PRECLUDING SCIENTIFIC

EVIDENCE AT TRIAL: A CASE STUDY

Materials by

Joseph Lichtenstein, Esq.

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BY: J O S E P H L I C H T E N S TE I N

T H I S I S P RO P R I E TA RY L I T E R AT U R E O F

L aw O f f i c e s o f J o s e p h M . L i c h te n s te i n , P. C .

PRECLUDING THE MATERNAL FORCES OF LABOR DEFENSE - -

A POWER-POINT PRESENTATION

MARCH 2014

4 cases in New York:

Muhammad v. Fitzpatrick, 91 A.D.3d 1953 (4th Dept. 2012)(settled)

Nobre v. Shanahan, 2013 WL 6638911 (Orange Co. Supreme Court Dec. 10, 2013)(time to appeal expired)

Sutryk v. Osula, Index Number 91904 (Steuben Co. Dec. 20, 2013)(time to appeal expired)

Brandenburg v. Brown, Index Number 12588/05, Supreme Court Otsego Co., (2013 settled)

“May have signaled an emerging consensus among New York courts that the maternal forces theory is scientifically unreliable pursuant to New York law.” NYLJ JANUARY 17, 2014

NEW YORK LAW JOURNAL JANUARY 2014

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PERMENANT BPI CAUSED DURING DELIVERY

BASIC DISTINCTION: TEMPORARY VS. PERMAMENT BPI

PLAINTIFF’S PRIMARY ARGUMENT

In order to cause a permanent BPI, the brachial plexusNeeds to be stretched 50% beyond its normal length.

The maternal forces of labor cannot come close tocausing that amount of stretch

Quantitative Scientific Testing has Disproved theDefendants’ Previously Unproven Hypothesis.

WHAT THESE CASES HAVE IN COMMON

MUHAMMAD WAS 3 LEVEL AVULSION (PAN PLEXUS INJURY)

NOBRE, BASED ON DEFENSE DME, WAS BARELY A PERMANENT INJURY AT ALL

WHAT THESE CASES DON’T HAVE IN COMMON – SEVERITY OF INJURY

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JAMES WARREN SEVER MD 1916

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THE APPLICABLE SCIENCE IS SOMEWHAT DIFFERENT DEPENDING ON WHETHER THE INJURED EXTREMITY IS:

ANTERIOR (front) OR POSTERIOR (back)

COMMON DEFENSE STRATEGY TO ARGUE POSTERIOR

1. MUHAMMAD 2. FORD

1. IF POSTERIOR ARGUMENT IS OCCURRED:

A. DELIVERY OF THE HEAD

B. BEFORE ANY POSSIBLE PHYSICIAN APPLIED TRACTION.

C. EVEN IF SUBSEQUENT ANTERIOR SHOULDER DYSTOCIA

2. ANTERIOR BRINGS DEFENSE BIOMECHANICAL COMPUTER MODELING FRONT AND CENTER

ANTERIOR V. POSTERIOR

MATERNAL FORCES THEORY-POSTERIOR SHOULDER

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SHOULDER DYSTOCIA - ANTERIOR SHOULDER BEHIND PUBIC SYMPHYSIS

SHOUDLER DYSTOCIA – ANTERIOR SHOULDER BEHIND PUBIC SYMPHYSIS-

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MATERNAL FORCES THEORY – ANTERIOR SHOULDER

MATERNAL FORCES THEORY

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- Which direction did the head restitute after it was delivered.

Which way is the baby facing when the head delivered ?

Use Models Or Images To Prep Your Client’s So They Understand What You Are Talking About.

TRY TO ESTABLISH POSITION (ANTERIOR VS. POSTERIOR) THROUGH YOUR WITNESSES

ORIENTATION OF HEAD BASED ON LANDMARKS

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ORIENTATION OF HEAD BASED ON ANTERIOR FONTANEL

LOA – RIGHT SHOULDER ANTERIOR

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ROA – LEFT SHOULDER ANTERIOR

LOT – RIGHT SHOULDER ANTERIOR

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ROT – LEFT SHOULDER ANTERIOR

LOP – RIGHT SHOULDER ANTERIOR

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ROP – LEFT SHOULDER ANTERIOR

PARKER V. MOBILE:

MUHAMMAD HOLDING based on Parker:

“Therefore, the opinion of defendants' experts on causationshould set forth the “exposure [of plaintif f 's daughter] to a[harmful in utero event], that the [event] is capable of causingthe particular [injury] (general causation) and that plaintif f[ 'sdaughter] was exposed to [a sufficiently harmful event] to causethe [injury] (specific causation)

Even if it can be said that defendants established that plaintif f 'sdaughter was exposed to a harmful event unrelated to theiractions with respect to her birth, we conclude that the courtproperly determined that defendants failed to meet both thespecific causation and general causation prongs of the test setforth in Parker and thus that the court properly refused to admitthe testimony at issue.

