SMITH et al.
BRASWELL et al.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Smith's son, J. H., began having seizures after his birth
and a head CT scan revealed ischemic injuries to his
brain. Smith filed suit against Lauren Braswell (a
midwife who provided care to Smith during her labor and
delivery), and Atlanta Women's Health Group
(Braswell's employer) (collectively,
"Braswell"), alleging that Braswell was negligent
in the management of Smith's labor and delivery and
seeking damages. Braswell filed a motion seeking to exclude
the testimony of Dr.Barry Schifrin, one of Smith's expert
witnesses, a motion to exclude causation testimony from any
of Smith's expert witnesses, and a motion for summary
judgment. The trial court granted Braswell's motions.
Smith appeals and for the following reasons, we affirm.
Smith contends that the trial court erred in granting
Braswell's motion to exclude the testimony of her expert
witness, Dr. Schifrin. We disagree.
determination of whether a witness is qualified to render an
opinion as an expert is a legal determination for the trial
court and will not be disturbed absent a manifest abuse of
discretion." (Citation and punctuation omitted.)
HNTB Ga., Inc. v. Hamilton-King, 287 Ga.
641, 642 (1) (697 S.E.2d 770) (2010). OCGA § 24-7-702
which governs the admissibility of expert testimony in civil
cases, provides that:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data; (2)
The testimony is the product of reliable principles and
methods; and (3) The witness has applied the principles and
methods reliably to the facts of the case which have been or
will be admitted into evidence before the trier of fact.
determining the admissibility of expert testimony, the trial
court acts as a gatekeeper, assessing both the witness'
qualifications to testify in a particular area of expertise
and the relevancy and reliability of the proffered
testimony." (Citation omitted.) HNTB Ga., Inc.,
287 Ga. at 642 (1).
Reliability is examined through consideration of many
factors, including whether a theory or technique can be
tested, whether it has been subjected to peer review and
publication, the known or potential rate of error for the
theory or technique, the general degree of acceptance in the
relevant scientific or professional community, and the
expert's range of experience and training.
omitted.) Id. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (119 S.Ct. 1167, 143
L.Ed.2d 238) (1999); see also Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 592-594 (II) (B) (113
S.Ct. 2786, 125 L.Ed.2d 469) (1993). "There are many
different kinds of experts and many different kinds of
expertise, and it follows that the test of reliability is a
flexible one, the specific factors neither necessarily nor
exclusively applying to all experts in every case."
(Citations and punctuation omitted.) HNTB Ga.,
Inc., 287 Ga. at 643 (1).
those principles to the facts of this case, Dr. Schifrin is
"an obstetrician/gynecologist with [a] subspecialty
certification in maternal-fetal medicine." Currently,
Dr. Schifrin primarily writes, researches, and gives
lectures. Dr. Schifrin has not had hospital privileges since
2011, the last time he was a full time maternal-fetal
medicine physician was approximately 17 years ago, and he has
not regularly delivered babies since 2003.
Schifrin opined that J. H.'s injury was the result of
ischemia caused by "mechanical compressive forces"
on his head during the course of Smith's labor. The
mechanical compressive forces that Dr. Schifrin refers to
are, inter alia, the use of pitocin, excessive uterine
activity, malposition of J. H., pushing prior to Smith's
full cervical dilation, and fundal pressure. Dr. Schifrin has
coined this mechanism of injury, cranial compression ischemic
encephalopathy ("CCIE"). In a thorough order, the
trial court concluded that Dr. Schifrin's testimony and
any expert testimony regarding the mechanism of injury
posited by Dr. Schirifin would be inadmissible pursuant to
OCGA § 24-7-702 (b) and the Daubert factors
because Dr. Schifrin's theory has not been reliably
tested, has not been subject to peer review and publication,
is not generally accepted in the scientific community, and
has not been clinically diagnosed in any other patients.
argues that the trial court erred by failing to consider the
causation opinions given by two of her other experts, Dr.
Daune MacGregor, a pediatric neurologist and Dr. Thomas Paul
Naidich, a neuroradiologist, notwithstanding the fact that
the trial court cites to both Dr. Naidich's and Dr.
MacGregor's deposition testimony in its order. Dr.
Naidich deposed that he "will leave [clinical opinions
about what specifically took place during the labor and
delivery that might have caused or contributed to these
injuries] to those who are truly expert in that. I'm the
radiologist. Specific mechanical events in labor and delivery
will be discussed by others. I will offer no opinion on
those." Likewise, Dr. MacGregor deposed that her
"understanding is [what causes compression resulting in
injury] has to do with the amount of pressure that's put
on by uterine contractions, that overcomes the natural
mechanisms that maintain brain and blood supply" but she
is "not an expert in the mechanics of delivery."
Contrary to Smith's assertion that Dr. Schifrin's
role is only one part of the causation theory, the case
hinges upon the testimony of Dr. Schifrin as to the
mechanical forces in labor that allegedly caused J. H.'s
Schifrin co-authored a chapter of a book titled,
"Cranial Compression Ischemic Encephalopathy: Fetal
Neurological Injury Related to the Mechanical Forces of Labor
and Delivery." In that chapter, Dr. Schifrin proposes
the concept of CCIE and explains that "[t]he overall
contribution of [mechanical] forces to ischemic brain injury
during labor is difficult to establish, in no small measure
because in modern obstetrics necessary details about theses
various factors are often unmeasured, unrecorded, and not
considered." In regards to testing of the theory, Dr.
Schifrin writes, "[t]o isolate the contribution of
mechanical factors it will be necessary for epidemiologic
studies to adjust for the role of potentially mitigating
factors" because "[w]e must learn more about the
ability of the fetal skull to protect the fetal brain."
Dr. Schifrin deposed that there have not been any long-term
epidemiological studies on the mechanism of injury and that
he "recommend[s] them in the context of understanding
[CCIE] as a potential cause of injury." Dr. Naidich
deposed that he was not aware of any studies that have looked
at external pressure on the skull causing this type of
injury. Dr. Naidich deposed that if such studies existed he
"would appreciate the reference just for [his] general
knowledge." Dr. MacGregor deposed that she is not aware
of any studies that determined the incidence rate of the
proposed mechanism of injury in this case. Additionally,
another one of Smith's experts, Dr. Paul Govaert, a
neonatologist and pediatrician in Belgium and Holland,
deposed that the "hypothesis" proposed by Dr.
Schifrin was "possible" but that "we . . .
still need some more research in science."
regards to peer-reviewed literature about the alleged
mechanism of injury in this case, Dr. Govaert deposed that he
was not aware of any peer-reviewed articles about this type
of injury caused by increased intracranial pressure because
of increased intrauterine pressure. Because of this lack of
peer-reviewed literature, Dr. Govaert deposed that he
"should publish it if I can." Another one of
Smith's experts, Dr. Cheng, a pediatric ...