IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
L.M., a minor, by and through his No. 76019-0-1 Guardian ad Litem, WILLIAM L.E. DUSSAULT, DIVISION ONE
Appellant,
V. Ca? LAURA HAMILTON, individually and her UNPUBLISHED marital community; LAURA HAMILTON LICENSED MIDWIFE, a Washington FILED: August 28, 2017 business,
Respondents.
Cox, J. — Frye v. United States1 is implicated only where "'either the
theory and technique or method of arriving at the data relied upon is so novel that
it is not generally accepted by the relevant scientific community.'"2 In this
professional negligence action, the record shows that neither the theory and
techniques nor methods at issue are novel. Thus, Frye. is not implicated in
whether to admit the natural [maternal]forces of labor(NFOL)evidence of
1 54 App. D.C. 46, 293 F. 1013(D.C. Cir. 1923).
2 Lakev v. Puget Sound Energy, Inc., 176 Wn.2d 909, 919, 296 P.3d 860 (2013)(quoting Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 611, 260 P.3d 857(2011)). No. 76019-0-1/2
causation. And this evidence satisfies the requirements of ER 702, as being
helpful to the jury. The trial court properly admitted NFOL evidence.
Likewise, the trial court did not abuse its discretion under ER 702 by
admitting a biomechanical engineer's testimony, subject to certain limitations,
concerning the biomechanics of labor. And it did not abuse its discretion in
excluding a medical expert who treated the child but who was not qualified to
testify on causation of his injuries. Finally, the trial court properly exercised its
discretion in granting the renewed motion to change venue to Lewis County.
We affirm.
Midwife Laura Hamilton delivered L.M. in Lewis County. Shortly after his
birth, he was diagnosed with avulsion and rupture damage to five nerve roots in
his brachial plexus. As a result, he has limited functional use of his arm and
suffers continuing pain.
L.M., through his guardian ad litem, brought this action in King County
against Hamilton, her business entity, and Joint Underwriters Association of
Washington State (JUA). The latter entity is the statutorily created program that
provides medical malpractice insurance to midwives. He later added Midwifery
Support Services (MSS), JUA's administrative service company, as an additional
defendant.
The trial court granted summary judgment, dismissing the claims against
JUA and MSS. Thereafter, the court granted Hamilton's renewed motion to
change venue to Lewis County, the county of residence of the principals in this
litigation and the location of L.M.'s delivery.
2 No. 76019-0-1/3
L.M. claimed that Hamilton was professionally negligent in performing his
delivery. L.M. moved in limine to exclude testimony from Hamilton's experts that
NFOL caused his injury. The trial court granted that motion.
Hamilton moved for reconsideration, submitting additional expert
declarations. The trial court granted this motion, permitting evidence at trial of
NFOL as a cause of the injuries.
The trial court also ruled in limine, over L.M.'s opposition, that the
testimony of biomechanical engineer Dr. Alan Tencer, subject to certain
limitations, could be admitted. Dr. Tencer does not hold a medical degree. His
testimony addressed the different levels of external and internal forces on the
mother that affect delivery.
At trial, the jury returned a verdict in Hamilton's favor. The trial court
entered judgment on that verdict.
L.M. appeals.
FRYE AND NATURAL FORCES OF LABOR
L.M. argues that the trial court improperly admitted expert testimony
regarding the NFOL theory of causation. We disagree.
Scientific expert testimony is admissible only if it satisfies both the Frye
test and ER 702.3 Frye excludes such testimony where 'either the theory and
technique or method of arriving at the data relied upon is so novel that it is not
