Emily Acker and Justin Acker, individually, and as natural parents and next friend of I.A., a minor child v. United States of America

• Court: District Court, D. Alaska
• Decided: November 6, 2025
• Docket: 3:23-cv-00130
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ALASKA

9 EMILY ACKER and JUSTIN ACKER, No. 3:23-CV-00130-SHR individually, and as natural parents and 10 next friend of I.A., a minor child, ORDER

11 Plaintiffs,

12 v.

13 UNITED STATES OF AMERICA,

14 Defendant. 15 16 17 Plaintiffs Emily Acker (“Emily”) and Justin Acker (“Justin”), individually, and 18 as natural parents and next friend of I.A., filed a medical malpractice action against 19 the United States of America under the Federal Tort Claims Act (FTCA). I.A. is a 20 female child who was born and received medical care at Bassett Army Community 21 Hospital at Fort Wainwright in Fairbanks, Alaska (“Bassett”), a facility operated by 22 Defendant. Plaintiffs allege medical practitioners at Bassett breached the 23 applicable standards of care related to Emily’s labor and I.A.’s delivery, causing 24 I.A. to suffer a skull fracture and permanent brain injury. After a thirteen-day bench 25 trial and consideration of the witnesses’ testimony, the exhibits admitted into 26 evidence, and the memoranda submitted by the parties, the Court makes the 27 following findings of fact and conclusions of law pursuant to Federal Rule of Civil 28 1 Procedure 52.1 2 I. OVERVIEW 3 The allegations in this case are directed at how Certified Nurse Midwife 4 (CNM) Brittany Speers and a doctor she later called to assist, Dr. Tess Harmon, 5 managed Emily’s second stage of labor and performed her cesarean section (“C- 6 section”). The case involves significant injuries to a newborn child, I.A. The parties 7 dispute whether those injuries occurred during labor and delivery of I.A. or were 8 sustained from accidental or nonaccidental trauma occurring after discharge from 9 Bassett. Both parties offered extensive expert testimony regarding the applicable 10 standards of care and causation. Experts for both parties were exceptional in their 11 training and experience in their areas of expertise; however, they offer 12 diametrically opposed opinions as to what the medical records indicate regarding 13 I.A.’s injuries. In general, Plaintiffs’ experts opine the medical records show I.A.’s 14 injuries, including a comminuted skull fracture and resulting brain injury, were 15 caused by Dr. Harmon in performing the C-section, whereas Defendant’s experts 16 read the same medical records to conclude I.A.’s injuries occurred after she was 17 discharged from the hospital and were likely caused by nonaccidental trauma. 18 19

20 1 The Court departs from the more traditional format consisting of numbered 21 paragraphs because the issues in this case lend themselves to a narrative format. The Court’s resolution of relevant contested issues is controlling whether stated in 22 the Findings of Fact or Conclusions of Law sections herein. In re Bubble Up Del., 23 Inc., 684 F.2d 1259, 1262 (9th Cir. 1982) (“The fact that a court labels determinations ‘Findings of Fact’ does not make them so if they are in reality 24 conclusions of law.”). The Court makes its findings of fact by a preponderance of the credible evidence. This Order does not purport to recite all of the arguments 25 made and evidence submitted by the parties. See Fed. R. Civ. P. 52(a) Advisory 26 Committee Note to 1946 Amendment (“[T]he judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no 27 necessity for over-elaboration of detail or particularization of facts.”). And, while 28 this Order contains some citations to evidence, the Court has not attempted to recite all supportive citations in the record. 1 II. FINDINGS OF FACT 2 a. Labor & Delivery at Bassett 3 At approximately 11:00 p.m. on December 11, 2020, following an 4 uncomplicated pregnancy, Emily’s water broke and she was admitted to the labor 5 and delivery unit at Bassett. Soon after her admission, Emily provided doctors with 6 a handwritten birth plan describing her preferences for her daughter I.A.’s birth. 7 (D-116.) Emily’s birth plan stated she only wanted to push when she felt the 8 instinct to do so rather than when healthcare providers told her to push. 9 Throughout the early morning hours of December 12, Emily was in the first stage 10 of labor, meaning her cervix was progressively dilating as she was having 11 contractions. Emily was given an epidural to relieve pain from contractions. 12 i. Second Stage of Labor 13 From approximately 7:00 a.m. until 12:00 p.m. on December 12, CNM 14 Speers managed Emily’s labor. (D-1 at 7–8.) When CNM Speers initially 15 performed a vaginal examination at 7:45 a.m., she determined Emily’s cervix was 16 fully dilated, indicating she had progressed to the second stage of labor and it was 17 therefore time for her to push. Emily stated she did not feel the instinct to push 18 and declined to do so. Because instinctive pushing was part of Emily’s birth plan, 19 CNM Speers advised Emily she could “labor down,” meaning she could wait for 20 about an hour before beginning to push, allowing time for I.A. to naturally descend 21 into Emily’s birth canal. (Doc. 113 at 101; Doc. 120 at 10–11.) At this time, I.A.’s 22 head was at a +1 station, meaning her head had just begun to engage in Emily’s 23 pelvis.2 Approximately one hour later, CNM Speers told Emily she needed to begin 24 pushing, and Emily again indicated she did not feel the instinct to push.

25 2 Fetal station refers to the position of a baby’s head as it descends into the 26 pelvis during labor and is measured on a scale -5 to +5, with -5 indicating the baby’s head is high and not yet engaged in the pelvis and +5 indicating the head 27 is at the lowest point and ready for delivery. A +1 station indicates the top of the 28 baby’s head is one centimeter below the ischial spines, which are bony protrusions marking the narrowest part of the pelvis. 1 Nevertheless, Emily began pushing at 9:06 a.m. 2 After 40 minutes of pushing, CNM Speers performed another vaginal exam, 3 during which she determined I.A. was in the occiput posterior position (“OP 4 position”), meaning the back of I.A.’s head was facing Emily’s spine. While the OP 5 position is considered a “malposition” for vaginal delivery, it is not a 6 contraindication for continued labor and vaginal delivery. CNM Speers ordered 7 two milliunits of Pitocin to strengthen Emily’s contractions.3 Emily continued 8 pushing until approximately 11:30 a.m. At that time, CNM Speers requested a 9 consultation with Dr. Harmon—the on-call obstetrician that day—to discuss Emily’s 10 progress and the possibility of rotating I.A. to a more ideal birthing position. (D-1 11 at 7.) 12 Dr. Harmon arrived at Bassett around noon. After examining Emily, she 13 determined I.A.’s head, which CNM Speers had previously determined was in the 14 OP position, had rotated to the right occiput anterior position (“ROA position”), a 15 better position for vaginal delivery. (D-1 at 9.) Despite Emily having been fully 16 dilated since 7:45 a.m. and pushing on and off since approximately 9:00 a.m., I.A.’s 17 head was not descending in Emily’s birth canal and remained at a +1 station. Dr. 18 Harmon informed Emily she met the criteria to proceed with delivery by C-section 19 based on her lack of progress, but Emily instead opted to push for an additional 20 20 minutes. After 20 minutes, Dr. Harmon recommended delivering I.A. by C-section 21 and Emily agreed. Dr. Harmon stopped administering Pitocin to Emily at 12:30 22 p.m. Thereafter, hospital staff began preparing for the C-section by having Emily 23 sign a consent form, calling on additional staff, and transferring Emily to the 24 operating room. The Court finds the second stage of labor, in total, lasted for 25 approximately 6.5 hours, from approximately 7:45 a.m. to 1:30 p.m. Additionally, 26 the Court finds Emily’s maximum duration of pushing, excluding breaks, did not

