IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60416
FRANK TANNER, Individually, and as Father
and Next Best Friend of Jennifer Renee Tanner, Minor;
DAISY TANNER, Individually;
JENNIFER RENEE TANNER, Minor
Plaintiffs-Appellees,
versus
H. WADE WESTBROOK, M.D. ET AL.
Defendants
BAPTIST MEMORIAL HOSPITAL - DESOTO INC.,
A Delaware Corporation
Defendants-Appellants
Appeal from the United States District Court
for the Northern District of Mississippi
April 27, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This complex medical malpractice case stems from the tragic
circumstances surrounding the birth of Jennifer Tanner, a young
girl who now suffers from cerebral palsy. Jennifer’s father, Frank
Tanner, individually and as next friend of his daughter, and Daisy
Tanner, Jennifer’s mother, alleged various acts of negligence in
this diversity action against their obstetrician, Dr. Wade
Westbrook; their pediatrician, Dr. Manoj Narayanan; and the
hospital where Jennifer was born, Baptist Memorial Hospital-Desoto,
Inc. The jury returned a verdict in favor of the Tanners against
Dr. Westbrook and BMH. On appeal, we vacate the judgment and
remand for a new trial due to the erroneous admission of expert
testimony at trial.
I
Daisy Tanner was admitted to BMH in labor at 9:50 a.m., on
August 29, 1993. Mrs. Tanner’s labor progressed normally
throughout the day, but, at 11:25 p.m., the baby’s fetal heart
tracing became abnormal. The attending nurse was unable to apply
a fetal scalp electrode to properly monitor the baby’s heart rate
between this period and Jennifer’s birth. Dr. Westbrook delivered
Jennifer at 12:03 a.m. Jennifer was not breathing at birth, so Dr.
Westbrook and the delivery staff nurses tried to resuscitate her
with an oxygen mask and then by endotracheal tube. Jennifer began
to breathe on her own at approximately 12:30 a.m. At 12:45 a.m.,
Jennifer was taken to the newborn nursery, and, at approximately
this time, Dr. Narayanan was called to attend to Jennifer. Dr.
Narayanan arrived at approximately 1:30 a.m.
The Tanners urged at trial that between 12:45 a.m. and 1:30
a.m., when Dr. Narayanan arrived, Jennifer was left untreated in
the nursery despite her precarious condition. Dr. Westbrook
conceded that he did not actively monitor Jennifer while she was in
the nursery. According to the Tanners, a nurse’s physical
2
examination of Jennifer during this time revealed respiratory
distress and possible seizure activity.
A blood gas test completed at 1:55 a.m., after Dr. Narayanan
had arrived, indicated the presence of acute severe metabolic
acidosis. Acidosis is caused by a build-up of lactic acid in the
bloodstream that results from diminished tissue oxygenation. Dr.
Narayanan ordered more tests and directed that sodium bicarbonate
be given to Jennifer to help correct the acidosis. The sodium
bicarbonate was administered at 2:45 a.m. and completed at 3:15
a.m. Afterwards, Jennifer’s respiration improved.
At 11:55 a.m., however, Jennifer began to have seizures and
was transferred to LeBonheur Neonatal Intensive Care in Memphis,
Tennessee, for further treatment. Jennifer was later diagnosed
with cerebral palsy.
II
The Tanners filed this suit, alleging that Drs. Westbrook and
Narayanan and BMH were negligent in their treatment of Jennifer and
that their negligence proximately caused or contributed to her
resulting cerebral palsy. At trial, both sides provided
conflicting theories regarding the cause of Jennifer Tanner’s
cerebral palsy and whether the defendants could have done more to
prevent it. The jury, assigning liability to Dr. Westbrook and BMH
equally, but exonerating Dr. Narayanan, returned a verdict of
3
$3,000,000 in favor of Jennifer Tanner and $100,000 in favor of
each parent. Only BMH has prosecuted this appeal.
III
BMH maintains that the trial court erred in admitting the
Tanners’ expert testimony regarding causation and that, had this
testimony been properly excluded, the jury would not have held them
liable. Prior to trial, the defendants filed a motion for an FRE
104 hearing to exclude the testimony of two of the Tanners’ experts
– Drs. St. Amant and Nestrud – as failing to clear the hurdles of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).1
The district court, making a preliminary assessment that Daubert
review did not apply to the Tanners’ experts, denied the motion and
stated that it would “pass on the qualifications of the said
witnesses at trial.” Thus, to trigger Daubert review of the
experts’ testimony, the defendants were tasked with renewing their
objection to the testimony at trial. Furthermore, to preserve
error on the admissibility of the Tanners’ experts’ testimony, BMH
had to object at trial. See Marceaux v. Conoco, Inc., 124 F.3d
730, 734 (5th Cir. 1997)(stating the general rule in this circuit
1
Daubert requires that “when expert testimony is offered, the
trial judge must perform a screening function to ensure that the
expert’s opinion is reliable and relevant to the facts at issue in
the case.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th
Cir. 1997).
