*1 opin- expressed views in this sistent with the assault asked, respect to the sexual with di- ion. jurors were charge, whether contact "as to the non-guilt" or "guilt and
vided as Judge Judge and LOEB TAUBMAN less- greater guilt between degree of _ that indicated concur. foreperson The offense." er degree guilt. as to the they divided were jury then instructed trial court follows, writing: orally and in both jury, be- gentlemen of the
Ladies jury is you have indicated
cause respect degree guilt with as to divided 2, you your returns the Court
to Count following additional with the deliberations FORD, OF Catherine ESTATE guilty ver- You shall return instruction: Plaintiff-Appellee, included 2 as to the lesser dict on Count long contact as of unlawful sexual offense v. unanimously agree on the jurors as all Danny EICHER, M.D., and J. Consul- greater guilt to either the defendant's Gynecology, tants in Obstetrics of- or the lesser of sexual assault offense PC, Defendants-Appellants. sexual contact. fense of unlawful No. 06CA1625. guilty defendant as to you If find the sexual assault or unlawful either sexual Appeals, Court of Colorado 2, you are further to Count contact as I. Division you just must also answer instructed you 2. If find interrogatory to Count Dec. 2008. guilty sexual assault defendant not Rehearing 2009. Denied Feb. contact, guilty of unlawful sexual and not form. you indicate on the verdict should so event, interrog- you leave the
In that must
atory to Count unanswered. thereafter, jury returned ver-
Soon finding guilty of unlawful sex-
dict defendant
ual contact. fully trial court's actions
We conclude the
complied procedures with the outlined Jenkins, People See
Lewis. (a (Colo.App.2003) trial court does not jury's by complying with the verdict
direct ).
procedures outlined Lewis
VI. Mittimus that the
Finally, agree we with defendant plead- erroneously indicates that he
mittimus Likewise, agree the Peo- guilty. we
ed erroneously indicates
ple that the mittimus finding heat of jury made a
passion in connection with the second charge. Accordingly, we remand for
assault
correction of errors. these judgment is affirmed. The case is mittimus con- for correction of the
remanded *2 by Judge
Opinion ROTHENBERG. action, malpractice defen- In this medical Eicher, dants, Danny M.D. and Consul- J. Gynecology, P.C. tants Obstetrics *3 Eicher), judgment appeal a (collectively Dr. plaintiff, jury verdict favor of entered on a Ford. We reverse Estate of Catherine a trial. and remand for new Background I. 27, 2001, Joy Ford was admit- August
On the induc- Medical Center for ted to the Rose prac- primary Her obstetrician tion labor. doctors, including Dr. group ticed with a Joy previously diag- been Eicher. Ford had diabetes, gestational a condition nosed with (ab- babies can macrosomic which become danger a normally large), which creates difficulty passing through baby will have vaginal canal. Dr. Eicher was the mother's began, and he on call at the time labor delivering responsibility of assumed the baby. canal, Dr. baby the birth
As the descended dysto- diagnosis of shoulder Eicher made cia, baby's shoulder which occurs when canal after its caught in the birth becomes prevents the full is delivered. This head baby considered an delivery of the and is Bay Sturgis emergency. obstetrical Chartered, A2d side Health Ass'n (Del.2007), Supreme Court the Delaware emergency in a explained the nature of the against a nurse-mid negligence brought case wife: jeopardized complication [the
This rare baby's] nurse-midwife] If did not [the life. minutes, within five to seven [her] deliver oxygen for a deprived [she] would damage time to her long enough period of organs. vital Although nurse-midwife] needed to [the proceed needed to quickly, act she still to free great [the care. In order delivery, baby] [the nurse-midwife] for apply that she did not needed to ensure Brown, P.C., Leventhal, E. Puga, & James traction, force, on known as excess undue Sachs, Lipman, Daniel A. Puga, Benjamin baby's] If the nurse-midwife head. [the Denver, Colorado, Plaintiff-Appellee. for traction, might separate she applied excess baby's] LLP., shoulder [the the nerves Avery, Joseph C. Jau- & Jaudon Denver, Mitchell, [which Yun, cause brachial don, David H. S. Jane the network of by damage to Colorado, caused Defendant-Appellants. signals nerves conducts from the applying delivered. He denied excessive shoulder, arm, spine to the A hand]. traction. plexus injury potentially brachial could baby, Catherine, who was named limit [the] use of her arm for the rest of diagnosed with plexus injury a brachial her life. right shoulder. The Estate that was traction, To reduce excess obstetricians established for the minor child filed this ac- developed procedures have a number of tion for malpractice, alleging medical dislodge baby pubic from the bone for properly Dr. Eicher failed to inform Cather- delivery and to minimize the likelihood of a parents ine's about vaginal risks of a plexus injury. According to the opposed section, birth as to a caesarian literature, medical when the nurse-midwife applied that he excessive traction to deliver *4 dystocia, ap- discovers shoulder she could baby. jury the returned a verdict
ply suprapubic pressure, push le. above Estate, favor of the and the trial court en- bone, pubic the mother's in an attempt to judgment tered accordingly. dislodge baby pulling the without on her head. might The nurse-midwife follow II. Expert Motion to Testimony Preclude by performing that the McRoberts maneu- Dr. Eicher contends the trial court abused ver, where, assistant, help with the of an in granting discretion pretrial the Estate's positions the nurse-midwife the mother's preclude motion to his two defense legs potential to opening maximize the expressing opinions from regarding the cause baby pass through. Finally, the to the injury. agree. Catherine's We apply nurse-midwife could the Woods cork- serew reposition baby maneuver to the A. Standard of Review
potentially
delivery.