27 3 Pitocin is a synthetic form of oxytocin, the hormone the brain makes to 28 cause the uterus to contract. The use of Pitocin is designed to increase the frequency and strength of uterine contractions. 1 exceed three hours. (P-3 at 27–35.) 2 ii. C-Section 3 At approximately 1:30 p.m., Dr. Harmon began performing the C-section, 4 with CNM Speers as the first assistant. Dr. Harmon made the skin incision at 2:04 5 p.m. and the uterine incision at 2:12 p.m. Dr. Harmon delivered I.A. at 2:13 p.m., 6 within one minute of making the uterine incision. Contrary to Dr. Harmon’s 7 previous determination, I.A.’s head was in the OP position and her neck was 8 extended, making delivery of her head challenging.4 (D-1 at 24.) Once Dr. Harmon 9 delivered the head, I.A.’s body delivered with ease. 10 Following I.A.’s delivery, Dr. Jessica Eiser, the pediatrician on staff at 11 Bassett that day, assumed care of I.A. She performed a quick evaluation and 12 assigned I.A. an APGAR score of 9 one minute after she was born.5 (Doc. 132 at 13 33–34.) She performed another evaluation five minutes after I.A. was born and 14 again assigned I.A. an APGAR score of 9. An APGAR score of nine is excellent. 15 (Id. at 34.) Dr. Eiser noted I.A.’s appearance, pulse, grimace, activity level, and 16 respirations were ideal. (Id.) After being assured I.A. did not have a critical 17 condition requiring immediate attention, Dr. Eiser performed a full body 18 examination. Upon completion of this exam, she noted, among other things, I.A. 19

20 4 This was the last observed fetal position of I.A. The Court finds I.A. was 21 never in a brow presentation. Plaintiffs asserted at trial I.A. had been in a “malpresentation”—namely, a brow presentation—which, if assessed, would 22 require delivery by C-section. They based this argument on medical records 23 indicating such a malpresentation was ultimately the reason for proceeding to a C- section. (See P-3 at 15.) However, both CNM Speers and Dr. Harmon testified 24 they had performed vaginal exams during Emily’s second stage of labor and I.A. was not in a brow presentation. Consistent with Dr. Harmon’s testimony on cross- 25 examination, the Court finds the medical records indicating I.A. had been in a 26 malpresentation inaccurate. 5 An APGAR score is a measurement, on a scale of 1 to 10, of how well the 27 baby tolerated the birthing process. The score is assigned at one and five minutes 28 after birth by the pediatrician following an assessment focusing on five key criteria: appearance, pulse, grimace, activity, and respiration. (See Doc. 132 at 34.) 1 had “significant bruising” on her head and a small broken blood vessel in her right 2 eye. (Id. at 93.) 3 While Dr. Eiser evaluated I.A., Dr. Harmon turned her attention to completing 4 Emily’s surgery. During the C-section, Emily sustained an extension—or tear—of 5 the uterine incision into the cervix. Dr. Harmon began repairing this tear and called 6 another doctor to assist. It took both doctors about three hours to repair the tear. 7 On December 13, 2020, I.A. underwent phototherapy at the hospital for 8 elevated bilirubin levels. On December 14, I.A.’s bilirubin levels began normalizing 9 and Emily and I.A. were discharged from the hospital. Just before discharge, Dr. 10 Eiser performed a head-to-toe examination of I.A., during which she determined 11 I.A. appeared healthy, was not lethargic, and was feeding normally. Dr. Eiser also 12 determined the bruising on I.A.’s head was resolving. (Doc. 132 at 71–83.) 13 b. Events After Discharge 14 Between December 15 and December 30, 2020, Emily and Justin took I.A. 15 to two scheduled well-baby visits with Dr. Elias Hydrick, a family practice physician, 16 to address general health concerns, including concerns regarding I.A.’s bilirubin 17 levels and decrease in weight gain. Dr. Hydrick monitored I.A.’s bilirubin levels, 18 which had stabilized by the December 15 appointment, and referred Emily to a 19 lactation consultant to address feeding concerns. Dr. Hydrick did not find anything 20 abnormal during either of his examinations and noted on December 30 that I.A. 21 was feeding, voiding, and stooling appropriately for her age and the exam was 22 “unremarkable.” (D-8 at 13.) 23 c. I.A.’s Hospitalization on January 2, 2021 24 On January 2, 2021, Emily brought three-week-old I.A. to the emergency 25 department at Bassett. Over the previous two days, I.A. had been exhibiting 26 concerning symptoms, including noticeable feeding difficulties, spitting up, and eye 27 twitching. (See D-9 at 6.) Upon I.A.’s arrival, Dr. David Scolnick, the attending 28 emergency room physician, obtained I.A.’s medical history from Emily and 1 examined I.A. Because I.A. was not demonstrating appropriate responses and 2 was exhibiting signs of tremors or seizures, Dr. Scolnick determined I.A. needed 3 to be admitted to the hospital. Dr. Scolnick then contacted the assigned on-call 4 pediatrician for further evaluation. I.A. underwent blood testing, a lumbar puncture, 5 and numerous imaging scans. 6 Once stabilized to some degree, the doctors at Bassett determined I.A. 7 needed a higher level of care because, among other things, she had bleeding 8 within her brain. A few hours after they arrived at the emergency room, I.A. and 9 Emily flew on a medical transport flight from Fairbanks to Anchorage where I.A.’s 10 care was transferred to Providence Alaska Medical Center (“Providence”). At 11 Providence, doctors and healthcare professionals continued to care for I.A. I.A. 12 was diagnosed with a comminuted skull fracture involving both sides of her parietal 13 bone across the skull’s suture line, bleeding within her brain, and permanent brain 14 injury. I.A. was also diagnosed with rib and ulna fractures. A doctor in 15 Providence’s pediatric intensive care unit, suspecting I.A.’s injuries had been 16 caused by nonaccidental trauma, alerted a doctor at Alaska Child Abuse Response 17 and Evaluation Services, who diagnosed I.A.’s injuries as having been caused by 18 nonaccidental trauma. (D-11 at 42.) 19 d. Treating Physician Testimony & Qualifications 20 At trial, Plaintiffs called Dr. Tess Harmon, the obstetrician who had 21 delivered I.A., to testify in their case in chief. Dr. Harmon graduated residency in 22 2020, the same year she performed the C-section at issue. Over the course of her 23 residency and post-training career, Dr. Harmon had performed over 200 C- 24 sections at the time she performed Emily’s C-section. Despite her current work in 25 obstetrics, Dr. Harmon was not yet board certified in obstetrics and gynecology at 26 the time of trial. 27 CNM Brittany Speers, who worked directly on Emily’s labor and I.A.’s 28 delivery, testified for the defense. CNM Speers is a registered nurse and has been 1 a certified nurse midwife for almost 19 years. Certified nurse midwives take care 2 of women throughout their lives, providing pregnancy, labor, postpartum, and 3 general gynecologic care. 4 The defense also called two doctors and one nurse to testify regarding I.A.’s 5 condition when she presented at Bassett on January 2. Dr. David Scolnick, I.A.’s 6 treating emergency room doctor, initially assessed I.A. and determined she 7 needed to be hospitalized. Dr. Scolnick also consulted Dr. Donia Blauvelt, the 8 on-call pediatrician, for further assistance in stabilizing and diagnosing I.A. Upon 9 receiving Dr. Scolnick’s call and arriving at the emergency room, Dr. Blauvelt 10 assessed I.A., ordered various imaging studies, and performed a lumbar puncture. 11 Nurse Jasmine Edwards, who was working at Bassett’s emergency room when 12 I.A. arrived, also observed I.A. and provided care. 13 The defense called three other physicians involved in evaluating or treating 14 either Emily or I.A. Dr. Jessica Eiser was the pediatrician who first examined I.A. 15 upon birth. As more fully detailed below, Dr. Eiser performed a thorough 16 evaluation of I.A. soon after birth and in the two days post-birth before she was 17 discharged from the hospital. Dr. Ciara Rakestraw assisted Dr. Harmon in 18 repairing the tear in Emily’s uterine incision. Dr. Elias Hydrick was the family 19 practice physician who saw I.A. for well-baby visits on December 15 and 30. 20 e. Expert Witness Testimony & Qualifications6 21 i. Plaintiffs’ Experts 22 Dr. Martin Gubernick, a board-certified obstetrician and gynecologist 23 (OBGYN), testified regarding the standard of care for managing the second stage 24 of labor. He has been practicing for nearly 40 years as an attending physician at

