LaBauve v. La. Med. Mut. Ins. Co.

318 So.3d 983

Kimberly Brooke LABAUVE, et al.

v.LOUISIANA MEDICAL MUTUAL INS. CO., et al.

19-848

Court of Appeal of Louisiana, Third Circuit.

4-28-2021

Charles Roger Moore, Sarah E. Hunter, Moore & Hunter APLC, 6513 Perkins Road, Baton Rouge, LA 70808, (225) 766-1100, COUNSEL FOR PLAINTIFFS/APPELLANTS: Kimberly Brooke LaBauve, Shawnavon Lynn LaBauve, Individually and on behalf of Molly Ann LaBauve

James J. Hautot, Jr., Judice & Adley, P. O. Drawer 51769, Lafayette, LA 70503-1769, (337) 235-2405, COUNSEL FOR DEFENDANTS/APPELLEES: Dr. Darryl Elias, Jr., LHA Physicians’ Trust Fund

Court composed of Sylvia R. Cooks, Chief Judge, and John D. Saunders, Elizabeth Pickett, Shannon Gremillion, and Van H. Kyzar, Judges.

KYZAR, Judge.

Plaintiffs, Kimberly Brooke LaBauve and Shawnavon Lynn LaBauve, individually and on behalf of their minor daughter Molly Ann LaBauve, appeal the judgment of the trial court dismissing their medical malpractice claim against Defendants, Dr. Darryl Elias, Jr. and LHA Physicians’ Trust Fund, based on a jury verdict finding that the treatment rendered by Dr. Elias did not fall below the standard of care. For the reasons herein, we vacate the judgment of the trial court and render judgment in favor of Plaintiffs.

FACTS AND PROCEDURAL HISTORY

This medical malpractice litigation began on April 22, 2014, when the LaBauves, individually and on behalf of their minor daughter Molly, filed a petition against Dr. Elias and his insurer, LHA Physicians’ Trust Fund (referred to collectively as Defendant), alleging that Dr. Elias breached the standard of care during the birth and delivery of Molly on December 23, 2011. More particularly, Plaintiffs allege that Dr. Elias was negligent in the amount of force applied during the delivery and in failing to use other accepted protocols for delivery. As a result, Molly suffered a severe global brachial plexus injury and the permanent loss of use of her right arm. Dr. Elias denies that it was his applied force that caused Molly's injury, but rather it was the maternal forces of labor or other unknown factors that Molly was subjected to during birth that caused her injury. He claimed in answer that he complied with the accepted standard of care.¹

Trial by jury was held beginning October 17, 2018. At the conclusion of the trial, the jury returned a verdict in favor of Dr. Elias finding that he did not breach the medical standard of care in his delivery of Molly. The facts presented are uncontested that Dr. Elias was the obstetrics physician on call when Mrs. LaBauve presented in labor, and he delivered Molly on December 23, 2011. During the delivery process, Molly was diagnosed with shoulder dystocia. Shoulder dystocia is most often defined as a delivery that requires additional obstetric maneuvers following failure of gentle downward traction on the fetal head to effect delivery of the shoulders. Shoulder dystocia is caused by the impaction of the child's anterior shoulder behind the maternal pubis symphysis. It also can occur from impaction of the child's posterior shoulder on the sacral promontory. Shoulder dystocia is an obstetrical emergency because the child needs to be delivered within minutes, as she is unable to breathe on her own or via the umbilical cord due to the compression and the forces of labor. During the birthing process, Molly sustained a severe brachial plexus injury when the nerves that run from her cervical spine down her arm at the C5, C6, and C7 levels were pulled completely from the spine and the nerves at the C8 and T1 thoracic spine levels were partially pulled from her spine. This injury caused Molly to lose almost all function in her right arm.

In support of their case, both Mr. and Mrs. LaBauve testified. In addition, Plaintiffs called as witnesses, Dr. Edith Gurewitsch Allen, accepted as an expert in Obstetrics and Gynecology (OB/GYN) specializing in maternal fetal medicine and shoulder dystocia and delivery-related mechanical injuries; Dr. Robert Allen, Ph.D., accepted as an expert in the field of Biomedical Engineering with a specialty in birthing mechanics; and Dr. Scott Kozin, Molly's treating physician, accepted as an expert in the field of Pediatric Orthopedics, with a subspeciality in brachial plexus injuries. In addition, the jury heard the testimony of Stephanie Chalfin, M.S., accepted as an expert life care planner, Dr. G. Randolph Rice, Ph.D., an expert economist, and heard from both Molly's physical therapist, Lorain Gilbert Fontana, and her teacher's aide at school, Tracie Klumpp.

