Bayer v. Dobbins

371 Wis.2d 428

885 N.W.2d 173

Unity BAYER by Her Guardian Ad Litem, Vincent R. PETRUCELLI, Leah Bayer and Andrew Bayer, Plaintiffs–Respondents,

John Alden Life Insurance Company, Involuntary–Plaintiff,

v.Brian D. DOBBINS, M.D., MMIC Insurance, Inc., Prevea Clinic, LLC and DEF Insurance Company, Defendants–Appellants,Injured Patients and Families Compensation Fund, Defendant–Co–Appellant.

No. 2015AP1470.

Court of Appeals of Wisconsin.

Submitted on Briefs May 24, 2016.

Opinion Filed July 6, 2016.

On behalf of the defendants-appellants, Brian D. Dobbins, M.D.; Prevea Clinic, LLC; and MMIC Insurance, Inc., the cause was submitted on the briefs of Samuel J. Leib, Sean M. Gaynor, and Brent A. Simerson, of Wilson Elser Moskowitz Edelman & Dicker, LLP, Milwaukee. On behalf of the defendant-co-appellant, the cause was submitted on the briefs of Terri L. Weber and Katelyn P. Sandfort of Nash, Spindler, Grimstad & McCracken LLP, Manitowoc.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Vincent R. Petrucelli of Petrucelli & Waara, P.C., Iron River, Michigan.

A nonparty brief was filed by Guy DuBeau of Axley Brynelson, LLP of Madison, for Wisconsin Medical Society.

Before STARK, P.J., HRUZ and SEIDL, JJ.

STARK, P.J.

¶ 1 Unity Bayer sustained a permanent brachial plexus injury during birth. Unity and her parents sued Brian Dobbins, the physician who performed the delivery, along with MMIC Insurance, Inc., Prevea Clinic, LLC, and the Injured Patients and Families Compensation Fund. The Bayers alleged Dobbins was negligent in various respects. In response, Dobbins¹ sought to introduce expert testimony that Unity's injury was caused by maternal forces of labor, rather than Dobbins' conduct. The circuit court granted the Bayers' motion in limine to exclude that testimony, and Dobbins now appeals.² FOR THE REASONS EXplained below, we conclude the circuit court erroneously exercised its discretion by excluding the proffered testimony. We therefore reverse and remand for further proceedings.

BACKGROUND

¶ 2 Leah Bayer was admitted to St. Mary's Hospital in Green Bay on December 28, 2006, for Unity's labor and delivery. Initially, the labor proceeded as expected. However, during the second stage of labor, after seventy-five minutes of pushing, Leah exhibited signs of exhaustion, and the progress of the delivery slowed. At that point, Dobbins gave Leah two options: to proceed with a cesarean section, or to use a vacuum to assist with the vaginal delivery. Leah chose the vacuum-assisted vaginal delivery.

¶ 3 Dobbins used the vacuum to advance Unity down the birth canal, and her head was delivered. However, at that point Dobbins diagnosed a shoulder dystocia, a condition in which the fetal shoulder becomes lodged on the maternal pelvis. A shoulder dystocia is considered an obstetrical emergency because, if the physician is unable to dislodge the shoulder promptly, compression of the umbilical cord can compromise blood flow and oxygen supply to the child.

¶ 4 Dobbins' note regarding the delivery states that, after diagnosing the shoulder dystocia, he placed Leah in the McRoberts position, with her thighs flexed against her abdomen, and used “gentle traction” in attempt to release Unity's shoulder. When that failed, Dobbins used the Woods' corkscrew maneuver, placing his fingers inside the birth canal to rotate Unity's shoulders. Unity was then successfully delivered, about two minutes after the shoulder dystocia was first diagnosed.

¶ 5 After the delivery, it was noted that Unity had reduced movement of her right arm. Unity was ultimately diagnosed with a permanent right brachial plexus injury—in other words, an injury to the nerves that send signals from her neck and spine to her right arm and hand. As a result of that injury, Unity's ability to use her right arm and hand is severely limited.

¶ 6 The Bayers filed the instant lawsuit against Dobbins in September 2013, alleging he was negligent in his care and delivery of Unity in several respects. As relevant to this appeal, the Bayers contended Dobbins used excessive traction during the delivery. In response to that allegation, Dobbins contended he appropriately used only gentle downward traction to deliver Unity. He asserted Unity's injury was caused by maternal forces of labor, including the forces associated with contractions and pushing.

