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Dorman v. Anne Arundel Medical Center

United States District Court, D. Maryland

May 4, 2018

SHEENA DORMAN, et al. Plaintiffs


          Marvin J. Garbis United States District Judge.

         The Court has before it the following motions and the materials submitted relating thereto:

         1. Plaintiffs' Motion To Exclude The Defendants' Expert Causation Opinions [ECF No. 62];

         2. Defendants' Motion To Exclude Expert Testimony On Lost Future Income And Request For Hearing [ECF No. 63];

         3. Defendants' Motion To Preclude Opinion Testimony of Robert Allen, Ph.D. And Request For Hearing [ECF No. 65]; and

         4. Defendants' Supplemental Memorandum Supplying Testimony And Supporting Exclusion Of Causation Opinions Of Fred Duboe, M.D. and Scott Kozin, M.D. [ECF No. 67].

         The Court has held two hearings, including testimony and oral argument, on all pending motions.

         I. BACKGROUND[1]

         This is a personal injury case involving a birth emergency and the subsequent injuries sustained by an infant during labor and delivery. Plaintiffs Sheena Dorman (“Dorman”), B.M., [2] and Dillon Ming (together, “Plaintiffs”) bring a medical malpractice action against Defendants Annapolis OB-GYN Associates and Dr. Richard Welch (“Dr. Welch”).[3]

         On June 29, 2013, around 4:55 PM, Ms. Dorman, then 37 weeks pregnant, was admitted to Dr. Welch's clinic in active labor. She was observed by Dr. Welch and Nurse Kristen Becker (“RN Becker”). The medical team noted dilations of her cervix until approximately 1:05 AM on the following day. At that point, Ms. Dorman began to push with the contractions.

         Before the baby was delivered, Dr. Welch noticed a “turtle sign, ” requiring him to perform a physical maneuver to prevent damage to the fetus.[4] A “turtle sign” is a sign of an obstetrical emergency called shoulder dystocia. In the most basic terms, it signifies that the fetus's shoulder has become lodged on either the mother's public bone or her spinal sacrum during delivery, and the head retreats back into the mother slightly - like a turtle retreating into its shell. This is an emergency because the fetus continues move out of the birth canal, yet the shoulder remains lodged, resulting in stretching to the nerves that come from the spinal cord and travel down the arm (i.e., the brachial plexus nerves). The stretching, if severe, can cause certain injuries, including weakness or paralysis of the side of the body corresponding to the injury (i.e., “Erb's Palsy”). The injuries may lead to temporary or permanent disabilities.

         Dr. Welch wrote in his delivery notes at the time of the birth that he performed the physical maneuver by applying “downward traction” with minimal descent (called a “McRobert's maneuver”) to dislodge the fetus. The fetus was successfully delivered after the maneuver, and Dr. Welch recorded that the shoulder dystocia had lasted about 30 seconds.

         B.M. was delivered at 1:18 AM with respiratory problems, hypotonia (low muscle tone), and cyanosis (bluish-colored skin). He was admitted to the neonatal intensive care unit (“NICU”) and discharged on July 4, 2013 with diagnoses of Erb's Palsy and respiratory distress syndrome. He continues to suffer from continuing health problems related to the birth injury, including limited mobility in his left arm and hand.


         “[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” United States v. Crisp, 324 F.3d 261, 265 (4th Cir. 2003), citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). There are five factors in this analysis:

(1) whether the particular scientific theory “can be (and has been) tested”;
(2) whether the theory “has been subjected to peer review and publication”;
(3) the “known or potential rate of error”;
(4) the “existence and maintenance of standards controlling the technique's operation”; and
(5) whether the technique has achieved “general acceptance” in the relevant scientific or expert community.

Id. This is not a definitive or exhaustive list, but only “illustrates the types of factors that will ‘bear on the inquiry.'” Id. The analysis must be flexible. Id.


         The Court understands the main issue at trial to be the cause of B.M.'s birth injury.

         Plaintiffs contend that the injuries in this case could only be caused by Dr. Welch's violation of the standard of care, specifically, by performing a “lateral” maneuver that involved bending of the baby's neck.[5] Plaintiffs do not contend that maternal forces of labor[6] could never contribute to this type of injury, only that they could not have caused the injuries in this case. Hearing Tr. 4, ECF No. 86 (Apr. 25, 2018).

         Defendants contend that application of lateral force or bending of B.M.'s neck cannot be found based upon the evidence in this specific case. And because the evidence does not support a finding of lateral force or bending, they argue, maternal forces are more likely than not the cause of B.M.'s injury in this case.[7] Hearing Tr. 5-6, ECF No. 86 (Apr. 25, 2018).


         Plaintiffs wish to exclude Defendants' causation expert opinions, specifically, the opinions of Drs. Michele J. Grimm, Kenneth Silver, and Stephanie Green. See ECF No. 62. Defendants wish to exclude Plaintiffs' causation expert opinions, specifically, the opinions of Drs. Robert Allen, Fred J. Duboe, and Scott H. Kozin. See ECF Nos. 65 and 67.

         The Court has heard testimony from Dr. Grimm and Dr. Allen. Based upon the record and the testimony presented, the Court will not exclude the opinions of any of the parties' causation experts.

         A. MICHELE J. GRIMM, PH.D

         Dr. Grimm is a biomedical engineer[8] who has published many peer-reviewed articles in the field of neonatal brachial plexus palsy. Her research is based upon data collected from computer simulations of labor and delivery. She was part of a Task Force on Neonatal Brachial Plexus Palsy that culminated in a 2014 report published by the American College of Obstetricians and Gynecologists that summarized the state of knowledge regarding causes and outcomes of neonatal brachial plexus palsy.[9] The report, supported by many organizations in the obstetrics community, [10] ...

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