L.M. By And Through Dussault v. Hamilton

193 Wash.2d 113

436 P.3d 803

L.M., a minor, BY AND THROUGH his Guardian ad Litem William L.E. DUSSAULT, Petitioner,

v.Laura HAMILTON, individually and her marital community; Laura Hamilton Licensed Midwife, a Washington business, Respondents.

NO. 95173-0

Supreme Court of Washington.

Oral Argument Date: November 15, 2018

Filed March 21, 2019

Ron Perey, Attorney at Law, 8512 11 th Avenue NW, Seattle, WA 98117-3310, Simeon Osborn, Susan Machler Osborn Machler 2025 1st Avenue, Suite 1200 Seattle, WA 98121-3119, Carla Tachau Lawrence, Carla Tachau Lawrence Legal, Rsch& Writing, 10402 40th Avenue NE, Seattle, WA 98125-7837, for Petitioner

Donna Maria Moniz, Karin Jeanne Mitchell, Johnson Graffe Keay Moniz & Wick LLP, 925 4th Avenue, Suite 2300, Seattle, WA 98104-1145, Kyle M. Butler, Soha & Lang P.S., 1325 4th Avenue, Suite 2000, Seattle, WA 98101-2570, Mary H. Spillane, Fain Anderson, et al, 701 5th Avenue, Suite 4750, Seattle, WA 98104-7089, for Respondents

David Scott Heller, Heller Law Firm PLLC, 860 SW 143rd Street, Burien, WA 98166-1515, for Amicus Curiae (Professor Michael Freeman)

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, for Amicus Curiae (State Association for Justice Foundation)

GORDON McCLOUD, J.

¶ 1 L.M. suffered a severe injury during birth and subsequently sued Laura Hamilton, the midwife who delivered him, for negligence. Hamilton prevailed at trial. L.M. now argues that the trial court erred by admitting evidence that natural forces of labor could have caused the injury and testimony from a biomechanical engineer to the same effect. L.M. argues that the trial court should have excluded the evidence under Frye¹ and the testimony under ER 702.²

¶ 2 We affirm. Under Frye, the trial court must exclude evidence that is not based on generally accepted science.

Anderson v. Akzo Nobel Coatings, Inc., 172 Wash.2d 593, 603, 260 P.3d 857 (2011). And under ER 702, the trial court must exclude testimony from unqualified experts and testimony that is unhelpful to the jury. Lakey v. Puget Sound Energy, Inc., 176 Wash.2d 909, 918, 296 P.3d 860 (2013). Testimony is unhelpful to the jury if it is unreliable, id., or lacks an adequate foundation, Johnston-Forbes v. Matsunaga, 181 Wash.2d 346, 357, 333 P.3d 388 (2014).

¶ 3 L.M.’s Frye challenge concerns the extent to which the challenged science must be generally accepted. And his ER 702 challenge hinges on the amount of discretion an appellate court grants a trial court under that rule. But before we resolve either issue, we must explore the current state of the challenged science because we review Frye challenges de novo. We must also detail what the trial court did because we review ER 702 challenges for abuse of discretion.

FACTUAL AND PROCEDURAL BACKGROUND

1. L.M. was injured during birth and subsequently sued the delivering midwife

¶ 4 On April 4, 2010, Laura Hamilton, a midwife, delivered L.M. Ex. 2 (medical records) at 7; see also Clerk’s Papers (CP) at 1586. Her notes from the procedure show that she performed an "assisted shoulder delivery" and that L.M.’s right arm was "weak at side." Ex. 2 at 7; see also CP at 1586-87.

¶ 5 In his first few months of life, L.M. experienced "complete paralysis" of his upper arm, along with weakness of the entire arm. CP at 1567. In August 2010, exploratory surgery to address the problem revealed substantial injuries to L.M.’s brachial plexus. Id. The brachial plexus delivers signals from the spinal cord to the arm through a network of nerves. CP at 1569. These nerves can suffer various injuries, the most severe of which are avulsions (where the nerve is torn away from the spinal cord) and ruptures (where the nerve is ripped apart). Id. Although most brachial plexus injuries (BPIs) heal in six months, avulsions and ruptures are permanent. CP at 1570; Verbatim Report of Proceedings (VRP) (Oct. 28, 2015) at 27-28 (Test. of Robert DeMott, MD).

¶ 6 L.M.’s BPI is most likely permanent. CP at 1568, 1590. All five of his brachial nerve roots were injured: two were ruptured, one was avulsed, and two were partially avulsed. CP at 1587. To this day, he has limited use of his arm and experiences pain. CP at 1665-68, 1671.

¶ 7 L.M., through his guardian ad litem, sued Hamilton. CP at 1453-58, 1395-1401. He alleged that Hamilton responded negligently to his shoulder dystocia, an emergency in which a baby’s shoulder gets stuck during labor. CP at 1556-57, 1573, 1587-90. L.M. claimed that Hamilton used excessive force, or traction, in her effort to free the shoulder. Id. He claimed that only excessive traction—and not natural forces of labor (NFOL)—could have caused his ruptures and avulsions. Id.

