Lawrey et al v. Good Samaritan Hospital et al

Filing 106

MEMORANDUM AND ORDER - The Plaintiffs' Motion for Reconsideration of Plaintiffs' Opposition [to] Defendants' Motion to Exclude Plaintiff[s'] Experts (Filing No. 98 ) is denied. Ordered by Chief Judge Laurie Smith Camp. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAWN LAWREY, mother and next
friend of AUBREE LAWREY, a minor,
Plaintiffs,
v.
KEARNEY CLINIC, P.C., and
DAWN M. MURRAY, M.D.,
Defendants.

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CASE NO. 8:11CV63

MEMORANDUM
AND ORDER

This matter is before the Court on “Plaintiffs’ Motion for Reconsideration of Plaintiffs’
Opposition [to] Defendants’ Motion to Exclude Plaintiff[s’] Experts” (Filing No. 98).
Defendants have filed a brief in opposition to the motion (Filing No. 99). Because trial will
begin on September 19, 2012, and because the Plaintiffs’ arguments are incorporated
within the motion itself, the Court will not await a reply brief before ruling on the motion.
(See NECivR 7.0.1(c).)
In the Court’s Memorandum and Order of August 20, 2012 (Filing No. 89), the Court
precluded Plaintiffs’ experts, Dr. Scott Kozin and Dr. Amos Grunebaum, from offering any
opinion that maternal expulsive forces of labor 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. The Court concluded that such

opinions–to the extent they were held by the experts at all1–were not supported by any
reliable methodology.
The evidence and arguments presented to the Court in connection with Defendants’
Motion to Exclude Testimony of Plaintiffs’ Experts (Filing No. 56) revealed nothing to
suggest Dr. Murray applied any traction to Plaintiff Aubree Lawrey’s head or neck. All
evidence presented to the Court was to the contrary. In the absence of any evidence that
Dr. Murray applied traction to Aubree’s head or neck during delivery, a “differential
diagnosis” by Plaintiffs’ experts concluding that Aubree’s injury must have been caused by
excessive traction applied by Dr. Murray during Aubree’s delivery is, in essence, a res ipsa
loquitur theory of negligence and liability. For reasons discussed in the August 20, 2012,
Memorandum and Order, the Court rejected such a theory under Nebraska substantive law
and precluded the Plaintiffs’ two expert witnesses from offering an opinion that the injury
to Aubree Lawrey was caused by Defendant Dr. Dawn M. Murray applying excessive
traction to the infant’s head and neck.

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For example, with respect to Dr. Kozin’s testimony, Plaintiffs state that “studies
indicate that uterine forces are axially transmitted, and therefore do not normally produce
the amount of lateral deviation of the head from the shoulders needed to stretch the
brachial plexus beyond its elastic limit, permanently injuring the nerves.” (Filing No. 98
at 9, emphasis in original.) With respect to Dr. Grunebaum’s testimony, Plaintiffs state
“based on the vast literature regarding shoulder dystocia and his 30-plus years of
experience, the force required to cause a permanent brachial plexus injury is highly
unlikely to occur through maternal forces alone.” (Id. at 6, emphasis in original.) Neither
expert appears to hold the opinion that permanent brachial plexus injuries cannot be
caused by maternal expulsive forces of labor, or that such injuries are always the result of
traction applied to an infant’s head and neck by the birth attendant.
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Accordingly,
IT IS ORDERED:
The Plaintiffs’ Motion for Reconsideration of Plaintiffs’ Opposition [to] Defendants’
Motion to Exclude Plaintiff[s’] Experts (Filing No. 98) is denied.
DATED this 11th day of September, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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