generally accepted by the relevant scientific community."4 But unanimity is not
3 Id. at 918.
4 Id. at 919 (quoting Anderson, 172 Wn.2d at 611).
3 No. 76019-0-1/4
required.5 If the theory or method has general scientific consensus, its
application to reach novel conclusions as to causation does not implicate Frve.6
For example, expert medical testimony can be admissible even if it reflects
"pure opinions and [is] based on experience and training rather than scientific
data."7 To require that each and every such conclusion independently satisfy
Frye would allow "virtually all opinions based upon scientific data [to be] argued
to be within some part of the scientific twilight zone."5
Put simply,"Frye does not require that the specific conclusions drawn
from the scientific data upon which [an expert] relied be generally accepted in the
scientific community. Frye does not require every deduction drawn from
generally accepted theories to be generally accepted."9
ER 702 excludes expert testimony that fails to adhere to that methodology
or assist the jury.1°
We review de novo a trial court's exclusion of evidence under Frve.11 We
review for abuse of discretion a trial court's admission of expert testimony.12 "A
5 Anderson, 172 Wn.2d at 603. 6 Lakev, 176 Wn.2d at 920.
7 Anderson, 172 Wn.2d at 610.
8 Id. at 611.
9 Id.
19 Lakev, 176 Wn.2d at 919. 11 id.
12 Id.
4 No. 76019-0-1/5
trial court abuses its discretion by issuing manifestly unreasonable rulings or
rulings based on untenable grounds."13
Here, the parties dispute whether Frye requires that the scientific
community generally accept that NFOL can cause the specific sort of brachial
plexus injury (BPI) L.M. suffered. They also dispute whether such evidence is
otherwise admissible.
The brachial plexus is a network of nerves that connects the spinal cord to
the muscles and skin of the shoulder and arm. Damage to the brachial plexus
can cause BPIs, either transient or permanent, which can lead to neonatal
brachial plexus palsy (NBPP), characterized by movement loss or weakness of
the arm. BPIs can take a number of forms,from temporary stretching to rupture
(tearing in the nerve) or avulsion (tearing of the nerve from its spinal cord root).
Expert testimony on the level of acceptance the medical community has
afforded NFOL was given in numerous declarations from obstetric providers,
both M.D.s and midwives. These experts reviewed the labor and delivery
records as well as video of L.M.'s birth, relevant depositions and declarations of
other experts, and other scholarly literature.
For example, midwife Beth Coyote explained that it was commonly
"know[n]that babies can have permanent brachial plexus injuries caused by the
natural forces of labor."14 Dr. Elizabeth Sanford testified that "[i]t is agreed that
permanent brachial plexus injuries can be caused by the natural forces of
13 id.
14 Clerk's Papers at 2653.
5 No. 76019-0-1/6
labor."15 Such BPIs include ruptures and avulsions of the type L.M. suffered. Dr.
Thomas Collins testified that "Where is a general consensus in the medical
community that permanent brachial plexus injury can occur due to the natural
forces of labor and delivery.9,16
Dr. David DeMott also testified that no evidence supports the contention
that more force is required to cause an avulsion or rupture BPI than an intact
stretch or that "a permanent brachial plexus injury cannot be caused by the same
mechanisms as a temporary injury."17 The only difference, he testified, was of
degree. By contrast, he noted that the relevant literature "does describe
permanent injury to the brachial plexus as a result of maternal forces of labor."18
L.M. also provided testimony from similarly qualified experts who
disagreed about the relevant scientific consensus.
Dr. Howard Mandel testified that while NFOL alone could cause stress
BPIs, it could not cause a brachial plexus avulsion or rupture "without excessive
manual traction by the delivering provider."19
15 Id. at 2663.
16 Id. at 2674.
17 Id. at 2924.
19 Id. at 1839.
19 Id. at1641.
6 No. 76019-0-1/7
But, upon deposition, Dr. Mandel conceded that he could not cite a single
study supporting his opinion. He further admitted he had not "done any research
on nerve avulsion or specific reading on it in over ten years."2°
Nurse Pamela Kelly had "never heard of nor read any medical literature
that says avulsion and ruptures of the brachial plexus nerve roots of an
otherwise normal newborn can occur by way of the natural forces of nature."21
Rather, she posited such damage could "occur only from the application of
excessive manual traction by the delivering provider."22
Dr. Stephen Glass examined L.M. at 5 years old. He testified that:
[t]he current medical literature suggests that the occurrence of transient stretch-type brachial plexus injuries in newborns can occur spontaneously in utero without manual traction (pulling) to the head, but avulsion injuries are caused only by application of excessive manual traction of the delivering provider while trying to alleviate the shoulder dystocia.[23]
He also explained that "no meaningful scientific studies... have measured the
forces necessary to cause a brachial plexus injury compared with the forces
exerted by a laboring mother."24
Courts may also consider peer reviewed scientific literature.25 Hamilton's
experts, in particular Dr. DeMott, reviewed and presented this literature at length.
