L.M. v. Hamilton

200 Wash.App. 535

402 P.3d 870

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

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

No. 76019-0-I.

Court of Appeals of Washington, Division 1.

FILED: August 28, 2017

Publication Ordered September 29, 2017

Ron Perey, Perey Law Group, 1631 15th Ave. W., Ste. 310, Seattle, WA, 98119-2796, Carla Tachau Lawrence, Carla Tachau Lawrence Legal Research & Writing, 10700 Meridian Ave. N., Ste. 215, Seattle, WA, 98133-9008, Simeon Osborn, Susan Machler, Osborn Machler, 2025 1st Ave., Ste. 1200, Seattle, WA, 98121-3119, for Appellant.

Donna Maria Moniz, Karin Jeanne Mitchell, Johnson Graffe Keay Moniz & Wick LLP, 925 4th Ave., Ste. 2300, Seattle, WA, 98104-1145, Mary H. Spillane, Fain Anderson, Et Al., 701 5th Ave., Ste. 4750, Seattle, WA, 98104-7089, Karen Southworth Weaver, Soha & Lang PS, 1325 4th Ave., Ste. 2000, Seattle, WA, 98101-2570, for Respondents.

PUBLISHED

Cox, J.¶1 Frye v. United States ¹ is implicated only where " ‘either the theory and technique or method of arriving at the data relied upon is so novel that it is not generally accepted by the relevant scientific community.’ "² In this professional negligence action, the record shows that neither the theory and techniques nor methods at issue are novel. Thus, Frye is not implicated in whether to admit the natural [maternal] forces of labor (NFOL) evidence of causation. And this evidence satisfies the requirements of ER 702, as being helpful to the jury. The trial court properly admitted NFOL evidence.

¶2 Likewise, the trial court did not abuse its discretion under ER 702 by admitting a biomechanical engineer's testimony, subject to certain limitations, concerning the biomechanics of labor. And it did not abuse its discretion in excluding a medical expert who treated the child but who was not qualified to testify on causation of his injuries. Finally, the trial court properly exercised its discretion in granting the renewed motion to change venue to Lewis County.

¶3 We affirm.

¶4 Midwife Laura Hamilton delivered L.M. in Lewis County. Shortly after his birth, he was diagnosed with avulsion and rupture damage to five nerve roots in his brachial plexus. As a result, he has limited functional use of his arm and suffers continuing pain.

¶5 L.M., through his guardian ad litem, brought this action in King County against Hamilton, her business entity, and Joint Underwriters Association of Washington State (JUA). The latter entity is the statutorily created program that provides medical malpractice insurance to midwives. He later added Midwifery Support Services (MSS), JUA's administrative service company, as an additional defendant.

¶6 The trial court granted summary judgment, dismissing the claims against JUA and MSS. Thereafter, the court granted Hamilton's renewed motion to change venue to Lewis County, the county of residence of the principals in this litigation and the location of L.M.'s delivery.

¶7 L.M. claimed that Hamilton was professionally negligent in performing his delivery. L.M. moved in limine to exclude testimony from Hamilton's experts that NFOL caused his injury. The trial court granted that motion.

¶8 Hamilton moved for reconsideration, submitting additional expert declarations. The trial court granted this motion, permitting evidence at trial of NFOL as a cause of the injuries.

¶9 The trial court also ruled in limine, over L.M.'s opposition, that the testimony of biomechanical engineer Dr. Alan Tencer, subject to certain limitations, could be admitted. Dr. Tencer does not hold a medical degree. His testimony addressed the different levels of external and internal forces on the mother that affect delivery.

¶10 At trial, the jury returned a verdict in Hamilton's favor. The trial court entered judgment on that verdict.

¶11 L.M. appeals.

FRYE AND NATURAL FORCES OF LABOR

¶12 L.M. argues that the trial court improperly admitted expert testimony regarding the NFOL theory of causation. We disagree.

