Defense attempt to muzzle expert testimony is rejected

Raquel Robelin's baby was born with an APGAR of 2 and suffered a stroke in the nursery, leaving the child partially paralyzed with severe developmental limitations and significant cerebral palsy.  Robelin's attorneys claimed that the child's stroke was suffered only a few moments before her birth, and that late decelerations on the fetal monitor warned the O.B. Gyn that the child was suffering hypoxia and should have been delivered by C-section hours earlier.

In response, the Defendants claimed that Robelin's expert, a pediatric neurologist, should not be allowed to testify because Defendants argued there were no scientific studies in the medical literature directly supporting the doctor's opinion that the stroke occurred just prior to the child's birth.

The trial court rejected the Defendants' argument, noting that as a threshold matter, the neurologist's testimony met minimal standards for scientific reliability, and therefore the question of causation was ultimately for the jury to decide, after weighing the testimony of the conflicting experts.  The Court of Appeals upheld the lower court's decision, pointing out that it would be unethical to conduct studies to determine when and how a stroke may be induced during labor and delivery of a fetus.  Given the inability to research the ultimate causation issue, the court must necessarily look to whether or not the neurologist's opinion was "rationally derived from a sound foundation."

Looking at the doctor's testimony, the Court of Appeals unanimously confirmed that it was admissible because he used "the totality of the database" available to determine the most probable time of and reason for the stroke, through a process of elimination.  Taking into account the fetal monitor strips, the baby's condition on delivery, the fact of the stroke and multi-organ hypoxic injury, the occlusion found in the baby's carotid artery and the lack of evidence of stroke in the umbilical cord tests (which only show injury after a time lag), there was a sound methodology underlying the expert's timing of the stroke that made his opinion admissible.  The doctor had taken the "sufficiently tested and time-honored" approach of filtering out impossibilities to arrive at a truth that was sound. 

The Judges noted that this scientific approach has been accepted at least since Sherlock Homes wrote in The Hound of the Baskervilles that "we balance probabilities and choose the most likely.  It is the scientific use of the imagination, but we have always some material basis on which to start our speculation." The case is McCall v. Spectrum Health Hospitals and John Hartmann, M.D., et al.