United States District Court, D. Nebraska
S.S., a minor, by and through Doran Schmidt, her natural mother and next friend, and DORAN SCHMIDT, Individually, Plaintiffs,
BELLEVUE MEDICAL CENTER L.L.C., Defendant.
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Motion in Limine (Filing No. 160) and Motion for Summary Judgment (Filing No. 162) submitted by Defendant Bellevue Medical Center, LLC ("BMC"). The American College of Obstetricians and Gynecologists ("ACOG") seeks leave to file an amicus brief in support of BMC's Motion in Limine. (See Filing No. 168.) ACOG's motion will be granted. The Court has considered ACOG's brief (Filing No. 170) and evidence (Filing Nos. 171, 172) as well as the parties' briefs (Filing Nos. 163, 164, 184, 185, 187, 188) and evidence (Filing Nos. 165, 186). For reasons discussed below, BMC's Motion in Limine will be granted in part, and its Motion for Summary Judgment will be denied.
FACTUAL AND PROCEDURAL SUMMARY
Plaintiff Doran Schmidt ("Schmidt") and her infant daughter "S.S." are residents of Colorado. BMC is a limited liability company operating a hospital in Bellevue, Nebraska. Complete diversity of citizenship exists as to the Plaintiffs and all members of BMC, and the amount in controversy exceeds $75, 000.
On November 1, 2012, Schmidt was in active labor. She was admitted to a Bellevue facility specializing in care related to labor and delivery, but was later transferred to BMC, where S.S. was born on November 2, 2012. S.S. suffered birth-related injuries resulting in permanent disabilities, giving rise to this action.
In its Motion in Limine, BMC seeks to limit the testimony of three of the Plaintiffs' expert witnesses, as that testimony may relate to causation: Dr. Martin Gubernick, Dr. Stephen Glass, and Laura L. Mahlmeister, Ph.D., R.N. In its Motion for Summary Judgment, BMC also contends that a fourth expert designated by the Plaintiffs, Dr. Patrick Barnes, will testify about the nature of S.S.'s injuries, but not how any breach of a standard of care by BMC caused those injuries; therefore, judgment should be rendered in favor of BMC as a matter of law for lack of evidence on an essential element of the Plaintiffs' claims.
With respect to Mahlmeister, BMC notes that she has acknowledged she is not qualified to offer opinions on the cause of S.S.'s injuries, and has no intention to do so. BMC indicates that its Motion as it relates to Mahlmeister is presented simply to deter the Plaintiffs' counsel from being "tempted" to elicit such opinions from Mahlmeister. (Defendant's Brief, Filing No. 164 at 23.) The Plaintiffs' responsive briefs (Filing Nos. 185 and 187) do not oppose the limitation on Mahlmeister's testimony, and BMC's Motion in Limine will be granted as to Mahlmeister.
With respect to Dr. Glass, in essence BMC seeks to preclude him from offering an opinion that S.S's injuries were due to Schmidt's protracted labor with frequent hard contractions, exacerbated by BMC's administration of labor stimulants, leading to pressure on S.S.'s cranium, limiting blood supply to S.S.'s brain (ischemia). Dr. Glass describes this process as "Craniocerebral Compression Ischemic Encephalopathy" or "CCIE."
With respect to Dr. Gubernick, BMC seeks to preclude him from offering an opinion that S.S.'s injuries were caused by BMC's failure to perform a caesarian section, suggesting that such an opinion is "too vague" to assist the trier of fact, is within common knowledge, and is obvious to the average juror. (BMC's Brief, Filing No. 164 at ECF 6-7 and 18-19 (citing McDowell v. Brown, 392 F.3d 1283, 1299-1300 (11th Cir. 2004)).) BMC also seeks to preclude Dr. Gubernick from offering an opinion that three factors likely acted in concert to cause S.S.'s injuries: (1) insufficient oxygen in the fetal blood (hypoxia) due to excessive uterine activity, (2) trauma to S.S.'s head, from repeated impact against Schmidt's pelvic bones during uterine contractions, and (3) inflammation resulting from rupture of membranes (chorioamnionitis), all occurring during Schmidt's prolonged, intense labor. While BMC acknowledges that hypoxia and chorioamnionitis can injure a fetus during labor, BMC suggests that Dr. Gubernick's opinion that fetal head trauma during uterine contractions was a cause of S.S.'s injuries essentially mirrors Dr. Glass's "CCIE" theory and is unsupported by scientific evidence. BMC also suggests that because Dr. Gubernick's opinion as to causation incorporates multiple factors, he should be precluded from offering any opinion as to causation if any one of those factors fails analysis under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
BMC concedes that the "CCIE" and intra-uterine trauma theories of causation may be plausible, but contends they are mere hypotheses not generally accepted in the medical community; unsupported by testing, peer review, publication, or knowable rates of error; and inadmissible under Daubert. (BMC Brief, Filing No. 164 at 7 (citing Tamraz v. Lincoln Electric Co., 620 F.3d 665 (6th Cir. 2010)).)
In BMC's Motion for Summary Judgment, it argues that the Plaintiffs cannot satisfy their burden of proof as to causation, an element of their claims, and judgment should be entered in BMC's favor as a matter of law.
Motion in Limine
"A United States District Court sitting in diversity jurisdiction applies the substantive law of the forum state...." Fogelbach v. Wal-Mart Stores, Inc., 270 F.3d 696, 698 (8th Cir. 2001). A federal court sitting in diversity will also apply federal procedural law. Great Plains Trust Co. v. Union Pacific R.R. Co., 492 F.3d 986, 995 (8th Cir. 2007) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). Accordingly, this Court applies the Federal Rules of Evidence and looks to cases interpreting those Rules, ...