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Oliphant v. Ries

Supreme Court of Kentucky

February 14, 2019

RICHARD C. OLIPHANT, M.D. AND LOUISVILLE PHYSICIANS FOR WOMEN, PLLC APPELLANTS
v.
BILLIE JO RIES; BILLIE JO RIES, AS NEXT FRIEND OF INFANT CHILD, LAUREN ELIZABETH RIES; KEVIN RIES; AND KEVIN RIES, AS NEXT FRIEND OF INFANT CHILD, LAUREN ELIZABETH RIES APPELLEES

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2011-CA-000100-MR JEFFERSON CIRCUIT COURT NO. 05-CI-002925

          COUNSEL FOR APPELLANTS: Gerald R. Toner Katherine K. Vesely Whitney Roth Kramer OBRYAN, BROWN 85 TONER, PLLC

          COUNSEL FOR APPELLEES: Ann B. Oldfather Robert Sean Deskins OLDFATHER LAW FIRM

          COUNSEL FOR AMICUS CURIAE, KENTUCKY DEFENSE COUNSEL, INC.: David V. Kramer Michael Enzweiler DRESSMAN BENZINGER LAVELLE PSC

          OPINION

          HUGHES JUSTICE

         Lauren Ries was born in 1997 with multiple disabilities as a result of medical complications before and during birth. In 2010, after years of medical negligence litigation between the Ries family and Lauren's doctors and the hospital, a Jefferson Circuit Court jury rendered a verdict in favor of the defendants and the trial court entered a judgment to that effect. The Court of Appeals initially reversed and ordered a new trial due to a Daubert issue that it concluded the trial court had decided erroneously, but this Court unanimously reversed and remanded to the appellate court for consideration of a second issue raised by the Rieses that had not been addressed. Oliphant v. Ries, 460 S.W.3d 889 (Ky. 2015). On remand a divided appellate panel reversed again, holding that the trial court erred by limiting an expert's testimony. The case is now before this Court a second time on discretionary review. Finding no error in the trial court's challenged ruling, we reverse and reinstate the judgment.

         FACTS AND PROCEDURAL HISTORY

         On January 20, 1997, Billie Jo Ries was 36-weeks pregnant with a baby girl, Lauren. At approximately 5:00 a.m., Ries discovered that she was experiencing bright red vaginal bleeding. Ries and her husband contacted the on-call obstetrician for her doctor's office, Dr. Richard Oliphant of Louisville Physicians for Women, who instructed them to go to the hospital. Dr. Oliphant believed that Ries had suffered a partial placental abruption, which required urgent, but not emergent, attention.

         The Rieses went to Baptist East Hospital (the Hospital) and the nurse called Dr. Oliphant, who was completing a delivery at another hospital. The nurse informed Dr. Oliphant that Ries and the baby were relatively stable. Soon after, the baby's heart rate decelerated, and the nurse called to request Dr. Oliphant's immediate presence. Dr. Oliphant arrived at the Hospital and performed an emergency C-section, delivering Lauren at 6:59 a.m.

         In addition to the possible placental abruption, Ries apparently also suffered from a somewhat rare and dangerous condition known as vasa previa with velamentous insertion, which was unknown to the medical staff that delivered Lauren.[1] One of these conditions caused Lauren to bleed in utero and lose approximately one-third to one-half of her blood volume. While the parties strongly disagree as to whether Lauren's bleeding occurred before or after the Rieses arrived at the Hospital, Lauren was injured as a result and is now severely disabled.

         In 2005, the Rieses, on behalf of themselves and Lauren, sued the Hospital, Louisville Physicians for Women, Dr. Oliphant, Dr. Tonya Robinson (the neonatologist who treated Lauren at birth), and Dr. Robinson's practice (collectively "the Defendants") in Jefferson Circuit Court. At trial, the Rieses argued that the majority of Lauren's blood loss occurred after she arrived at the Hospital and her injuries resulted from the delay in delivering the baby, and the inadequate care Lauren received after delivery. The Defendants argued that the majority of Lauren's blood loss occurred before she arrived at the Hospital and therefore her injuries were not preventable. We review the pretrial proceedings relevant to the issue before us generally, with reference to additional details as necessary in our analysis.

         From 2005 to 2010, the parties engaged in extensive discovery. In late 2009, the parties filed their initial expert witness disclosures. The Rieses' experts included Dr. Carolyn Crawford, a neonatologist, and Dr. Zane Brown, a maternal-fetal medicine specialist. The Defendants' disclosure included Dr. Jay Goldsmith, a neonatologist, as one of their experts who would testify that Dr. Robinson and the Hospital nursing staff complied with the standard of care. The disclosure also indicated that Dr. Goldsmith reserved the right to form additional opinions based on other experts' depositions.

         In March 2010, the parties deposed Dr. Crawford, the Rieses' expert, who briefly discussed equilibration - the process by which the cardio-vascular system takes fluids from other parts of the body to compensate for lost blood - and the level of hemoglobin in Lauren's blood.[2] In April 2010, the parties deposed Dr. Goldsmith. Dr. Goldsmith opined that Lauren's blood loss occurred before she arrived at the Hospital because equilibration takes two to four hours and Lauren's hemoglobin levels were diluted at birth. In his opinion, this suggested that her body had time to draw fluids (which do not contain hemoglobin) from her other tissues after her blood loss occurred. Dr. Goldsmith noted that if Lauren had bled at the Hospital immediately prior to delivery, her body would not have had time to equilibrate and her hemoglobin levels would not have been diluted.