20 Id. at 1511, 1690.
21 Id. at 1656.
22 Id.
23 Id. at 1672.
24 Id.
25 Eakins v. Huber, 154 Wn. App. 592, 599, 225 P.3d 1041 (2010). 7 No. 76019-0-1/8
Dr. DeMott traces the evolution of thinking on the issue in Williams
Obstetrics, a preeminent authority in the field. The 21st volume of that treatise
had posited that BPIs "usually result[] from downward traction on the brachial
plexus during delivery of the anterior shoulder."26 By the 24th edition, published
in 2014, the textbook had begun to explain that even severe plexopathy could
occur without risk factors associated with traction or other iatrogenic applied
forces.
Another textbook entitled Precis, published by the American College of
Obstetricians and Gynecologists (the "ACOG"), the licensing board in that
discipline, is also helpful and relied upon by the defense experts. The 4th edition
of Precis explains that where past textbooks had stressed the excessive traction
theory, more recent thought "supported the concept that most brachial plexus
palsies are not caused by the [midwife]."27
The ACOG also issued an important report in 2014 entitled Neonatal
Brachial Plexus Palsy. This report discusses anterior shoulder NBPP to explain
that an infant with low injury tolerance might suffer transient or persistent NBPP
due to NFOL absent obstetric maneuvers. It includes many statements
"indicat[ing] that it is not simply clinician-applied traction that is responsible for
[brachial plexus] injuries."28 This report is relevant not only for its substance but
28 Clerk's Papers at 1990.
27 Id. at 1841.
28 Id. at 1913.
8 No. 76019-0-1/9
for its widespread acceptance. It has been endorsed by many Gynecological-
Obstetrical organizations in the United States and worldwide.
Dr. DeMott also discusses other peer reviewed articles on the subject.
For example, a 2012 article, Severe Brachial Plexus Palsy in Women Without
Shoulder Dvstocia, published in Obstetrics & Gynecology, states that the results
of several permanent NBPP cases "corroborate that factors other than traction
applied at delivery... had to have been responsible."29
Courts may also look to the example of other jurisdictions that have
considered the guestion.3° Such precedents offer further perspective, not so
much on other legal analyses, but on discussion in the scientific community.31
Hamilton presented several such cases in her motion for reconsideration.
Many of these cases hold that the NFOL theory is generally accepted
based on the same medical authorities cited here. In Luster v. Brinkman, the
Colorado Court of Appeals relied on the growing "body of literature finding that
intrauterine forces can cause brachial plexus injuries."32 That literature includes
a favorable reference to the Precis textbook. Similarly, the Illinois Court of
Appeals, in Ruffin ex rel. Sanders v. Boler,33 reached the same result based on
29 Id. at 1846.
3° Eakins, 154 Wn. App. at 599. 31 Id. at 600.
32 205 P.3d 410,415 (Colo. App. 2008).
33 384 III. App.3d 7, 890 N.E.2d 1174 (III. App. Ct. 2008); see also Stapleton ex rel. Clark v. Moore, 403 III. App.3d 147, 153-54, 932 N.E.2d 487 (III. App. Ct. 2010).
9 No. 76019-0-1/10
Precis, Williams Obstetrics, and articles published in the American Journal of
Obstetrics and Gynecology. The Louisiana Supreme Court held likewise in
Salvant v. State.34
Some cases have discussed a common critique of the data underlying the
NFOL theory of causation. Aside from artificial modeling and similar studies,
much of the research is retrospective. "[R]etrospective study analyzes existing
medical records" while prospective study allows for the most systemic
determination of testing parameters.35 Retrospective studies are often
considered less reliable "because of the potential for inclusion of inaccurate,
incomplete[,] or inconsistent information in the records being reviewed."36
The Texas Court of Appeals explained why this reliability concern does
not, by itself, justify exclusion of NFOL causation evidence in Taber v. Roush.37
It began by rejecting the argument that the NFOL theory was inadmissible simply
because it was not prospectively testable.38 It explained that "ethical
considerations... preclude a prospective study subjecting mothers and babies
to potential injury while measuring excessive traction."39 Faced with such issues,
it held that such a hypothesis if "supported by reliable data and methodology"
34 935 So.2d 646 (La. 2006).
