The EState Ford v. Eicher

• Decision Date: 09 May 2011
• Docket Number: No. 09SC229.,09SC229.
• Parties: The ESTATE OF Catherine FORD, Petitionerv.Danny J. EICHER, M.D. and Consultants in Obstetrics and Gynecology, P.C., Respondents.
• Court: Colorado Supreme Court

250 P.3d 262

The ESTATE OF Catherine FORD, Petitioner

v.Danny J. EICHER, M.D. and Consultants in Obstetrics and Gynecology, P.C., Respondents.

No. 09SC229.

Supreme Court of Colorado, En Banc.

March 21, 2011.Rehearing Denied May 9, 2011.

Leventhal, Brown & Puga, P.C., James E. Puga, Daniel A. Lipman, Benjamin Sachs, Denver, Colorado, Attorneys for Petitioner.Jaudon & Avery LLP, Joseph C. Jaudon, David H. Yun, Jared R. Ellis, Denver, Colorado, Attorneys for Respondents.Wheeler Trigg O'Donnell LLP, Kevin J. Kuhn, Ramona L. Lampley, Denver, Colorado, Attorneys for Amicus Curiae American College of Obstetricians and Gynecologists.Office of University Counsel, Patrick T. O'Rourke, Denver, Colorado, Attorneys for Amicus Curiae the Regents of the University of Colorado.Justice RICE delivered the Opinion of the Court.

We granted certiorari in this case to review the court of appeals' decision that overturned the trial court's exclusion of two medical experts' testimony.¹ The court of appeals held that the trial court abused its discretion when it applied an incorrect legal standard—the reasonable medical probability standard—as a preliminary matter in its reliability analysis to determine the admissibility of the medical expert causation testimony of Dr. Theodore A. Cooper and Dr. Joseph G. Ouzounian. Estate of Ford v. Eicher, 220 P.3d 939, 947–48 (Colo.App.2008). It also found that the trial court applied an incorrect legal standard in evaluating the reliability of Dr. Ouzounian's causation testimony. Id. Finally, the court of appeals found that the doctors' testimony was admissible under CRE 702 and that the exclusion was not harmless error. Id. at 947. Accordingly, the court of appeals reversed the trial court and remanded for a new trial. Id. at 948.

We conclude that the trial court applied the wrong legal standard as a preliminary matter. Applying the Colorado Rules of Evidence to this case, we conclude that Dr. Cooper's and Dr. Ouzounian's testimony is reliable and relevant, and thus admissible. Accordingly, we affirm the court of appeals.

I. Facts and Procedural History

The Estate of Catherine Ford (“the Estate”) brought a medical malpractice claim against Dr. Danny Eicher and Consultants in Obstetrics and Gynecology, P.C. arising from injuries that Catherine Ford (“Catherine”) suffered prior to or during birth. Dr. Eicher, an obstetrician, performed the delivery. As Catherine descended the birth canal, she was facing her mother, Mrs. Ford's, left leg such that her left shoulder was anterior and her right shoulder was posterior. After Catherine's head had delivered, her anterior left shoulder became wedged in the birth canal resulting in a medical condition known as shoulder dystocia. Because the baby can be deprived of oxygen in this situation, it is considered an obstetrical emergency.

Dr. Eicher applied downward traction to Catherine's head to free the shoulder, but the shoulder still did not deliver. Dr. Eicher then employed two emergency maneuvers—the McRobert's maneuver in which the mother's thighs are flexed against her abdomen, and suprapubic pressure applied by an assisting nurse. Dr. Eicher then applied downward traction once again and the baby delivered. The parties dispute the amount of traction applied.

After delivery, Catherine was diagnosed with brachial plexus palsy to the right shoulder. The brachial plexus is a group of nerves originating from the spinal cord in the neck which are responsible for movement and sensation in the shoulder and arm. Specifically, she suffered two nerve ruptures and an avulsion in her right shoulder resulting in permanent impairment to her right arm.

Before trial, the parties endorsed experts to provide competing theories on the cause of the injury. The Estate's expert opined that the injury was the result of excessive traction. The excessive traction theory postulates that, when accompanied by shoulder dystocia, a brachial plexus injury is the result of excessive traction applied to the baby's head during delivery. In contrast, Dr. Eicher's experts, Dr. Ouzounian and Dr. Cooper, were endorsed to provide the opinion that Catherine's injury was caused by maternal intrauterine forces. This theory, known as the intrauterine contraction theory, intrauterine forces theory, or maternal expulsive force theory, posits that, in some circumstances, the internal forces of labor and delivery cause brachial plexus injuries.

