v. Vail Clinic

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 20, 2020

2020COA126

No. 19CA0356, Trujillo v. Vail Clinic — Evidence — Testimony
by Experts

A division of the court of appeals addresses whether the trial

court erred by ruling that expert testimony about Cranial

Compression Ischemic Encephalopathy (CCIE) was inadmissible

under CRE 702. The division concludes that because CRE 702’s

liberal admission standard requires only that expert testimony be

reasonably reliable and any expert testimony will be further vetted

at trial by cross-examination and the presentation of contrary

testimony, the CCIE testimony here was admissible.
COLORADO COURT OF APPEALS 2020COA126

Court of Appeals No. 19CA0356
Eagle County District Court No. 14CV30248
Honorable Russell H. Granger, Judge

Brandon Trujillo, by and through his Co-Conservators; Rosalina Chaparro-
Leyva; and Victor Trujillo,

Plaintiffs-Appellants,

v.

Vail Clinic, Inc., d/b/a Vail Valley Medical Center; Pamela Bock; Gale Santa
Maria,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE PAWAR
Román and Tow, JJ., concur

Announced August 20, 2020

Leventhal Puga Braley P.C., James E. Puga, Molly I. Greenblatt, Benjamin I.
Sachs, Denver, Colorado; Levin Sitcoff PC, Bradley A. Levin, Nelson A. Waneka,
Denver, Colorado, for Plaintiffs-Appellants

Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado, for
Defendants-Appellees
¶1 During plaintiff Brandon Trujillo’s birth in 2013, he suffered

injuries that reduced the supply of oxygen to his brain and left him

with permanent disabilities. He and his parents, Rosalina

Chaparro-Leyva and Victor Trujillo, the plaintiffs in this case, sued

defendant health care providers for causing these injuries. Before

trial, the district court excluded testimony from plaintiffs’ experts

about plaintiffs’ theory of causation. The court held that although

the scientific principles underlying the theory were reliable, the

theory itself was not because it had not been tested, been published

in peer-reviewed publications, or gained widespread acceptance in

the medical field. Based on this ruling, the court granted

defendants summary judgment, holding that without the excluded

testimony, plaintiffs could not prove that defendants caused

Brandon’s injuries. We conclude that the district court erred by

excluding the expert testimony. We therefore reverse and remand

with directions.

I. Background

¶2 After being admitted to Vail Clinic, Inc., d/b/a Vail Valley

Medical Center, for a scheduled induction, Brandon’s mother

labored for thirty-two hours until Brandon was delivered via

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 Cesarean section. For the vast majority of the labor, Brandon’s

mother received Pitocin, a medication that induces contractions.

¶3 When Brandon was born, he was not breathing and required

cardiac resuscitation. He was subsequently diagnosed with having

suffered injuries during labor and delivery that significantly reduced

the blood supply, and therefore oxygen supply, to his brain.

Brandon now suffers from cerebral palsy, a permanent condition.

¶4 Brandon and his parents sued defendants, alleging that their

professional negligence caused the injuries that led to Brandon’s

cerebral palsy. They disclosed several experts who were prepared to

testify about what caused the reduction of the blood supply, and

therefore the oxygen supply, to Brandon’s brain.

¶5 According to these experts, excessively strong, prolonged, and

frequent contractions can increase the external pressure on a

fetus’s head to the point that the pressure collapses the blood

vessels in the fetus’s head, thereby preventing sufficient blood and

associated oxygen from being circulated to the brain. For ease of

reference in this opinion, we, like the district court, will refer to this

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 phenomenon as Cranial Compression Ischemic Encephalopathy

(CCIE).1

¶6 Plaintiffs’ experts would have opined not only about CCIE

generally, but that based on a differential diagnosis (diagnosis by

process of elimination), CCIE caused Brandon’s injuries. They

would have further opined that defendants’ repeated administration

of Pitocin over a prolonged period and failure to deliver Brandon by

Cesarean section sooner contributed to his injuries.

¶7 Before trial, defendants moved to limit the testimony of

plaintiffs’ experts, arguing that CCIE was not a scientifically proven

phenomenon and therefore any testimony about it generally or as

the cause of Brandon’s injuries was inadmissible under CRE 702.

The district court held a multi-day hearing on this issue and

ultimately granted defendants’ motion in an extensive and helpful

(for appellate purposes) written order. The court ruled that the

CCIE testimony was neither reasonably reliable, helpful to the jury,

nor admissible under CRE 403.