BASIC CASES IN NEW YORK

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General Causation:

The Maternal Forces Of Labor Can’t Cause Permanent

Brachial Plexus Injury :

Specific Causation

Even If This Could Occur Theoretically, There Is No

Scientific Foundation For Claiming It Happened In This Case.

SPECIFIC AND GENERAL CAUSATIONPARKER V. MOBIL

IN MUHAMMAD APPELLATE DIVISION FOUND THEDEFENDANTS’ THEORY WAS NOVEL UNDER FRYE

“We agree with plaintiff that defendants' theory thatthe claimed injuries to her daughter were sustainedas the result of the birthing process was a noveltheory (therefore) subject to a Frye analysis…”

BASED ON THE EVIDENCE THE MATERNAL FORCESTHEORY WAS NOT GENERALLY ACCEPTED WITHIN THEMEDICAL COMMUNITY

MUHAMMAD AND FRYE

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BASIC CONCLUSION OF THE COURTS IN BOTH NOBRE AND SUTRYK

NOBRE:

“[T}his Court believes that “there is simply too great an analyticalgap between the data and the opinion proffered”, Ratner, supra at75 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 [1997];other citation omitted), to render it admissible at the trial of thisaction.”

SUTRYK

These opinions, and the results of the studies of Dr. Grimm areinsufficient to meet thje Parker test as there is simply too great ananalytical gap between the data and the opinions proffered.”

“ANALYTICAL GAP” – RATNER/DAUBERT

Cornel l v. 360 West 51 st St reet Real ty LLC, Cour t o f Appeals Februar y 27, 2014

Tox ic Mold Case:

Thus, even though the exper t i s us ing re l iable pr inc iples and methods and is ex t rapolat ing f rom re l iable data , a cour t may exc lude the exper t 's opinion i f " there i s s imply too great an analy t ica l gap between the data and the opin ion prof fered" ( id . [obser v ing that noth ing in Dauber t or the Federal Rules of Ev idence requi res a d ist r ic t cour t " to admit opin ion ev idence which i s connected to ex is t ing data only by the ipse d ix i t o f the exper t" ] ; see a lso Marso v Novak , 42 AD2d 377 [1st Dept 2007] [ remarking that a " 'methodology -only, ignore - the-conclusion ' approach would

*2 4 c i rcumvent the rat ionale for the Fr ye doctr ine"] ) . We have somet imes expressed th is

precept in terms of the general foundat ion inqui r y appl icable to a l l ev idence (see Wesley, 83 NY2d at 422; Parker, 7 NY3d at 447) .

COURT OF APPEALS ADOPTS “ANALYTICAL GAP” APPROACH

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Differential diagnosis, of course, "'assumes general causation has been proven'" (Norris v Baxter Healthcare Corp., 3 F3d 878, 885 [10th Cir 2005] [quoting Hall v Baxter Healthcare Corp., 947 F Supp 1387, 1413 (D Or 1996)]; see also Ruggiero v Warner-Lambert Co., 424 F 3d 249, 254 [2d Cir 2005] ["Where an expert employs differential diagnosis to rule out other potential causes for the injury at issue, he must also rule in the suspected cause, and do so using scientifically valid methodology" (internal citations omitted)]).

First, the Appellate Division is incorrect to the extent that it suggests that performance of a differential diagnosis establishes that a plaintif f has been exposed to enough of an agent to prove specific causation. This is not what we meant when we stated that "precise quantification" of exposure was not necessary, and there exist alternative "potentially acceptable ways to demonstrate [specific] causation"

CORNELL AND “DIFFERENTIAL DIAGNOSIS”

BURDEN OF PROOF IS ABSOLUTELY CRITICAL:

Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63 (2d Dept 2011) (“The burden of proving general acceptance rests upon the party offering the disputed expert testimony”).

DON’T FALL INTO TRAP OF ASSUMING THE BURDEN OF PROOF –

YET PROVE EVERYTHING !!!