25 6 Because the Court ultimately concludes Plaintiffs have failed to establish 26 Defendant is responsible for I.A.’s injuries, it will not address the issue of damages. Therefore, while the Court appreciates the testimony of Dr. Judith L. Gooch, Helen 27 Woodard, and Hugh Richards for Plaintiffs and Dr. Thomas G. Burns, John 28 Fountaine, and Michael Chapman, PhD, for Defendant, the Court intentionally omits a discussion of those witnesses’ testimony. 1 the New York Presbyterian Hospital-Weill Cornell Medical Center, a private- 2 practice role, and simultaneously holds an academic position as a clinical instructor 3 at Cornell Medical School. Dr. Gubernick’s work is primarily focused on academia, 4 including supervising residents, teaching students, and running training programs 5 for continuing medical education. Dr. Gubernick spends 10% to 15% of his time 6 on expert work and testifies for plaintiffs approximately 85% of the time. 7 Dr. Barry Schifrin, a board-certified obstetrician who holds a fellowship in 8 perinatal biology, testified regarding the standard of care. Dr. Schifrin is a leading 9 expert on fetal heartrate tracing. He has not treated patients or performed a C- 10 section since 2011. 11 Dr. Maureen Sims, a board-certified pediatrician and neonatologist, 12 testified regarding standard of care and causation. She serves in numerous 13 consulting roles and consults equally for plaintiffs and defendants in her 14 medicolegal work. Dr. Sims has an extensive background in reviewing alleged 15 medical negligence and high-risk cases. Dr. Sims has not treated patients since 16 2009. Her recent experience focuses on academic and administrative roles. 17 Dr. Stephen Glass, a board-certified neurologist with special qualification 18 in child neurology, testified regarding causation. He has practiced for over 45 19 years and currently has an outpatient practice in child neurology primarily focusing 20 on children with developmental disorders. Dr. Glass devotes 98% of his consulting 21 work to plaintiffs’ cases and has not treated a newborn in over 13 years. 22 Dr. Julie Mack, a board-certified radiologist, testified regarding causation, 23 particularly as it pertains to the timing of I.A.’s injuries and diagnosis. Dr. Mack 24 has completed a fellowship in pediatric radiology and holds a certificate in pediatric 25 radiology. Dr. Mack’s clinical practice currently focuses on breast tissue imaging 26 and has not focused on pediatric radiology in over 10 years. However, Dr. Mack 27 applies her pediatric radiology qualifications in her work as a consulting expert in 28 cases of suspected child abuse. As part of her consulting work on these cases, 1 Dr. Mack confirms or rejects diagnoses of nonaccidental trauma. 2 ii. Defendant’s Experts7 3 Dr. Brendan Carroll, a board-certified OBGYN, testified regarding the 4 standard of care, particularly as it pertains to Dr. Harmon’s and CNM Speers’ 5 management of Emily’s second stage of labor and C-section. Dr. Carroll is actively 6 involved in clinical work and delivered a baby two days before providing his 7 testimony in this case. He also works on quality improvement measures within his 8 hospital, performing peer review of cases involving unexpected outcomes. In his 9 medicolegal work, he testifies on behalf of plaintiffs approximately 60% of the time. 10 Dr. Frank Manning, a board-certified OBGYN and maternal-fetal physician, 11 testified regarding the standard of care. Maternal-fetal medicine physicians work 12 with OBGYNs and midwives to provide consultation and management of specific 13 high-risk circumstances, both maternal and fetal. Dr. Manning’s career entails a 14 combination of teaching, research, and direct patient care. He also takes on 15 temporary assignments, filling in for physicians in private practices across the 16 country. Dr. Manning has served in academic roles, including overseeing 17,000 17 births per year at the University of Manitoba and teaching students across multiple 18 institutions. 19 Dr. Elizabeth Cook, a CNM and Doctor of Nursing Practice (DNP) who has 20 delivered over 3,000 babies, testified regarding the standard of care. Dr. Cook 21 holds numerous degrees including a Bachelor of Science in Nursing, a Master of 22 Science in Nursing, a Post-Master’s certificate in women’s health, and a DNP 23 degree with a focus in midwifery. Dr. Cook is currently devoting the majority of her 24 professional time to full-time, full-scope volunteer midwifery work in the Togolese 25

26 7 Because the Court finds insufficient evidence establishing Emily or Justin inflicted nonaccidental trauma upon I.A., the Court intentionally omits an in-depth 27 discussion of testimony of witnesses whose sole purpose was to discuss 28 nonaccidental trauma, like Dr. Nichole Wallace, Defendant’s child abuse pediatrician. 1 Republic in West Africa, where she assists in high-risk vaginal and cesarian 2 deliveries. Dr. Cook has held academic positions involving teaching and 3 supervising OBGYN resident physicians and medical, midwifery, doula, and nurse 4 practitioner students. 5 Dr. Gordon Sze, a board-certified radiologist who has completed a 6 fellowship in neuroradiology and holds a certificate in the same, testified regarding 7 causation, particularly as it relates to the timing of I.A.’s injuries. Dr. Sze’s work as 8 a neuroradiologist involves using all available imaging methods to diagnose 9 diseases of the brain, spine, and neck. Dr. Sze has been the chief of 10 neuroradiology at Yale for 30 years. 11 Dr. Courtney Wusthoff, a board-certified pediatric neurologist, testified 12 regarding causation. In addition to being board certified as a pediatric neurologist, 13 she is separately boarded in epilepsy and clinical neurophysiology. She holds a 14 certificate in neonatal neurocritical care focusing on neurologic conditions before 15 birth and during the first 28 days of life. Dr. Wusthoff is a professor of neurology 16 at the University of California, Davis and is the program director for the pediatric 17 neurology residency there. Dr. Wusthoff was recruited to start the neurology 18 neonatal intensive care unit (NICU) at Stanford, which she described as a unit 19 focused on babies who have or are at risk for brain injuries within the NICU. After 20 running that unit for approximately 12 years, Dr. Wusthoff moved to UC Davis to 21 improve its child neurology program. Dr. Wusthoff spends 20% of her time in clinic, 22 meaning she sees patients about one day per week. Additionally, some weeks 23 during the year she will be “on service,” meaning she is responsible for evaluating 24 patients in the emergency department and ICU for seven days at a time, 24 hours 25 per day. In her current role, Dr. Wusthoff oversees 12 neurologists, and her 26 department has about 40 neonatal intensive care beds. Her research focuses on 27 neonatal neurology, particularly looking at neonatal seizures caused by brain 28 injuries. She also does clinical research in areas of neonatal and hypoxic-ischemic 1 encephalopathy. She has published about 130 peer-reviewed articles in these 2 areas. Her work as an expert is split between plaintiffs and defendants. 3 Dr. Jay Goldsmith, a board-certified pediatrician and neonatologist, 4 testified regarding causation, particularly the statistical likelihood of I.A.’s injuries 5 having been sustained at birth. Dr. Goldsmith was recruited to New Orleans to 6 start the first NICU in the state of Louisiana in 1976. Dr. Goldsmith retired in July 7 2025 but most recently held roles as a clinical professor at two universities and as 8 a staff neonatologist at two hospitals, rotating through eight large NICUs and 9 consulting with about 20 neonatologist colleagues. Throughout his career, Dr. 10 Goldsmith has worked at NICUs caring for the most critically ill newborns. 11 III. CONCLUSIONS OF LAW 12 Under the FTCA, the United States is liable for medical malpractice claims 13 arising from the actions of its employees within the scope of their employment. 28 14 U.S.C. § 1346(b)(1); 28 U.S.C. § 2671. It is undisputed Dr. Harmon and CNM 15 Speers rendered medical care to Emily and I.A. and they were both employees of 16 the United States acting within the scope of their authority during the relevant 17 timeframe. (See Doc. 1 ¶¶ 8–9, 12; Doc. 5 ¶¶ 8–9, 12; see also Doc. 85 at 2.) 18 Therefore, it is undisputed the United States is responsible for the actions of these 19 providers. Additionally, Plaintiffs timely filed an administrative claim, which the 20 United States subsequently denied. (Doc. 1 ¶ 10; Doc. 5 ¶¶ 10–11.) Accordingly, 21 this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 2671 et seq. and 22 28 U.S.C. § 1346(b)(1). 23 The FTCA incorporates state substantive law as to liability and damages. 24 See Bennett v. United States, 44 F.4th 929, 933 (9th Cir. 2022). As such, Alaska 25 law applies to define the contours of Plaintiffs’ claim: 26 (a) In a malpractice action based on the negligence or wilful misconduct of a health care provider, the plaintiff 27 has the burden of proving by a preponderance of the evidence 28 (1) . . . the plaintiff had a health care provider- patient relationship with the defendant at the time of the 1 act complained of; (2) the degree of knowledge or skill possessed or 2 the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by 3 health care providers in the field or specialty in which the defendant is practicing; 4 (3) . . . the defendant either lacked this degree of 5 knowledge or skill or failed to exercise this degree of care; and 6 (4) . . . as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of 7 care, the plaintiff suffered injuries that would not otherwise have been incurred. 8 AS § 09.55.540. To summarize the requirements of the statute, a plaintiff must 9 prove healthcare providers breached the applicable standard of care, causing an 10 injury and inflicting damages.8 Plaintiffs have the burden of proving each of their 11 claims by a preponderance of the evidence, which means the Court must be 12 persuaded by the evidence that the claim is more likely true than not. 13 At trial, Plaintiffs primarily asserted Dr. Harmon and CNM Speers 14 mismanaged the second stage of Emily’s labor and C-section, ultimately causing 15 I.A.’s injuries.9 For the following reasons, the Court finds neither Dr. Harmon nor 16 CNM Speers fell below the standard of care in managing Emily’s second stage of 17 18

