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Oliphant v. Ries

Supreme Court of Kentucky

February 19, 2015


Released for Publication June 11, 2015.

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[Copyrighted Material Omitted]

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COUNSEL FOR APPELLANTS: Gerald R. Toner, Katherine K. Vesely, Brent Thomas Asseff, Whitney Roth Kramer, O'Bryan, Brown & Toner, PLLC.

COUNSEL FOR APPELLEES: Ann B. Oldfather, Robert Sean Deskins, Oldfather Law Firm.

OPINION OF THE COURT BY JUSTICE KELLER. Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. Minton, C.J.; Abramson, Cunningham and Noble, JJ., concur. Venters, J., concurs in result only by separate opinion.


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A Jefferson Circuit Court jury rendered a verdict in favor of the defendants in this medical negligence case, and the circuit court entered a judgment consistent with that verdict. The Court of Appeals reversed that judgment, holding that the trial court improperly admitted into evidence testimony from an expert that was not scientifically reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Before us, Dr. Richard C. Oliphant and Louisville Physicians for Women, PLLC (collectively Dr. Oliphant),[1] argue a number of issues; however, the majority of the issues arise from Dr. Oliphant's contention that the Court of Appeals erred by substituting its findings for the trial court's regarding the reliability of Dr. Goldsmith's testimony. In the alternative, Dr. Oliphant argues that any error by the trial court was harmless. The Rieses argue to the contrary.


At approximately 5:00 a.m. on January 20, 1997, Billie Jo Ries, who was 36 weeks pregnant, noted that she was bleeding vaginally. The Rieses went to Baptist East Hospital (the Hospital), where Billie Jo delivered a daughter, Lauren, by C-section at 6:59 a.m. Due to the loss of approximately one-third of her blood, Lauren suffered multiple organ failure and brain damage. As a result, Lauren, who was thirteen years old at the time of trial, is unable to care for herself. The Rieses cared for Lauren for the first twelve years of her life but, prior to trial, they determined that they could no longer do so. Therefore, they placed Lauren in a residential care center, the Home of the Innocents.

The Rieses filed suit against the Hospital, Dr. Oliphant, who delivered Lauren, and Dr. Robinson, the neonatologist who treated Lauren after her birth. At trial, the Rieses argued the majority of Lauren's blood loss occurred after she arrived at the Hospital, and her injuries could have been prevented if she had been delivered earlier

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by Dr. Oliphant, or if she had received appropriate treatment from Dr. Robinson after delivery. The Hospital, Dr. Oliphant, and Dr. Robinson argued that they complied with their respective standards of care. Furthermore, they argued that the majority of Lauren's blood loss occurred before she arrived at the Hospital; therefore, they could not have prevented her injuries.

The expert witness whose opinion is the focus of the dispute herein is Dr. Jay Goldsmith, a neonatologist retained to testify on behalf of Dr. Robinson. Dr. Goldsmith testified twice by deposition before trial and live at trial. We summarize Dr. Goldsmith's relevant testimony below.

During his first deposition, Dr. Goldsmith testified that, following a loss of blood, the cardio-vascular system takes fluids from other parts of the body to increase blood volume, a process known as equilibration. The fluids incorporated into the cardio-vascular system through equilibration do not contain red blood cells; therefore, when equilibration occurs, the percentage of red blood cells in proportion to total blood volume decreases. According to Dr. Goldsmith, it takes two to four hours for blood volume to normalize through equilibration.

Based on his review of the medical records and a mathematical formula he devised, Dr. Goldsmith opined that Lauren lost approximately one-third of her blood volume at 5:00 a.m. In reaching that conclusion, Dr. Goldsmith relied on a report in the medical records that Billie Jo noticed a " gush" of blood at 5:00 a.m.; the absence of any report of significant bleeding in the medical records after Billie Jo arrived at the Hospital; his estimation of Lauren's blood volume at birth; his estimation of her blood volume at 7:40 a.m.; the proportion of red blood cells relative to Lauren's total blood volume at 7:40 a.m. compared to what that proportion should have been; and the time it takes to equilibrate. When questioned about the rate of equilibration, Dr. Goldsmith admitted that there were no studies on intrauterine human fetuses; however, there were studies involving animals and post-partum children and adults. At the request of the Rieses' counsel, Dr. Goldsmith stated that he would attempt to find studies to support his mathematical formula. By agreement, the parties suspended Dr. Goldsmith's deposition so that he could do so.