PRE-EMPTIVELY ATTACK THEIR LITERATURE

BURDEN OF PROOF

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EXTREME RELUCTANCE OF A COURT TO LEAVE THE DEFENDANTS’ WITHOUT A DEFENSE

ESPECIALLY ONE THAT HAS BEEN CLAIMED TO BE VALID BY INNUMERABLE SCIENTIFIC PAPERS AND ARTICLES

HAVE TO DEMONSTRATE THIS IS REALLY JUNK WITH A CAPITAL “J”

WHAT WE ARE REALLY UP AGAINST

THE DEFENDANTS ARE IN A POSITION TO PUBLISH “JUNK SCIENCE”, e.g. republishing Grimm’s admittedly false original claims

THEY CONTROL THEIR JOURNALS, PUBLICATIONS AND TEXTBOOKS.

THE VOLUME OF LITERATURE AGAINST US CONTINUES TO GROW

WHAT WE ARE UP AGAINST

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• INCREASING NUMBER OF AUTHORS

• INCREASING AREAS OF PRACTICE SUPPORTTHEIR THEORY

OBSTETRICS

PEDIATRIC NEUROLOGY

ORTHOPEDICS

MIDWIFERY/NURSING

THEY CITE APPROXIMATELY 30 ARTICLES AND TEXTBOOKS

Over the past several years, multiple lines of evidence haveemerged that have supported the concept that most brachialplexus palsies are not caused by the accoucheur (9, 10). Thisopinion is based on several findings: 1) more than 50% of casesof brachial plexus palsies are associated with uncomplicatedvaginal deliveries; 2) brachial plexus palsy can occur in theposterior arm of infants whose anterior arm was impactedbehind the symphysis pubis and can occur with atraumaticcesarean delivery; 3) there is no statistical correlation foundbetween brachial plexus palsy and the experience of theobstetric provider nor the number and type of maneuvers usedto alleviate shoulder dystocia; 4) rapid second-stage anddisproportionate descent of the head and body of the fetus havealso been implicated in the pathogenesis of the injury; and 5)mathematic and computer-simulated models have shown thatmaternal endogenous forces are far greater than clinician-applied exogenous delivery loads during a shoulder dystociaepisode {6, 9-13).”

ACOG 2005 PRECIS

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“Using computer modeling, Gonik and [GRIMM] (2003)demonstrated that stretching of the brachial plexusis greater from endogenous forces, which includematernal pushing and uterine contractions, thanfrom iatrogenic applied force.”

This is admittedly false information (even wrong year of citation), which was known to be false long before

2010 – is constantly referenced, even in current publications.

WILLIAMS 2010 EDITION

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ALLEGED PROOF OF MATERNAL FORCES THEORY

- CLAIM-- NO PHYSICIAN TRACTION

- NO SHOULDER DYSTOCIA

YET PERMANENT BPI

LERNER ARTICLE

Based on review of medical literature on shoulder dystocia

and Brachial Plexus injury via PUBMED, and careful scrutiny of

the biography of over 600 articles on shoulder dystocia cases,

this paper appears to be the f irst unambiguous case report of

a baby born vaginally without physician traction, and even

without the occurrence of shoulder dystocia, that resulted in a

permanent brachial plexus injury .

LERNER’S ARTICLE AJOG 2006

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LERNER’S CLAIMS WERE FALSE

“If this man [Lerner] were here.. [and] youwere offering him as a live witness…and thenhe [Lerner] turns around in another lawsuitand says there was shoulder dystocia and Idon’t know if there was traction involved ornot, that doesn’t meet the Daubert standard.It’s an unreliable process. It’s an unreliablereasoning process. It’s an unreliable study…”(emphasis added).

Seiber v. Proassurance et al, Civ No 11-CV 942 (Cir. Ct Milwaukee Cty, March 26, 2013)

LERNER IS UNRELIABLE

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Based on review of medical literature onshoulder dystocia and Brachial Plexus injury viaPUBMED, and careful scrutiny of the biographyof over 600 articles on shoulder dystocia cases,this paper appears to be the first unambiguouscase report of a baby born vaginally withoutphysician traction, and even without theoccurrence of shoulder dystocia, that resultedin a permanent brachial plexus injury.