19 8 Under Alaska law, an expert witness who testifies regarding the appropriate standard of care in a professional negligence case must be specially 20 qualified. AS § 09.20.185. The Court finds all experts who testified to the standard 21 of care in this case were generally qualified as such under Alaska law. As discussed above, both parties’ experts had extensive training and experience, 22 although some experts were better aligned to opine on the relevant issues. 23 Because of the difficulty of breaking ties in a complicated battle of the experts, the Court generally gives more weight to treating physician accounts when necessary 24 to break such ties, and to experts who have had more recent or relevant experience. 25 9 Although Plaintiffs initially appeared to assert an additional theory of 26 causation—that I.A.’s injuries had been caused by a prolonged second stage of labor alone—they abandoned this theory at trial and instead indicated their only 27 argument was that the prolonged second stage of labor, while not directly causing 28 I.A.’s injuries, ultimately contributed to the severity of I.A.’s injuries sustained during the C-section. (Doc. 113 at 83, 98–99.) 1 labor or performing her C-section. Nevertheless, as discussed below, even if the 2 Court were to find Dr. Harmon or CNM Speers fell below the standard of care, the 3 Court finds any such breach was not the proximate cause of I.A.’s injuries. 4 a. Breach 5 Regarding breach of the applicable standards of care, Plaintiffs allege: (1) 6 Dr. Harmon and CNM Speers should have curtailed Emily’s second stage of labor 7 and proceeded to a C-section by around 10:00 a.m.; (2) Dr. Harmon and CNM 8 Speers should have used an ultrasound to confirm the position of I.A.’s head; (3) 9 CNM Speers should not have administered Pitocin knowing I.A. was not in an ideal 10 position for vaginal birth; and (4) Dr. Harmon improperly used excessive force 11 when extracting I.A.’s head from Emily’s pelvis during the C-section. 12 i. Length of Second Stage of Labor 13 As discussed, although CNM Speers recommended Emily begin pushing 14 upon full dilation at 7:45 a.m., Emily did not begin pushing until 9:06 a.m., and Dr. 15 Harmon made the first incision for the C-section at 2:04 p.m. Plaintiffs assert Dr. 16 Harmon and CNM Speers should not have allowed Emily to spend 6.5 hours in the 17 second stage of labor and instead should have performed a C-section sooner. On 18 this issue, two publications were discussed at trial—(1) the American College of 19 Obstetricians and Gynecologists and Society for Maternal-Fetal Medicine 20 consensus on Safe Prevention of the Primary Cesarean Delivery (the “consensus”) 21 (D-150) and (2) a clinical practice guideline on the first and second stage of labor 22 management, also published by the American College of Obstetricians and 23 Gynecologists. 24 Dr. Gubernick and Dr. Schifrin were Plaintiffs’ primary experts on CNM 25 Speers’ and Dr. Harmon’s failure to properly manage the second stage of labor. 26 Dr. Gubernick testified, under the circumstances present in this case, it was 27 irresponsible for doctors to allow Emily to continue in the second stage of labor 28 past 10:00 a.m. (Doc. 112 at 12.) Dr. Gubernick pointed to the fact that by 10:00 1 a.m., despite periods of pushing and contractions, I.A. had not made any further 2 progress into the birth canal since Emily became fully dilated at 7:45 a.m. (Id. at 3 29–30.) As noted, medical records show I.A.’s head was at a +1 station at 7:45 4 a.m., meaning it was in Emily’s pelvis and had not yet engaged in the birth canal. 5 At 10:00 a.m., I.A. remained in the exact same position. He opined this lack of 6 progress despite periods of pushing demonstrated I.A. was being pushed against 7 Emily’s pelvis with each contraction rather than descending into the birth canal. 8 He testified allowing Emily to remain in the second stage of labor for 6.5 hours 9 without further descent of I.A.’s head is an “unheard-of length of time.”10 (Id. at 10 113.) In reaching these conclusions, Dr. Gubernick largely relied on 11 recommendations set forth in the 2024 clinical practice guideline on the first and 12 second stage of labor management. Additionally, Dr. Schifrin testified I.A.’s 13 heartrate tracings indicated this lack of progress and being pushed against Emily’s 14 pelvis was causing I.A. distress. (Doc. 120 at 66–67.) Ultimately, these experts 15 opined I.A.’s lack of descent and indications of fetal distress on heartrate tracings 16 should have alerted CNM Speers and Dr. Harmon to perform a C-section at around 17 10:00 a.m. and failure to do so was a breach of the standard of care. 18 For the defense, Dr. Cook, Dr. Carroll, and Dr. Manning all concluded CNM 19 Speers and Dr. Harmon had not prolonged the second stage of Emily’s labor in a 20 manner that caused any danger to I.A. Dr. Cook specifically relied on the 21 consensus when discussing the parameters for duration of labor. According to her 22 testimony, the consensus advises obstetrics providers should judge the duration 23 of pushing, not the duration of the entire second stage of labor. She explained two 24 hours is the minimum amount of time to be considered prolonged pushing for a 25

26 10 To the extent Plaintiffs argue CNM Speers fell below the standard of care by not proceeding to a C-section after a failed attempt to rotate I.A., the Court finds 27 no such attempted rotation ever occurred and CNM Speers did not breach the 28 standard of care by allowing Emily to continue pushing after observing I.A. in the OP position. 1 multiparous woman.11 The three defense experts explained there is no definitive 2 maximum duration of the second stage of labor according to their own clinical 3 knowledge and the parameters set forth by the consensus. The consensus also 4 explains pushing time can be increased if an epidural is given, which occurred in 5 this case. Dr. Carroll noted Dr. Harmon had acted reasonably to balance the risks 6 of a prolonged second stage with Emily’s preference for vaginal delivery and 7 instinctive pushing. And Dr. Manning explained metrics other than descent can be 8 used to assess progress, such as whether the baby is rotating and the strength of 9 the mother’s contractions. (Doc. 116 at 82, 88–89.) 10 The Court finds Defendant’s experts’ accounts of a multifactor approach to 11 safety within the second stage of labor more plausible than Plaintiffs’ experts’ 12 accounts, which focus primarily on the fact Emily spent a total of 6.5 hours in the 13 second stage of labor without I.A. descending past a +1 station. Dr. Gubernick 14 focused on I.A.’s lack of descent as the primary indicator of when to curtail the 15 second stage of labor without evaluating other considerations as allowed by the 16 guidelines in effect at the time of I.A.’s birth, such as the fact Emily was given an 17 epidural and Dr. Harmon determined during her manual evaluation I.A. had rotated 18 to a more ideal position after two hours of pushing. Dr. Gubernick relied on 19 recommendations in the clinical practice guideline on the first and second stage of 20 labor management from 2024 and those guidelines could not have reflected the 21 standard of care when I.A. was born in 2020. 22 Similarly, Dr. Schifrin generally opined that allowing the second stage of 23 labor to continue for 6.5 hours fell below the standard of care but appeared to reach 24 this conclusion by assuming Emily was pushing for the entire 6.5-hour period. 25 Numerous treating providers and experts testified the length of time spent in the 26 second stage of labor alone is not associated with worse outcomes for mothers or 27

