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Smith v. Braswell

Court of Appeals of Georgia, Third Division

September 7, 2017

SMITH et al.


          RICKMAN, JUDGE.

         T'Miaya Smith's son, J. H., began having seizures after his birth and a head CT scan revealed ischemic injuries to his brain.[1] Smith[2] 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.[3] 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.

         1. Smith contends that the trial court erred in granting Braswell's motion to exclude the testimony of her expert witness, Dr. Schifrin. We disagree.

         "The 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 (b)[4], 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.

         "In 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.

         (Citation 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).

         Applying 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.[5]

         Dr. 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").[6] 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.

         Smith 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 injury.

         Dr. 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."

         In 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 ...

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