Appeals Court rules birth injury victim's expert's testimony too speculative

Alicia Fleming suffered catastrophic permanent injuries at birth.  Her Conservator sued her osteopathic doctors, Vance Powell, James Spencer and Richard Herman, claiming that they were negligent in managing the birth hospitalization.  Alicia was diagnosed with cerebal palsy and a seizure disorder at six months of age after a complex delivery hospitalization.  Her family's expert physicians maintained that she suffered brain injury as a result of the doctors' failure to react more quickly to symptoms of fetal distress.  The court dismissed her expert's causation testimony  that Alicia's injury resulted from hypoxia suffered during the last 12-24 hours before birth.  The Court held that this expert's causation opinion lacked an adequate scientific basis.

Fleming's mother was admitted to Botsford General Hospital on the evening of September 24, 1990, complaining of contractions and "leaking fluid."  A so-called "biophysical profile" was performed the next morning and found no fetal breathing or fetal tone and was scored a "6" out of 10. On the morning and afternoon of the 25th, nonstress tests were read as "reassuring," but fetal monitoring strips and nursing notes demonstrated prolonged contractions followed by fetal heart tone decelerations from the afternoon throughout the night.  Alicia was delivered the following day after a profile was scored as a "4" out of 10, with no fetal breathing, heart tone or motion evident.

Although the child's expert relied upon the fetal heart monitor records, the "biophysical profiles" and the placental pathology report in arriving at his estimate of the time of injury, the court threw out his judgment because he could cite no scientific literature that directly supported his timing claim, despite the Court's  acknowledgement that "these measures are widely used for evaluating or tracking intrauterine fetal well-being."  The Court pointed to literature admitted by both plaintiff and defendant which suggested that injury may well have occurred earlier, and that, in fact, hyopoxia just before delivery may not have been the most likely cause of the child's cerebral palsy.