1 Ischemia is a restricted blood supply to tissue and encephalopathy
refers to damage to the brain. Therefore, in layman’s terms, CCIE
means a brain injury caused by cranial compression that reduces
blood flow to the brain.

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¶8 Defendants then moved for summary judgment, arguing that

because CCIE was plaintiffs’ only theory of causation and all

testimony about it had been ruled inadmissible, plaintiffs could not

prove that defendants caused Brandon’s injuries. The district court

granted this motion too, agreeing with defendants that without the

CCIE testimony, plaintiffs could not establish causation as a matter

of law.

¶9 On appeal, plaintiffs argue that the district court erred by

excluding the CCIE testimony. They also argue that even if the

district court properly excluded the CCIE testimony, defendants

were still not entitled to summary judgment. We agree with

plaintiffs that the district court should not have excluded the CCIE

testimony and on that basis conclude that the court erred by

granting defendants summary judgment.

II. Excluded Expert Testimony

¶ 10 We review the district court’s exclusion of the CCIE expert

testimony for an abuse of discretion. See Estate of Ford v. Eicher,

250 P.3d 262, 266 (Colo. 2011). A court’s ruling on the

admissibility of expert testimony is an abuse of discretion if it is

manifestly erroneous. Id.

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 A. Governing Law

¶ 11 CRE 702 provides for the admission of expert testimony,

which the rule defines as testimony based on scientific, technical,

or other specialized knowledge. Expert testimony may be admitted

under CRE 702 only if it is both reliable and relevant. See Ford,

250 P.3d at 266. To determine whether the testimony is reliable,

courts consider whether “(1) the scientific principles underlying the

testimony are reasonably reliable [and] (2) the expert is qualified to

opine on such matters.” Id.; see People v. Shreck, 22 P.3d 68, 77

(Colo. 2001). Expert testimony is relevant if it would be helpful to

the jury and satisfies CRE 403 (probative value of the evidence

cannot be substantially outweighed by the danger of unfair

prejudice). See Ford, 250 P.3d at 266.

¶ 12 In conducting the reliability inquiry, there is no mandatory list

of factors that a court must consider. See Kutzly v. People, 2019

CO 55, ¶ 12. Many courts, including the district court here, have

assigned determinative weight to some or all of the factors identified

in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579,

593-95 (1993). But our supreme court has repeatedly made clear

that whether “expert testimony is reasonably reliable requires

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 considering the totality of the circumstances surrounding the

proposed expert testimony and is not contingent on any specific list

of factors.” Kutzly, ¶ 12.

¶ 13 Our supreme court has also emphasized that CRE 702

requires only that “the underlying scientific principles are

reasonably reliable.” Id. The standard for admitting expert

testimony is liberal because any admitted testimony will be further

vetted through vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof. Shreck,

22 P.3d at 78. The trial court’s inquiry is focused on excluding

junk science, recognizing that two experts may have conflicting but

nevertheless equally admissible opinions on a particular issue. See

Estate of Ford v. Eicher, 220 P.3d 939, 942 (Colo. App. 2008), aff’d,

250 P.3d 262 (Colo. 2011); Farmland Mut. Ins. Cos. v. Chief Indus.,

Inc., 170 P.3d 832, 835 (Colo. App. 2007). In this way, a trial court

acts only as a gatekeeper, not the arbiter of which expert’s opinion

is true or more credible.

¶ 14 The trial court found, and the parties do not dispute, that

plaintiffs’ experts were qualified to give the opinions they offered.

We agree. We therefore focus our attention on the contested issue

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 of the trial court’s determinations that any testimony about CCIE

generally or as applied to Brandon was not reasonably reliable,

helpful to the jury, or compliant with CRE 403.

B. General CCIE Testimony was Reasonably Reliable

¶ 15 The expert testimony excluded here was that excessively long,

frequent, and powerful uterine contractions during labor can

increase the intrauterine pressure on a fetus’s head to the point

that it collapses the fetus’s blood vessels in the head and causes an

ischemic brain injury (CCIE). Plaintiffs’ experts conceded that this

concept was not widely accepted in the medical field and had not

been published in peer-reviewed journals. On the other hand,

during the hearing, plaintiffs’ expert Dr. Barry Schifrin testified that

the following underlying pathophysiological concepts were widely

accepted in the medical field, taught in medical schools, and

published in peer-reviewed journals: (1) excessive external pressure

on blood vessels can collapse them and cause ischemic injuries; (2)

during a contraction, the intrauterine pressure on a fetus increases;

and (3) in response to this rise in external pressure, a fetus raises

its own internal blood pressure to ensure that blood circulates to

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 tissues and organs. The district court found that these concepts

were reasonably reliable.