36 Taber v. Roush, 316 S.W.3d 139, 152 (Tex. App. 2010).
36 Id.
37 316 S.W.3d 139(Tex. App. 2010).
38 Id. at 159.
36 Id. at 152.
10 No. 76019-0-1/1 1
may still be found generally accepted in the scientific community.4° Peer
reviewed literature from ACOG provided sufficient support for such data and
methodology.41
While the cases cited in other jurisdictions generally support admission of
experts testifying about the NFOL theory of causation, they are not unanimous.
Two recent New York cases reach different conclusions.
In the first, Muhammad v. Fitzgatrick,42 the Appellate Division of the New
York Supreme Court affirmed a trial court's exclusion of such evidence under
Frye. It did not provide extensive reasoning because the "defendants failed to
rebut plaintiff's showing that their theory was not generally accepted within the
relevant medical community."43 This is not very helpful.
In the second case, Nobre v. Shanahan,44 the defendants made a
stronger showing and the court considered it at greater length. Specifically, they
cited articles in the Journal of Obstetrics and Gynecology, Williams, and ACOG
publications.45 The court concluded that the methodologies underlying the cited
research,"such as animal studies, medical literaturem and computer modeling"
40 Id. at 159.
41 Id.
42 91 A.D.3d 1353, 937 N.Y.S.2d 519(N.Y. App. Div. 2012).
43 Id. at 1354.
44 42 Misc. 3d 909, 976 N.Y.S.2d 841 (N.Y. App. Div. 2013).
45 Id. at 918.
11 No. 76019-0-1/12
had general acceptance."46 In light of this data, the court could not "conceive
how a theory that has been studied, tested[,] and debated for more than 20 years
can be deemed to be novel."47
In that case, the plaintiffs conceded that NFOL could cause temporary
BPIs but not permanent ones.45 The court described the specific question in the
case, whether NFOL could cause permanent BPIs, as "simply a further
refinement on a much-debated theory."43 Viewed in that light, the court
determined that "the factual disagreement ...'should not[be] resolved as a
matter of law by the [court] in the course of [a] Frye, inquiry.'"53 The court
distinguished Muhammad based on the weaker showing on general acceptance
in that case.51
Nobre ultimately declined to hold admissible expert testimony regarding
NFOL as a cause of permanent BPIs.52 Although it concluded the theory and
underlying methodology to be generally accepted in the scientific community,
other reliability concerns also arose.53 The court specifically discussed the
46 Id. at 922.
47 Id.
48 Id.
49 Id.
69 Id. at 924 (quoting Lupo v. New York City Health & Hosps. Corp., 89 A.D.3d 42,62, 929 N.Y.S.2d 264(N.Y. App. Div. 2011)). 51 id.
62 Id. at 929-30.
63 Id. at 927-29.
12 No. 76019-0-1/13
impossibility of controlled prospective testing on causation, "given the moral and
ethical constraints imposed by our society against using live infants as guinea
pigs."54 Although the court respected these concerns, it disagreed with the cases
that concluded that ethics concerns excuse the "analytic gap" between
theoretical retrospective research and a permanent BPI.55 Without scientific
evidence explaining specific causation, even a differential diagnosis was
unreliable.56
But the Taber court was able to reconcile the same analytical gap. It
specifically discussed the "analytical gap" that lay "between non-specific brachial
plexus injuries discussed in the literature and the particular avulsion injury [the
plaintiff] suffered."57 The parties in that case provided alternative mechanisms to
bridge that gap: NFOL or excessive traction.59 The court explained that the trial
court's role was not to judge which "has more medical merit" but to rather act as
gatekeeper and admit the relevant evidence if reliable.59 On this basis, it
admitted the NFOL evidence.
