LAUREN E. SCOTTOLINE, Individuаlly, and as Parent and Guardian of J.S.S., a Minor, and STEPHEN SCOTTOLINE, Parent of J.S.S., a Minor v. WOMEN FIRST, LLC, and CHRISTIANA CARE HEALTH SYSTEM, INC.
No. 48, 2024
IN THE SUPREME COURT OF THE STATE OF DELAWARE
June 18, 2025
Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, GRIFFITHS, Justices, and DAVID, Vice Chancellor,* constituting the Court en Banc.
Upon appeal from the Superior Court. AFFIRMED.
Joshua J. Inkell, Esquire, THE INKELL FIRM, LLC, Wilmington, Delaware; Bartholomew J. Dalton, Esquire (argued), DALTON & ASSOCIATES, P.A., Wilmington, Delaware; Jeffrey M. Weiner, Esquire, LAW OFFICES OF JEFFREY M. WEINER, P.A., Wilmington, Delaware for Plaintiffs Below, Appellants Lauren Scottoline, individually, and as Parent and Guardian of J.S.S., and Stephen Scottoline, Parent of J.S.S.
Bradley J. Goewert, Esquire (argued), Thomas J. Marcoz, Jr., Esquire, BALAGUER MILEWSKI & IMBROGNO, Wilmington, Delaware; David Batten, Esquire, BATTEN MCLAMB SMITH, PLLC, Raleigh, North Carolina for Defendant Below, Appellee Women First, LLC.
John D. Balaguer, Esquire (argued), BALAGUER MILEWSKI & IMBROGNO, Wilmington, Delaware for Defendant Below, Appellee Christiana Care Health System, Inc.
In this appeal we review whether the Superior Court properly excluded an expert‘s causation opinion in a medical malpractice case. Applying
I.
The facts are taken from the summary judgment record. On July 28, 2015, Lauren Scottoline gave birth to J.S.S. at Christiana Care Hospital. After birth, J.S.S. could not breathе on his own and had low blood-oxygen levels. His care team inserted a breathing tube. He soon began suffering seizures. Although his condition improved in the first week, six days after birth the physicians diagnosed J.S.S. with hypoxic-ischemic encephalopathy (“HIE“). He stayed in the newborn intensive care unit for three weeks before being discharged from the hospital.
J.S.S. began speaking before his first birthday, but he regressed and stopped speaking at eighteen months. He slowly developed one- or two-word phrases mixed with unintelligible sounds. Although J.S.S. began reading by his third birthday, he had difficulty paying attention at school. J.S.S.‘s treating physicians found his developmental delays consistent with autism spectrum disorder (“ASD“). They diagnosed J.S.S. with ASD in 2018. Doctors confirmed his ASD diagnosis when J.S.S. was reevaluated in 2021. Further testing revealed that J.S.S. is substantially delayed in speech, language, social responsiveness, comprehension, and expression compared to children his age.
Lauren Scottoline, individually and as J.S.S.‘s parent and guardian, and Stephen Scottoline, as J.S.S.‘s parent, filed suit against Christiana Care Health System, Inc. and Women First, LLC.1 They claimed that the defendants were negligent during J.S.S.‘s labor and delivery, which caused him harm.2 In addition to other experts, the Scottolines retained Dr. Daniel Adler, a pediatric neurologist and causation and damages exрert, and Jody Masterson, a registered nurse and life-care planning expert.
Through three reports and a deposition, Dr. Adler offered an opinion that J.S.S. had “neurological and neurodevelopmental disabilities and a behavioral syndrome that is within the autistic spectrum.”3 In her report, Masterson calculated J.S.S.‘s lifetime care costs due to his disabilities. The defendants moved in limine to exclude their opinions and testimony at trial. In a series of decisions, the Superior Court granted the motions in limine, denied the Scottolines’ request for relief under Superior Court Rules of Civil Procedure 59 and 60, and granted the defendants’ motion for summary judgment for lack of admissible causation testimony.4
The Scottolines make one central argument on appeal – the Superior Court ignored our decisions in the medical malpractice area by requiring Dr. Adler to have a reliable scientific basis and methodology for his opinions. Underlying this argument is another contention. They claim the court misunderstood Dr. Adler‘s opinion when it excluded his opinion that HIE caused ASD. To give context to the arguments, we review the medical diagnoses involved, the expert‘s reports, and then the Superior Court‘s March 1 and December 15 decisions.