THEREFORE – NONE BEFORE IT

TURNING LERNER UPSIDE DOWN

RELIED ON BY WILLIAMS ON OBSTETRICS

Biomechanical computer modeling

THIS IS NOW DEFENDANT’S PRIMARY PROOF OFTHEIR THEORY

MICHELLE GRIMM PHD

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MADYMO (MATHEMATICAL DYNAMIC MODELS)

DEVELOPED FOR AUTOMOBILE CRASH SIMULATIONS

NOT INTENDED FOR THIS PURPOSE AT ALL

DEPENDENT ON VELOCITY TO CALCULATE FORCE

DOES NOT INCLUDE HUMAN NECK (GRIMM USED GOAT’S NECK)

DOES NOT INCLUDE HUMAN BRACHIAL PLEXUS (GRIMM USED TIBIAL NERVE OF RABBIT)

USES MADYMO PROGRAM

1. LACK OF CONTROLS

2. LACK OF EVIDENCE SUPPORTING SIMILARITY OF ANIMAL SURROGATES TO NEWBORN

3. THE IMPLICATIONS OF THE NON-LINEAR SPRINGS SHE USED IN HER PROGRAMMING

4. RANDOM AND UNSTATED CO-EFFICIENTS OF FRICTION

5. LACK OF ANY PROOF OF SPECIFIC CAUSATION

PROBLEMS WITH GRIMM - DEEPER SCIENCE

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GRIMM USED

NO MORE than

- 80n, or approximately

-18 pounds of force,

To simulate physician applied lateral bending forces on the

neck.

GRIMM’S COMPARISON – MATERNAL VS. PHYSICIAN APPLIED FORCE

FROM NOBRE HEARING

Q. All right. What was maximum, in your modeling -- what's the maximum -- and look at your 2003 paper, what's the maximum amount of newtons that you allow applied to the brachial plexus through physician applied traction? What's the highest number?

A. …The maximum traction at which point delivery was achieved was 80 newtons in lateral flexion.

GRIMM COMPARISONS 2

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By using only 80N maximum force for lateral

downward traction, she is able to artificially make

the brachial plexus stretch as between maternal

forces and lateral traction roughly equivalent.

GRIMM COMPARISIONS 3

IN 2009 GRIMM WROTE THAT

Physician applied lateral traction results in the“greatest risk of injury and should be avoided at allcosts.”

Grimm’s Book Chapter at page 134.

GRIMM’S COMPARISONS VS. GRIMM’S WARNING

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Metaizeau JP, Gayet C, Plenat F. [Brachialplexus injuries: An experimental study].Chirug Ped 1979;20:159-63.

USED 9 NEONATAL CADAVERS

CREATED 16 EXPERIMENTAL BPI INJURIES

“IT IS SURPRISING TO NOTE THATCONSIDERABLE FORCE IS NECESSARY TOINJURE THE BRACHIAL PLEXUS OF ANEONATE.”

METAIZEAU – THE INJURY THRESHOLD

“In this area, in general from one case to the nextthe necessary force to create the first objectivelesion ranged from 20 to 40kg.” (44 TO 88 POUNDSOF FORCE)

METAIZEAU

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Kalmin OV. [Structural based for tensile strength properties of nerves]. Morfologiia 1997; 111:39-43.

51 NEONTAL CADAVERS

PHRENIC NERVE AND VAGUS NERVE

STUDIES DONE WITHIN 16 HOURS OF DEATH

KALMIN – THE INJURY THRESHOLD

VAGUS AND PHRENIC NERVES

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KALMIN – FAILURE THRESHOLD AND STANDARD DEVIATION

Demonstrated an approximately 50% maximum deformation (stretch) ability of the neonatal nerves.

Grimm’s computer simulation “modeling” has found that the maternal forces of labor only results in approximately a 15% to 18% stretch of the brachial plexus

KALMIN

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1. Study involved 140 physicians and midwives

Reason for Crofts Study

It is thought that poor fetal outcome (withshoulder dystocia) is commonly a result ofinappropriate management, excessive traction inparticular being implicated in the development ofbrachial plexus injury. Training might therefore bethe most effective means of reducing morbidityand mortality related to shoulder dystocia.

BRITISH STUDIES – CROFTS

EFFECT OF A COMPREHENSIVE OBSTETRIC PATIENT SAFETY PROGRAM ON COMPENSATION PAYMENTS AND SENTINEL EVENTS, American Journal of Obstetrics & Gynecology

Volume 204, Issue 2 , Pages 97-105, February 2011

From the Department of Obstetrics and Gynecology, New York Weill Cornell Medical Center, New York, NY

“…there has been no permanent Erb's palsy since we began shoulder dystocia drills in 2008”

IMPORTANCE OF TRAINING

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RECOMMENDS SHOULDER DYSTOCIA DRILLS

“SIMULATION TRAINING CAN IDENTIFY AND CORRECT COMMON CLINCAL ERROS MADE DURING EMREGENCIES.