28 11 A multiparous woman is one who, like Emily, has previously given birth vaginally or by C-section. 1 babies, and Dr. Schifrin conceded on cross-examination Emily did not spend the 2 entire 6.5 hours actively pushing. (Doc. 120 at 28.) Emily only pushed for a total 3 of approximately three hours and the remaining time was spent either laboring 4 down before beginning to push or taking breaks from actively pushing. Dr. Schifrin 5 testified he had no concerns with CNM Speers allowing Emily to labor down. (Id. 6 at 10–11.) CNM Speers consulted with Dr. Harmon regarding Emily’s lack of 7 progress after only two hours of pushing, the minimum amount of time to be 8 considered prolonged pushing. (Doc. 117 at 18; D-1 at 7.) And Dr. Schifrin’s 9 testimony regarding I.A.’s heartrate at the beginning of Emily’s second stage of 10 labor does not account for I.A.’s heartrate tracings at the time of Dr. Harmon’s 11 evaluation, which, according to Dr. Harmon’s testimony, did not indicate fetal 12 distress. 13 In sum, CNM Speers consulted with Dr. Harmon as soon as Emily entered 14 into what medical literature considers to be prolonged pushing. After conducting 15 a manual evaluation to determine I.A.’s position, Dr. Harmon recommended 16 proceeding to a C-section. Per Emily’s request, Dr. Harmon allowed her to 17 continue pushing for an additional 20 minutes, after which Dr. Harmon began 18 preparing for the C-section. Less than three hours was not an unreasonable 19 amount of time for Emily to spend pushing, and the Court finds no breach in the 20 standard of care based on the duration of the second stage of labor. 21 ii. Failure to Use Ultrasound to Determine Position of I.A.’s Head12 22 As discussed, CNM Speers initially determined I.A. was in the OP position, 23 but Dr. Harmon later determined I.A. had rotated to the ROA position—one of the 24 more ideal positions for vaginal birth. Ultimately, I.A.’s head was in an OP position 25

26 12 Although, as discussed above, Plaintiffs’ experts attempted to undermine CNM Speers’ and Dr. Harmon’s assessments of the presentation of I.A.’s head, 27 noting there may have been a brow presentation, the Court finds there was no 28 brow presentation. As such, the Court will not address Plaintiffs’ argument based on breach of the standard of care related to malpresentation. 1 upon delivery by C-section. Plaintiffs assert Dr. Harmon should have used 2 ultrasound to conclusively determine I.A.’s positioning given the inconsistency 3 between CNM Speers’ and Dr. Harmon’s determinations based on their manual 4 evaluations. It is undisputed Dr. Harmon did not use ultrasound while managing 5 Emily’s labor. 6 Both Plaintiffs’ and Defendant’s experts discussed what a reasonable 7 provider should have done upon CNM Speers’ initial assessment I.A. was in the 8 OP position. Dr. Gubernick and Dr. Schifrin testified Dr. Harmon’s subsequent 9 manual assessment of ROA was inaccurate and she fell below the standard of 10 care by not confirming her assessment with ultrasound. (Doc. 112 at 34–35; Doc. 11 113 at 20.) These experts admitted the OP position is not necessarily a 12 contraindication for continued labor or vaginal delivery, as not all malpositions 13 require C-sections. (Doc. 112 at 74; Doc. 120 at 18.) 14 Dr. Harmon testified regardless of whether she had determined I.A. was in 15 the OP or ROA position, she would not have changed how she managed Emily’s 16 labor. For Defendant, Dr. Manning, who has personally performed over 200,000 17 ultrasounds, testified it did not fall below the standard of care for Dr. Harmon not 18 to use one in this case. (Doc. 116 at 38–39.) Dr. Manning testified most fetuses 19 initially determined to be in the OP position will rotate to an occiput anterior 20 position. (Id. at 31, 89.) He opined a baby who persistently remains in the OP 21 position and is ultimately delivered in that position—the case with I.A.’s delivery— 22 would not have a higher risk of fracture or trauma. (Id. at 31–32.) 23 The Court finds Dr. Harmon did not breach the standard of care by failing to 24 confirm her manual assessment with ultrasound, especially considering her 25 testimony that even if I.A. had been in the OP position upon her arrival at the 26 hospital, she would not have managed the delivery differently and the fact that all 27 the experts agree the OP position is not a contraindication for continued labor and 28 vaginal delivery. 1 iii. Use of Pitocin13 2 Plaintiffs argue CNM Speers’ administration of Pitocin breached the 3 standard of care. The parties presented conflicting testimony regarding the 4 propriety of administering Pitocin to strengthen Emily’s contractions. For Plaintiffs, 5 Dr. Gubernick opined, based on the frequency of Emily’s contractions and the time 6 it had taken for Emily to become fully dilated, giving her Pitocin was ineffective and 7 harmful. (Doc. 112 at 27–30.) Plaintiffs’ experts did not discuss dosage when 8 concluding the use of Pitocin was contraindicated. Defense experts testified the 9 use of Pitocin was not contraindicated and did not fall below the standard of care 10 under the circumstances. Dr. Cook, testifying for the defense, explained CNM 11 Speers had administered almost the minimum dose a provider would ever use. 12 Plaintiffs’ experts’ testimony regarding the improper use of Pitocin also relied 13 on a portion of the medical records indicating a diagnosis of cephalopelvic 14 disproportion, a childbirth complication in which the baby’s head or body is too 15 large to fit through the mother’s pelvis. (Doc. 113 at 52–53.) Even so, Dr. Carroll 16 testified cephalopelvic disproportion was not, in his expertise, a contraindication 17 for use of Pitocin. Nevertheless, assuming the Court should give this condition 18 some weight, the medical records do not indicate at what point a provider 19 diagnosed cephalopelvic disproportion in this case, and no testimony established 20 this diagnosis occurred before Pitocin was administered. Furthermore, Dr. 21 Harmon testified cephalopelvic disproportion is more important in terms of 22 managing future pregnancies. The Court concludes CNM Speers’ use of Pitocin 23 to strengthen Emily’s contractions was reasonable under the circumstances. 24