A.
Hypoxic-ischemic encephalopathy is a type of neonаtal encephalopathy, a group of brain disorders in newborns.5 HIE is caused by the lack of blood flow and oxygen to the brain.6 It has many known causes, including genetic disorders, infection, environmental harm through the mother, and problems during labor and delivery.7
Autism spectrum disorder is a neurodevelopmental disorder.8 These disorders are characterized by impaired development in “personal, social, academic, or occupational functioning.”9 ASD is marked by two key features: impaired social interactions and repetitive patterns of behavior.10 The disorder is associated with various risk factors, but ASD does not have a known cause.11
Dr. Adler is a pediatric neurologist. He examined J.S.S. in 2019 and 2021 and reviewed his birth records. In his 2019 and 2021 expert reports, Dr. Adler concluded that HIE caused J.S.S.‘s neurological and neurodevelopmental disabilities and behavioral syndrome within the autism spectrum.12 To support his 2019 and 2021 opinions, Dr. Adler relied on his training and experience and four medical articles. He also relied on the American Psychiatric Association‘s diagnostic criteria for ASD in the DSM-5. The defendants moved in limine to preclude Dr. Adler from testifying at trial “that autism is caused, either as a general matter or specific to this case, by HIE.”13
Second, the court found that Dr. Adler‘s opinion was not the product of a reliable methodology. According to the court, “[w]hen a disease or disorder has several possible independent causes, an expert must ‘employ a definitive scientific process to rule in and rule out’ the many potential causes of the disorder before reaching a conclusion.”17 The court observed that Dr. Adler agreed “there is no scientific study showing a causal link between HIE and ASD,” and that there are numerous potential causes of ASD, including genetic disorders.18 It also found that Dr. Adler‘s reports “do not make any attempt to distinguish J.S.S.‘s diagnosis and rule out those other potential causes.”19 Thus, the court held that “Plaintiffs are precluded from introducing at trial Dr. Adler‘s opinion or testimony that Hypoxic Ischemic Encephalopathy caused J.S.S.‘s behаvioral syndrome that falls within the autism spectrum.”20
B.
Following the March 1 decision, the court held a pretrial conference. The court questioned whether Dr. Adler would offer an opinion about the cause of J.S.S.‘s neurological and neurodevelopmental disabilities unrelated to ASD.21 The court left it to the parties to decide on next steps.22
On June 8, 2023, Dr. Adler submitted a third expert report. Dr. Adler stated that J.S.S.‘s HIE was “significant and caused permanent brain damage.”23 He also stated that J.S.S.‘s HIE caused brain injuries “consisting of motor impairment along with language, behavioral, cognitive and memory problems.”24 He followed that opinion with another that once again addressed ASD – J.S.S.‘s “autism is part of an underlying hypoxic ischemic brain injury.”25 He relied on new medical references and gave more detail about his qualifications
During oral argument on the motion in limine, the court revisited the question raised at the pretrial conference about the scope of Dr. Adler‘s opinions. The court asked whether he provided a “two-step” opinion:
I think Dr. Adler, he sort of makes kind of a two-step diagnosis. In the first step, he says that because of the HIE, [J.S.S.] suffered certain neurological or other deficits, and then he says that, you know, when you look at those deficits in the DSM-5, they meet the criteria for ASD, and it‘s his opinion that it‘s ASD.
Is that able to be parsed out into, you know, a diagnosis of certain disabilities or injuries on the one hand and then ASD on the other?26
The court asked the question to settle any “underlying confusion” about “what, if anything, was left to go forward.”27 The court continued: “it‘s clear that – it seems that the child has these neurological problems.”28 As the court saw it, the remaining dispute appeared to be about “what caused those neurological problems.”29 Defense counsel agreed, responding that the court had previously “left the door open” for the Scottolines to argue that some of J.S.S.‘s disabilities “aren‘t characterized as ASD, then parse that out.”30 But, as the defendants argued, Dr. Adler “came back with the same opinion.”31
The court asked the Scottolines’ counsel whether it was “possible to parse that opinion of Dr. Adler.”32 Counsel replied that “[a]utism is a parallel diagnosis with traumatic brain injury” and that “[m]any of the same symptoms of a traumatic [brain] injury from HIE are also found in autism.”33 He continued that “the parallel issues of the neurological, developmental, and cognitive delays that are associated with autism are also associated with traumatic brain injury, or, in this case, HIE.”34 Counsel also agreed that Dr. Adlеr‘s opinions in his third report were the same as his prior opinions.35 Counsel then turned to his main argument that the court‘s March 1 decision violated this Court‘s precedent,36 and asserted that the court should reconsider its March 1 decision.37
On December 15, 2023, the Superior Court granted the defendants’ motion. It held that Dr. Adler‘s causation opinion was “practically indistinguishable from the
III.
