State Appellate Court Affirms the Exclusion of Maternal-Fetal Medicine Expert Because Expert’s Theory Was Not Reliably Tested and Not Generally Accepted in the Scientific Community

T’Miaya Smith’s son, J.H., began having seizures after his birth. A CT scan revealed ischemic injuries to his brain. Ischemic injuries result from the lack of blood flow to the brain causing brain damage. Smith, on behalf of her son, filed a lawsuit against Lauren Braswell, a midwife who provided care to Smith during her labor and delivery. The suit also named Atlanta Women’s Health Group, which was Braswell’s employer.

It was alleged that Braswell was negligent in the management of Smith’s labor and delivery. The defendants filed a motion to exclude the testimony of one of Smith’s expert witnesses. There was also a motion to exclude causation testimony from any of Smith’s expert witnesses and there was a motion for summary judgment. The trial judge granted the defendants’ motions. Smith appealed for the following reasons, but the appellate court affirmed.

Smith appealed to the Georgia Appellate Court to reverse the trial judge’s order excluding the testimony of the maternal-fetal medicine expert. The court stated, “The determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion. The admissibility of expert testimony in civil cases provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

“In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” HNTB Ga., Inc. v. Hamilton-King, 287 Ga. at 642 (2010).

In this case, the maternal-fetal expert is “an obstetrician/gynecologist with (a) subspecialty certification in maternal-fetal medicine.” This doctor currently writes, researches and gives lectures, but has not had hospital privileges since 2011. The last time he was a full time maternal-fetal medicine physician was approximately 17 years ago, and he has not regularly delivered babies since 2003.

It was this expert’s testimony and opinion that J. H.’s injury was the result of the ischemia caused by “mechanical compressive forces” on his head during the course of Ms. Smith’s labor. The mechanical compressive forces that this expert referred to are, the use of Pitocin, excessive uterine activity, malposition of J.H., pushing prior to Ms. Smith’s full cervical dilation and fundal pressure. The maternal-fetal physician testimony coined this mechanism of injury, cranial compression ischemic encephalopathy (CCIE).

The appeals panel stated in a thorough order, the trial court concluded that the doctor’s testimony and any expert testimony regarding the mechanism of injury would be inadmissible pursuant to Georgia evidentiary law and Daubert factors because the doctor’s theory has not been reliably tested and not been subject to peer review and publications, is not generally accepted in the scientific community and has not been clinically diagnosed in any other patients.

Smith’s attorneys argued that the trial court was wrong by choosing not to consider the causation of his opinions given by two other experts. One was a pediatric neurologist and another was a neuroradiologist. It was also argued that the maternal-fetal expert co-authored a chapter related to the mechanical forces of labor and delivery. One of the Smith physicians, the neuroradiologist, stated at deposition that if such studies (as stated by the maternal-fetal medicine expert) existed he “would appreciate the reference just for [his] general knowledge.” The other expert testifying for the plaintiff, a pediatric neurologist said she is not aware of any studies that determine the incidence rate of the proposed mechanism of injury in this case.

Accordingly, the appellate court affirmed the trial judge’s order that excluded all the testimony as to the alleged mechanism of injury in this case. The trial court properly concluded that “[b]ecause the [trial court] has excluded [Smith’s] theory of causation . . . an essential element of [Smith’s] case is absent and summary judgment . . . must be granted.” Accordingly, the trial court properly granted the defendants’ motion for summary judgment.

Smith v. Braswell, No. 2017 GA App. LEXIS 402.

Kreisman Law Offices has been handling birth trauma injury lawsuits, brain injury negligence lawsuits, hypoxic ischemic encephalopathy (HIE) lawsuits and labor and delivery negligence lawsuits for individuals, families and the loved ones who have been injured, harmed or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Orland Park, Palos Park, Palatine, Tinley Park, Melrose Park, Elmwood Park, Evanston, Chicago (Wicker Park, Irving Park, Jefferson Park, Rogers Park, West Rogers Park, Old Town, Lakeview, Lincoln Square), Lincolnshire, Lincolnwood and Lansing, Ill.

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