Ford v. Eicher

In Ford v. Eicher, 220 P.3d 939, 945 (Colo. App. 2008, cert. granted), the delivery at issue involved shoulder dystocia. Id. at 941. The defendant doctor testified that he used the McRoberts maneuver and suprapubic pressure to dislodge the impacted shoulder, and then applied traction to deliver the baby. Id. at 942. The baby was diagnosed with a "brachial plexus injury to the right shoulder." Id. In a subsequent medical malpractice action, the plaintiff asserted (among other things) that the defendant doctor applied excessive traction to deliver the baby. Id. The jury returned a verdict for the plaintiff after the court granted the plaintiff's pretrial motion to preclude two defense experts from expressing opinions regarding the cause of the baby's injury, and the defendant doctor appealed. Id. Applying admissibility standards that parallel those used in Texas, the court of appeals reversed the trial court's judgment and remanded for a new trial because the trial court abused its discretion in excluding causation testimony from the defendant doctor's experts. Id. at 943-48. The experts were prepared to testify that the injury to the baby's right brachial plexus "occurred prior to Dr. Eicher's efforts to deliver the anterior shoulder;" that her "injury was not caused by anything that Dr. Eicher did or didn't do;" and that "a planned caesarian section would not necessarily have prevented injury to her." Id. at 943. In holding that the trial court erred by excluding the challenged expert opinions as being scientifically unreliable, the court of appeals stressed that the trial court applied an incorrect legal standard. Id. at 944. "Instead of evaluating whether the theory propounded . . . was reasonably reliable . . . the trial court determined which medical theory of causation was more plausible." Id. "This is beyond the trial court's gatekeeping function." Id.