¶ 8 Hamilton argued that she properly delivered L.M. and that NFOL can and did cause L.M.’s BPI. CP at 1848, 2652-53, 2660, 2663-65. She argued that L.M. did not experience shoulder dystocia. VRP (Oct. 23, 2015) at 16 (Test. of Laura Hamilton). To support her defense, Hamilton offered the testimony of several experts, including Dr. Allan Tencer, a biomechanical engineer. CP at 1518-24.

2. The trial court denied L.M.’s motion to exclude NFOL evidence

A. L.M. moved to exclude NFOL evidence

¶ 9 Before trial, L.M. moved to exclude evidence of the NFOL theory as not generally accepted under Frye and not helpful to the trier of fact under ER 702. CP at 1459-60. According to L.M., the relevant scientific community does not generally accept that NFOL can cause "permanent, severe brachial plexus nerve avulsion and rupture," CP at 1482 (boldface omitted), and any suggestion to the contrary is too speculative to be admissible, CP at 1473. L.M. drew support for his argument from two recent New York cases excluding NFOL evidence. CP at 1475-79 (citing Muhammad v. Fitzpatrick , 91 A.D.3d 1353, 937 N.Y.S.2d 519 (App. Div. 2012) ; Nobre ex rel. Ferraro v. Shanahan , 42 Misc. 3d 909, 976 N.Y.S.2d 841 (Sup. Ct. 2013) ).

¶ 10 He also relied on deposition testimony or declarations from three experts. Dr. Howard Mandel, an obstetrician-gynecologist, stated that "an avulsion or rupture of brachial plexus nerve roots to an otherwise normal baby cannot occur from mere uterine contractions or maternal pushing, the so-called ‘forces of nature,’ and there are no medical studies or case reports to support that contention." CP at 1590; see also CP at 1510 ("You can’t get avulsion from stretch. It’s just physiologically impossible.").³ Dr. Mandel acknowledged that he had not "done any research on nerve avulsion or specific reading on it in over ten years." CP at 1511. Instead, he relied on his "education, training, and experience and all the reading [he had] ever done." Id.

¶ 11 Dr. Stephen Glass, a pediatric neurologist, stated that "[g]iven the character of delivery and given the degree and extent of this severe plexus injury, it is improbable that the ‘natural forces’ of labor and delivery were solely responsible." CP at 1567-68. He also stated that "avulsion injuries are caused only by application of excessive manual traction of the delivering provider while trying to alleviate the shoulder dystocia." CP at 1573. He concluded, "There are no meaningful scientific studies that have measured the forces necessary to cause a brachial plexus injury compared with the forces exerted by a laboring mother." Id.⁴

¶ 12 And Pamela Kelly, a certified midwife, said that in her 30 years of practice, she had "never heard of nor read any medical literature that says avulsion and ruptures of the brachial plexus nerve roots of an otherwise normal newborn can occur by way of the natural forces of nature." CP at 1557 (boldface omitted).

B. Hamilton opposed L.M.’s motion

¶ 13 Hamilton argued that the NFOL theory "is based on generally accepted scientific methodologies, principles, and techniques that have been published in the medical and scientific literature over the last 25 years." CP at 1737. She relied heavily on a survey of the medical literature by Dr. Robert DeMott, an obstetrician-gynecologist. CP at 1738-50, 1839-49. That literature shows that NFOL can clearly cause BPI, but it does not describe what types of BPI—avulsion, rupture, etc.—this includes. CP at 1842-43. The reason is that the precise subcategory of permanent BPI can be determined only by surgical intervention, and "not all children with permanent injury undergo surgery where the diagnosis of which type is able to be made." CP at 1839; see also CP at 1842-43. Dr. DeMott disagreed with L.M.’s framing of the issue as whether the current literature shows that NFOL cause avulsions or ruptures; Dr. DeMott believed the issue should be framed as whether the current literature shows that NFOL cause permanent injuries. CP at 1842-43.

¶ 14 In surveying the literature, Dr. DeMott discussed Williams Obstetrics,⁵ "one of the preeminent textbooks on obstetrics." CP at 1839-40. He explained that the book reveals the "evolution of the science" regarding NFOL and BPIs. CP at 1839. Although earlier editions of the textbook suggest that BPIs usually result from excessive traction, newer editions recognize that BPIs may also result from NFOL. CP at 1839, 1990, 1993. The newest edition (at the time of trial) notes that "severe" BPIs "may also occur without ... shoulder dystocia." CP at 1999.

¶ 15 Dr. DeMott also discussed the fourth edition of PRECIS: An Update to Obstetrics & Gynecology: Obstetrics .⁶ CP at 1840-41. That book claims that older textbooks state, "without evidence," that BPIs are caused by excessive traction "in the presence of shoulder dystocia." CP at 2006. But "multiple lines of evidence" now suggest that most BPIs are caused by something else. Id. The book notes that more than half of BPIs occur in uncomplicated vaginal deliveries and "mathematic and computer-simulated models" suggest that NFOL are "far greater" than clinician-applied traction. Id.

¶ 16 Dr. DeMott also referenced several other...