Appellate Court Reverses Trial Judge Who Improperly Excluded Expert Testimony as Cause of Brachial Plexus Injury

A Wisconsin appellate court has ruled that a trial judge improperly excluded a defendant physician’s expert testimony. The expert wanted to testify about the maternal forces of labor being a cause of the plaintiff child’s brachial plexus injury.

In this case, Leah Bayer and her husband filed a lawsuit against her obstetrician, Dr. Brian Dobbins, claiming that he mishandled their infant’s shoulder dystocia, causing the baby girl to suffer a permanent brachial plexus injury.

The defendant doctor contended that the child’s injury came from maternal forces of labor. This is probably the most common and over-used defense in a birth trauma injury cases. The Bayer family then filed a motion in limine and requested that the judge exclude the defendant’s expert testimony related to the maternal forces of labor theory. The trial judge granted the motion.

However, the appellate court reversed. Whether expert testimony is admissible under the Daubert standard depends on whether an expert is qualified and uses a methodology that is scientifically reliable and whether the testimony will assist the trier of fact to determine a fact in issue.

Among other things, the lower court precluded multiple articles as well as an ACOG (American College of Obstetricians and Gynecologists) compendium that were peer-reviewed, a sign of reliability. In addition, the court chose not to address the opinions and research of the defendant’s biomechanics expert who would testify on her own computer modeling research as a basis for the conclusion that maternal forces of labor alone can result in brachial plexus injuries.

Where expert opinions are supported by substantial peer-reviewed literature, the court said, it is best left to the adversarial process to determine the weight of that evidence. Explaining that scientists’ disagreement does not mean that the proposed testimony violates the Daubert standard, the appellate court sent the case back to the trial court for further proceedings.

Bayer v. Dobbins, 2016 WL 3606928 (Wis. Ct. App.)

Kreisman Law Offices has been handling birth trauma injury cases, brachial plexus injury cases and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Bridgeview, North Riverside, Lansing, Hinsdale, Hillside, Hickory Hills, Hazel Crest, Harvey, Chicago Heights, Calumet City, Buffalo Grove, Burr Ridge, Orland Park, Oak Park, Oak Lawn, Northfield, Glenview and Alsip, Ill.