free her for
These
procedures attempt
to eliminate excessive
Trial courts have broad discretion to
pressure
traction
baby's
or
on the
head
determine the admissibility
testi
and limit
possibility
of a
plex-
brachial
mony, and their
rulings will not be over
injury.
us
turned absent an abuse of that discretion.
case,
testimony that,
this
there was trial
City
Eng'r,
Aurora v. Colo. State
105 P.3d
baby's
canal,
as the
head descended the birth
595,
(Colo.2005). However,
612
a trial court
her left shoulder
(up),
was anterior
and her
abuses its discretion when its decision is
(down).
right
posterior
shoulder was
This is manifestly arbitrary, unreasonable,
unfair,
or
right
referred to
occiput
pres-
anterior
applies
when it
legal
incorrect
stan
here,
entation.
testimony
There was also
Ibarra,
People
dard.
33,
v.
849 P.2d
38
Sturgis,
that
developed
obstetricians have
(Colo.1993);
Prieto,
842,
People v.
124 P.3d
emergency
several
dislodge
maneuvers to
(Colo.App.2005).
849
baby from
pubic
the mother's
bone and facili-
The admission of scientific evidence and
delivery
tate
without
(pulling)
excess traction
governed by
is
CRE 702.
by the
procedures
doctor. These
are de-
Shreck,
(Colo.
People
68,
v.
77-78
signed to minimize the
likelihood of an
2001); see Daubert v. Merrell Dow Pharma-
baby's
to the
plexus,
group
brachial
ceuticals, Inc.,
579, 589,
509 U.S.
113 S.Ct.
stemming
nerves
spinal
from the
cord at the
2786,
(1993).
943
that the ex
This Case
Applicability
B.
determination
ing preliminary
reliable.")
(citing Kumho
testimony is
pert's
hearing conducted
this
pretrial
At the
147-48,
137,
Carmichael, 526 U.S.
Tire Co.
addressed the admissibil-
(1999),
L.Ed.2d 238
119 S.Ct.
Joseph
experts, Dr.
G.
ity
opinions
two
(9th Cir.2003); see
amended,
F.3d
Cooper.
A.
and Dr. Theodore
Joiner,
136, 154
522 U.S.
Elec. Co. v.
General
testify
by Dr. Eicher to
They were endorsed
L.Ed.2d 508
118 S.Ct.
n.
"injury
right
to her
that Catherine's
(an
should be
"junk science" that
example of
efforts
prior to
Eicher's
plexus occurred
as too unreliable
Daubert
under
excluded
shoulder";
that her
the anterior
to deliver
phrenologist
testimony of a
"would
that Dr.
by anything
"injury was not caused
prove a defendant's
do";
purport
"a planned
would
and that
who
Eicher did or didn't
on the contours
dangerousness based
future
necessarily have
not
section would
cesarean
skull.");
Transconti
of the defendant's
injury prevented
[her]."
cf.
86, 97
Crump, 274 S.W.3d
Co. v.
nental Ins.
testify at
did not
The two doctors
2008) ("A
conducted
properly
(Tex.App.
were
hearing,
depositions
their
pretrial
but
(junk
not
diagnosis is
explained differential
along with the
by the trial court
reviewed
routinely
dif
use
doctors
Medical
science'
medical
literature
on which
accompanying
*5
basis on
diagnosis as a sufficient
ferential
deposi-
considering
After
the
they relied.
treatment
prescribe medical
which to
submissions,
parties'
the
and the
other
tions
(cita
consequences."
life-or-death
potential
opinion
trial court found that
Ouzounian's
LLC,
omitted));
Golf,
969
In re Jam
tion
reliable,
scientifically
and that Dr.
not
was
2008)
(Vt.