4
that an overruled motion in limine does not preserve error on
appeal – objection at trial is still required).
We find that BMH preserved error on the admissibility issue by
objecting at trial to Dr. Nestrud’s opinion on causation. Near the
beginning of Dr. Nestrud’s testimony, the following exchange
occurred:
Q . . . . But based on your experience and training,
and the literature you have read about this subject, do
you have an opinion to a reasonable degree of medical
certainty as to whether had Jennifer been properly
resuscitated she more than likely, more than likely would
have been normal?
A Yes.
Mr. Dunbar: I make an objection to that, Your Honor, for
the record. The foundation has not been laid that there
is any scientific basis for that opinion beyond this
gentleman’s objective opinion on the point.
. . .
THE COURT: Very well. The objection will be overruled.
BY MR. TOLLISON:
Q Do you have an opinion?
A It is my opinion that a baby with an APGAR score of 3
with no other problems can be – can be fully
resuscitated.
Dr. Nestrud went on explicitly to claim that birth asphyxia which
began shortly before delivery led to Jennifer’s cerebral palsy, and
had the defendants followed proper procedures in treating the
asphyxia, Jennifer “would not have had the brain damage that she
has now.”
5
In overruling the defendants’ objection, and thus allowing Dr.
Nestrud to espouse his views on the etiology of Jennifer’s cerebral
palsy and on whether different treatment would have allowed
Jennifer Tanner to have a normal life, the district court
effectively conducted a Daubert inquiry, presumably basing its
conclusion on the arguments and scientific literature submitted in
regard to the pretrial motion for an FRE 104 hearing. On the basis
of these materials, the district court concluded that the expert
testimony was relevant and reliable, and it admitted Dr. Nestrud’s
expert testimony.
Daubert inquiry was appropriate. See Kumho Tire Co., Ltd. v.
Carmichael, 1999 WL 152455, at *9 (U.S. Mar. 23, 1999)(stating that
when an expert’s “testimony’s factual basis, data, principles,
methods, or their application are called sufficiently into question
. . . , the trial judge must determine whether the testimony has ‘a
reliable basis in the knowledge and experience of the relevant
discipline.’” (quoting Daubert, 509 U.S. at 592)). BMH, in its
motion for an FRE 104 hearing, called the Tanners’ experts’
opinions on causation “sufficiently into question,” id., by
providing conflicting medical literature and expert testimony.
Further, that a component of the experts’ testimony was based on
their personal knowledge or experience does not exempt the experts’
opinions from the rigors of Daubert. See id. (noting that “the
6
relevant reliability concerns may focus upon personal knowledge or
experience”).
We review the district court’s admission of expert testimony
for an abuse of discretion. See Moore v. Ashland Chem., Inc., 151
F.3d 269, 274 (5th Cir. 1998)(en banc). That is, “the discretion
of the trial judge and his or her decision will not be disturbed on
appeal unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121
F.3d 984, 988 (5th Cir. 1997)(internal quotation marks and
citations omitted). If we find an abuse of discretion in admitting
evidence, we review the error under the harmless error doctrine,
affirming the judgment, unless the ruling affected substantial
rights of the complaining party. See FED. R. EVID. 103(a); United
States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996). In
determining whether district courts have abused their discretion in
admitting or excluding expert testimony, we ask whether the expert
testimony meets or fails to meet the Daubert standard of
admissibility. See, e.g., Watkins, 121 F.3d at 988. The
“overarching subject [of a Daubert inquiry] is the scientific
validity and thus the evidentiary relevance and reliability of the
principles that underlie a proposed submission.” Id. at 989.
We grant the trial court “the same kind of latitude in
deciding how to test an expert’s reliability, and to decide whether
or when special briefing or other proceedings are needed to
investigate reliability, as it enjoys when it decides whether or
7
not that expert’s relevant testimony is reliable.” Kumho Tire Co.,
Ltd. v. Carmichael, 1999 WL 152455, at *11 (U.S. Mar. 23, 1999).
This case is unique in that the trial judge did not specify on what
basis he decided to admit Dr. Nestrud’s testimony. Thus, we
proceed directly to consideration of whether the district court
abused its discretion in admitting the testimony. Cf. United
States v. Nichols, 1999 WL 107021 (10th Cir. Feb. 26, 1999)(stating
that, in reviewing the denial of a Daubert evidentiary hearing, the
appellate court required “a sufficiently developed record in order
to allow a determination of whether the district court properly
applied the relevant law”). In making this determination, we rely
upon the materials the trial court had before it to judge Dr.
Nestrud’s reliability: submissions made to the district court by
both sides in regard to BMH’s motion for an FRE 104 hearing.