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.40
When applying the rule, Delaware courts look to the United States Supreme Court‘s opinion Daubert v. Merrell Dow Pharmaceuticals, Inc. and cases that follow it.41 Expert testimоny is admissible only if relevant and reliable.42 The trial judge “acts as the gatekeeper” to bar expert testimony that fails this requirement.43 On appeal, we review whether the Superior Court exceeded its discretion in its March 1 and December 15 motion in limine decisions.44
A.
We start with the Superior Court‘s March 1 ruling that “Plaintiffs are precluded from introducing at trial Dr. Adler‘s opinion or testimony that Hypoxic Ischemic Encephalopathy caused J.S.S.‘s behavioral syndrome that falls within the autism spectrum.”45 As their main argument on appeal, the Scottolines contend that the Superior Court “violated” our decisions in Norman v. All About Women and Wong v. Broughton by requiring medical literature to support a reliable scientific basis for expert opinions.46 According to the Scottolines, after Norman and Wong, a physician‘s expert opinion can be supported by a physician‘s training and experience and
Norman and Wong addressed an expert‘s standard of care opinion in medical malpractice cases. In those cases, we held that, at least when offering an opinion about the standard of care in birth and surgical procedures, a medical expert could rely on her training and experience. Scientific literature was not required for the expert‘s opinion to be reliable under Rule 702.48
Here, the equivalent wоuld be Dr. Adler relying on his experience as a pediatric neurologist to testify that the medical professionals overseeing J.S.S.‘s birth breached the standard of care during J.S.S.‘s delivery. Dr. Adler, however, disclaimed a standard of care opinion.49 Instead, his opinion ventured into scientific inquiry – did J.S.S.‘s HIE cause his ASD? In other words, what was the etiology of J.S.S.‘s ASD?50
Dr. Adler is an accomplished pediatric neurologist with impressive credentials and years of experience diagnosing pediatric neurological conditions. Yet “[t]he ability to diagnose medical conditions is not remotely the same . . . as the ability to deduce . . . in a scientifically reliable manner, the causes of those medical conditions.”51 “For most physicians, attributing background causation is not part of their normal practice.”52 A physician “may testify to both, but the reliability of one does
Dr. Adler failed to show that his etiology opinion had a scientific basis. Although he cited medical literature, he agreed that the medical literature he relied on suggested only an association between brain injury and autism – meaning, “related to each other but not necessarily linked in terms of cause.”54 He was not aware of any published medical studies or literature demonstrating that HIE causes ASD.55 Dr. Adler also failed to reference personal experience in deducing etiologies. Without academic literature or etiological experience demonstrating that HIE can cause ASD, Dr. Adler‘s expert opinion lacked a scientific basis and was therefore inadmissible.
The Scottolines maintain that Dr. Adler‘s HIE-ASD causation opinion was still reliable because his third report used the “magic words” “differential diagnosis,” thereby employing a reliable methodology.56 As explained earlier, however, the issue is not with Dr. Adler‘s diagnosis but with his etiology opinion that HIE caused ASD. The “process-of-elimination” method by which an expert demonstrates causation is more precisely called a differential etiology.57 A differential etiology requires the expert to rule in plausible causes for a diagnosis and rule out alternative causes.
Once again, Dr. Adler failed to demonstrate that his opinion was reliable. He acknowledged that there are a “whole host of potential causes” for ASD,58 but did not adequately rule out other known causes. For example, Dr. Adler claimed that Lauren Scottoline‘s medical history showed nothing that would cause “any concern about her unborn child.”59 Yet he admitted that he did not know which maternal history factors were associated with
B.
