow the standard
method for assessing lifetime earnings.
86 (Apr. 25, 2018).

Hearing Tr. 24, ECF No.

Other criticisms included: that the data

Dr. Pacey relied upon was based upon surveys of disabled
individuals over the age of 15 and excluded those whose
disability began at birth (id. at 27), that Dr. Pacey treated
the Census Bureau cross-sectional data as though it were
longitudinal data (id. at 27), that the Census Bureau data is
self-reported (id. at 29), that the charts Dr. Pacey uses in her

20

Dr. Scarbrough will not testify at trial. He has a Ph.D in
economics and has a research interest on the impact of
disabilities on children and their occupational decisions.
Hearing Tr. 16, ECF No. 86 (Apr. 25, 2018).
18

report depict only summary data and not underlying data (id. at
30); that her analysis of the data does not exclude outliers
(id. at 34), and that the unreliability of the Census Bureau
data has been recognized (id. at 38-40).

Regarding Dr. Owen’s

testimony, Dr. Scarbrough testified that the four “factors” she
relies upon in her expert report are not necessarily relevant in
this case.

Hearing Tr. 48-50, ECF No. 86 (Apr. 25, 2018).

It appears clear any possible economic evaluation
methodology would reasonably find that a mobility disability,
such as the one that B.M. has, will cause some future income
loss.

The question is how that future income loss can be

reliably measured.

The Court is troubled by the specificity of

Dr. Pacey’s opinion that B.M. would suffer a “16.9%” loss of
income over his lifetime because Dr. Pacey’s methodology does
not appear to be based on any equally specific analysis.

Dr.

Pacey used Census Bureau data (and other sets of similar data)
to compare the lifetime income of (1) a healthy, able-bodied
male with a college degree with (2) a “moderately disabled” male
with a college degree.

Because disabilities come in all types,

this broad comparison of “healthy” to “moderately disabled” is
unreliable and speculative.

As an example, Dr. Pacey does not

account for differences between mobility disabilities and
cognitive disabilities, or between mobility disabilities and
other physical disabilities such as eye or hearing disabilities.
19

The nature of those disabilities would naturally change the
nature of any occupation that those individuals choose.

Dr.

Pacey also does not adjust the data for any other factors
(beyond assuming that B.M. will get a bachelor’s degree),
including, for example, the degree of disability, the age of
disability onset, or the nature of the relevant occupation.
Naturally, it is difficult to select a future occupation
for an infant.

However, the Court finds that the lack of any

attempt at all to consider possible occupational groups,
including occupational groups that would be inaccessible to B.M.
because of his mobility disability, renders Dr. Pacey’s specific
opinion to be unreliable.

To be clear, the Court does not

expect any economic expert to arbitrarily assign an occupation
to B.M. at this stage, but finds that a proper economic analysis
would at least attempt to account for occupations that B.M.
likely could not choose (including occupations involving manual
labor using both arms and hands).

For the same reason, the

Court is not convinced by Plaintiff’s argument that a broad
brush or categorical approach to this case is somehow more
reliable because any opinion based upon these categories would
also be based upon large databases of data of individuals in a
variety of occupations.

20

Dr. Pacey has testified in other cases, 21 but it is unclear
how similar her testimony in those cases is to the opinions in
this case.

Moreover, the Court finds more persuasive the

reasoning of courts who have disallowed this type of broad
testimony that does not account for an individual’s specific
disability.

See, e.g., Kempf Contracting & Design, Inc. v.

Holland-Tucker, 892 N.E.2d 672, 677–78 (Ind. Ct. App. 2008)
(“Tierney . . . used databases compiled by the government to
determine the earning capacity of people with a physical
disability who have attained a bachelor’s degree. . . . The
databases Tierney used in reaching his opinion were also not
specifically geared to Tucker’s specific disability, but only to
persons with a general physical disability . . . .”); Phillips
v. Indus. Mach., 257 Neb. 256, 262 (1999) (“The [trial] court
noted that the definition of ‘disabled’ as used in the New Work
Life Expectancy Tables made no differentiation between people
with minor disabilities and those with serious disabilities or
between people with disabilities which affect their work and
those with disabilities which have no effect on their work.

The

court explained that under these broad statistics, Marchisio
‘could present virtually the same opinion testimony he presented

21

See, e.g, Contreras v. Schirmer, 2010 WL 4167326 (Colo.
Dist. Ct. 2010) (finding Pacey’s expert opinion sufficient to
assist the jury).
21

in this case in any courtroom, with any injured plaintiff,
without modifying the opinion at all.’ . . . We agree.”).
The Court finds that it will be useful for the jury to have
some economic data upon which to make their damages calculation,
including data about what a healthy college-educated male is
expected to make over the course of his lifetime.

The parties

agree that this baseline figure is not controversial.

However,

the Court finds that it would be inappropriate to allow Dr.
Pacey’s specific disability-adjusted figure of 16.9% to enter
into evidence 22 because her methodology did not properly consider
the type of injury that B.M. suffered, the degree of his injury,
the occupations that B.M. could be excluded form, and the fact
that he received the injury at birth instead of later in life.
For the reasons stated above, Dr. Pacey is permitted to
testify about the expected future income of a healthy collegeeducated male over his lifetime.

However, any economic opinions

from Dr. Pacey regarding B.M.’s specific situation that does not
also include a proper consideration of the type of injury that
B.M. suffered, the degree of his injury, the occupations that
B.M. could be excluded form, and the fact that he received the
injury at birth instead of later in life, shall be excluded.

22

Or her determination that he would suffer future lost wages
in the amount of $454,600, or any other specific disabilityadjusted figure.
22

Dr. Owen does not purport to come to a specific number for
B.M.’s loss of earning capacity, but opines that he will suffer
some degree of loss in earning capacity on the basis of several
factors:

a loss of access or loss of opportunity, loss of

competitiveness, decreased time in the labor market, and
difference in wages for jobs.
70-8.

Pls.’ Opp. Ex. 7 at 5, ECF No.

The Court does not find that Dr. Owen’s testimony suffers

from reliability concerns, and shall not exclude her testimony.

VI.

REQUEST FOR ATTORNEYS’ FEES
Plaintiffs have requested attorneys’ fees for defending

what they consider to be a frivolous motion to exclude their
economic experts.

Pls.’ Opp. at 23, ECF No. 70.

The Court does

not find that the motion was frivolous or filed in bad faith,
and will deny the request for attorneys’ fees.

23

VII. CONCLUSION
Accordingly:
1. Plaintiffs’ Motion To Exclude The Defendants’ Expert
Causation Opinions [ECF No. 62] is DENIED.
2. Defendants’ Motion To Exclude Expert Testimony On Lost
Future Income And Request For Hearing [ECF No. 63] is
GRANTED IN PART and DENIED IN PART.
a. Dr. Pacey’s testimony shall be limited at trial
in accordance with the findings of this
Memorandum and Order.
b. Dr. Owen’s testimony shall not be excluded at
trial.
3. Defendants’ Motion To Preclude Opinion Testimony of
Robert Allen, Ph.D. And Request For Hearing [ECF No.
65] is DENIED.
4. Defendants’ Motion and Supplemental Memorandum
Supplying Testimony And Supporting Exclusion Of
Causation Opinions Of Fred Duboe, M.D. and Scott
Kozin, M.D. [ECF No. 67] is DENIED.
5. Plaintiffs’ request for attorneys’ fees [ECF No. 70]
is DENIED.

SO ORDERED, this Friday, May 4, 2018.

/s/___
__ _
Marvin J. Garbis
United States District Judge

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