"hypotheti
47,
(despite the
A.2d
51
not based on a reason-
Cooper's opinion was
expert's
part of a wildlife
nature of
cal"
probability.
of medical
able
testimony
re
testimony, court concluded
experts
the two
would be
court ruled
Daubert, "because
purposes of
for the
liable
injuries,
testify that
such as those
allowed to
type of facts
testimony
on the
was based
the
Catherine,
in the
by
can occur
sustained
are fa
wildlife
with which
and data
doctor,
by
excessive traction
the
absence of
and wildlife
miliar-topographic
features
contractions.
example, by intrauterine
for
expert
...
is
"a wildlife
patterns,"
movement
the two defense
court disallowed
But
the
rely
authority
interpret
to
and
accorded the
that "this
expressing
opinion
an
experts from
information,
if
has
even
he
technical
on such
by in-
Ford was caused
injury to Catherine
firsthand,"
expert's
and
observed it
not
unrelated
to her
trauterine
contractions
"junk science'
"testimony
the kind of
[not]
is
dystocia."
shoulder
exclude").
meant to
that Daubert
Testimony
C.
of relia
making
a determination
the trial court erred
Dr. Eicher contends
trial court should
bility
relevancy,
and
testimony was
ruling
that Dr. Ouzounian's
(1)
following: whether the scien
consider
agree.
scientificallyunreliable. We
testify
the witness is
to which
principles
tific
(2)
reliable;
testimony
if the
Expert
reasonably
is reliable
whether the
are
ing
express
opinion
an
on
qualified to
by
witness is
are
used
the witness
principles
scientific
(8)
matters;
the witness's
quali
and
whether
witness is
reasonably reliable and the
jury.
to the
be useful
matters.
express
would
on such
fied to
Shreck,
Shreck,
The trial court's
22
at 77-79.
determines
P.3d
in the record theory only hypothesis expulsive force is test the in utero way in which to ethical plexus injury to the cause of brachial theory plexus injury or of brachial causation hypothesis to and that the needs be inves- much traction is "excessive" to measure how tigated proven. further and subjecting and their infants mothers without injurious potentially conduct. to Here, physician] defendant denied use [the Cardwell, 2008 WL D'Amore traction in the deliv- of excess lateral 31, 2008), (Ohio L-06-1342, Mar. Ct.App. No. ery... any was parties disputed whether "there not to evaluate The trial court's role is scientifically basis to conclude reliable analysis competing scientific or con- which than excess lateral any cause other there clusion is correct. Under Daubert inju plexus permanent brachial traction for R. to determine Evid. is type plaintiff]. [the ries of the suffered opinion testimony whether is suffi- ¶ 26. permitted court Id. at The trial ciently relevant and reliable be admitted testify experts to about the same defense jury into evidence consideration. theory that Dr. Eicher utero causation admitted, the evidence is it is for Where sought have admitted this case. jury weight give to decide the upheld ruling, Appeals Ohio Court testimony. prerogative It remains the reiterating the fact that there is no ethical jury reject any evidence "for way in which to test utero causation including unreliability. of reasons" number injury meas theory or to of brachial ¶¶ (footnote 41-43, at 65-67 and cita Id. "excessive." The ure how much traction is omitted) added). (emphasis tion reasoning court's is instructive: Ohio (Colo. Brinkman, Prospective testing the in utero causa- In Luster v. theory 2008), is tion App. a division of this court addressed appears impossible as it unavailable malpractice in an obstetrical action an issue testing injuring without conduct such nearly identical facts. that arose based on subject. asserts that defendant] [The There, injured parents of an infant dur scientifically theory causation utero trial court ing childbirth contended the *7 upon retrospective review of medi- based admitting expert in tes abused its discretion retrospective studies [and that] cal records that intra timony by offered the defendants reported the occurrence of brachial have plex can brachial uterine contractions cause trac- plexus injuries where excess lateral injuries. us cause, listing the tion could not have been adopted reasoning of The division the deliveries without examples head first jurisdictions admitting other cases several traction, the breech deliveries where Heidrick, evidence, including Clark v. such first, and cesare- baby's feet are delivered (8th Cir.1998), and 150 F.3d involving surgical removal of an deliveries so, doing In the divi- D'Amore v. Cardwell. baby without head traction. "[pllaintiffs noted that have cited no sion response that the plaintiffs] argue [The cases, none, holding and we are aware of inherently flawed retrospective analysis is trial," at inadmissible ascertainment bias" due to an "inherent and that: theory has and that the in utero causation arguments premised are on the- Plaintiffs' scientifically tested. not been rejected which have ories of causation and agree prospective parties finding