25 13 Part of Plaintiffs’ experts’ testimony on the use of Pitocin relied on 26 Plaintiffs’ allegation I.A. may have been in a brow presentation. It is undisputed that if I.A. had been in a brow presentation, use of Pitocin would be contraindicated 27 and would constitute a breach in the standard of care. However, as discussed 28 above, because the Court finds there was no brow presentation, this cannot serve as the predicate for a breach based on augmenting with Pitocin. 1 iv. C-Section 2 Plaintiffs allege Dr. Harmon fell below the standard of care when performing 3 Emily’s C-section by using excessive force to dislodge I.A.’s head from Emily’s 4 pelvis. Plaintiffs argue I.A.’s head was difficult to deliver because it had become 5 “impacted” in Emily’s pelvis during her protracted, mismanaged second stage of 6 labor—resulting in a condition referred to as “impacted fetal head”—and when Dr. 7 Harmon broke the suction between Emily’s pelvis and I.A.’s head with her 8 delivering hand, she had to use more force than normal, causing I.A.’s skull 9 fracture. 10 At trial, Dr. Harmon demonstrated the maneuver she had used to extract 11 I.A.’s head during the C-section and the positioning of her hand and fingers. Dr. 12 Gubernick demonstrated on the witness stand how he teaches medical residents 13 to extract a baby’s head during a C-section. Dr. Gubernick demonstrated the same 14 maneuver Dr. Harmon demonstrated while testifying as to how she had used her 15 delivering hand to extract I.A.’s head during the C-section. Based on this 16 testimony, the Court finds the maneuver Dr. Harmon used to extract I.A.’s head 17 met the standard of care. 18 With respect to the amount of force Dr. Harmon applied while extracting 19 I.A.’s head, Plaintiffs argue (1) medical records show Dr. Harmon described I.A.’s 20 delivery as “challenging”; (2) Emily sustained a tear to the uterine incision due to 21 the amount of force Dr. Harmon had to use to extract I.A.’s head; and (3) I.A.’s 22 head was, by definition, an “impacted fetal head,” which rendered extraction by C- 23 section difficult without the use of an additional maneuver. The Court will address 24 these arguments in turn. 25 In support of the first argument, Plaintiffs point to medical records in which 26 Dr. Harmon noted I.A.’s delivery had been “challenging.” (P-3 at 17; Doc. 112 at 27 16; Doc. 120 at 63.) At trial, Dr. Harmon testified I.A.’s delivery had been 28 “challenging” because of I.A.’s position and because her head was “impacted,” but 1 the delivery was otherwise a routine C-section. Dr. Harmon explained the word 2 “challenging” is often used in clinical notes but does not necessarily mean the 3 delivery was unusual or traumatic. She also testified it is common for a baby’s 4 head to be somewhat “impacted” and create a seal with the mother’s pelvis in an 5 arrested descent C-section, such as Emily’s. While arrested descent C-sections 6 involving an impacted head are typically challenging, nothing in Dr. Harmon’s 7 testimony indicated this delivery was uniquely challenging such that it required use 8 of more force than normal. The Court finds the difficulty Dr. Harmon encountered 9 in extracting I.A.’s head from Emily’s pelvis was due to I.A. being in an OP position 10 with extension of the neck and normal challenges associated with an arrested 11 descent C-section where the head creates a seal with the pelvis rather than I.A. 12 having an “impacted fetal head.” 13 Next, Plaintiffs argue Dr. Harmon’s use of excessive force is evidenced by 14 the extensive tear to Emily’s uterine incision.14 (Doc. 112 at 45–47; Doc. 113 at 15 42.) When challenged on this issue as an adverse witness for Plaintiffs, Dr. 16 Harmon clearly explained tears such as the one Emily sustained are extremely 17 common during arrested descent C-sections and are caused by the delivering 18 hand putting strain on fragile uterine tissue. The Court finds this injury is not an 19 indication Dr. Harmon used excessive force in extracting I.A.’s head. 20 Finally, Plaintiffs assert I.A. had an “impacted fetal head,” a specific medical 21 condition. (Doc. 112 at 16; Doc. 120 at 62–63.) The parties presented conflicting 22 testimony regarding the definition of an “impacted fetal head” and the criteria upon 23 24 25 26 14 Plaintiffs do not allege damages based on the tear to Emily’s uterus but 27 allege such an injury constitutes additional circumstantial evidence of the degree 28 to which I.A.’s head was wedged in Emily’s pelvis and the force required for extraction. 1 which this condition is diagnosed.15 If I.A.’s head had been an “impacted fetal 2 head,” this condition would have rendered extraction by C-section extremely 3 difficult without the use of an additional maneuver, such as a “vaginal hand 4 maneuver,” which involves “[i]ntroducing a hand into the vagina to move the 5 [baby’s] head up into the [mother’s] abdomen.”16 (P-45 at 2.) 6 For the defense, Dr. Manning testified the term “impacted fetal head” is often 7 used subjectively by obstetricians such that there are no strong specific diagnostic 8 criteria. (Doc. 116 at 52.) Regardless, he testified it would not be difficult to extract 9 a fetal head at a +1 station because the baby’s head would not be deeply impacted 10 at such a high station. (Id. at 53–54.) Dr. Manning ultimately concluded this case 11 did not involve an “impacted fetal head.” (Id. at 53.) In contrast, Dr. Gubernick 12 testified I.A.’s head was an “impacted fetal head” based on Emily’s prolonged 13 second stage of labor, wherein I.A. was continuously pushed against Emily’s 14 pelvis. (Doc. 112 at 16.) 15 The Court finds Dr. Manning’s testimony on this issue more credible than 16 Dr. Gubernick’s testimony implying any C-section after a prolonged second stage 17 of labor where the baby is pushed against the pelvis during contractions would 18 involve an impacted fetal head. Although Dr. Gubernick testified I.A. had an 19 “impacted fetal head” at a +1 station, he never explained how he reached this 20 conclusion other than the fact Emily had a prolonged second stage of labor. While 21 Emily pushed for three hours prior to the C-section, I.A. never progressed further 22 into Emily’s pelvis beyond a +1 station. And, as Dr. Manning testified, +1 is a 23

