Neonatology is a subspecialty of pediatrics that consists of the medical care of newborn infants, especially the ill or premature newborn infant. Expertise in the discipline can be instrumental in the context of tort cases involving issues of prenatal injury. Recently, the Supreme Court of Kentucky, in Richard C. Oliphant, M.D. and Louisville Physicians for Women, PLLC, v. Billy Jo Ries, Lauren Elizabeth Ries and Kevin Ries (2015 Ky. LEXIS 4), considered whether the opinion of a neonatologist as to the rate of equilibration of blood in human fetus which are based on studies made on fetal sheep is admissible under Daubert. Equilibration is a process where the cardio-vascular system takes fluids from other parts of the body to increase blood volume, following loss of blood.
The matter arose out of an alleged injury occurring to Lauren Ries at the time of her birth. On January 20, 1997, Billie Jo Ries, who was 36 weeks pregnant at that time, noted that she was bleeding vaginally. She was taken to the Baptist East Hospital, where she delivered a daughter, Lauren, by C-section. 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 filed suit against the Hospital, Dr. Oliphant, who delivered Lauren, and Dr. Robinson, the neonatologist who treated Lauren after her birth, arguing that 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 by Dr. Oliphant, or if she had received appropriate treatment from Dr. Robinson after delivery. The defendants submitted that they complied with their respective standards of care, further arguing that the majority of Lauren’s blood loss occurred before she arrived at the hospital which rendered them practically incapable of of preventing her injuries.
The issue in contention was the expert testimony given by Dr. Jay Goldsmith, a neonatologist retained to testify on behalf of Dr. Robinson. Dr. Goldsmith opined that Lauren, still inside her mother’s uterus, had lost approximately one-third of her blood volume at the time when Billie Jo noted her vaginal bleeding. While 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, and the details of his mathematical formula calculating the rate of equilibration as utilized to arrive at the opinion as deposed, Dr. Robinson submitted studies involving the equilibration rate in intrauterine sheep fetuses, purporting to support Dr. Goldsmith’s position. Dismissing the Rieses’ motion to exclude the expert testimony questioning the reliability of the formula so used, the trial court stated that Dr. Goldsmith’s testimony was “appropriate” and the Rieses’ arguments went to the weight rather than the admissibility of Dr. Goldsmith’s opinions.
The Court of Appeals held that the trial court erred in admitting Dr. Goldsmith’s testimony, stating that it could find no evidence in the record to support the finding of reliability by the trial court. The Court of Appeals emphasized that Dr. Goldsmith had not provided any “objective sources” which supported his mathematical formula, and it was not clear whether he had based his opinion on any of the studies cited by Dr. Robinson in support of his position. Further, it was observed that no medical expert offered an opinion as to the significance of these studies or whether these studies supported Dr. Goldsmith’s assumption. The Court of Appeals also noted that this assumption had not been subjected to adequate peer review through publication and that it has also been rejected by some of his peers, deeming it to substantially erode the credibility of the theory.
The Supreme Court of Kentucky proceeded to test Dr. Goldsmith’s evidence against Daubert factors and found his opinion relevant to the determination of Laurent’s blood loss as a crucial fact in issue. Dealing with the question of reliability, the Court criticized the approach of the Court of Appeals. Firstly, it was opined that the trial court had enough material on record in the form of the articles submitted by Dr. Robinson to determine for itself the significance of the same with respect to Dr. Goldsmith’s theory, overruling the Court of Appeals’ position requiring the expert opinion of medical experts on the same. Secondly, the fact that there existed no “objective sources”, i.e., studies on equilibration in human fetuses did not necessarily render the theory unreliable, opined the Court, keeping in mind the ethical and legal injunctions against human testing in such matters. It was also noted that extrapolation of results acquired from tests on non-human subjects is permitted in appropriate cases. Thirdly, the view of the Court of Appeals that the theory was untenable because it has been rejected by some of his peers was found to be inappropriate as accepting this view would result in the rejection of expert testimony in most, if not all, cases. Unanimity about the accuracy of a theory, observed the Court, is not the only determinant test of its reliability. Therefore, Keller, J., delivering the opinion of the Court, held that the trial court’s finding that Dr. Goldsmith’s theory was sufficiently reliable to submit to the jury was supported by evidence of substance, and the trial court did not abuse its discretion by admitting Dr. Goldsmith’s testimony.