We turn next to the Superior Court‘s December 15 ruling excluding Dr. Adler‘s opinions in the third report. Dr. Adler concluded in his first two reports that J.S.S.‘s neurological and neurodevelopmental disabilities and behavioral syndrome within the autism spectrum were caused by HIE during his labor and delivery. The court excluded Dr. Adler‘s HIE-ASD opinion but observed that his reports did not “break out” which of his injuries were unrelated to ASD.65 In his third report, Dr. Adler stated that HIE caused J.S.S.‘s motor impairments and neurological problems. He also stated that J.S.S.‘s ASD was part of his “underlying” HIE injury.66
It is unclear whether Dr. Adler meant to express two related but separate opinions in his reports – first, that J.S.S.‘s HIE cаused certain neurological and neurodevelopmental disabilities; and second, that J.S.S.‘s HIE caused behavioral disabilities, some of which are consistent with an ASD diagnosis.67 But even if we found that he did, his opinions still did not clear the Daubert threshold.
As explained earlier, diagnosis expertise does not equate to etiology expertise. Dr. Adler was qualified to diagnose J.S.S. with HIE and with neurological, neurodevelopmental, and behavioral disabilities. When it comes to etiology, however, Dr. Adler simply stated a conclusion and repeated it in the report – that J.S.S.‘s “hypoxic-ischemic-brain injury has caused permanent brain
Dr. Adler did point to medical literature stating that “cognitive deficits may occur” after HIE at birth,70 and children who experienced HIE are “at increased risk of cognitive deficits.”71 Those statements, though equivocal, might have been sufficient as a general matter to draw a connection between HIE and other neurological disorders. But he failed to support his opinion specifically to J.S.S. with anything other than ipse dixit – that J.S.S.‘s HIE at birth caused his neurological and neurodevelopmental disabilities.72
There are many possible causes of a child‘s neurological and neurodevelopmental disabilities.73 Although an expert nеed not eliminate all other causes to conduct a reliable differential etiology, an expert must at least exclude obvious alternatives.74 At best, Dr. Adler in his third report attempted to rule out other causes for J.S.S.‘s behavioral syndrome on the autism spectrum – an opinion already precluded by the March 1 ruling and that we affirmed. The Superior Court did not err in excluding opinions and testimony from Dr. Adler‘s third report.IV.
Next, the Scottolines argue that the Superior Court erred by denying their motion for an evidentiary hearing because Dr. Adler‘s “opinions and his
The Superior Court did not exceed its discretion by deciding not to hold an evidentiary hearing. Dr. Adler issued two reports and then a third report after the court excluded the initial ones. He also sat for a deposition. The parties briefed two Daubert motions which were heard at oral argument.79 It was within the court‘s discretion to decide that the Scottolines had “ample opportunity to develop a record that passes Daubert muster.”80
The Scottolines also cоntend that Dr. Adler‘s third report was substantially different than the first two reports. As explained above, we find the opinions expressed in the three reports to be unreliable and therefore inadmissible. We agree with the Superior Court that it had a fully developed record to consider the admissibility of Dr. Adler‘s opinions and testimony. The court was within its discretion to deny an evidentiary hearing.
V.
Finally, we briefly address the Scottolines’ remaining arguments. They claim that the Superior Court erroneously excluded Masterson‘s opinion and testimony. But the Scottolines concede that Masterson‘s opinion “is premised on the opinion of Dr. Adler.”81 Because Dr. Adler‘s testimony was properly excluded, Masterson‘s testimony was properly excluded as derivative of Dr. Adler‘s.
The Scottolines also argue that the court should have granted their supposed motion under
VI.
We affirm the Superior Court‘s judgment.
VALIHURA, J., dissenting:
I respectfully dissent from the Majority‘s opinion on two primary points: the Majority‘s characterization of Plaintiffs’ claim and Dr. Adler‘s expert opinion, and its treatment of this Court‘s controlling case law in Norman and Wong.
From the beginning of this case, Plaintiffs have framed their claim as one in which medical negligence during Lauren Scottoline‘s labor and delivery of J.S.S. caused J.S.S. to be deprived of oxygen during birth, resulting in tissue and organ damage, including a permanent Hypoxic Ischemic Encephalopathy injury to the brain. Nowhere does the complaint allege that negligent medical care or a resulting birth injury caused his autism.
