Brachial Plexus Daubert Appellate Opinion

In a recent unreported appellate decision, the Maryland Appellate Court reviewed a medical malpractice case involving allegations of improper medical conduct during childbirth.
A family filed a birth injury lawsuit against the attending physician and her employer, claiming that the physician’s use of excessive force during delivery resulted in a permanent brachial plexus injury to the child.
The plaintiffs presented the testimonies of two expert witnesses, which were central to the case. However, significant inconsistencies between the experts’ deposition testimonies and their statements during a subsequent Daubert hearing precluded their testimonies, and summary judgment was granted in favor of the defendants.
The plaintiffs appealed, questioning whether the court had abused its discretion in excluding the expert testimonies based on the inconsistencies observed.

Factual Background

In April 2017, the mother, who was 36 weeks pregnant, went into labor and was admitted to Holy Cross Hospital. During the delivery, the attending physician encountered shoulder dystocia, a complication where the baby’s shoulder gets stuck behind the mother’s pelvic bone. This is an obstetric emergency that requires specific maneuvers to resolve, and if not addressed promptly, it can result in serious injuries or death to the baby, as well as potential injuries to the mother.

According to medical records, the physician utilized accepted techniques to manage the shoulder dystocia, successfully delivering the baby shortly after the complication was identified. However, the plaintiffs alleged that the physician applied excessive traction on the baby’s head, causing a brachial plexus injury. This type of injury affects the network of nerves controlling the shoulder and arm, leading to weakness or paralysis. Although the physician and a nurse present during the delivery denied the use of excessive force, the plaintiffs relied on deposition testimonies claiming otherwise. After discharge, the child was diagnosed with a right brachial plexus injury, which persisted, leading the plaintiffs to file a lawsuit in November 2021, asserting that the injury was due to the physician’s breach of the standard of care.

Expert Testimonies

The plaintiffs presented two experts: Dr. Daniel Adler and Dr. Richard Luciani, who were to testify that the child’s injury resulted from the excessive force used by the physician. During depositions, both experts maintained that the injury could not have been caused by maternal forces of labor alone, asserting that such injuries typically result from physician-applied traction in the absence of abnormal fetal conditions.

Dr. Adler employed a differential diagnosis method to exclude alternative causes, concluding that the injury was due to the physician’s actions during delivery. He reiterated that, in his view, maternal forces alone could not cause a permanent brachial plexus injury unless the fetus had specific abnormalities, which were not present in this case. Similarly, Dr. Luciani stated that the injury was due to excessive traction by the physician, dismissing maternal forces as a potential cause based on the circumstances.

Daubert-Rochkind Hearings and Rulings

The defendants filed a motion to preclude the expert testimonies, arguing that the experts’ opinions were inconsistent with the accepted medical consensus, which acknowledges that brachial plexus injuries can be caused by maternal forces of labor. The motion cited the American College of Obstetricians and Gynecologists (ACOG) report, which notes that both maternal and clinician-applied forces can contribute to such injuries.

During the Daubert hearings, both experts did something that any victim’s birth injury lawyer fears – they notably altered their testimonies. Dr. Adler, who previously categorically excluded maternal forces as a cause, stated during the hearing that maternal forces could cause such injuries in certain cases but ruled them out based on the specific circumstances of this case. Dr. Luciani similarly revised his opinion, indicating that while maternal forces could potentially cause such injuries, his conclusion was case-specific. Both experts referenced additional medical literature and specific case details not previously disclosed.

The court found that these alterations in the experts’ testimonies  indicated an unreliable methodology. Consequently, the court precluded their testimonies, finding that the changes were made in response to Daubert challenges and were not based on a consistent or reliable scientific methodology. The court granted summary judgment for the defendants due to the exclusion of the critical expert testimonies.

Plaintiffs’ Argument on Appeal

Plaintiffs had strong argument on appeal.  These are well-credentialed doctors who have been permitted to testify in similar lawsuits in the past.

The gist of the argument was that the circuit court trial judge misapplied the Daubert-Rochkind standard by focusing excessively on the purported changes in the experts’ testimonies rather than the reliability of their methodologies. Under Daubert-Rochkind, the court’s primary role is to assess whether the expert’s testimony is based on scientifically valid reasoning and methodology. In this case, both Dr. Adler and Dr. Luciani employed differential diagnosis, a well-accepted scientific method in medical causation cases, to arrive at their conclusions.

The court really should not focus on inconsistencies between deposition and Daubert hearing testimonies. Sure, it is good fodder for cross examination, but kicking a case because the expert took a deeper look at the case seems to elevate form over substance. What matters at the end of the day should be the core methodology employed by the experts, even if their explanations became more detailed or case-specific during the Daubert hearing.

Court’s Ruling

This argument did not carry the day.  The appellate court found that the significant changes in the basis of the experts’ opinions, especially in light of their previous exclusions in other cases, supported the circuit court’s conclusion that their methodologies were unreliable. The court noted that the experts’ alterations appeared to be post-hoc rationalizations rather than genuine clarifications or updates based on new scientific understanding.

I wonder if the Maryland Supreme Court takes a look at this case.