During his second deposition, Dr. Goldsmith testified that he had neither looked for nor found any studies indicating what the rate of equilibration is in an intrauterine human fetus. However, he stated that the rate of equilibration post birth in humans is a well-known and accepted medical fact. Dr. Goldsmith did admit that a faster intrauterine equilibration rate would mean that Lauren's blood loss occurred closer in time to her birth than 5:00 a.m. Furthermore, he admitted that Lauren may have been able to take some blood from the placenta, but he believed that amount would have been negligible and would have had no impact.

At the final pre-trial conference the Rieses noted that Dr. Robinson, who had retained Dr. Goldsmith, had not disclosed Dr. Goldsmith's mathematical formula or the opinions he reached based on that formula prior to his first deposition. Therefore, the Rieses moved to exclude any testimony by Dr. Goldsmith about his mathematical formula and any conclusions he had reached based on that formula. The Rieses did not bring a Daubert challenge regarding the reliability of Dr. Goldsmith's mathematical formula, although they reserved the right to do so at trial. The trial court overruled the Rieses' motion, finding that, pursuant to Daubert, " all

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proposed expert opinion testimony is reliable and relevant."

Prior to Dr. Goldsmith's testimony at trial, which came on the fourteenth day of trial, the Rieses moved the court for a Daubert hearing regarding the reliability of Dr. Goldsmith's mathematical formula. The Rieses argued that Dr. Goldsmith had never produced any studies or literature to support his opinion that the equilibration rate in intrauterine human fetuses is the same as it is after birth. Therefore, his mathematical formula did not meet the Daubert standard.

In response, Dr. Robinson argued that it was too late in the litigation to raise this issue. Furthermore, Dr. Robinson filed studies[2] involving the equilibration rate in intrauterine sheep fetuses, which she argued were consistent with Dr. Goldsmith's testimony. The Rieses argued that these studies could not be relied on because they had not been produced before trial, even though Dr. Goldsmith's first deposition had been suspended so that he could find support for his formula.

The court agreed with Dr. Robinson that the Rieses' motion for a Daubert hearing was not timely. Furthermore, the court stated that, based on the arguments and the materials reviewed,[3] Dr. Goldsmith's testimony was " appropriate" and the Rieses' arguments went to the weight rather than the admissibility of Dr. Goldsmith's opinions. Therefore, the court denied the Rieses' motion. The court then granted the Rieses' follow-up motion to exclude testimony by Dr. Goldsmith regarding any articles that had not been previously disclosed. Finally, the court granted the defendants' motion to exclude any argument by the Rieses that Dr. Goldsmith's mathematical formula was not supported by any scientific literature.

At trial, Dr. Goldsmith's testimony was consistent with his deposition testimony regarding equilibration and the timing of Lauren's blood loss. He also testified that Lauren's kidney function tests, her decreased heart rate when she arrived at the Hospital and placental pathology findings supported his opinion that her blood loss occurred before she arrived at the Hospital.

In addition to Dr. Goldsmith, the defendants presented testimony at trial from Drs. Elliott, Ferrara, Puri, Bendon, Carter, and Barnes that Lauren's blood loss occurred at home. Dr. Elliott stated that,

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based on his review of the medical records and the depositions, three velamentous blood vessels ruptured, the first rupturing at 5:00 a.m. when Billie Jo noticed vaginal bleeding containing bright red blood. According to Dr. Elliott, the fact that the blood was bright red indicated it was fetal, not maternal blood, and if the ruptured vessel had continued to bleed, Lauren would have bled to death before she got to the Hospital. Therefore, he theorized that Lauren shifted in the womb and inadvertently put sufficient pressure on the ruptured vessel to stop the bleeding. Dr. Elliott stated that he believed the other two vessels ruptured during birth but that the damage to Lauren had already been done by that time. In support of his theory that the first vessel ruptured before Billie Jo got to the hospital, Dr. Elliott noted that one of the ruptured vessels had evidence of neutrophils, which take at least 20 to 40 minutes to appear following a rupture. Dr. Elliott recognized that equilibration takes place but, based on a ruling by the court, did not make any inferences regarding when Lauren's bleeding occurred based on equilibration.

Dr. Ferrara, a defense expert neonatologist called by the Hospital, testified primarily regarding the standard of care for the Hospital. However, he also testified that he was more than 90% certain Lauren's blood loss occurred at home.[4]

Dr. Puri testified that he believed Lauren suffered some blood loss and injury at home. However, he did not attempt to quantify when the majority of the blood loss occurred.

Dr. Bendon, the pathologist who examined the placenta and umbilical cord, testified that he found evidence of " mural neutrophils" which indicate that Lauren had a ruptured vessel and began to bleed before delivery. He could not state with ...

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