¶ 16 Put differently, it was beyond dispute that contractions

pressurize a fetus’s blood vessels. It was also beyond dispute that

to prevent those blood vessels from collapsing and causing an

ischemic injury, a fetus raises its own blood pressure, effectively

overcoming the external pressure of a contraction. The only piece of

plaintiffs’ experts’ testimony that the trial court found unreliable

was that the extracranial pressure of a contraction can raise the

intracranial pressure on a fetus’s blood vessels to the point that a

fetus cannot sufficiently raise its blood pressure to counteract it,

resulting in the intracranial blood vessels’ collapse and the brain

being deprived of necessary blood (and the oxygen it carries). Dr.

Schifrin, a highly credentialed and experienced expert in maternal

fetal medicine with years of experience researching the mechanism

of injury for fetal brain damage, testified that this was possible.

Defendants’ experts, also highly credentialed and experienced in the

field, testified that it was not possible.

¶ 17 The trial court effectively resolved this conflict in the testimony

by determining that defendants’ experts’ opinions were reliable

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 while those of Dr. Schifrin and plaintiffs’ other experts were not. In

its order, the trial court discussed CCIE in terms of building blocks

being added together to form the theory of CCIE. The trial court

recognized that all of the building blocks were reasonably reliable

and widely accepted in the medical community. But the court held

that “support for each block is not the same as support for the

theory.” The court wrote, correctly, that the assembly of these

building blocks into the theory of CCIE had not been published in a

peer-reviewed journal, was not taught in medical schools, had not

been tested, and was not generally accepted or known in the

medical field. The court therefore held that the theory was not

scientifically reliable.

¶ 18 The trial court went to admirable lengths to learn about this

technical medical subject. But we conclude that the trial court

exceeded the bounds of its role as a gatekeeper charged only with

keeping junk science from the jury. As mentioned above, the

standard for admitting expert testimony is liberal because any

expert opinion will be subject to further vetting at trial.

Consequently, it is not for the trial court to determine whether an

expert opinion is unimpeachable. To be admissible, expert opinion

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 need only be reasonably reliable based on the totality of the

circumstances.

¶ 19 The trial court erroneously put determinative weight on the

fact that CCIE, as a complete theory, had not been tested, widely

accepted in the medical field, or published in peer-reviewed

journals. While these factors were certainly appropriate for the

court to consider, the totality of the circumstances also included

the reliability of the underlying pathophysiological mechanisms and

concepts on which CCIE is based. This underlying

pathophysiology, combined with Dr. Schifrin’s testimony that the

pathophysiology was consistent with and supported the validity of

CCIE, rendered CCIE reasonably reliable in the context of the

liberal admission standard for expert testimony.

¶ 20 While CCIE is not junk science, its lack of testing, widespread

acceptance, and publication will almost certainly be the subject of

cross-examination and countervailing expert testimony at trial and

may cause a jury to reject CCIE as the cause of Brandon’s injuries

here. But that determination must be made by a jury, not a judge.

¶ 21 Our supreme court’s opinion in Ford illustrates that the

admission standard for expert testimony is liberal and depends on

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 the unique factual circumstances surrounding the testimony. In

that case, a child was born with a brachial plexus injury (an injury

to the nerves that originate from the spinal cord in the neck and

control movement and sensation in the shoulder and arm). Ford,

250 P.3d at 264. The plaintiffs alleged that the doctor who

performed the delivery caused the injury by applying too much force

when applying traction on the child. Id. The defendant doctor’s

experts intended to testify that the child’s injury was not caused by

the doctor, but by “maternal intrauterine forces”; in other words,

that “the internal forces of labor and delivery” caused the injury. Id.

at 264-65.

¶ 22 The trial court held that the intrauterine forces theory was not

scientifically reliable because there was no data available to

establish its reliability. Id. at 265. The supreme court reversed,

explaining that because the nature of the intrauterine forces theory

made it impossible and unethical to test, the absence of testing and

data was not a proper ground on which to find the theory

unreliable. Id. at 268-69. The supreme court held that the theory

was reasonably reliable based on the totality of the circumstances,

which included the fact that other jurisdictions had admitted expert

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 testimony on the theory, a body of peer-reviewed literature existed

challenging the previously accepted theory that applying traction is

“the sole or primary cause of brachial plexus injuries” under similar

circumstances, and the American College of Obstetrics and

Gynecologists (ACOG) had “recognized” the intrauterine forces

theory. Id.