Our review of the admissibility issue is, of course, guided by
Daubert, the cases applying it, and Kumho Tire. In Daubert, the
Supreme Court provided a list of factors, such as testing, peer
review, error rates, and acceptance of the opinion in the relevant
scientific community, that a court may choose to use in determining
the reliability of an expert’s testimony. See Daubert, 509 U.S. at
593-94; see also Kumho Tire, 1999 WL 152455, at *9 (emphasizing
that the list of factors was not exclusive and that the factors may
not always apply to the testimony at issue). The test of
reliability is flexible and bends according to the particular
8
circumstances of the testimony at issue. See Kumho Tire, 1999 WL
152455, at *9; see also Black v. Food Lion, Inc., No. 97-11404,
1999 WL 173001, at *4 (5th Cir. Mar. 30, 1999) (advising that
courts should use the traditional Daubert factors as a starting
point for evaluating proffered expert testimony). Whatever the
test employed, the objective is to ensure the reliability and
relevance of the expert testimony. See id.
“The proponent [of the expert testimony] need not prove to the
judge that the expert’s testimony is correct, but she must prove by
a preponderance of the evidence that the testimony is reliable.”
Moore, 151 F.3d at 276. The theory of the Tanners’ case was that
Jennifer Tanner’s cerebral palsy was caused by birth asphyxia that
the defendants improperly treated in the hours immediately
following her birth. The Tanners’ experts, Drs. St. Amant and
Nestrud, supported this theory at trial by stating generally that
birth asphyxia is a cause of cerebral palsy. The doctors made this
statement based on their personal knowledge and training and
supported it with medical literature. The doctors also opined,
based on their experience in the fields of obstetrics and
neonatology, that Jennifer suffered from birth asphyxia and that,
through proper treatment of this condition, Jennifer’s cerebral
palsy could have been avoided.
BMH, on the other hand, insists that the cerebral palsy-
causing incident occurred some time before Jennifer Tanner was
9
born. BMH asserts that the major insult suffered by Jennifer prior
to her birth caused a difficult labor and delivery, during which,
as a result of this difficulty, she suffered birth asphyxia. That
is, BMH agrees with the Tanners that Jennifer Tanner suffered from
asphyxia at birth; BMH does not agree, however, that birth asphyxia
or the hospital’s treatment of it caused Jennifer Tanner’s cerebral
palsy.
BMH supported its theory by submitting with its motion for an
FRE 104 hearing an expert’s affidavit and scientific literature
pointing out that Jennifer’s condition is not indicative of
cerebral palsy caused by birth asphyxia. The medical literature
states that birth asphyxia is rarely a cause of cerebral palsy and
that a large proportion of cases of cerebral palsy remains
unexplained. See Karin B. Nelson & Jonas H. Ellenperg, Antecedents
of Cerebral Palsy, NEW ENGLAND J. MED., July 10, 1986, at 85-86. The
medical literature also indicates that when birth asphyxia is
severe enough to cause cerebral palsy, there is usually evidence of
corresponding major organ damage. See Richard L. Naeye et al.,
Origins of Cerebral Palsy, 143 AM. J. DISEASES CHILDREN 1160 (1989).
The organ damage is caused by preferential perfusion, a phenomenon
triggered by asphyxia in which there is a redistribution of blood
flow, with increased flow to the head and heart and decreased flow
to non-vital organs. See AVROY A. FANAROFF & RICHARD J. MARTIN, NEONATAL-
PERINATAL MEDICINE (5th ed.). Jennifer Tanner did not suffer from
10
major organ damage in conjunction with her cerebral palsy.
Furthermore, the literature maintains that many of Jennifer’s
symptoms in the hours after her birth support the conclusion that
she suffered from congenital defects which, rather than asphyxia,
probably triggered her cerebral palsy. See Naeye et al., supra, at
1159. Moreover, one study specifically stated that “[a] failure of
medical personnel to react to evidence of . . . asphyxia was
followed by a greater-than-expected frequency of neonatal apnea and
seizures, but not CP.” Id.
In response to BMH’s FRE 104 motion materials, the Tanners
provided copies of their experts’ deposition testimony and
supporting medical literature. These materials addressed BMH’s
contention that Jennifer’s cerebral palsy was likely caused by some
congenital defect, rather than birth asphyxia. The affidavits of
both Dr. St. Amant and Dr. Nestrud state that there was no evidence
of a congenital defect and that, as a result, they eliminated that
explanation for her resulting condition. The doctors also opined
that the lack of damage to Jennifer’s nonvital organs was
“consistent with [their] opinions that most of Jennifer’s asphyxial
damage occurred following her birth, and not in utero . . . .” The
Tanners, however, provided no medical literature supporting their
experts’ claims that Jennifer’s symptoms – including the absence of
nonvital organ damage – were consistent with their theory of
causation. Further, in his deposition, Dr. Nestrud testified that
11
he was not aware of any genetic causes for Jennifer’s cerebral
palsy, but, in order to rule out genetic causes, “a good physical
examination by a qualified physician” was necessary; Dr. Nestrud
had neither conducted such an exam nor reviewed the results of such
an exam when he testified at his deposition.