On July 28, 2015, minor child J.S.S. was born at Christiana Hospital with “no respiratory effort” and falling blood oxygenation levels.1 He was intubated within five minutes of birth, experienced seizures approximately twenty minutes after his birth, and was diagnosed with Hypoxic Ischemic Encephalopathy (“HIE“) six days after his birth. The treating neurologist‘s and neonatologist‘s records indicated that he was “extremely sick” and that initial testing was “consistent with severe encephalopathy.”2 Although J.S.S. initially appeared to recover, spoke before his first birthday, and began walking at sixteen months, by eighteen months, he had stopped speaking and was regressing. At twenty months, his behavioral pediatrician noted that he had “developmental delays in all areas” with physical therapy, occupational therapy, speech therapy, and early сhildhood education being provided, but that she was not “struck” with the impression of autism.3 In May 2018, J.S.S. was “diagnosed” with educational Autism Spectrum Disorder (“ASD“) by his school district so that he could receive additional support services. He was reevaluated in February 2021, and his physicians found his developmental delays consistent with ASD.
Plaintiffs filed this action on August 15, 2019, on behalf of J.S.S. and Lauren Scottoline, his mother. The amended complaint was filed on March 2, 2021, and alleged that Defendant-Appellees provided negligent medical care while Lauren Scottoline was hospitalized and during her delivery of J.S.S. This negligent care included failing to be readily available to respond to requests to provide obstetrical care for Lauren Scottoline during her labor and delivery, failing to properly manage and monitor her labor and delivery knowing she was a high-risk patient, failing to request or otherwise take steps to have a medical doctor present at her bedside despite many periods of non-reassuring fetal status during her labor, and failing to ensure that necessary equipment was available
Plaintiffs engaged an expert, Dr. Daniel Adler, whose opinion was offered to prove causation and damages. There is no dispute that Dr. Adler is a well-qualified medical expert.7 He has been “fully trained in Neurology with Special Competence in Child Neurology since 1980” and “Board Certified in this specialty since 1982.”8 In his forty-one years of experience, he has seen numerous children with brain damage due to neonatal HIE and numerous children with autism, and he has provided treatment for those children as they aged.
Dr. Adler examined J.S.S. three times, reviewed his medical history and records, and ultimately issued three reports offering his expert opinion. In his first report, Dr. Adler clearly opined that “all of J.S.S.‘s neurological and neurodevelopmental disabilities are the result of the hypoxic ischemic brain injury that J.S.S suffered during the labor and delivery process.”9 Dr. Adler also stated that “[a]n earlier delivery would have significantly mitigated if not wholly and totally prevented the neurological and neurodevelopmental disabilities that J.S.S. suffers from.”10 He further opined that J.S.S.‘s injuries from his birth were permanent and would prevent him from ever being educated in a conventional classroom without support, employed in the competitive job market, able to live independently, or to live without extraordinary medical care.11 Although Dr. Adler offered additional support in his later reports in the form of medical literature in an attempt to address criticism by Defendant-Appellees, the basic substance of his medical opinion and report remained consistent.12
Dr. Adler also stated essentially the same opinion in his deposition. Even when pressed repeatedly about whether he agreed that J.S.S. had autism or that HIE could cause ASD, Dr. Adler‘s medical opinion was clear: “I think in this case where
I turn now to the Superior Court‘s exclusion of Dr. Adler‘s expert opinion. This Court reviews evidentiary rulings for an abuse of discretion.14
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”15
This Court in Bowen v. E.I. DuPont de Nemours & Co., Inc. adopted the federal five-step Daubert test for determining the admissibility of expert witness testimony under
- the witness is qualified as an expert by knowledge, skill, experience, training, or education;
- the evidence is relevant;
- the expert‘s opinion is based upon information reasonably relied upon by experts in the particular field;
- the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and
- the expert testimony will not create unfair prejudice or confuse or mislead the jury.16
In applying this Daubert-Bowen test for the admissibility of expert evidence, trial courts act as gatekeepers rather than factfinders, focused on whether the proffered evidence is “relevant” and “reliable” rather than whether the conclusions the expert has drawn are accurate.17 The trial court has “broad latitude” to determine whether any or all of the Daubert factors are “reasonable measures of reliability in a particular case[.]”18 As Daubert makes clear,