¶ 7 Before trial, the Bayers filed a motion in limine asking the circuit court to exclude all expert testimony relating to Dobbins' theory that maternal forces of labor caused Unity's injury, pursuant to WIS. STAT. § 907.02(1) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).³ The Bayers argued the medical literature upon which the defense experts based their opinions was unreliable and did not support the proposition that maternal forces of labor can cause a permanent brachial plexus injury, as opposed to a temporary brachial plexus injury. The Bayers asserted their biomechanical engineering expert, Robert Allen, had “disprove[d]” the maternal forces theory in 2007 using physical modeling—that is, a childbirth simulator. The Bayers further argued the defense experts were unable to describe the precise manner in which maternal forces of labor caused Unity's injury.

¶ 8 In response to the Bayers' motion, Dobbins cited over twenty peer-reviewed publications supporting his claim that maternal forces of labor caused Unity's injury. In particular, Dobbins relied on “Neonatal Brachial Plexus Palsy,” a compendium released in 2014 by the American College of Obstetricians and Gynecologists (ACOG). The stated purpose of the ACOG compendium was

[t]o review and summarize the current state of the scientific knowledge, as set forth in the peer-reviewed and relevant historical literature, about the mechanisms which may result in neonatal brachial plexus palsy. The purpose of conducting such review is to produce a report which will succinctly summarize the relevant research on the pathophysiology of neonatal brachial plexus palsy.

After completing this review, the authors of the ACOG compendium concluded:

Clinician-applied traction and lateral bending of the fetal neck have been implicated as causative factors in some cases of NBPP [neonatal brachial plexus palsy ]. However, NBPP also has been shown to occur entirely unrelated to traction, with studies demonstrating cases of both transient and persistent NBPP in fetuses delivered vaginally without clinically evident shoulder dystocia or fetuses delivered by cesarean without shoulder dystocia.

¶ 9 The authors of the ACOG compendium further explained that:

• “Stretch in the brachial plexus occurs during the birth process itself, as shown by both computer and physical models;”

• “[W]hen one of the shoulders is restrained by the bony pelvis, any forces that continue to advance the head and neck will cause a stretch in the brachial plexus;”

• Using computer modeling, one study found that “contact force at the base of the fetal neck against the maternal symphysis pubis was more than two times higher because of maternal endogenous forces when compared with exogenous forces;”

• Other findings “indicate[ ] that shoulder dystocia may, in and of itself, induce a similar amount of stretch in the brachial plexus as lateral bending of the fetus' neck;”

• “[T]he clinical and biomedical engineering evidence supports the assertion that when a shoulder is restrained either transiently or during a more significant impaction, both maternal forces and clinician forces, if applied, will stretch the brachial plexus;”

• “In addition to research within the obstetric community, the pediatric, orthopedic, and neurologic literature now stress that the existence of NBPP following birth does not a priori indicate that exogenous forces are the cause of this injury;” and

• “[M]uch of the data suggest that the occurrence of NBPP is a complex event, dependent not only on the forces applied at the moment of delivery, but also on the constellation of forces ... that have been acting on the fetus during the labor and delivery process.”

¶ 10 Dobbins' response to the Bayers' motion in limine also described how the defense experts intended to apply the maternal forces theory to the facts of the case. Dobbins informed the circuit court that Dr. Dwight Rouse and Dr. Robert DeMott, both obstetricians, would testify that: (1) Dobbins did not cause Unity's brachial plexus injury; (2) Dobbins used appropriate maneuvers while delivering Unity; (3) Dobbins did not use excessive traction during the delivery, and the mere fact that Unity sustained a brachial plexus injury does not establish that excessive traction was used; (4) maternal forces alone can cause brachial plexus injuries; and (5) maternal forces caused Unity's permanent brachial plexus injury. Both Rouse and DeMott cited peer-reviewed medical literature on brachial plexus injuries in support of their opinions.

¶ 11 Dobbins further informed the circuit court that Dr. Mark Scher, a pediatric neurologist, would testify that: (1) Unity's injuries were not the result of excessive traction; (2) maternal forces of labor are sufficient to cause brachial plexus injuries; (3) the amount of force a baby can endure varies, such that some babies can withstand normal traction and normal maternal forces, while others cannot; and (4) maternal forces caused Unity's permanent brachial plexus injury.

¶ 12 Dobbins also described the anticipated testimony of biomechanical engineer Michele Grimm, stating:

Dr. Grimm has conducted extensive research regarding the biomechanics of birth related brachial plexus injuries following shoulder dystocia. The findings of her research have been recognized by the American College of Obstetrics and Gynecology and cited in their practice bulletins pertaining to shoulder dystocia. Her research utilized a computer modeling technique through software called MADYMO.^{[4 ]}The research was focused on how the human body responds to

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