that intrauterine body of literature injury objective plexus of brachial evidence injuries. plexus can cause brachial forces exist lateral traction does without excess Where, here, evidentiary competing the- delivery complicated is not even where the exist, function to it is the fact finder's ories by dystocia. A well known exam- shoulder given weight should be to all consider what delivery at peer report review of a ple is a This includes the parts of evidence. Hopkins. Johns conflicts, inconsistencies, resolving of and Dr. Ouzounian referred to numerous stud- disputes in the evidence. published ies and articles that had been Brinkman, (citation journals authoritative medical discussing Luster v. P.3d at 415 omitted). alternative plexus injury, causes of brachial including articles he had authored. He read agree reasoning We the division's and Brinkman, articles, excerpts from the holding in Luster v. and for studies and dis- above, reasons set forth we conclude the trial findings cussed their and relevance to the jury, testing court's concerns with and error rates explained they supported and how his justify ruling did not disallowing Dr. Ouz- conclusionthat some cases of brachial testimony. ounian's palsy an origin. have intrauterine urges The Estate up- nevertheless us to (1) endogenous He testified that or intra- ruling, hold the trial asserting court's forces, uterine are which the mother's labor express Dr. Ouzounian was unable to contractions, and are four high- to nine times opinion regarding injury the cause of the er than the force a doctor or midwife would However, this case. the record does not (2) apply; significant number of cases of support argument. the Estate's palsy brachial occur in utero before the deposition, At his Dr. Ouzounian attributed baby's head is delivered and where there is injury forces, Catherine's to in utero traction; by no evidence of trauma expressly likely stated that expla- "the most cases exist where babies have been delivered injury nation [for the this case] was by caesarean section and no traction has posterior to the impaction shoulder on the applied, been but temporary permanent promontory." sacrum or sacral The sacrum injuries brachial have nevertheless occurred. is a triangular bone located at the base large, spine of the upper part and at the and back Contrary contention, to the Estate's pelvic cavity, Quzounian's where it is inserted like a supported by a sig- wedge hip between upper the two bones. Its body fact, nificant of scientific evidence. part vertebra, connects with the last lumbar one of the Estate's medical acknowl- (tail- part and the coccyx bottom with the edged a 1995 subject article on the of in bone). promontory The sacral is the ana- injuries. states, utero That article as rele- tomical superior-most portion term for the of vant here: Gaskin, May sacrum. See also Ina Spiri- strong [TJhere is a suggestion that some (4th Midwifery tual ed.2002)(describing plexus injuries may completely be technique Mayan used Indians and manipulations unrelated to performed at Guatemalan midwives to avoid this anatomi- cases, delivery. time of In these it is difficulty cal and recommending that likely expulsive most that maternal forces flip mother over so that she is on her hands delivery may partly totally respon- position and knees: very "This works well to posterior sible for injuries. or anterior arm pelvis widen the ... when the shoulders are example, posterior For may shoulder stuck: coceyx instead of the being mother's *8 temporarily lodged become behind the sa- pushed symphysis pubis towards the in the way it is in the seated position, there is no promontory yet delivery cral of the head pressure coceyx on baby's weight expulsive and the results from maternal efforts or pushing symphysis is on pubis, thereby use of instruments.
widening the
posterior
anterior to
diameter a
The Estate's
admitted that this article
addition,
little.
in the hands and knees
repeatedly
journal
has been cited
in
articles
position, gravity assists and favors the birth
published by other board certified obstetri-
baby.
of the
Since we
... began
midwives
explanation
clans as an alternative
for brachi-
using
technique] in
[this
we have never
plexus injuries.
al
dystocia
had a case of shoulder
that we
We therefore
conclude the trial court
couldn't
comparative
resolve with
ease.
abused its discretion in ruling
theory
that the
I
strongly
against
would
advise
use of
[the
propounded by
of causation
Dr.
position
knee-chest
to resolve
shoulder
dystocia)
gravity
since
working
is then
was
disallowing
unreliable and in
it under
Shreck,.
against you.").
rebut-
injury,
argument could have been
that,
this
if the
argues
even
next
The Estate
would have been able to
disallowing Dr. Ouzouni-
The Estate
ted.
court erred
trial
likely
of
argue
cause
that
testimony regarding
Dr. Ouzounian and
cross-examine
an's
issue of
more credible on the
any
were
was harmless.
infury,
error
Catherine's
disagree.