In the context of medical negligence cases, this Court recently recognized in Norman a “strong preference” for admitting expert opinions “when they will assist the trier of fact in understanding the relevant facts or the evidence.”20 In Norman, a plaintiff brought a medical negligence action against her treating physician after her bladder was punctured during a diagnostic laparoscopy.21 The defendants in that case filed a motion in limine to exclude the plaintiff‘s expert opinion on the ground that it lacked the requisite reliability under the third prong of the Daubert-Bowen test and settled Delaware case law.22 The Superior Court in Norman agreed, “noting that Ms. Norman failed to meet her burden because no evidence was presented that [the expert]‘s opinion was ‘based on information reasonably relied upon by experts in the field.‘”23 This Court was assessing the third Daubert factor.24
We first noted that the Superior Court “appears to have interpreted this factor to require that the expert‘s opinion be based upon medical literature or peer reviewed publications or some other source which corroborates the expert‘s analysis.”25 The Superior Court deemed an opinion by a doctor “based on his own knowledge” to be insufficient.26 We noted that the physician expert, Dr. Soffer, arrived at his opinions by “applying his training and experience to the facts of this case” and then stated that “[m]edical literature or peer reviewed publications may be useful factors in an appropriate case, and may be relevant to the defense in this case, but they have no bearing on the admissibility of Dr. Soffer‘s opinions.”27 Although the issues on appeal in Norman were framed primarily as standard of care issues, this Court recognized that the expert opinion was given in two parts and that the first part “attribute[d] the cause of the perforation of Ms. Norman‘s bladder to the placement of a secondary trocar.”28 The expert based his opinion on the medical records provided by the hospital that did the corrective surgery and his own experience.29 This Court ultimately concluded: “Dr. Soffer‘s deposition testimony, considered as a whole, is sufficient to establish the applicable standards of care, Dr. Maynard‘s deviations from those standards, and injury to Ms. Norman caused by those deviations. His testimony is admissible.”30
A year later in Wong, this Court affirmed the Superior Court in admitting expert testimony after the appellees contended “that [the medical expert] failed to base his opinion on information reasonably
These cases together suggest that reliability, for Daubert admissibility purposes, should be assessed by the trial court wholistically, and that in medical negligence cases, a physician‘s expert medical opinion as to standard of care and cause of injury may be admissible if it is based on his or her own skill, education, and training, and the facts of the case at hand (including physical examination as in Wong or medical records as in Norman).36 Norman and Wong both suggest that the central touchstone is reliability in assessing the sufficiency of an expert‘s opinion. Norman and Wong also reflect a reluctance to require a formulaic approach or that specific “boxes” be checked.37 Although the Majority distinguished them as standard of care cases, both opinions explicitly address causation as well as standard of care.38
Pugh is easily distinguished from this case. First, as Appellees acknowledged, Pugh is not binding on this Court because it is a federal case applying Pennsylvania law. Second, the plaintiffs’ claim, and their expert‘s opinion in Pugh, was that the HIE birth injury the child suffered was the cause of the child‘s ASD. Here, that was not Dr. Adler‘s opinion, despite Appellees’ attempts to reframe it as an opinion that HIE causes autism. Third, the parties have cited no Delaware case that expressly adopts the Pennsylvania legal test requiring general and specific causation. Nor have they addressed whether that standard is consistent with Norman and Wong. In short, although the facts are similar, the claims and the law are not.
Appellants draw our attention to a case from the Ohio Court of Appeals, Ellis v. Fortner, that considered strikingly similar facts in which a child suffered an infant encephalopathy injury at birth that allegedly caused the child‘s later impairments, including ASD.42 In Ellis, the trial court
We again note that the reliability requirement of Daubert should not be used to exclude all evidence of questionable reliability.
The [defendant] also points to the testimony of the Ellises’ own expert, Dr. Stephen Glass, as rejecting the diagnosis of autism spectrum disorder. Dr. Glass, however, offered a distinction that G.E. exhibited autistic-like symptoms [as] a result of a brain injury, rather than having a primary autism spectrum disorder. The trial court‘s own comments as noted above indicated its awareness of these nuances. Furthermore, the [defendant] was afforded the opportunity to explore this distinction in its cross-examination of Dr. Glass and its presentation of its own expert witnesses.