Here, the trial court, on reconsideration, reviewed these extensive
declarations, scientific authorities, and cases from other jurisdictions. It correctly
64 Id. at 927.
55 Id. at 928.
66 Id. at 929.
67 Taber, 316 S.W.3d at 153.
68 Id. 59 Id.
13 No. 76019-0-1/14
explained that it was the methodologies and theories underlying the experts'
testimony that must have general acceptance in the scientific community, not
their "ultimate opinion as to what caused the damage."66 It recognized that many
of these sources did not discuss avulsions directly. But they considered
permanent BPIs and, as such, provided "enough there for [the NFOL theory] to
go through to the jury."61
The trial court also examined the disagreement between Taber and the
New York cases, namely whether the ethical dilemmas posed by prospective
testing excuse the absence of such research. The trial court agreed with Taber.
It granted Hamilton's reconsideration motion and admitted the evidence for trial,
allowing L.M.'s counsel to challenge it on cross-examination.
In ruling as it did on reconsideration, the trial court properly fulfilled its
gatekeeper function and properly determined that Frye was not implicated.
Extensive peer-reviewed literature supports the theory that NFOL may cause
BPIs. Numerous experts and other courts agree.
L.M. argues the trial court erred by concluding that the scientific
community generally accepts the NFOL theory of causation despite express
statements of uncertainty in Hamilton's cited literature. For example, the 2014
ACOG report states that the "estimate of the force needed to cause a nerve
rupture cannot be directly established" at the current state of research.62
60 Report of Proceedings (October 12, 2015) at 26. 61 Id. at 28.
62 Clerk's Papers at 1917.
14 No. 76019-0-1/15
Hamilton also cites an article by Dr. Daniel T. Alfonso that discusses "a lack of
precision in the literature."63 This argument is unpersuasive.
As our supreme court recently stated, "science never stops evolving and
the process is unending."64 Thus, while "[l]aw must resolve disputes finally and
quickly, . .. science may consider a multitude of hypotheses indefinitely.'"65 It is
to be expected that a scientific theory, even if generally accepted and helpful to
the jury, will still have doubters in the scientific community. And experts
expressing it may properly note these concerns. If a trial court required an
"exacting level of scientific certainty to support opinions... [it] would, in effect,
change the standard for opinion testimony in civil cases."66
Here, the doubts are similar. The NFOL theory, like any other in science,
is imperfect. In recent decades, the consensus on the roles of NFOL versus
traction has shifted. Unsurprisingly, many experts, including those in this case,
disagree. And the specific nature of this issue raises special concerns. Reliable
prospective testing is impossible at this time, given the risk of injury it would pose
to mothers and infants. As such, the scientific community can ascertain that
NFOL can and does cause BPIs. It is more divided on whether it can and does
63 Id. at 2037.
64 Anderson, 172 Wn.2d at 607.
65 Id. (quoting Lee Loevinger, Science as Evidence, 35 JURIMETRICS J. 153, 177(1995)).
66 Id. at 608.
15 No. 76019-0-1/16
cause certain avulsions and ruptures. An analytical gap thus exists, apparent to
scientists and courts alike.
But this gap goes to the weight, not admissibility, of this evidence. The
trial court properly determined that Frye did not require exclusion of the NFOL
evidence of causation.
Helpful to the Trier of Fact
L.M. also argues that the challenged testimony would not be helpful to the
trier of fact. Specifically, he contends that nothing in the research or record link
NFOL to an injury of the sort he suffered, a permanent five-point avulsion or
rupture. We disagree.