24 15 As a threshold matter, the terms “impacted fetal head,” “deeply impacted fetal head,” and “impacted head” were used interchangeably throughout trial. The 25 Court notes, however, “impacted fetal head” is a medical term of art referring to a 26 specific condition where the head is deeply wedged in the birth canal, making it hard to extract. (Doc. 120 at 62–63.) A baby’s head can be impacted against a 27 mother’s pelvis without being an “impacted fetal head.” 28 16 Throughout all the testimony and arguments at trial, the vaginal hand was the only additional maneuver for which Plaintiffs propounded evidence. 1 relatively high station not normally associated with “impacted fetal heads.” The 2 length of Emily’s second stage of labor does not indicate I.A.’s head became so 3 deeply impacted during that time as to qualify as an “impacted fetal head.” 4 Further, for the definition of “impacted fetal head,” Plaintiffs primarily relied 5 on an article discussing prevention and management of this condition and outlining 6 recommendations for best practices and training. See “Management of impacted 7 fetal head at cesarean” (Katie R. Cornthwaite, et al. 2022). The article notes 8 “[t]here is no clear, consensus definition for impacted fetal head in the published 9 literature,” but “most obstetricians . . . would use ‘the need for additional 10 maneuvers’ as a diagnostic criterion.” (P-45 at 1.) The article defines “impacted 11 fetal head” as “a cesarean birth where the obstetrician is unable to deliver the fetal 12 head with their usual delivering hand, and additional maneuvers and/or tocolysis 13 are required to disimpact and deliver the head.” (Id. (emphasis added).) In other 14 words, per Plaintiffs’ own definition, whether a baby’s head meets the definition of 15 “impacted fetal head” depends on whether an additional maneuver is necessary to 16 dislodge the baby’s head from the mother’s pelvis. Despite this, Plaintiffs’ 17 obstetrics experts did not assume or rely on the presence or absence of a vaginal 18 hand maneuver in concluding I.A. had an “impacted fetal head.” Dr. Gubernick 19 testified the use of a vaginal hand maneuver, or lack thereof, did not affect his 20 opinion I.A. had an “impacted fetal head.” (Doc. 112 at 80.) Although Dr. 21 Gubernick briefly discussed the risks associated with an impacted fetal head, he 22 did not testify to the definition he was relying upon or how the circumstances of 23 this case met that definition. 24 Regardless of Dr. Gubernick not relying on the use of a vaginal hand 25 maneuver in concluding I.A.’s head was impacted, based on Plaintiffs’ own 26 literature, a prerequisite to the Court’s finding of an impacted fetal head would be 27 a finding of use of a vaginal hand maneuver. The medical records in this case do 28 not mention the use of a vaginal hand maneuver. (See generally P-3; P-7.) Dr. 1 Harmon testified she was responsible for determining whether use of a vaginal 2 hand maneuver was necessary during Emily’s C-section. She testified, although 3 she had likely set up for use of a vaginal hand maneuver, she had ultimately 4 delivered I.A.’s head without using this maneuver. And, CNM Speers testified if a 5 vaginal hand maneuver had occurred, it likely would have been documented in the 6 medical records. (Doc. 117 at 26.) Dr. Eiser testified she had been in the operating 7 room prepared to receive I.A. on the side of the drape where she could see the 8 surgical field, she watched the C-section closely, and she did not recall a vaginal 9 hand maneuver being used. (Doc. 132 at 24, 113–14.) 10 The Court finds a vaginal hand maneuver—the only maneuver Plaintiffs 11 allege was used in this case—was not used. Although Emily testified at her 12 deposition and at trial she remembered Dr. Harmon mentioning someone had 13 been pushing from below, she could not testify to what actually occurred during 14 the C-section because she had been lying on the operating table and her view was 15 completely blocked by the drape. Similarly, although Justin’s testimony described 16 circumstances indicating he had perceived the use of a vaginal hand maneuver, 17 he also had a limited view of the surgical field because he was standing near 18 Emily’s head. Accordingly, because no vaginal hand maneuver was used, I.A. did 19 not have an “impacted fetal head” per Plaintiffs’ own definition of the term. 20 In sum, Plaintiffs fail to establish by a preponderance of evidence Dr. 21 Harmon breached the standard of care by using excessive force to dislodge I.A.’s 22 head from Emily’s pelvis during the C-section. In any event, even if I.A. had an 23 “impacted fetal head” and the vaginal hand maneuver did occur, the Court would 24 still find Dr. Harmon did not breach the standard of care. Testimony by Plaintiffs’ 25 own experts establishes use of the maneuver would have been consistent with the 26 standard of care. In fact, the article Plaintiffs submitted into evidence explicitly 27 calls for additional maneuvers such as a vaginal hand maneuver to dislodge an 28 impacted fetal head. (P-45.) And Dr. Gubernick’s testimony that I.A.’s skull 1 fracture was caused by Dr. Harmon’s use of excessive force during the C-section 2 implies she should have used a vaginal hand maneuver to mitigate such additional 3 force. (Doc. 112 at 49–50, 100.) Were the Court to find I.A. had an “impacted fetal 4 head,” the Court would find the use of a vaginal hand maneuver appropriate.17 5 b. Causation 6 As noted, on January 2, 2021, I.A. was diagnosed with a comminuted skull 7 fracture—a fracture in which the skull bone breaks into three or more pieces—and 8 permanent brain injury. Plaintiffs assert I.A.’s skull fracture was caused by Dr. 9 Harmon’s use of excessive force to extract I.A.’s head from Emily’s pelvis during 10 the C-section. As discussed above, the Court finds none of the care providers 11 breached the applicable standards of care in this case. Even if such a breach had 12 occurred, the Court finds the weight of the evidence indicates I.A.’s injuries did not 13 occur at birth.18 Evidence presented at trial regarding causation of I.A.’s skull 14 fracture and brain injury can be broken down into two categories: (1) the timing of 15 the presentation of I.A.’s symptoms and (2) the likelihood that use of force during 16 a C-section with a delivering hand alone could have resulted in I.A.’s injuries. 17 Both parties presented evidence regarding the timing of I.A.’s symptoms 18 related to her skull fracture and brain injury. Plaintiffs assert I.A.’s injuries occurred 19 at birth and certain symptoms began presenting after discharge from the hospital. 20 In support of their theory, Plaintiffs presented expert testimony from Dr. Glass, their 21 primary neurology expert, that I.A. had manifested signs of a head injury from birth. 22 (Doc. 119 at 11.) He based much of his opinion on the “swelling . . . evident at 23 17 Under Plaintiffs’ theory and definition of “impacted fetal head,” the only 24 way a breach could have occurred is if I.A. had an impacted fetal head and Dr. Harmon did not use a vaginal hand maneuver. Plaintiffs have not alleged this 25 scenario and instead presented evidence that a vaginal hand maneuver did occur. 26 The Court does not address arguments not advanced by Plaintiffs. 18 Because the Court finds insufficient evidence to support Defendant’s child 27 abuse theory, the Court intentionally omits a discussion of I.A.’s rib and ulna 28 fractures and testimony about nonaccidental trauma. The Court will focus its discussion on Plaintiffs’ evidence and theories. 1 birth in the form of bruising and discoloration in the area of the frontal parietal 2 region.” (Id. at 11.) Additionally, based on statements Emily made to Dr. Glass, 3 Dr. Glass testified I.A. was “largely listless, lethargic and sleeping for very long 4 periods of time during the day” and was “[a]wake for only 15 minutes at a time” 5 following discharge from the hospital. (Id. at 9–10.) Although Dr. Glass recognized 6 I.A.’s clinical symptoms were relatively mild, he explained I.A. had exhibited 7 symptoms of a neurologic injury throughout her first three weeks of life. However, 8 Dr. Glass admitted on cross-examination I.A. was not encephalopathic—meaning 9 she did not exhibit signs of brain disease or malfunction—at birth. (Id. at 56.) 10 Dr. Mack, Plaintiffs’ primary radiology expert, concluded I.A.’s skull fracture 11 was weeks old when she came to the emergency room on January 2 because of 12 what Dr. Mack perceived to be signs of ossification or calcification, her 13 characterization of the edges of the fracture, and the lack of soft tissue swelling 14 visible on brain imaging scans. Dr. Mack also testified I.A.’s scans revealed a large 15 blood clot near I.A.’s skull fracture and presentation of symptoms of a blood clot 16 can be delayed after a traumatic event. She also noted the scans showed bleeding 17 in the functional tissue of I.A.’s brain. She discussed a scenario in which all of 18 these findings could be dated back to the time of birth. Dr. Mack testified she had 19 not reached her conclusions based on what she had learned in medical school, 20 residency, and fellowship because the anatomy she was taught did not explain this 21 phenomenon. Rather, she performed additional research to reach her 22 conclusions. Additionally, Dr. Sims, Plaintiffs’ neonatology expert, testified the 23 evidence, viewed in retrospect, indicated I.A. had exhibited signs of birth trauma 24 throughout the first hours and weeks of her life. She opined if I.A. had sustained 25 a brain injury at birth, it would explain her development of symptoms such as 26 lethargy and feeding issues in the weeks before her hospitalization on January 2. 27 For the defense, Dr. Eiser, the pediatric physician treating I.A. immediately 28 after birth, noted “significant” bruising on I.A.’s head but found no evidence of soft 1 tissue swelling prior to her discharge from the hospital. (Doc. 132 at 39, 41, 106, 2 110.) Almost all experts agreed an acute injury of this nature would show swelling 3 within 48 hours. Dr. Eiser explained her use of the term “significant” to describe 4 I.A.’s bruising does not indicate swelling or abnormally severe or large bruising but 5 instead denotes the bruising could be clinically observed and may become 6 clinically relevant. (Id. at 41.) Dr. Eiser also testified she would have obtained 7 head imaging had she observed swelling of soft tissue on I.A.’s head. (Id. at 107.) 