¶13 Scientific expert testimony is admissible only if it satisfies both the Frye test and ER 702.³ Frye excludes such testimony where " ‘either the theory and technique or method of arriving at the data relied upon is so novel that it is not generally accepted by the relevant scientific community.’ "⁴ But unanimity is not required.⁵ If the theory or method has general scientific consensus, its application to reach novel conclusions as to causation does not implicate Frye.⁶

¶14 For example, expert medical testimony can be admissible even if it reflects "pure opinions and [is] based on experience and training rather than scientific data."⁷ To require that each and every such conclusion independently satisfy Frye would allow "virtually all opinions based upon scientific data [to be] argued to be within some part of the scientific twilight zone."⁸

¶15 Put simply, " Frye does not require that the specific conclusions drawn from the scientific data upon which [an expert] relied be generally accepted in the scientific community. Frye does not require every deduction drawn from generally accepted theories to be generally accepted."⁹

¶16 ER 702 excludes expert testimony that fails to adhere to that methodology or assist the jury.¹⁰

¶17 We review de novo a trial court's exclusion of evidence under Frye.¹¹ We review for abuse of discretion a trial court's admission of expert testimony.¹² "A trial court abuses its discretion by issuing manifestly unreasonable rulings or rulings based on untenable grounds."¹³

¶18 Here, the parties dispute whether Frye requires that the scientific community generally accept that NFOL can cause the specific sort of brachial plexus injury (BPI) L.M. suffered. They also dispute whether such evidence is otherwise admissible.

¶19 The brachial plexus is a network of nerves that connects the spinal cord to the muscles and skin of the shoulder and arm. Damage to the brachial plexus can cause BPIs, either transient or permanent, which can lead to neonatal brachial plexus palsy (NBPP), characterized by movement loss or weakness of the arm. BPIs can take a number of forms, from temporary stretching to rupture (tearing in the nerve) or avulsion (tearing of the nerve from its spinal cord root).

¶20 Expert testimony on the level of acceptance the medical community has afforded NFOL was given in numerous declarations from obstetric providers, both M.D.s and midwives. These experts reviewed the labor and delivery records as well as video of L.M.'s birth, relevant depositions and declarations of other experts, and other scholarly literature.

¶21 For example, midwife Beth Coyote explained that it was commonly "know[n] that babies can have permanent brachial plexus injuries caused by the natural forces of labor."¹⁴ Dr. Elizabeth Sanford testified that "[i]t is agreed that permanent brachial plexus injuries can be caused by the natural forces of labor."¹⁵ Such BPIs include ruptures and avulsions of the type L.M. suffered. Dr. Thomas Collins testified that "[t]here is a general consensus in the medical community that permanent brachial plexus injury can occur due to the natural forces of labor and delivery."¹⁶

¶22 Dr. David DeMott also testified that no evidence supports the contention that more force is required to cause an avulsion or rupture BPI than an intact stretch or that "a permanent brachial plexus injury cannot be caused by the same mechanisms as a temporary injury."¹⁷ The only difference, he testified, was of degree. By contrast, he noted that the relevant literature "does describe permanent injury to the brachial plexus as a result of maternal forces of labor."¹⁸

¶23 L.M. also provided testimony from similarly qualified experts who disagreed about the relevant scientific consensus.

¶24 Dr. Howard Mandel testified that while NFOL alone could cause stress BPIs, it could not cause a brachial plexus avulsion or rupture "without excessive manual traction by the delivering provider."¹⁹

¶25 But, upon deposition, Dr. Mandel conceded that he could not cite a single study supporting his opinion. He further admitted he had not "done any research on nerve avulsion or specific reading on it in over ten years."²⁰

¶26 Nurse Pamela Kelly 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."²¹ Rather, she posited such damage could "occur only from the application of excessive manual traction by the delivering provider."²²

¶27 Dr. Stephen Glass examined L.M. at 5 years old. He testified that:

[t]he current medical literature suggests that the occurrence of transient stretch-type brachial plexus injuries in newborns can occur spontaneously in utero without manual traction (pulling) to the head, but avulsion injuries are caused only by application of excessive manual traction of the delivering provider while trying to alleviate the shoulder dystocia.^{[23 ]}

He also explained that "no meaningful scientific studies ... have measured the forces necessary to cause a brachial plexus injury compared with the forces exerted by a laboring mother."²⁴

¶28 Courts may also consider peer reviewed scientific literature.²⁵ Hamilton's experts, in particular Dr. DeMott, reviewed and presented this literature at length.

¶29 Dr. DeMott traces the evolution of thinking on the issue in Williams Obstetrics, a preeminent authority in the field. The 21st volume of that treatise had posited that BPIs "usually result[ ] from downward traction on the brachial plexus during delivery of the anterior shoulder."²⁶ By the 24th edition, published in 2014, the textbook had begun to explain that even severe plexopathy could occur without risk factors associated with traction or other iatrogenic applied forces.

¶30 Another textbook entitled Precis, published by the American College of Obstetricians and Gynecologists ...