Washington courts have provided extensive guidance on what renders
expert testimony helpful. An expert's testimony is helpful if it assists the jury in
"understanding matters outside the competence of ordinary lay persons."67 And
the court gauges the extent of that helpfulness on what the parties bear the
burden of proving or disproving in a particular claim.° Further, the expert must
also "ground his or her opinions on facts in the record."69
Colley v. Peacehealth7° is instructive. That case arose out of a medical
negligence claim after Lewis Colley suffered alleged brain damage that he
67 Id. at 600.
68 See Colley v. Peacehealth, 177 Wn. App. 717, 728-29, 312 P.3d 989 (2013).
69 Volk v. DeMeerleer, 187 Wn.2d 241, 273, 386 P.3d 254 (2016). 70177 Wn. App. 717, 312 P.3d 989 (2013).
16 No. 76019-0-1/17
attributed to the Peacehealth Hospital's negligent care during an episode of
respiratory failure he suffered.71 Colley moved in limine to exclude evidence from
three experts he identified as defense witnesses on causation but whom he
argued had no opinions on causation.72
The first expert, Dr. Ralph Pascualy, identified "several factors besides
oxygen deprivation that could have caused" the alleged brain damage.73 Colley
argued this testimony should have been excluded unless Dr. Pascualy could say
definitively that oxygen deprivation was not the cause of the brain damage or
identify some other specified and certain cause.74
This court disagreed. It was Colley's burden to prove causation.75 The
Hospital did not have to either prove or disprove causation.76 Rather, it could put
forth Dr. Pascualy's evidence to attack the "premise" of Colley's case, by
explaining that "there could be other explanations for memory loss and it was not
possible to infer with certainty that Colley experienced serious oxygen
deprivation while at the hospital."77
71 Id. at 719-22.
72 Id. at 727.
73 Id. at 728.
74 Id.
75 Id. at 728-29.
76 Id.
77 Id. at 729.
17 No. 76019-0-1/18
Similarly here, L.M. bore the burden to prove that Hamilton's alleged
conduct caused his injury.78 Hamilton bore no such burden. She was entitled to
make her defense by attacking the premises of L.M.'s claim. The trial court
noted the important fairness of admitting the expert testimony to allow that
defense.
And Hamilton's experts based their opinions on application of generally
accepted theories to the particular facts of this case. As we stated, these experts
reviewed documentary and video records of L.M.'s birth, as well as deposition
and declaration transcripts from other experts. Each attested in light of their
expertise that Hamilton met the appropriate standard of care for a licensed
midwife.
Importantly, they noted specific features of L.M.'s birth that justified their
conclusions regarding NFOL and traction. Midwife Coyote referenced the "rapid
labor and particularly rapid second stage. The usual second stage in a first time
mother lasts about two hours. In this case it lasted just a few minutes."79 Based
on her observation, she characterized L.M.'s presentation at birth as "unusual."
She testified that he came out first "occiput anterior meaning the back of the
head was up, and then he restituted to left occiput anterior. Then he rotated 180
degrees on his own to right occiput anterior meaning he was facing the mother's
78 Miles v. Child Protective Services Dep't, 102 Wn. App. 142, 159-60,6 P.3d 112 (2000).
Clerk's Papers at 2652; see also Report of Proceedings (October 26, 79 2015)Testimony of Dolly Browder at 26.
18 No. 76019-0-1/19
left thigh."8° Based on these observations, she opined that nothing suggested
Hamilton applied excessive force and she alternatively suggested that NFOL
might have caused L.M.'s injury. Similarly, Midwife Dolly Browder concluded that
Hamilton "provided appropriate management of a fast first birth" and did not
apply excessive traction.
Dr. Sanford also stated that the video of the birth showed no evidence of
excessive traction but rather that Hamilton met the appropriate standard of care.
She provided several reasons that supported her conclusion that NFOL caused
L.M.'s injury. First, she cited the rapid second stage of labor. Second, she noted
that L.M.'s mother "pushed unusually hard as evidenced by broken vessels in her
eyes."81 Third, the video indicated L.M. rotated on his own.82 Based on these
observations, she opined that it was "most likely that [his injuries] occurred during
the descent and rotation of the second stage of labor just before delivery."83
NFOL and the mother's pushing "caused [the] baby's brachial plexus to be
stretched and pressed against the mother's pubic bone causing rupture and
avulsion of the brachial plexus."84
This testimony is helpful to the jury for several reasons. First, the
complexity of the subject, let alone the surrounding debate, place this information
88 Clerk's Papers at 2653.
81 Id. at 2664. 82 id.
83 Id.
84 id.