In defense, Dr. Elias presented the testimony of Registered Nurse Rachelle Meaux, who assisted Dr. Elias during the delivery, and Dr. Michele Grimm, Ph.D., who was accepted as an expert in Biomedical Engineering and Brachial Plexus Engineering and was brought on after Dr. Henry Lerner, OB/GYN, withdrew from the case. Dr. Elias also called Dr. Ralph Joseph Fernandez, OB/GYN, who was a member of the Medical Review Panel. Finally, Dr. Elias testified after being accepted by the trial court as an expert in Obstetrics and Gynecology.

Before and during trial, Plaintiffs filed a motion to exclude or limit the testimony and opinions of Dr. Grimm. This motion was denied. Dr. Elias also filed a motion in limine to strike portions of the testimony of Plaintiffs’ expert Dr. Kozin, Molly's treating orthopedic surgeon. Dr. Elias’ motion was granted by the trial court. Following a five-day trial on the merits, judgment was rendered in favor of Dr. Elias, with the jury finding that he did not breach the standard of care. An initial appeal to this court was dismissed in an unpublished opinion remanding the matter to the trial court to prepare and sign a final judgment with proper decretal language. Labauve v. La Med. Mut. Ins. Co. , 19-451 (La.App. 3 Cir. 7/31/19). The trial court signed a new final judgment on August 30, 2019, and the instant appeal followed.

On appeal, Plaintiffs assert four assignments of error, as follow:

1. The trial court erred in granting defendants’ motion to exclude plaintiff expert and treating physician Dr. Scott Kozin's testimony that the cause of Molly's injuries was the force applied by the delivering physician, and not the "maternal forces of labor";

2. The trial court erred in failing to grant plaintiffs’ Daubert motion to exclude the testimony and opinions of defense engineering expert Michele Grimm, Ph.D., as her opinions and testimony are not based on sufficient data and facts, her principles and methods are not reliable, and she does not reliably apply them to Molly;

3. Alternatively, the trial court erred in failing to sustain plaintiffs’ objections to Dr. Grimm's testimony and opinions on medical issues and the cause of Molly's injury, which are outside of her area of specialty as an engineer, unsupported by the existing literature, case studies, and other data on permanent brachial plexus injuries involving multi-level, frank avulsions, and unsupported by the medical record or any medical doctor.

4. In light of the totality of the evidence at trial, the jury erred in determining that Dr. Elias did not breach the standard of care for an obstetrician in his treatment of Molly LaBauve, which error rises to the level of reversible manifest error.

DISCUSSION

The question of whether there was error in the evidentiary issues as posed by the first three allegations of error necessarily impacts the propriety of the jury determination that the evidence did not support the finding that Dr. Elias breached the appropriate medical standard of care. As such, we are required to first address each and do so in the order presented.

Dr. Scott Kozin, M.D.

Plaintiffs first argue that the trial court erred in granting Defendant's motion to exclude Dr. Kozin's testimony. The portion of Dr. Kozin's testimony challenged is that part opining that the cause of Molly's injuries was the force applied by Dr. Elias and not the "maternal forces of labor" as asserted by Defendant. Defendant's motion to exclude this aspect of the testimony asserted that "Dr. Kozin is an orthopedic surgeon who treated Molly Labauve [sic] after she sustained a brachial plexus injury[ ]" and that he "is not a biomechanical engineer, is not an obstetrician, and he is not qualified to offer testimony regarding the mechanism of injury in this matter."

The theory of Plaintiffs’ claim against Dr. Elias is that he used excessive force in his use of forceps to deliver Molly after she experienced shoulder dystocia during the birthing process. Plaintiffs assert that the application of force used by Dr. Elias was far greater than the forces that are exerted naturally from maternal forces of labor, the uterine force exerted by the mother during the labor and birthing process. While the trial court permitted Dr. Kozin to testify, it granted Defendant's motion in limine refusing to allow him to testify as to the cause of Molly's total avulsion nerve injury which resulted in the permanent loss of use of her arm. In reaching this decision, the trial court provided oral reasons for judgment as follows:

And I'm okay with him saying that, but what I have a problem of him saying is that Dr. Elias caused the injury by some action. He wasn't there, and he's not an OB-GYN. He can say what happened to the nerves, that they were tore, okay. That's in his expertise. But he cannot say what Dr. Elias did or did not do. That is my concern here ‘cause I think it's too prejudicial to the jury, all right. That's - - that's what I'm limiting only in this matter. He can say they were ripped out. He can say they were tore. They were not suppose [sic] to be that way, okay. But then to go to the actual and say Dr. Elias’ actions caused this damage, I have a problem with, okay.

The trial court has great discretion in determining who should qualify as an expert and whether expert testimony is admissible, and its decision in regards to expert testimony will not be upset on appeal unless it is clearly erroneous. Mistich v....