The [defendant] has failed to show that the trial court abused its discretion in denying its Daubert motion to exclude testimony of proximate cause premised upon the theory that autism spectrum disorder can be caused by HIE. Therefore, the second assignment of error is overruled.45
Both the trial court and the Ohio Court of Appeals recognized and accepted the nuance in the medical expert‘s opinion that the brain injury, HIE, caused impairments that included some symptoms that were also consistent with ASD. The Ohio Court of Appeals emphasized that “the test of reliability is flexible, and the trial court may, at its discretion, consider the factors to the extent that they are relevant.”46 Although Ellis is not binding on this Court, the striking similarity between the Ellis expert opinion and Dr. Adler‘s expert opinion, and the Ohio courts’ acceptance of that nuance, is compelling.
Another recent case, Trujillo v. Vail Clinic, Inc., is also instructive.47 In Trujillo, the Colorado Court of Appeals considered a similar medical malpractice claim in which another form of infant encephalopathy (CCIE) birth injury allegedly caused the child‘s cerebral palsy. The trial court in Trujillo excluded the medical expert‘s testimony that the CCIE caused the child‘s cerebral palsy on the grounds that
The trial court went to admirable lengths to learn about this technical medical subject. But we conclude that the trial court exceeded the bounds of its role as a gatekeeper charged only with keeping junk science from the jury. As mentioned above, the standard for admitting expert testimony is liberal because any expert opinion will be subject to further vetting at trial. Consequently, it is not for the trial court to determine whether an expert opinion is unimpeachable. To be admissible, expert opinion need only be reasonably reliable based on the totality of the circumstances.
The trial court erroneously put determinative weight on the fact that CCIE, as a complete theory, had not been tested, widely accepted in the medical field, or published in peer-reviewed journals. While thеse factors were certainly appropriate for the court to consider, the totality of the circumstances also included the reliability of the underlying pathophysiological mechanisms and concepts on which CCIE is based. This underlying pathophysiology, combined with Dr. Schifrin‘s testimony that the pathophysiology was consistent with and supported the validity of CCIE, rendered CCIE reasonably reliable in the context of the liberal admission standard for expert testimony.
While CCIE is not junk science, its lack of testing, widespread acceptance, and publication will almost certainly be the subject of cross-examination and countervailing expert testimony at trial and may cause a jury to reject CCIE as the cause of Brandon‘s injuries here. But that determination must be made by a jury, not a judge.49
In Trujillo, the Colorado Court of Appeals focused on the liberal admission standard for expert testimony, that the opinion need only be reasonably reliable based on the totality of the circumstances, and that admission depends on the unique factual circumstances surrounding the testimony.50 The wholistic totality of the circumstances analysis in Trujillo is similar in approach to that articulated by this Court in Norman and Wong.
Appellants in this case have not framed their claim as a claim that HIE causes autism in general or caused J.S.S.‘s autism specifically, either in their complaint or their briefing. Because that is not their claim, Plaintiffs were not required tо offer expert evidence that HIE causes autism in general or J.S.S.‘s autism specifically. Instead, as reiterated at length in their Reply Brief, Appellants’ claim, and their expert‘s offered opinion, was that HIE caused all of J.S.S.‘s permanent “neurological
Rather than address Dr. Adler‘s more nuanced opinion, Appellees set up a straw man argument in which they contend that Plaintiffs and Dr. Adler primarily claimed that J.S.S.‘s HIE caused his autism. The Superior Court accepted this reframing of Dr. Adler‘s opinion and then rejected his expert opinion on that basis. But that was never Plaintiffs’ claim or Dr. Adler‘s expert opinion. Again, the expert medical opinion that Dr. Adler repeatedly stated is that “all of J.S.S.‘s neurological and neurodevelopmental disabilities are the result of the hypoxic ischemic brain injury that J.S.S suffered during the labor and delivery process.”52 He separately acknowledged J.S.S.‘s later autism diagnosis and that some of J.S.S.‘s symptoms also meet the criteria for ASD, while firmly maintaining his medical opinion.
