specially concurring.
For reasons explained herein, I concur in the result reached by the majority. I write separately to bring attention to an area of uncertainty in the law that has made it difficult for trial courts to perform their "gatek-eeping" function of preventing the admission of so-called "junk science."
Until People v. Ramirez, 155 P.3d 371, 375-76 (Colo.2007), the standard for admissibility of medical expert testimony was that the expert's opinion had to be held to "a reasonable degree of medical probability." In Ramires, the standard was changed to allow admission of opinion testimony to a mere "possibility." Id. We follow and apply Ramirez in our decision today. However, the change in standard announced in Ramirez appears to have shifted the sands under the feet of trial courts in determining whether expert testimony is based on reasonably reliable scientific principles, and therefore admissible.
Here, the trial court determined that although the expert could testify that intrauterine contractions generally can cause the types of injuries exhibited by the child here, his theory that such contractions were the cause of the injuries in this instance, to this child was untestable and unreliable The court stated, "[Thhe intrauterine contraction theory is not testable, and Dr. Ouzounian's opinion as to causation really boils down to offering a possible alternative explanation without giving the jury the tools to decide whether that explanation is more likely than not the correct one." The trial court's logical conclusion indicates there was no reliable way, given the state of the science as presented to the court, for the expert to determine to a reasonable degree of probability whether such was the cause of injury to any individual child. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 154-58, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (affirming trial court's exclusion, as unreliable, of expert opinion testimony regarding cause of failure of the particular tire in issue).
*949If the standard applicable prior to the announcement of Ramirez were applied here, in my view it would not have been an abuse of discretion for the court to exclude this evidence. It exercised its discretion, as gatekeeper, to keep out what it deemed unreliable scientific evidence. See Kumho Tire, 526 U.S. at 158, 119 S.Ct. 1167 ("[Fed.R.Evid.] 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and cireumstances of the particular case."); id. at 152, 119 S.Ct. 1167 (trial court has same latitude in deciding how to test an expert's reliability as it enjoys when deciding whether expert's testimony is reliable).
I coneur in the result because of the change in the law announced in Ramirez Applying the rule of that case, the fact that an expert opinion may be expressed to a mere degree of "possibility" is, apparently, no longer an impediment to its being deemed "reliable," and therefore admissible. Thus, in retrospect, we can say that the expert should have been permitted to testify that it is "possible" that this child's injuries were caused by intrauterine contractions. However, I am concerned that, if the purpose of the Shreck test was to have trial courts exclude "junk science" from the courtroom, the change in applicable standards may place obstacles in the path of trial courts attempting to discharge that duty.
The majority opinion also suggests that plaintiff's counsel took unfair advantage of the exclusion of this testimony by emphasizing to the jury that the defense had failed to show the cause of this child's injuries. I disagree that the determination whether the trial court has abused its discretion in excluding evidence is measured to any degree by whether the opposing party was able to take tactical advantage of the exclusion of such evidence.
In my view, Luster v. Brinkman, 205 P.3d 410, 415 (Colo.App. 2008), does not eliminate the need to discuss these evidentiary issues. There, the division concluded the trial court did not abuse its discretion in admitting similar expert testimony regarding intrauterine contractions as the cause of brachial plexus injuries to the infant in that case. In Luster, the issue was whether it was an abuse of discretion for the trial court to admit such expert testimony, and not, as here, whether the court abused its discretion in excluding such testimony because it determined the testimony was not based on reasonably reliable scientific principles.
It is my hope that the supreme court will give further guidance to the trial courts as to the proper exercise of their gatekeeping function with respect to admission of expert opinion testimony in light of its ruling in Ramirez.