Over the last several months, personal injury plaintiff blogs have been all agog over a recent 4th Department case in New York that precluded, based on pre-trial motions, obstetrical defendants from utilizing a ‘forces of labor’ defense at trial, commenting on same as a “novel theory.” The plaintiff blogs have been far less kind, labeling such defense as ‘junk science.” Not so fast.
By way of background, Erb’s Palsy (or Erb Duchenne brachial plexus injury) is an injury to the brachial plexus nerves usually occurring at birth and can result in loss of movement or development of the whole arm and hand. Most plaintiff’s attorneys view such cases as ‘slam dunks,’ taking the position that the ‘only’ manner in which injury could have occurred is by the utilization of excessive downward ‘traction’ at time of delivery by the delivering professional. This position is usually accompanied by additional allegations that 1) the delivering professional failed to recognize the risks of a complicated delivery prior to labor (i.e. a large infant or flat maternal pelvic canal), which could have been avoided by performance of a cesarean section or, 2) if such pre-labor risk factors are not present for plaintiff’s counsel to highlight at trial, that when a complication was ‘ultimately’ recognized at birth (most notably a shoulder dystocia) proper steps and techniques were not timely undertaken to avoid the consequences of excessive stress to the brachial plexus nerve bundle.
These arguments by plaintiffs are not new. Notwithstanding the 4th Department’s characterization of defendants’ defense as “novel,” neither is the defense.
There are studies suggesting that up to 50% of Erb’s Palsy cases develop without associated shoulder dystocia and, albeit limited, documented cases of such injury following cesarean section. Further, a limited Google search of defense verdicts involving claims of Erb’s palsy at birth will reveal that courts in Texas, Florida, Illinois, Virginia, Pennsylvania and, yes, New York (our firm was one N.Y. that has utilized this defense successfully at trial) have accepted experts, who have thereafter testified under oath at trial to maternal propulsive forces as potentially, or at least equally, causative of the infant plaintiff’s claimed injuries. Are all these courts wrong in allowing such experts to so testify? Are all these physicians, under oath, ‘in cahoots’ to merely ‘create’ a defense for the obstetrical community? To suggest such a scenario would be the very definition of paranoia.
In April of 2010 the Texas Court of Appeals for the 14th District specifically addressed the issue of the admissibility of this type of defense and the pragmatic problem facing courts. In doing so, and finding such defense available to the defendants, they stated:
The dearth of prospective testing in support of the natural forces of labor theory is explained by ethical considerations that preclude a prospective study subjecting mothers and babies to potential injury while measuring excessive traction. See Ford v. Etcher, 220 P.3d 939, 945 (Colo.App.2008, cert.granted) (“[T]he trial court overlooked the evidence in the record establishing that there is no ethical way in which to test the in utero causation theory of brachial plexus injury or to measure how much traction is ‘excessive’ without subjecting mothers and their infants to potentially injurious conduct.”) (original emphasis). This is the explanation demanded by Whirlpool Corp., 298 S.W.3d at 642-43; it provides assurance that the absence of prospective testing of the natural forces explanation is attributable to unique considerations governing this specific medical issue rather than inherent deficiencies in the challenged expert opinions. The concern regarding ascertainment bias in connection with retrospective hospital record studies of brachial plexus injuries is legitimate, but this concern goes to weight rather than admissibility. See Potter, 2006 WL 3760267, at *2; see also D’Amore v. Cardwell, 2008 WL 852791, at *6-*7 (Ohio Ct.App. No. L-06-1342, Mar. 31, 2008). This concern is properly addressed by cross-examination rather than exclusion. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 40-41 (Tex.2007).
Taber’s challenges predicated on reliance upon retrospective studies and the potential for ascertainment bias do not warrant exclusion of the disputed expert testimony regarding the cause of Jordan’s brachial plexus injury.
2. Subjective interpretation, support from peer-reviewed studies, and “analytic gap”
Factors (2) and (3) go to Taber’s contention that the challenged expert testimony is unduly subjective and lacks support from peer-reviewed medical literature addressing natural forces of labor as a cause of brachial plexus injuries. Taber contends that support is lacking because there is an “analytical gap” between non-specific brachial plexus injuries discussed in the literature and the particular avulsion injury Jordan suffered.
The parties’ arguments regarding this asserted analytical gap cannot be addressed on appeal by weighing the relative persuasive power of competing medical articles in a vacuum; by eschewing analysis of the testimony; or by asking in the abstract whether an excessive lateral traction explanation for brachial plexus injuries has more medical merit than a natural forces of labor explanation. Courts are not equipped to make medical judgments of this nature, and they are not called upon to do so. See TXI Transp. Co. v. Hughes, —S.W.3d —-, —- (Tex.2010) (“The court’s ultimate task, however, is not to determine whether the expert’s conclusions are correct, but rather whether the analysis the expert used to reach those conclusions is reliable and therefore admissible.”) (citing Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002), and Gammill, 972 S.W.2d at 728).
This entirety of the decision is linked here. Suffice to say, it stands in stark contrast, both in factual recitation and analysis, to the ‘memorandum’ decision issued by the 4th Department that is the subject of this post. It should also be noted that the 4th Department, not once but twice, made it a point to indicate that the decision issued was “on the record before us.” I point this out because it remains unclear exactly what arguments were made, and evidence in support proffered, by defense counsel in that case in support of its’ position.
Separate and apart from the above, it appears that the 4th Department had a second problem, that being with the foundation laid for the admissibility of the evidence in support of the defendants’ theory. Accordingly, it remains to be seen what the 1st, 2nd and 3rd Departments will do when confronted with such arguments by a plaintiff seeking to preclude this defense at time of trial in an infant Erb’s case. I suspect that this decision is not the ‘fait accompli’ that most plaintiffs’ lawyers hope it will be. Only time, and further appellate practice, will tell.
To be continued…