2020 COA 126
Colo. Ct. App.2020Background
- In 2013 Brandon Trujillo suffered a perinatal hypoxic-ischemic brain injury and now has cerebral palsy; his parents sued Vail Clinic and providers for negligent management of labor.
- Plaintiffs alleged repeated, prolonged, and excessive Pitocin-induced uterine contractions caused cranial compression ischemic encephalopathy (CCIE), collapsing fetal cranial blood vessels and producing ischemia.
- Plaintiffs disclosed experts (including Dr. Barry Schifrin) who would testify generally about CCIE and, by differential diagnosis, that CCIE caused Brandon’s injury; defendants moved to exclude that testimony.
- The district court held a multi-day Daubert-style hearing, found the underlying pathophysiology reliable but concluded the assembled CCIE theory was unreliable (lack of testing, peer review, and widespread acceptance), excluded the testimony, and then granted summary judgment for defendants.
- The Court of Appeals reversed: it held the trial court abused its gatekeeper role by excluding the CCIE testimony and remanded to reinstate the claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of CCIE generally under CRE 702 | Underlying pathophysiology is reliable; liberal CRE 702 standard and totality-of-circumstances admit CCIE despite lack of testing/publication | CCIE is junk science—unreliable because not tested, peer-reviewed, or generally accepted | Reversed exclusion; CCIE admissible because built on reasonably reliable pathophysiology and judge exceeded gatekeeper role by treating lack of testing/publication as dispositive |
| Application of CCIE to Brandon (differential diagnosis) | Dr. Schifrin performed differential diagnosis, ruled out other causes, tied CCIE to Brandon’s injury | Application is speculative without established CCIE | Application via differential diagnosis was reasonably reliable and admissible; defendants offered no competing alternative cause |
| Relevance and CRE 403 balancing (helpfulness vs. prejudice) | CCIE testimony is probative on causation and helpful to jury; cross-examination and contrary experts address weaknesses | Unreliable theory would confuse and unfairly prejudice jury | Testimony was helpful and its probative value was not substantially outweighed by unfair prejudice; admissible under CRE 403 |
| Effect of exclusion on summary judgment | Even if contested, factual disputes remain; summary judgment improper | Without CCIE testimony plaintiffs cannot prove causation so summary judgment appropriate | Reversed summary judgment because exclusion was erroneous and plaintiffs retained a causation theory sufficient to preclude summary judgment |
Key Cases Cited
- Estate of Ford v. Eicher, 250 P.3d 262 (Colo. 2011) (CRE 702 inquiry is liberal and depends on totality of circumstances; gatekeeper must exclude junk science, not resolve credibility)
- People v. Shreck, 22 P.3d 68 (Colo. 2001) (expert testimony admission is liberal; trial procedures further vet expert evidence)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (factors courts commonly consider in assessing scientific reliability)
- Farmland Mut. Ins. Cos. v. Chief Indus., Inc., 170 P.3d 832 (Colo. App. 2007) (conflicting expert opinions can both be admissible; court acts as gatekeeper, not factfinder)