ACOG COMMITTEE OPINION 590MARCH 2014

BY ARGUING PHYSICIANS DON’T CAUSE PERMAMENT BPI – THEY UNDERMINE THE IMPORTANCE OF TRAINING and PREVENTION

FALSE DEFENSE UNDERMINES THIS

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“[FOR 8 SUBJECTS]…the peak force was greater than the upper limit (250 N) of the strain gauge “

This is over 57 pounds of force.

Grimm simulated a maximum of 18 pounds of force (80 N).

CROFTS FINDINGS

THE CROFTS FORCE-TIME GRAPH

Fig. 2. Example of force–timegraph.Crofts. Simulation Training forShoulder Dystocia. Obstet Gynecol2006.

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PROSPECTIVE DATA – OVER 31,000 DELIVERIES.

ALL PERMANENT BPI ASSOCIATED WITH PHYSICIAN APPLIED TRACTION

DOSE RELATIONSHIP: THE GREATER THE TRACTION, THE GREATER THE INJURY.

MOLBERG STUDIES

“In this study, we found that thisprocedure was more often undertakenwith substantial force in cases ofpersistent injury, compared with thosewith transient injury, and that there wasa dose–response association betweenthe applied force and number ofaffected nerve roots.”

MOLBERG’S CONCLUSION

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IN ALL CASES WE HANDLED THE COURT FOUND DEFENDANTS PROOF WAS DEFICIENT UNDER PARKER.

PARKER V. MOBILE

From Nobre Hearing:

Grimm admitted that based on her modeling, she could not give any “factual, actual or specific conclusions about any specific delivery.”

Q. I'll say it again. As a result your data on brachial plexus strain cannot be directly related to brachial plexus injury occurrence or severity in actual obstetrical practice; true? Yes or no?

A. For a given individual, true.…..

Q. Okay. All r ight. So, doctor, it 's true you cannot draw any factual, accurate or specific conclusions from your MADYMO model about any specific delivery; yes or no?

A. That's true.

GRIMM’S LIMITS SPECIFIC CAUSATION– NOBRE HEARING

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Her thesis that maternal forces caused the head to deliver

From Nobre Hearing

Q. That's what I was trying to ask before. You're not an expert in any way, shape, or form in delivery of a baby's head; yes or no?

A. I would say, no, to that.

***

Q: And the starting point for all your simulations is the head is already delivered; yes or no?

A. Yes.

NO EVIDENCE THERE WERE ANYMATERNAL FORCES

NOBRE: MULTIPLE WITNESSES TESTIFIED TO EXTREME FORCE

SUTRYK: ACTUALLY PULLED A 200+ LB WOMAN DOWN AND NEARLY OFF THE DELIVERY TABLE BY PULLING THE BABY’S HEAD

PLAINTIFF’S PROOF OF SUBSTANTIAL FORCE – DEVELOP YOUR PROOF

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NO RES IPSA IF EXPERT ADMITS OTHER CAUSES OF BPI –

CASE DISMISSED ON DIRECTED VERDICT

JOHNSON V. ST. BARNABUS 52 AD 3RD 286 1ST DEPT. 2008

DEFENSE PERFERS TO ARGUE RT UNKNOWN AND UNKNOWABLE

SHIFTED IN NOBRE WHEN PUSHED.

GRIMM: 13% OF THE POPULATION WILL HAVE BP RUPTURES WITH APPLICATION BETWEEN 12 AND 21PERCENT STRETCH

ANALYSIS BASED ON STUDIES INVOLVING THE SPINAL NERVES OF RATS

CLAIMED AVERAGE RUPTURE THRESHOLD OF 29 PERCENT (SINGH ARTICLE)

CLAIMED THAT MATHEMATICALLY 13% OF POPULATION WILL ALWAYS BE BETWEEN 1 AND 2 SD FROM THE MEAN

NOBRE – GRIMM'S NEW AND UNRELIABLE RUPTURE THRESHOLD

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Motion Heading From Nobre

Grimm’s Mixing Of The Load BearingCharacteristics Of The Tibial Nerves AnAdult Rabbit, With The Ultimate InjuryThreshold Of The Spinal Nerves of An AdultRat, To Determine The Injury Threshold OfThe Brachial Plexus of A Human Newborn,IS “Junk Science” and Has No ScientificReliability

GRIMM’S JUNK SCIENCE

The adult rat study had a low overall average injury threshold forthe slow motion stretch group (29%), which is the data shearbitrari ly chose to use from that study, and a large standarddeviation (8.9%). (SD AND SLIPAGE OF EXTREMELY SMALLNERVES)

The adult rabbit study, by contrast, had a higher injury threshold(38.5%) and a much lower standard deviation (2%). Even at twostandard deviations from the mean the injury threshold based onthe data from the rabbit study would be 34.5%. This is wellbeyond the 15% to 18% stretch Grimm claims can occur due tothe maternal forces of labor.