The Majority acknowledges this nuance in Section III.B of the Majority opinion. First, the Majority states: “Dr. Adler concluded in his first two reports that J.S.S.‘s neurоlogical and neurodevelopmental disabilities and behavioral syndrome within the autism spectrum were caused by HIE during his labor and delivery.” The Majority then states: “It is unclear whether Dr. Adler meant to express two related but separate opinions in his reports – first, that J.S.S.‘s HIE caused certain neurological and neurodevelopmental disabilities; and second, that J.S.S.‘s HIE caused behavioral disabilities some of which are consistent with an ASD diagnosis.”
The Majority ultimately also rejects this more accurate framing of Dr. Adler‘s opinion on the supposed distinction that as a physician he was qualified to diagnose J.S.S. with HIE and with neurological, neurodevelopmental, and behavioral disabilities, but was not qualified to opine that J.S.S.‘s undisputed HIE caused permanent brain injury consisting of motor, language, behavioral, cognitive, and memory problems. The Majority acknowledges that Dr. Adler‘s reliance on medical literature drawing a connection between HIE and later cognitive deficits might be sufficient as a general matter, but concludes ultimately that Dr. Adler “failed to support his opinion specifically as to J.S.S. with anything other than ipse dixit – that J.S.S.‘s HIE at birth caused his neurological and neurodevelopmental disabilities.”
Both the Superior Court and the Majority cite a Superior Court case, Minner, for the notion that an expert‘s opinions “cannot be based simply on the ipse dixit of the expert” but require additional support.53 The Majority‘s reliance on Minner is misplaced for multiple reasons. First, neither Minner, a Superior Court case, nor the United States Supreme Court case it cites, Joiner, are medical malpractice cases. Rather, both cases involved toxic exposure claims. Second, Minner was decided in 2000, eighteen years before Norman and Wong, the two cases that are clearly more relevant and announce the specific guidance for reliability under Daubert for a physician‘s expert opinion in a medical malpractice case.
The Superior Court‘s exclusion of Dr. Adler‘s opinion is inconsistent with our rulings. As in Norman, this case revolves around the reliability factor of Daubert in a medical malpractice case, and also as in Norman, the Superior Court in this case interpreted this factor to require that Dr. Adler‘s opinion be based upon medical literature or peer reviewed studies to corroborate his opinion. That is inconsistent with this Court‘s holding in Norman and Wong.54 As this Court explained in Norman:
The Superior Court appears to have interpreted this factor to require that the expert‘s opinion be based upon medical literature or peer reviewed publications or some other source which corroborates the expert‘s analysis. An opinion by a doctor “based on his own knowledge” was deemed insufficient.
We think that the Superior Court misinterpreted this third factor. The origin of the factor can be found in the following passage from Daubert:
Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules.
Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”
This makes clear that the third factor is derived from
D.R.E. 703 ‘s provision that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” The third factor was thought of by the author of Daubert as a guard against the use of unreliable hearsay. The factor does not pertain to information which the expert has not relied on. In this case, the information relied on by Dr. Soffer are Ms. Norman‘s medical records and the depositions of Ms. Norman and Dr. Maynard. He arrives at his opinions by applying his training and experience to the facts of this case. The information relied on by Dr. Soffer is clearly sufficient underD.R.E. 703 to justify admission of his opinions underD.R.E. 702 . Medical literature or peer reviewed publications may be useful factors in an appropriatecase, and may be relevant to the defense in this case, but they have no bearing on the admissibility of Dr. Soffer‘s opinions.55
This Court‘s reasoning from Norman applies neatly in this case. As we emphasized in Norman, there is a “strong preference” for admitting expert opinions “when they will assist the trier of fact in understanding the relevant facts or the evidence.”56 It is of course entirely possible that there are problems with the accuracy of Dr. Adler‘s opinion or with the conclusions he draws. But the accuracy of his opinion, the credibility of his testimony, and how much weight to assign that evidence should be left to the jury to decide. The cause of J.S.S.‘s permanent disabilities should be in the hands of a jury to decide after hearing cross-examination, presentation of contrary evidence, and competing experts.
Because I believe that Dr. Adler‘s opinion has been improperly conflated into an opinion that HIE causes ASD, and because the court below then did not fully consider and apply our decisions in Norman and Wong to his actual opinion, I would reverse the evidentiary rulings of the Superior Court and remand for further proceedings.57 Because I believe that justice is not served by an affirmance here, and for the reasons stated above, I respectfully dissent.