¶ 23 As we understand Ford, the supreme court did not hold that

ACOG’s recognition of the intrauterine forces theory and the

existence of a body of literature challenging a competing theory

were prerequisites for admission of the intrauterine forces

testimony. Instead, these were factors that, under the unique

totality of the circumstances of the case, justified the acceptance of

the intrauterine forces theory as scientifically reliable.

¶ 24 Although the facts of our case are similar to Ford, they are not

completely analogous. Like Ford, there is no testing data for CCIE,

and for similar reasons — causing CCIE would be unethical and

therefore it is impossible to test. But unlike Ford, we are aware of

no previously accepted theory explaining what causes injuries like

Brandon’s. The absence of a body of literature challenging that

nonexistent orthodoxy is therefore irrelevant. We therefore see little

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 utility in a fact-by-fact comparison of our case to Ford. Instead, we

conclude that, because the trial court exceeded the bounds of its

gatekeeper function in evaluating the totality of the circumstances

described above, the trial court’s exclusion of the CCIE testimony

was an abuse of discretion.

C. Testimony Applying CCIE to Brandon’s Case was Reasonably
Reliable

¶ 25 Having concluded that CCIE testimony generally is reasonably

reliable, we next turn to the question of whether plaintiffs’ experts’

testimony that CCIE was the cause of Brandon’s ischemic injuries

was reasonably reliable. We conclude it was.

¶ 26 At the hearing, Dr. Schifrin testified that he had thoroughly

reviewed Brandon’s medical records and used a differential

diagnosis to arrive at the conclusion that CCIE caused his hypoxic

ischemia. A differential diagnosis is a widely accepted diagnostic

technique that identifies a cause of injury through a process of

elimination — in other words, ruling out all but one possible cause.

Dr. Schifrin testified in detail about why all the other potential

causes of Brandon’s hypoxic ischemia were implausible. He then

explained that because CCIE fit as a cause of Brandon’s hypoxic

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 ischemia, and no other causes were plausible, CCIE likely caused

Brandon’s injury. This testimony was uncontroverted —

defendants’ experts did not opine that there was an alternative

cause of Brandon’s injuries. We therefore conclude that this

testimony was reasonably reliable as well.

D. All CCIE Testimony was Relevant and Admissible under CRE
403

¶ 27 The district court determined that the CCIE testimony was not

relevant because it was not helpful to the jury, and that it was

inadmissible under CRE 403. We disagree with both rulings.

¶ 28 The district court concluded that the CCIE testimony was not

helpful to the jury because it was not “scientifically valid or

reasonably reliable” and “cannot be tied to the events of Brandon

Trujillo’s delivery.” As explained above, the theory was sufficiently

reliable to survive the court’s gatekeeper inquiry. And plaintiffs’

experts tied CCIE to Brandon’s injuries through a differential

diagnosis, a widely accepted diagnostic methodology for

ascertaining diagnosis. Because the testimony was reliable and

bore on causation, one of the central issues in the case, we

conclude that it was helpful to the jury and therefore relevant.

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¶ 29 We also disagree with the district court’s ruling that the CCIE

testimony was inadmissible under CRE 403 because “the CCIE

theory did not exist” at the time of the events in question. The

theory may not have had an official name or acronym. But, as

explained above and as the trial court itself stated, the

pathophysiological concepts on which CCIE is based (excessively

long, powerful, and frequent contractions can threaten the health of

a fetus by reducing the circulation of blood and oxygen in the fetus)

are widely accepted. We therefore conclude that the probative value

of the CCIE testimony was not substantially outweighed by any

danger of unfair prejudice.

¶ 30 In sum, because the CCIE testimony was reasonably reliable,

helpful to a jury, and admissible under CRE 403, the district court

manifestly erred by excluding it. Based on this conclusion, we also

reverse the district court’s order granting defendants summary

judgment. The court’s sole basis for granting summary judgment

was that all expert testimony about plaintiffs’ single theory of

causation — CCIE — was inadmissible. Because the CCIE

testimony was admissible, plaintiffs had a causation theory

sufficient to preclude summary judgment.

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 III. Conclusion

¶ 31 The order granting defendants summary judgment is reversed

and the case is remanded to the district court with directions to

reinstate plaintiffs’ claims and conduct further proceedings

consistent with this opinion.

JUDGE ROMÁN and JUDGE TOW concur.

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