In using the data from the rat study Grimm extrapolates theinjury threshold, which would be statistically and theoreticallyapplicable between 1 and 2 standard deviations from the mean.

GRIMM’S JUNK SCIENCE

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Initial toe region: nerve roots become longer without actually being stretched

Linear elastic (Proportional) region.

Failure occurs typically just beyond the proportional limit.

STRESS-STRAIN CURVES/SPRINGS

RYDEVIK NON-LINEAR SPRING – BASIS FOR GRIMM’S MADYMO PROGRAM

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SINGH’S SPRING

PROGRAMMING BASED ON RYDEVIK’S NON-LINEAR SPRING

BUT HER MAXIMUM STRETCH (STRAIN) WAS 15% - 18% -BARELY BEYOND THE RYDEVIK TOE PERIOD, AND NO WHERE NEAR THE PROPORATIONAL LIMIT

DOESN’T THIS DEMONSTRATE THAT MATERNAL FORCES HAVE ALMOST NO IMPACT ON THE NERVE ??

PROBLEM WITH GRIMM’S CONLUSIONS

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SINGH RAT NERVE DATA – 2 GROUPS

SINGH DATA RAT NERVE BROKEN DOWN

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FROM NOBRE HEARING:

Q. And Doctor, do you have any study that you can show us that compares the tensile strength, the stretch capacity of the human baby's brachial plexus, or any of the nerves within it, to an adult rat; yes or no?

A. No, that data does not exist.

NO EVIDENCE RAT DATA IS RELEVANT

From Nobre Hearing

Q. Okay, but you never compared normal or unobstructed delivery to shoulder dystocia; correct? Yes or no?

A. Correct.

GRIMM’S TESTIMONY: NO CONTROLS

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DR. ALLEN’S STUDY AND CONTROLS

The table from Dr. Allen’s study shows that thegreatest stretch of the brachial plexus as a resultof the maternal forces of labor occurs to theposterior brachial plexus during routine,unobstructed delivery (21.7% =/- 3.7%).

This is significantly more stretch than Grimmclaims occurs during shoulder dystocia, andbeyond her claimed injury threshold of 12% to21%, which Dr. Grimm testified will result inpermanent injury in 13% of the population.

MEANING OF DR. ALLEN'S TABLE

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Based on Dr. Allen’s testing, if Grimm’s injury threshold werecorrect:

NEARLY 13% OF ALL DELIVERIES WOULD INVOLVE PERMANENTBPI

BECAUSE SHE DID NOT USE CONTROLS, SHE CANNOTSCIENTIFICALLY CHALLENGE THIS IN A DIRECT MANNER.

MEANING OF DR. ALLEN'S TABLE 2

•General (usually with anterior arm)

a. Don’t let them do this

*THEY TRIED THIS IN SUTRYK

* Specific (where it’s documented as posteriorarm or they argue posterior arm – often despitethe record)

2 DEFENSE THEORIES

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Muhammad

Brandenburg

Nobre

WITH SPECIFIC THEORY THEY ARE BOUND BY THEIR FACTUAL CLAIM

Losing battle to deny it ALTHOUGH LITTLE REAL PROOF .

ADMIT TEMPORARY INJURY CAN BE CAUSED THROUGH MFL

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Simply saying literature doesn’t reflect avulsions or permanent injuries is not enough:

MOST DEFINE IT IN TERMS OF FORCES BEING VERY DIFFERENT

MUST DEFINE INJURY IN TERMS OF FORCES NEEDED TO CAUSE THIS INJURY

THAT’S WHY LITERATURE ABOUT TEMPORARY INJURY IRRELEVANT

**KEY IS QUANTIFICATION**

1. 0 TO 10 POUNDS PER SECOND IS NORMAL

2. UP TO 22 POUNDS PER SECOND WITHOUT INJURY

3. 22 TO 30 POUNDS PER SECOND CAUSES TEMPORARY INJURY

4. OVER 30 POUNDS PER SECOND CAUSES UPPER PERMAMNT BPI

5. THIS CASE (LOWER BPI AVULSION) REQUIRED OVER 75 POUNDS PER SECOND

(7.5 times normal!!) (Approx. 3 times temporary BPI !!!)