19 No. 76019-0-1/20
beyond the lay jury's competence. Second, this testimony was deeply relevant to
important issues in the litigation, namely allowing Hamilton to defend herself by
attacking the premises of L.M.'s causation theory that excessive traction caused
his injury. The trial court referenced this reason in its oral ruling. Third, these
experts grounded the application of their theories and expertise in a deep
consideration of the record and specific facts of the case. Because the lay jury is
untrained in the complexities of obstetrics and midwifery, these experts provided
helpful testimony in understanding what occurred.
For these reasons, the trial court did not abuse its discretion in granting
reconsideration and admitting the challenged testimony.
L.M. contends that such testimony is unhelpful because it relies upon
studies that do not differentiate between stretches, ruptures, or avulsion. This
argument is unpersuasive.
The supreme court considered a similar issue in Anderson v. Akzo Nobel
Coatings, Inc.85 In that case, Julie Anderson had been exposed to certain paint
toxins.88 She gave birth to a child suffering from certain medical abnormalities.87
At trial, the company that had exposed Anderson to the paint successfully moved
to exclude expert testimony linking paint exposure causally to the birth defects.88
85 172 Wn.2d 593, 260 P.3d 857(2011).
86 Id. at 597-98.
87 Id. at 598.
88 Id. at 599.
20 No. 76019-0-1/21
The supreme court reversed, concluding that the trial court improperly
required there "be scientific consensus that a specific type of exposure causes a
specific type of injury before expert testimony is admissible under Frvq."99
Instead, it emphasized, as discussed above, that expert opinion testimony is
admissible "if the science and methods are widely accepted in the relevant
scientific community... without separately requiring widespread acceptance of
the plaintiff's theory of causation."9° Thus, it was enough that the scientific
community generally accepted "that toxic solvents like the ones to which
Anderson was exposed are fat soluble, pass easily through the placenta and
dissolve into the amniotic fluid inside the uterus, and may damage the developing
brain of a fetus within the uterus."91 It was not necessary to show general
acceptance that this toxin caused this specific form of birth defect.92
Here, the relevant studies discuss at length the general acceptance that
endogenous NFOL can cause BPIs, both transient and permanent. Under
Anderson, this is sufficient. It was not necessary to show that a specific level of
NFOL had been shown to cause the specific sort of avulsion or rupture that L.M.
suffered. The jury, presented with helpful expert testimony, was required to
determine whether a causative link existed. It appears that it concluded there
was such a link.
89 Id. at 605.
99 Id. at 609.
91 Id. at 610.
92(Emphasis added.)
21 No. 76019-0-1/22
Prejudice
L.M. argues that the trial court prejudiced him by admitting this testimony
on reconsideration one week before trial. The record does not support this
argument.
This court will not reverse upon a trial court's decision to admit expert
testimony absent prejudice to the appellant.93
Here, the trial court granted reconsideration shortly before trial. But the
record shows that L.M. long knew of this theory of causation. Importantly, he had
deposed the experts on this theory and had their declarations. We do not see
any prejudice based merely on the proximity to trial of the court's ruling on
reconsideration.
BIOMECHANICAL FORCES OF LABOR TESTIMONY
Expert Qualification
L.M. next argues that the trial court abused its discretion in admitting Dr.
Tencer's biomechanical forces of labor testimony because he does not have a
medical degree. We disagree.
ER 702 requires that an expert providing opinion testimony be qualified.
An expert can be qualified "'by virtue of knowledge, skill, experience, training, or
Driggs v. Howlett, 193 Wn. App. 875, 903, 371 P.3d 61, review denied, 93 186 Wn.2d 1007(2016).
22 No. 76019-0-1/23
education.'"94 Thus, an expert's "practical experience" or "[graining in a related
field or academic background alone may also be sufficient."95
We review for abuse of discretion a trial court's decision whether to qualify
an expert.96
Washington courts have long applied this rule to permit otherwise qualified
nonphysicians to testify as to "causation, reasonable prudence, or underlying
facts tending to prove [those] ultimate facts" in medical malpractice actions.97
This reflects a recognition that "the line between chemistry, biology,...
medicine," and other related fields "is too indefinite to admit of a practicable
separation of topics and witnesses.'"98
Dr. Tencer has extensive training and experience in medical settings with
injuries to the spinal cord and nerve roots as well as the force levels necessary to
cause them. L.M. does not dispute this.
