Unity Bayer by her guardian ad litem, Vincent R. Petrucelli, Leah Bayer and Andrew Bayer, Plaintiffs-Respondents,
Brian D. Dobbins, M.D., MMIC Insurance, Inc., Prevea Clinic, LLC and DEF Insurance Company, Defendants-Appellants, John Alden Life Insurance Company, Involuntary-Plaintiff, Injured Patients and Families Compensation Fund, Defendant-Co-Appellant.
from an order of the circuit court for Marinette County No.
2013CV271, David G. Miron, Judge.
Stark, P.J., Hruz and Seidl, JJ.
Bayer sustained a permanent brachial plexus injury during
birth. Unity and her parents sued Brian Dobbins, the
physician who performed the delivery, along with MMIC
Insurance, Inc., Prevea Clinic, LLC, and the Injured Patients
and Families Compensation Fund. The Bayers alleged Dobbins
was negligent in various respects. In response,
Dobbins sought to introduce expert testimony that
Unity's injury was caused by maternal forces of labor,
rather than Dobbins' conduct. The circuit court granted
the Bayers' motion in limine to exclude that testimony,
and Dobbins now appeals. For the reasons explained below, we
conclude the circuit court erroneously exercised its
discretion by excluding the proffered testimony. We therefore
reverse and remand for further proceedings.
Leah Bayer was admitted to St. Mary's Hospital in Green
Bay on December 28, 2006, for Unity's labor and delivery.
Initially, the labor proceeded as expected. However, during
the second stage of labor, after seventy-five minutes of
pushing, Leah exhibited signs of exhaustion, and the progress
of the delivery slowed. At that point, Dobbins gave Leah two
options: to proceed with a cesarean section, or to use a
vacuum to assist with the vaginal delivery. Leah chose the
vacuum-assisted vaginal delivery.
Dobbins used the vacuum to advance Unity down the birth
canal, and her head was delivered. However, at that point
Dobbins diagnosed a shoulder dystocia, a condition in which
the fetal shoulder becomes lodged on the maternal pelvis. A
shoulder dystocia is considered an obstetrical emergency
because, if the physician is unable to dislodge the shoulder
promptly, compression of the umbilical cord can compromise
blood flow and oxygen supply to the child.
Dobbins' note regarding the delivery states that, after
diagnosing the shoulder dystocia, he placed Leah in the
McRoberts position, with her thighs flexed against her
abdomen, and used "gentle traction" in attempt to
release Unity's shoulder. When that failed, Dobbins used
the Woods' corkscrew maneuver, placing his fingers inside
the birth canal to rotate Unity's shoulders. Unity was
then successfully delivered, about two minutes after the
shoulder dystocia was first diagnosed.
After the delivery, it was noted that Unity had reduced
movement of her right arm. Unity was ultimately diagnosed
with a permanent right brachial plexus injury-in other words,
an injury to the nerves that send signals from her neck and
spine to her right arm and hand. As a result of that injury,
Unity's ability to use her right arm and hand is severely
The Bayers filed the instant lawsuit against Dobbins in
September 2013, alleging he was negligent in his care and
delivery of Unity in several respects. As relevant to this
appeal, the Bayers contended Dobbins used excessive traction
during the delivery. In response to that allegation, Dobbins
contended he appropriately used only gentle downward traction
to deliver Unity. He asserted Unity's injury was caused
by maternal forces of labor, including the forces associated
with contractions and pushing.
Before trial, the Bayers filed a motion in limine asking the
circuit court to exclude all expert testimony relating to
Dobbins' theory that maternal forces of labor caused
Unity's injury, pursuant to Wis.Stat. § 907.02(1)
and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). The Bayers argued the medical literature
upon which the defense experts based their opinions was
unreliable and did not support the proposition that maternal
forces of labor can cause a permanent brachial plexus injury,
as opposed to a temporary brachial plexus injury. The Bayers
asserted their biomechanical engineering expert, Robert
Allen, had "disprove[d]" the maternal forces theory
in 2007 using physical modeling-that is, a childbirth
simulator. The Bayers further argued the defense experts were
unable to describe the precise manner in which maternal
forces of labor caused Unity's injury.