CONCLUSION: CAN’T EXTRAPOLATE BECAUSE VALUES ARE SO DIFFERENT

QUANTIFICATION FROM MUHAMMAD RECORD

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DEFENSE BAR SOUGHT TO

DISTINGUSH MUHAMMAD BASED ON

INJURY SEVERITY

BUT DID MUAHAMMAD OVERSTATE SIGNIFICANCE OF MULTI-LEVEL AVULSION

44 TO 88 POUNDS CAUSING THE FIRST OBJECTIVE LESIONWHICH IS AXONOTMESIS - NOBRE

FIRST OBJECTIVE LESION IS BREAKAGE OF THE EPINEURIUM:

THE OUTERMOST LAYER OF NERVE

AXONOTMESIS

METAIZEAU

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Axonotmesis as an interruption of the axons from nerve injury

Axonotmesis is essentially a partial thickness rupture

AXONOTMESIS

METAIZEAU – DRAWING OF C5-C6 – REAL WORLD AND NOT LIKE OTHER TEXTS

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a. “C5 AND C6 PLAY A PROTECTIVEROLE WITH RESPECT TO C7, C8 ANDT1.”

b. “HALF OF THE INITIAL FORCEDAMAGES THE 3 INFERIORELEMENTS.”

METAIZEAU

SINGH’S SPRING

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DEFENDANT’S BURDEN TO PROVE:

A. HOW MUCH FORCE NEEDED TO RUPTURE TO BP

B. THOSE FORCES CAN BE GENERATED IN MANNER THEY CLAIM

C. THOSE FORCES WERE GENERATED HERE

NEED QUANTIFIED DATA

PARKER: QUANTIFICATION OF FORCES

D’AMORE:

“Prospective testing of the in uterocausation theory of brachial plexus injury isunavailable as it appears impossible toconduct such testing without injuring thesubject.”

DEBUNKING THE “IT CAN’T BE TESTED” CLAIM

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TABER:The dearth of prospective testing insupport of the natural forces of labortheory is explained by ethicalconsiderations that preclude aprospective study subjecting mothersand babies to potential injury whilemeasuring excessive traction.

DEBUNKING THE “IT CAN’T BE TESTED” CLAIM

FORD:

“Here, ethics prevent testingthe intrauterine contractiontheory. Such testing wouldsubject mothers and theirinfants to potential injury.”

DEBUNKING THE “IT CAN’T BE TESTED” CLAIM

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Dr. Allen’s study: “To test this hypothesis, I conducted an experiment published in2007 that measured anterior and posterior brachial plexusstretch as the fetus is pushed through the pelvis and the heademerges from the birth canal for routine and shoulder dystociadeliveries. The results from that study reveal that the brachialplexus stretch varies between 0 and 25% during descent throughthe pelvis, which is the normal amount of stretch when the headrotates or flexes to one side. This amount of brachial plexusstretch is not injurious. In addition, the posterior stretch issignificantly less for shoulder dystocia deliveries [he referred tothe condition the defendants claim caused plaintiff’s injury as“posterior shoulder dystocia”] than for routine deliveries. As aresult, I scientifically disproved the hypothesis that permanentbrachial plexus injuries may occur in the posterior shoulder inroutine or shoulder dystocia deliveries as a result of maternalpushing alone.” R-81-82.

IT WAS TESTED – AND DISPROVED !

1. We know the amount of stretch and forceneeded to cause temporary BPI

2. We Know the amount of stretch and forceneeded to cause permanent BPI

3. We know the amount of stretch and forceneeded to cause permanent pan-plexus ormulti-level BPI

THIS IS MECHANICAL ENGINEERING

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1. WHAT DID THE WITNESSES SEE?

2. WHAT DID THE HEALTH PROFESSIONALS IN THE ROOM SAY

3. WHICH ARM WAS INVOLVED

YOU DO NOT WANT THIS TO BE BASED ON ABSTRACT SCIENCE ALONE

DEVELOP YOUR FACTUAL RECORD

O’Leary Testimony:

“if such forces were applied at that time so as toavulse three (3) of the nerves of the brachial plexus“the severe pain that the baby was feeling from theripping of the nerves would make its heart rate goup. So the baby’s heart rate would go very high andwould stay high as long as the baby experienced thepain.” Id at 181. … there was no such finding on thefetal heart tracing. Id. at 182.