L.M. contends that Dr. Tencer impermissibly provided a medical causation
opinion. Not so.
94Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wn.2d 438, 449,663 P.2d 113(1983)(quoting 5A KARL B.TEGLAND, WASH. PRACTICE: EVIDENCE § 289 (1982)).
95 Id. (quoting 5A TEGLAND, SUIDra, § 289).
96 Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352,333 P.3d 388 (2014).
97 Harris, 99 Wn.2d at 450.
98 Id. (quoting 2 JOHN HENRY WIGMORE, EVIDENCE § 569, at 790 (rev. 1979)).
23 No. 76019-0-1/24
A non-medical expert like a biomechanical engineer may be qualified to
give certain opinions but not others. An opinion "that the maximum possible
force in this accident was not enough to injure a person" is not a medical
opinion.99 This is so because it includes no opinion about the injured person's
"symptoms or possible diagnosis from those symptoms.'yloo
Here, the trial court limited Dr. Tencer's testimony, precluding him from
testifying to causation. There is no evidence that he violated this restriction in his
trial testimony. Accordingly, we reject this argument.
Helpful to the Jury
L.M. also argues that the trial court abused its discretion in admitting Dr.
Tencer's testimony when it was not helpful to the jury. We disagree.
The trial court did not abuse its discretion in deciding Dr. Tencer's
testimony would be helpful to the jury in understanding the biomechanical forces
at play.
PLASTIC SURGEON'S TESTIMONY
L.M. argues that the trial court abused its discretion in excluding Dr.
Raymond Tse from testifying based on lack of qualification as an expert and the
cumulative nature of his testimony. We disagree.
Here, Dr. Tse testified by deposition that, because he had only a
"secondhand history of the birth," he could not give an opinion on the cause of
Ma'ele v. Arrington, 111 Wn. App. 557, 564,45 P.3d 557(2002). 100 Id.
24 No. 76019-0-1/25
L.M.'s BPI.101 He also testified that the "most common cause of brachial plexus
injury is traction in adults. In kids it's thought that it's kind of a traction injury as
well to the nerves.PP102 But he had not reviewed the "literature from the
[obstetrics] side to see what studies have been done in order to figure out how
these brachial plexus injuries occur."133
Based on such testimony alone, the trial court did not abuse its discretion
in precluding Dr. Tse from testifying. He could not testify as an expert because
he could not give a relevant expert opinion. Nor had he studied the relevant
literature. Thus, this testimony would not have been helpful to the jury and does
not satisfy ER 702. Accordingly, we need not reach the issue whether it was also
cumulative.
CHANGE OF VENUE
Lastly, L.M. argues that the trial court abused its discretion in granting
Hamilton's renewed motion to change venue to Lewis County. We disagree.
RCW 4.12.030(3) authorizes a trial court to change venue if, among other
reasons,"the convenience of witnesses or the ends of justice would be
forwarded by the change."
We review for abuse of discretion an order to change venue.134
131 Clerk's Papers at 4926-27.
102 Id. at 4938.
103 Id. at 4950.
104 Unger v. Cauchon, 118 Wn. App. 165, 170, 73 P.3d 1005 (2003).
25 No. 76019-0-1/26
Here, the King County superior court concluded that Lewis County was a
more proper venue because Hamilton and L.M. both resided in the latter county
and all relevant events occurred there. The trial court did not abuse its discretion
in considering the parties' home county a more convenient forum.
L.M. contends he could not receive a fair trial in Lewis County because of
the small size of the community. He argues that it would be impossible to
empanel 12 jurors who did not know Hamilton. This contention is speculative
and lacks evidence in the record.
L.M. further argues that the trial court paid inadequate attention to the
convenience of his counsel and out-of-state witnesses. We see nothing wrong in
the trial court giving more weight to the location of the principals than
convenience of counsel in this case.
We affirm the judgment on the jury verdict.
WE CONCUR:
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