         The Rieses disputed Dr. Goldsmith's testimony from the beginning of the case. Dr. Goldsmith's calculation, discussed in detail in the April deposition, rested on the assumption that fetuses have the same equilibration rate as adults and children, despite his inability to point to specific studies to support his theory.[3] When the deposition resumed one month later, in May 2010, Dr. Goldsmith revealed that he could not find any studies proving that fetuses equilibrate at the same rate as post-birth humans. He noted that such research, which would require intentionally causing fetuses to bleed to measure their equilibration rate, would be unethical.

         On July 12, 2010, the Rieses filed a supplemental expert witness disclosure stating that one of their previously disclosed experts, Dr. Brown, would testify about the equilibration rate of fetuses and his opinion that fetal equilibration rates differ from child and adult equilibration rates.[4] Three days earlier, during her second deposition on July 9, 2010, Dr. Crawford had strongly disagreed with Dr. Goldsmith's equilibration calculation and determination of when Lauren's lowest hemoglobin levels occurred. Dr. Crawford indicated that she would testify about her disagreement with Dr. Goldsmith if questioned at trial.

         On July 12, 2010, the Rieses also filed a motion in limine seeking to exclude Dr. Goldsmith's equilibration testimony altogether because it was not specifically mentioned in his expert witness disclosure. In addition, the Rieses sought to exclude testimony about nucleated red blood cells (NRBCs) from another expert witness (Dr. Thomas Strong, Jr.)[5] for the same reason. After a brief hearing on August 11, the trial court denied the motion to exclude Dr. Goldsmith's testimony but ordered that the Rieses could obtain an additional expert to rebut the NRBC testimony because they did not have an expert on that subject. On August 26, 2010, the Rieses added Dr. Jeffrey Phelan as an expert witness. Notably, the disclosure stated that Dr. Phelan would testify about NRBCs and also Dr. Goldsmith's equilibration calculations, despite the trial court's limitation on the new expert.

         The jury trial began on August 31, 2010. Prior to Dr. Phelan's testimony, the Rieses informed the trial court that they intended to elicit testimony from him regarding NRBCs and Dr. Goldsmith's equilibration calculation. The Defendants objected and reminded the trial judge of the prior ruling that Dr. Phelan, the new witness, would be limited to testifying about NRBCs. The trial court agreed with the Defendants and noted that the Rieses had other witnesses who could testify about equilibration. After the trial court limited Dr. Phelan's testimony, for reasons unknown, the Rieses did not ask either Dr. Crawford or Dr. Brown to testify at trial about Dr. Goldsmith's equilibration calculation.

         Prior to Dr. Goldsmith's testimony at trial, the Rieses moved for a Daubert[6] hearing on the reliability of his calculations. They argued that Dr. Goldsmith's opinion was not supported by studies showing that the fetal equilibration rate is the same as in post-birth humans. The Defendants responded by providing studies regarding the equilibration rate in fetal sheep, which were consistent with Dr. Goldsmith's position, and by also arguing that the Rieses' mid-trial Daubert challenge was untimely. After considering the arguments, the trial court agreed with the Defendants that the Rieses' challenge was untimely. He further determined that Dr. Goldsmith's testimony was appropriate under Daubert and that the Rieses' argument went to the weight, rather than the admissibility, of the testimony. However, the trial court prohibited Dr. Goldsmith from referring to the sheep studies, which he had not previously produced.

         Throughout the trial, the jury heard testimony from numerous treating and expert medical witnesses. Some testified that Lauren was irreparably injured before she arrived at the Hospital, and others testified she was injured by the Defendants' actions or inactions. Others concluded that it was impossible to say for certain. The witnesses based their timing on a variety of factors, including scans of Lauren's brain, examination of Billie Jo Ries's placenta and umbilical cord, Lauren's heart rate, and blood analysis. After considering all of this evidence in a four-week trial, the jury returned a unanimous verdict in favor of the Defendants.

         The Rieses appealed, raising two arguments: (1) that the trial court abused its discretion by admitting Dr. Goldsmith's scientifically unreliable equilibration testimony; and (2) the trial court abused its discretion by refusing to allow Dr. Phelan to rebut Dr. Goldsmith's equilibration testimony. The Court of Appeals unanimously agreed with the Rieses that Dr. Goldsmith's equilibration testimony should have been excluded. The appellate panel found that Dr. Goldsmith's opinion was not supported by reliable scientific proof and, even if the Rieses' Daubert challenge was inadequately raised at the trial court, the admission of Dr. Goldsmith's testimony constituted palpable error, requiring reversal. That appellate court concluded there was a reasonable possibility that the jury would have returned a different verdict absent Dr. Goldsmith's equilibration calculations. Having reversed the trial court as to the Rieses' first argument, the Court of Appeals declined to address the second argument regarding Dr. Phelan's testimony.

         The Defendants appealed, [7] arguing that the Court of Appeals impermissibly substituted its findings for that of the trial court as to Dr. Goldsmith's testimony. This Court reversed, finding that Dr. Goldsmith's equilibration calculation was adequately supported and was therefore admissible under Daubert. 460 S.W.3d at 889-904. This Court also held that even if the trial court had erred by admitting the testimony, the error was harmless because numerous witnesses testified that Lauren began bleeding before she arrived at the Hospital and this other evidence was sufficient to support the jury's verdict. Because this Court found no error in the admission of Dr. ...


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