In response to the Bayers' motion, Dobbins cited over
twenty peer- reviewed publications supporting his claim that
maternal forces of labor caused Unity's injury. In
particular, Dobbins relied on "Neonatal Brachial Plexus
Palsy, " a compendium released in 2014 by the American
College of Obstetricians and Gynecologists (ACOG). The stated
purpose of the ACOG compendium was
[t]o review and summarize the current state of the scientific
knowledge, as set forth in the peer-reviewed and relevant
historical literature, about the mechanisms which may result
in neonatal brachial plexus palsy. The purpose of conducting
such review is to produce a report which will succinctly
summarize the relevant research on the pathophysiology of
neonatal brachial plexus palsy.
completing this review, the authors of the ACOG compendium
Clinician-applied traction and lateral bending of the fetal
neck have been implicated as causative factors in some cases
of NBPP [neonatal brachial plexus palsy]. However, NBPP also
has been shown to occur entirely unrelated to traction, with
studies demonstrating cases of both transient and persistent
NBPP in fetuses delivered vaginally without clinically
evident shoulder dystocia or fetuses delivered by cesarean
without shoulder dystocia.
The authors of the ACOG compendium further explained that:
• "Stretch in the brachial plexus occurs during the
birth process itself, as shown by both computer and physical
• "[W]hen one of the shoulders is restrained by the
bony pelvis, any forces that continue to advance the head and
neck will cause a stretch in the brachial plexus;"
• Using computer modeling, one study found that
"contact force at the base of the fetal neck against the
maternal symphysis pubis was more than two times higher
because of maternal endogenous forces when compared with
• Other findings "indicate that shoulder dystocia
may, in and of itself, induce a similar amount of stretch in
the brachial plexus as lateral bending of the fetus'
• "[T]he clinical and biomedical engineering
evidence supports the assertion that when a shoulder is
restrained either transiently or during a more significant
impaction, both maternal forces and clinician forces, if
applied, will stretch the brachial plexus;"
• "In addition to research within the obstetric
community, the pediatric, orthopedic, and neurologic
literature now stress that the existence of NBPP following
birth does not a priori indicate that exogenous forces are
the cause of this injury;" and
• "[M]uch of the data suggest that the occurrence
of NBPP is a complex event, dependent not only on the forces
applied at the moment of delivery, but also on the
constellation of forces … that have been acting on the
fetus during the labor and delivery process."
Dobbins' response to the Bayers' motion in limine
also described how the defense experts intended to apply the
maternal forces theory to the facts of the case. Dobbins
informed the circuit court that Dr. Dwight Rouse and Dr.
Robert DeMott, both obstetricians, would testify that: (1)
Dobbins did not cause Unity's brachial plexus injury; (2)
Dobbins used appropriate maneuvers while delivering Unity;
(3) Dobbins did not use excessive traction during the
delivery, and the mere fact that Unity sustained a brachial
plexus injury does not establish that excessive traction was
used; (4) maternal forces alone can cause brachial plexus
injuries; and (5) maternal forces caused Unity's
permanent brachial plexus injury. Both Rouse and DeMott cited
peer-reviewed medical literature on brachial plexus injuries
in support of their opinions.
Dobbins further informed the circuit court that Dr. Mark
Scher, a pediatric neurologist, would testify that: (1)
Unity's injuries were not the result of excessive
traction; (2) maternal forces of labor are sufficient to
cause brachial plexus injuries; (3) the amount of force a
baby can endure varies, such that some babies can withstand
normal traction and normal maternal forces, while others
cannot; and (4) maternal forces caused Unity's permanent
brachial plexus injury.
Dobbins also described the anticipated testimony of