The Estate filed a pretrial motion to preclude Dr. Eicher's experts from testifying about the intrauterine contraction theory.² The trial court held a Shreck hearing at which it reviewed the depositions of Dr. Cooper and Dr. Ouzounian and heard arguments from counsel, but neither expert appeared at the hearing. The trial court held that both experts were precluded from testifying that Catherine's brachial plexus injury was caused by intrauterine forces.

The trial court provided separate and distinct reasoning as to the exclusion of each expert's causation testimony. Regarding Dr. Cooper's testimony, the trial court determined as a threshold matter that Dr. Cooper did not hold his causation opinion to the required degree of reasonable medical probability. As a result, it excluded Dr. Cooper's causation testimony and did not conduct a Shreck analysis. With respect to Dr. Ouzounian's testimony, the trial court found that he held his causation opinion to a reasonable degree of medical probability. The trial court then conducted a Shreck analysis and found that, while Dr. Ouzounian was qualified and the testimony was helpful and sufficiently probative, the scientific principles underlying the intrauterine contraction theory were not reasonably reliable. The trial court rested its decision on the inability to test the theory and rejected the argument that Dr. Ouzounian's differential diagnosis was a well-accepted practice that was sufficient in this case.

Dr. Eicher submitted a motion for reconsideration of the Shreck motion and provided Dr. Ouzounian's supporting affidavit to address the trial court's causation testimony concerns. The trial court denied that motion. Dr. Eicher then submitted an offer of proof.

At trial, as a result of the exclusion of the causation testimony, the trial court declined to allow Dr. Eicher's experts to answer questions posed by the jury about the most likely cause of Catherine's injuries, the likelihood that causes other than excessive traction were at play, and the probability that traction could have worsened the injury. In closing arguments, counsel for the Estate highlighted the fact that Dr. Eicher's experts did not provide an alternative probable cause of Catherine's injuries. The jury found Dr. Eicher negligent.

Dr. Eicher appealed the trial court's exclusion of Dr. Cooper's and Dr. Ouzounian's testimony that intrauterine forces caused Catherine's injuries. The court of appeals determined that the excluded testimony of both experts was admissible and remanded for a new trial. Estate of Ford, 220 P.3d at 948. Regarding Dr. Ouzounian, the court of appeals held that the trial court applied an incorrect legal standard in its reliability analysis and thereby abused its discretion when it excluded the doctor's testimony as scientifically unreliable. Id. at 946–47. It concluded that the trial court's error in excluding Dr. Ouzounian's testimony was not harmless given the unanswered jury questions and in light of the Estate's closing argument that took advantage of the gap in testimony as to causation. Id. at 947.

The court of appeals also held that the trial court abused its discretion in precluding Dr. Cooper's causation testimony. Id. The trial court excluded Dr. Cooper's causation testimony because it held that he did not hold his opinion to the required degree of medical probability. The court of appeals, relying on People v. Ramirez, 155 P.3d 371 (Colo.2007), held that the trial court applied an incorrect legal standard when it required that Dr. Cooper express his opinion with reasonable medical probability to determine admissibility rather than CRE 702. Id. As Dr. Cooper's excluded opinion was the same as Dr. Ouzounian's, and as the court of appeals found Dr. Ouzounian's opinion to be reliable, the court of appeals concluded that Dr. Cooper's testimony was similarly admissible. Id.

The court of appeals determined that the exclusion of the experts' causation testimony was not harmless error and remanded for a new trial. ³ Id. It is the court of appeals' reversal of these rulings that is before us now.

II. Standard of Review

Trial courts are vested with broad discretion to determine the admissibility of expert testimony. Ramirez, 155 P.3d at 380. Therefore, we will not overturn a trial court's decision absent an abuse of discretion. Id. A trial court abuses its discretion when its decision is manifestly erroneous. Id.

III. Analysis

CRE 702 governs the admissibility of scientific expert testimony and requires that the testimony be reliable and relevant. People v. Shreck, 22 P.3d 68, 77 (Colo.2001). A trial court determines whether the testimony is reliable and relevant by considering whether: (1) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony will be helpful to the jury; and (4) the evidence satisfies CRE 403. Id. at 77–79.

The inquiry to determine the admissibility of expert testimony should be broad in nature and consider the totality of the circumstances of each specific case. Id. at 77. This broad inquiry allows trial courts to consider a wide range of factors pertinent to the case before it and to disregard factors that do not further the inquiry. Id. To balance the inquiry, the trial court must apply its discretionary authority under CRE 403 to ensure that the probative value of the evidence is not substantially outweighed by unfair prejudice. Id. at 78–79. When the trial court makes a...