We
causation,
had an
Dr. Eicher would have
but
opinion
present
expert's
his
opportunity to
testimony was incom
Dr. Ouzounian's
in-
likely cause of Catherine's
regarding the
him
precluded
because
plete
opinion.
supporting that
jury and the reasons
likely
opinion about the
expressing his
from
During the
injury in this case.
of the
cause
trial court
conclude the
We therefore
ques
trial,
that several
jurors requested
allowing
Dr. Ouz-
its discretion
not
abused
regarding
Dr. Ouzounian
be asked of
tions
regarding the
opinion
his
present
ounian to
inju
the cause of Catherine's
injury in this
cause of Catherine's
you
that
"You stated
including these:
ry,
caused substantial
further conclude
error
delivery team contributed
not think the
do
Accordingly, a
Dr. Eicher.
new
prejudice to
you
injuries. What do
Ford's
Catherine
Brinkman,
required. See Luster v.
is
likely cause of her severe
is the most
think
413-16; Sturgis,
Accordingly, the trial court did not abuse way, given the pre state of the science as denying its discretion Dr. Eicher's motion court, expert sented to the for the to deter preclude testify, the Estate's from mine to a probability reasonable ing. any whether such was the cause of reversed, judgment and the case is individual child. See Kumho Tire Co. remanded for a new trial in accordance with Carmichael, 137, 154-58, 526 U.S. 119 S.Ct. expressed opinion. the views in this 143 L.Ed.2d (affirming exclusion, unreliable, court's * Justice ROVIRA concurs. opinion testimony regarding cause of failure Judge issue). specially TERRY particular concurs. tire * Sitting 24-51-1105, C.R.$.2008. by assignment § of the Chief Justice under VI, provisions 5(3), § of Colo. Const. art.
949 here, not, as whether testimony, and expert prior to applicable the standard If here, excluding in discretion applied abused its Ramirez were the court of announcement abuse been an not have it determined my it would because view such this to exclude the court discretion of reasonably reli- based on testimony was not discretion, ga- its It exercised evidence. principles. able scientific unrelia- it deemed keep out what tekeeper, to will supreme court my hope that the It is Tire, 526 See Kumho evidence. scientific ble to trial courts as guidance to the give further ("[Fed.R.Evid.] 158, 119 S.Ct. at U.S. gatekeeping of their proper exercise judge the discretion- district grants the expert abuse, to admission of respect to function with for its authority, reviewable ary light ruling testimony in of its opinion particular reliability light of determine particular and cireumstances Ramirez. facts (trial court case."); 119 S.Ct. id. at test an deciding how to latitude in same has deciding reliability enjoys it when expert's reliable). testimony is expert's
whether because in the result
I coneur in Ramirez law announced
change in the fact that rule of that
Applying the to a may expressed opinion expert is, apparently, "possibility" mere Colorado, of the State of The PEOPLE being deemed impediment longer an no Petitioner-Appellee, Thus, "reliable," admissible. and therefore say can retrospect, we O.R., Interest of Juvenile- In the testify that it permitted to been have should Appellant. injuries were child's this "possible" No. 08CA1219. Howev- contractions. by intrauterine caused that, purpose of the er, if the concerned I am Appeals, Court of Colorado exclude trial courts was to have test Shreck Div. V. courtroom, from the "junk science" may place applicable standards change in 24, 2008. Dec. attempt- trial courts path in the obstacles duty. discharge that 2009. ing Rehearing Denied Jan. suggests majority also advantage of unfair took plaintiff's counsel testimony by emphasiz- this
the exclusion had failed jury that the defense ing to the injuries. I this child's cause of
show the whether the the determination
disagree that in ex- its discretion court has abused any degree is measured cluding evidence party was able to opposing whether exclusion of advantage of the tactical
take
such evidence. Brinkman, view, my
In Luster 2008), eliminate (Colo.App. does not evidentiary issues. to discuss these
the need court
There, the trial division concluded admitting simi- abuse its discretion
did not intrauterine testimony regarding
lar cause of brachial as the contractions Luster, in that case.
injuries the infant an abuse it was was whether the issue to admit
discretion for