The trial judge could have correctly concluded, based on the
FRE 104 motion materials, that Dr. Nestrud had sufficient
expertise, based on his experience and training, to testify about
the standard of care to be given to a baby suffering from asphyxia.
His ability to testify reliably about the cause of Jennifer’s
cerebral palsy, however, hinges on the validity of his opinion
linking the post-birth asphyxia to Jennifer Tanner’s cerebral palsy
– specifically the depth of his knowledge of a complicated,
specialized medical subject matter. He has no background in
studying the causes of cerebral palsy. He bases his opinion on
causation in part upon articles which state that asphyxia causes
cerebral palsy. This fact is not disputed. What is in dispute is
whether it is more likely than not that a baby with Jennifer
Tanner’s symptoms developed cerebral palsy as a result of the
hospital’s negligent treatment of her birth asphyxia. “[T]he
question before the trial court was specific, not general. The
trial court had to decide whether this particular expert had
sufficient specialized knowledge to assist the jurors in deciding
the particular issues in this case.” Kumho Tire, 1999 WL 152455,
12
at *13 (internal quotation marks and citations omitted). Based on
the materials before the trial judge, Dr. Nestrud did not have the
kind of specialized knowledge required to testify regarding
causation, nor did he rely upon medical literature directly
addressing the causation issue in this case. This deficiency
rendered his expert testimony as to a critical issue in the case –
causation – unreliable. Thus, admitting the testimony, based on
the materials submitted in support of its validity, was an abuse of
discretion.
As we have explained, even though the court abused its
discretion in admitting Dr. Nestrud’s testimony, FRE 103(a)
provides that courts of appeals should not reverse on the basis of
erroneous evidentiary rulings unless a party’s substantial rights
are affected. See Munn v. Algee, 924 F.2d 568, 573 (5th Cir.
1991). This question is not susceptible to mechanical analysis;
decisions are made on a case-by-case basis. See id. In this case,
whether BMH’s substantial rights were affected depends on whether
the timing of BMH’s objection to the expert testimony rendered the
error harmless because the content of the inadmissible testimony
had already been admitted without objection. An error is harmless
if the court is certain, after reviewing the record, that the error
did not influence the jury or had only a slight effect on its
verdict. See EEOC v. Manville Sales Corp., 27 F.3d 1089, 1094 (5th
Cir. 1994).
13
Dr. Nestrud’s testimony followed testimony by Dr. St. Amant,
who also told the jury that birth asphyxia caused Jennifer Tanner’s
cerebral palsy and that, had the doctors treated her properly after
birth, she “would have done better.” In addition, directly prior
to the objection to Dr. Nestrud’s testimony, Dr. Nestrud had
provided unsolicited testimony that Jennifer Tanner’s chances for
recovery were probably harmed by the defendants’ allegedly
lackluster resuscitation efforts.
Dr. St. Amant’s prior testimony and Dr. Nestrud’s limited
comment prior to the objection do not dilute Dr. Nestrud’s
testimony to harmless error. Dr. Nestrud did not hedge. He
testified that had the doctors acted properly, Jennifer would have
been normal, a stronger conclusion than that reached by Dr. St.
Amant – that Jennifer would have been “better.” Moreover, in this
complicated medical malpractice case containing complex issues of
causation, if the court had excluded Dr. Nestrud’s testimony,
which, in greater detail than the testimony provided by Dr. St.
Amant, put forth the Tanners’ explanation for Jennifer Tanner’s
current condition, then the Tanners’ case would have suffered
markedly, and the jury may have reached a different verdict. We
cannot conclude that the error was harmless. Indeed, whether Dr.
St. Amant’s testimony could, without the testimony of Dr. Nestrud,
have supported the jury’s finding of causation is a close call.
Admitting the opinion of Dr. Nestrud affected BMH’s substantial
rights.
14
IV
We add a final word. This record lacks support for the
reliability of Dr. Nestrud’s opinion that birth asphyxia was more
likely than not the cause of the child’s cerebral palsy. Whether
this weakness is a by-product of the absence of exploration of the
Daubert issues at a pretrial hearing, we do not know. Nor do we
know if his opinion is supportable. We say only that it was not
supported in this record.
Because the district court abused its discretion in admitting
Dr. Nestrud’s testimony regarding causation, and because this error
affected BMH’s substantial rights, we vacate the judgment of the
trial court and remand for a new trial consistent with this
opinion.
VACATED and REMANDED for a new trial.
15