8 She further testified, upon her examinations of I.A. immediately after and in the 9 days following her birth, I.A. was healthy, her nervous system was functioning 10 appropriately, her bruising was resolving, and her reflexes were intact. Dr. Eiser 11 testified if babies have significant brain trauma or a traumatic birth, their normal 12 neurologic reflexes would not be intact. (Id. at 52–53, 83.) Additionally, Dr. Hydrick 13 testified regarding his examinations of I.A. at her well-baby visits on December 15 14 and 30. His notes indicate I.A. was “[m]eeting developmental milestones 15 appropriately” and “[f]eeding, voiding, and stooling appropriately for [her] age.” (D- 16 8 at 13, 14.) Dr. Hydrick’s notes also indicate Emily had reported I.A. was “feeling 17 fine” and expressed no concerns about lethargy or listlessness. (Id. at 14.) 18 Dr. Wusthoff, Defendant’s primary pediatric neurology expert and the only 19 expert holding a board certification in epilepsy, opined I.A. was not 20 encephalopathic at birth and her brain injury had occurred seven to ten days prior 21 to I.A.’s presentation at the emergency room on January 2 based on imaging 22 scans. Unlike any other experts in this case, Dr. Wusthoff discussed the timing of 23 I.A.’s seizures as it relates to when her brain injury occurred. She testified babies 24 with brain injuries resulting from skull fractures present with signs of neurologic 25 injury such as seizures or encephalopathy, and such signs typically appear within 26 24 to 72 hours after a brain injury. As such, Dr. Wusthoff concluded I.A.’s 27 symptoms in the days leading up to her hospitalization—including her difficulty 28 feeding, lack of alertness or responsiveness, and eye twitching/seizures—all 1 indicate I.A. had sustained an acute brain injury in the week preceding her 2 hospitalization. 3 Dr. Sze, Defendant’s neuroradiology expert, concluded, after reviewing 4 imaging scans, I.A.’s skull fracture had occurred within approximately ten days of 5 January 2. (Doc. 114 at 38, 74–75.) While Dr. Sze testified he could not rule out 6 Dr. Mack’s finding of ossification, he provided another explanation for the imaging 7 results, noting the lighter areas on the scans Dr. Mack thought were ossification 8 could have been blood and testified a clear finding of ossification is not as 9 consistent with the totality of the medical evidence he had reviewed. (Id. at 67– 10 68, 81.) Specifically, Dr. Sze showed an MRI image and explained the bright areas 11 around I.A.’s fracture ruled out the possibility I.A.’s injuries had occurred at birth 12 because the brightness on the scans could only remain for a maximum of ten days 13 following injury. (Id. at 31–32, 35.) Dr. Goldsmith, Defendant’s neonatology 14 expert, testified I.A.’s symptoms at the emergency room did not indicate her 15 injuries had occurred at birth. 16 With respect to whether the force used to extract a baby’s head during a C- 17 section could cause the type of injuries I.A. sustained, Dr. Gubernick affirmatively 18 testified I.A.’s skull fracture had been caused by the force of Dr. Harmon’s 19 delivering hand on her head during the C-section. He pointed to the fact that I.A. 20 had significant bruising upon delivery in the very spot where the skull fracture was 21 subsequently diagnosed. (Doc. 112 at 54.) Dr. Glass testified I.A.’s brain trauma 22 and seizures were a consequence of Emily’s prolonged second stage of labor and 23 Dr. Harmon’s forceful extraction of I.A. during the C-section. (Doc. 119 at 7.) 24 Despite having hundreds of years of collective medical experience, none of 25 the treating providers or expert witnesses testified they had ever personally 26 encountered a case involving a comminuted skull fracture caused during delivery 27 by C-section. For Defendant, Dr. Carroll testified he has never personally seen or 28 read about a case of a skull fracture caused by a C-section, even where an 1 impacted fetal head was involved, despite being tasked to review any abnormal 2 outcomes in 50,000 to 60,000 births across multiple institutions. Some experts 3 indicated there are case reports of comminuted skull fractures resulting from 4 extraction by C-section, but the only report actually discussed at trial involved the 5 use of instrumentation, such as a vacuum or forceps. Dr. Manning testified there 6 has been no case of a comminuted skull fracture caused only by the force of a 7 delivering hand. (Doc. 116 at 63–64.) He concluded, based on certain scientific 8 principles, it is improbable an obstetrician could apply enough force on the head 9 to cause a comminuted fracture. (Id. at 66–68.) Similarly, based on his review of 10 relevant medical literature, Dr. Goldsmith concluded it would be statistically 11 improbable for I.A.’s injuries to have occurred at birth. Notably, although testifying 12 for Plaintiffs, Dr. Gubernick, in all his experience, could not remember or point to 13 any case in medical literature where a skull fracture of any type had occurred 14 during a C-section. (Doc. 112 at 92–93.) And Dr. Sims stated she has never seen 15 the type of fracture suffered by I.A. caused by delivery without instrumentation 16 despite her extensive experience with high-risk deliveries. 17 The Court finds it highly improbable that multiple healthcare providers would 18 have missed I.A.’s skull fracture if it had been sustained at birth. Dr. Eiser 19 examined I.A. immediately after birth and in the days following. If I.A.’s skull had 20 been fractured at that point, Dr. Eiser would have been able to feel the fractured 21 parietal bone during one of her three exams of I.A. (Doc. 132 at 35–38.) Further, 22 although Dr. Glass initially testified I.A.’s head was swollen at birth in the location 23 of the bruising, his testimony seems to conflate swelling with bruising. While it is 24 undisputed I.A. had bruising on her head when she was born, the medical records, 25 testimony of treating physicians, and Dr. Glass’s own testimony on rebuttal indicate 26 I.A.’s bruising was flat and showed no signs of soft tissue swelling. Even assuming 27 normal swelling or molding of I.A.’s head immediately after birth had prevented Dr. 28 Eiser from detecting the fracture, the fact no treating provider in the first three 1 weeks of I.A.’s life was able to detect the fracture weighs against Plaintiffs’ theory 2 the fracture had been present since birth. And, although Dr. Gubernick testified 3 the bruising on I.A.’s head immediately after she was born indicated her skull 4 fracture and brain injury had occurred at birth, he also testified “lots of babies have 5 bruising” following normal deliveries and it is not necessarily an indication of 6 serious injury. (Doc. 112 at 56–57.) 7 Moreover, the Court is unconvinced I.A.’s symptoms would have been so 8 delayed had the injury occurred at birth. During multiple encounters with 9 healthcare providers throughout I.A.’s first three weeks of life, Emily and Justin 10 brought I.A. to her appointments and had the opportunity to report any concerns. 11 Until Emily brought I.A. to the emergency room on January 2, neither she nor Justin 12 had expressed any concerns about abnormalities on their daughter’s skull aside 13 from bruising and had not reported any symptoms suggesting she had sustained 14 a traumatic brain injury. The concerns they did have, including difficulty feeding 15 and high bilirubin levels, are common occurrences in newborns within their first 16 few weeks of life. While Dr. Glass opined I.A. had exhibited symptoms of head 17 trauma at birth, that conclusion was based on conversations he had with Emily 18 rather than evidence in I.A.’s medical records. Overall, Dr. Glass lacked the ability 19 to distill his medical opinions into a cohesive explanation tying I.A.’s injuries to the 20 time of her birth. And, Dr. Mack’s testimony that it is possible for the onset of 21 symptoms to be delayed after injury was not based on what she had learned 22 throughout the course of her medical education and is inconsistent with the type 23 of injuries I.A. sustained in this case. 24 In contrast, Dr. Wusthoff’s explanation of the timing of I.A.’s symptoms—and 25 resulting conclusion the injuries occurred, at most, seven to ten days before 26 January 2—comports with the totality of the evidence in this case. Her testimony 27 regarding the timing of I.A.’s seizures relative to when the injury was sustained is 28 especially persuasive considering she was the only qualified expert on that issue. 1|| And Dr. Wusthoff’'s opinions based on the timing of I.A.’s symptoms are also consistent with what the imaging evidence showed. Indeed, Dr. Sze came to the same conclusion upon reviewing I.A.’s MRI. Although Plaintiffs’ radiology expert, 4|| Dr. Mack, testified I.A.’s injuries could have been sustained at birth based on what 5|| she believed was calcification or ossification at the fracture site, Dr. Sze instead 6|| explained the brightness on the scan indicated the injuries could not be older than 7\| ten days and therefore what appeared to be calcification was more likely blood. || For the foregoing reasons, the Court finds Plaintiffs have not shown Dr. Harmon 9|| caused I.A.’s injuries during the C-section. 10 IV. CONCLUSION 11 Based on the totality of the evidence, and giving credence to all experts’ opinions, although not equal weight, the Court finds Plaintiffs have not proven their claims by a preponderance of the evidence. Given the extensive injuries □□□□ 14|| presented with on January 2, 2021, as testified to by both Plaintiffs’ and || Defendant’s experts, it strains credulity to find that such injuries occurred at birth 16|| but did not have any medically significant manifestation for approximately twenty 17|| days. Therefore, 18 IT IS ORDERED Defendant is entitled to judgment in its favor. 19 IT IS FURTHER ORDERED the Clerk of Court shall enter final judgment || accordingly. 21 Dated this 6th day of November, 2025. 22 23 /) “tt Taal 26 27 28

-31-