This fetal monitoring evidence was uncontested ineither the trial or in the underlying motion.”

REVIEW FETAL MONITORING

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No scientific evidence baby can becomelodged at sacral promontory and remainlodged at sacral promontory with normalanatomical structure

IMAGING OF MATERNAL PELVIS

CT SCAN OF SACRAL PROMONTORY

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A. In our case doctor belatedly claimed remembered baby restituted to ROT after delivery of head

B. Chart noted LOP – but they claimed referred to exam an hour before birth – AT ZERO STATION - and baby could turn

C. Everyone was arguing about position of baby at birth:

REAL ISSUE: Position of baby when shoulder encounters SP

LOP at 0 station – Injured right arm anterior and left arm at SP

LOOK FOR OBJECTIVE PROOF NOT POSTERIOR WHEN INJURED

BRANDENBERG:

EXAMINATION OF EVERY SINGLE WITNESS

NO EVIDENCE THAT INJURY OCCURRED AT THAT TIME

NOBRE: COURT FOUND:

THEORY AMOUNTS TO “SHEER SPECULATION”

DEVELOPMENT OF FACTUAL RECORD AS TO WHEN INJURY TOOK PLACE

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It Doesn’t Matter:

Dr. Allen: “Even if this was a posterior shoulder injury, as thedefendant’s claim (which is not supported by the medicalrecords), this type of injury can only be caused by upward andor rotational clinician-applied traction far in excess of thatnormally used after the baby’s head is delivered and theclinician attempted to deliver the posterior shoulder toovercome the shoulder dystocia. Upward traction has beenproved scientifically and graphically displayed in obstetrictextbooks. R-80. In this case, downward or upward androtational traction applied by the delivering obstetricianhyperextended Asalah's neck on the right side, therebyproducing the brachial plexus stretch injury. Id.”

THE FALSE POSTERIOR SHOULDER DEFENSE

1. WHAT IS RUPTURE THREHOLD

2. IS THERE ANY OTHER CAUSE OF PERMAMENT BPI

3. WHAT IS THE BASIS

4. IS IT A DEPARTURE TO APPLY TRACTION DURING SHOULDER DYSTOCIA.

5. IS DOWNWARD TRACTION EVERY PERMISSABLE ?

6. WHEN ?

PUSH THE SCIENCE IN DEPOSITIONS

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GRIMM’S CHANGING POSITIONS BETWEEN NOBRE AND SUTRYK

IF CAN’T PROVE THE RUPTURE THRESHOLD - CAN’T SATISFY PARKER

They don’t know how much force wasapplied to the brachial plexus in thiscase through the maternal forces oflabor– there is no objective basis forclaiming the injury occurred in thatmanner.

MAKE THEM ADMIT THERE IS NO BASIS FOR SPECIFIC CAUSATION

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All they have is hypothesis andconjecture

We have scientific study disprovingtheir hypothesis

We usually have witnesses who sawsomething dramatic

IT’S THE DEFENSE'S BURDEN

MADE A DECISION NOT TO PURSUE THIS IN PRE-TRIAL MOTION BECAUSE OF LACK OF EVIDENCE OF SEVERITY OF INJURY

INSTEAD HIT THEM AT TRIAL WAS PARKER APPLICATION

PARKER VOIR DIRE

KNOCKED OUT THEIR PEDIATRIC NEUROLOGIST

MADE THEIR OB LOOK SILLY AS SHE TRIED TO TAKE HIS PLACE

VERDICT OF 2.1 MILLION

BRANDENBERG WAS NOT THE RIGHT CASE ?

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BARELY A PERMANANT INJURY BASED ON DEFENSE DME

NO SURGERY

NO SCANS

YEARS WITHOUT THERAPY

WE PROVED THAT EVEN A MILD PERMANENT BPI CANNOT BE SCIENTIFICALLY ATTRIBUTED TO THE MATERNAL FORCES OF LABOR

NOBRE WAS DEFINITELY NOT THE RIGHT CASE ??

BPI is a stretch injury

More force causes more stretch

Forces over 44 pounds required to cause permanent injury

Severity affected by both amount and duration of force application

Dose relationship - More force more injury

Maternal forces cause less than 18 pounds of force – 16% stretch

Normal labor causes more stretch

SUMMARY