v. Vail Clinic , 2020 COA 126 ( 2020 )

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
1
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
2
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.
3
¶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.
4
 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
5
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
6
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
7
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
8
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
9
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
10
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
12
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
13
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.
14
¶ 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.
15
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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