                               THIRD DIVISION
                              ELLINGTON, P. J.,
                          ANDREWS and RICKMAN, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                    September 7, 2017




In the Court of Appeals of Georgia
 A17A1191. SMITH et al. v. BRASWELL et al.

      RICKMAN, Judge.

      T’Miaya Smith’s son, J. H., began having seizures after his birth and a head CT

scan revealed ischemic injuries to his brain.1 Smith2 filed suit against Lauren Braswell

(a midwife who provided care to Smith during her labor and delivery), and Atlanta

Women’s Health Group (Braswell’s employer) (collectively, “Braswell”), alleging

that Braswell was negligent in the management of Smith’s labor and delivery and

seeking damages.3 Braswell filed a motion seeking to exclude the testimony of Dr.


      1
          Ischemic injuries result from diminution or lack of blood flow.
      2
        Jamaal Hayes, Sr., J. H.’s father, was also a plaintiff but he voluntarily
dismissed his claims.
      3
        Smith also filed suit against Northside Hospital, the hospital where J. H. was
delivered, but Northside Hospital entered into a settlement agreement with Smith, was
Barry Schifrin, one of Smith’s expert witnesses, a motion to exclude causation

testimony from any of Smith’s expert witnesses, and a motion for summary judgment.

The trial court granted Braswell’s motions. Smith appeals and for the following

reasons, we affirm.

      1. Smith contends that the trial court erred in granting Braswell’s motion to

exclude the testimony of her expert witness, Dr. Schifrin. We disagree.

      “The determination of whether a witness is qualified to render an opinion as

an expert is a legal determination for the trial court and will not be disturbed absent

a manifest abuse of discretion.” (Citation and punctuation omitted.) HNTB Ga., Inc.

v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010). OCGA § 24-7-702

(b)4, which governs the admissibility of expert testimony in civil cases, provides that:

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue, a

dismissed from this action, and is not a party to this appeal.
      4
        Because the hearing on Braswell’s motions took place in June 2016, the new
Evidence Code applies. See Dempsey v. Gwinnett Hosp. System, Inc., 330 Ga. App.
469, 471 (1) (a), n. 3 (765 SE2d 525) (2014) (“The new Evidence Code became
effective on January 1, 2013, and applies to any motion made or hearing or trial
commenced on or after such date.”). “Further, because OCGA § 24-7-702 is
“substantively identical” to its predecessor statute, former OCGA § 24-9-67.1, cases
decided under the former statute offer useful guidance when analyzing the current
version of the statute.” (Citation and punctuation omitted.) Id.

                                           2
      witness qualified as an expert by knowledge, skill, experience, training,
      or education may testify thereto in the form of an opinion or otherwise,
      if: (1) The testimony is based upon sufficient facts or data; (2) The
      testimony is the product of reliable principles and methods; and (3) The
      witness has applied the principles and methods reliably to the facts of
      the case which have been or will be admitted into evidence before the
      trier of fact.


      “In determining the admissibility of expert testimony, the trial court acts as a

gatekeeper, assessing both the witness’ qualifications to testify in a particular area of

expertise and the relevancy and reliability of the proffered testimony.” (Citation

omitted.) HNTB Ga., Inc., 287 Ga. at 642 (1).

      Reliability is examined through consideration of many factors, including
      whether a theory or technique can be tested, whether it has been
      subjected to peer review and publication, the known or potential rate of
      error for the theory or technique, the general degree of acceptance in the
      relevant scientific or professional community, and the expert’s range of
      experience and training.


(Citation omitted.) Id. See Kumho Tire Co. v. Carmichael, 526 U. S. 137, 141 (119

SCt 1167, 143 LEd2d 238) (1999); see also Daubert v. Merrell Dow

Pharmaceuticals, 509 U. S. 579, 592-594 (II) (B) (113 SCt 2786, 125 LEd2d 469)

(1993). “There are many different kinds of experts and many different kinds of


                                           3
expertise, and it follows that the test of reliability is a flexible one, the specific factors

neither necessarily nor exclusively applying to all experts in every case.” (Citations

and punctuation omitted.) HNTB Ga., Inc., 287 Ga. at 643 (1).

       Applying those principles to the facts of this case, Dr. Schifrin is “an

obstetrician/gynecologist with [a] subspecialty certification in maternal-fetal

medicine.” Currently, Dr. Schifrin primarily writes, researches, and gives lectures. Dr.

Schifrin has not had hospital privileges since 2011, the last time he was a full time

maternal-fetal medicine physician was approximately 17 years ago, and he has not

regularly delivered babies since 2003.5

       Dr. Schifrin opined that J. H.’s injury was the result of ischemia caused by

“mechanical compressive forces” on his head during the course of Smith’s labor. The

mechanical compressive forces that Dr. Schifrin refers to are, inter alia, the use of

pitocin, excessive uterine activity, malposition of J. H., pushing prior to Smith’s full

cervical dilation, and fundal pressure. Dr. Schifrin has coined this mechanism of

injury, cranial compression ischemic encephalopathy (“CCIE”).6 In a thorough order,

       5
           Dr. Schifrin may have delivered one baby between 2005 and 2011.
       6
          Smith spends a portion of her brief arguing that the trial court erred by
focusing on the CCIE label for the alleged mechanism of injury in this case. However,
it is clear from the trial court’s order that it understands the causation theory in this

                                              4
the trial court concluded that Dr. Schifrin’s testimony and any expert testimony

regarding the mechanism of injury posited by Dr. Schirifin would be inadmissible

pursuant to OCGA § 24-7-702 (b) and the Daubert factors because Dr. Schifrin’s

theory has not been reliably tested, has not been subject to peer review and

publication, is not generally accepted in the scientific community, and has not been

clinically diagnosed in any other patients.

      Smith argues that the trial court erred by failing to consider the causation

opinions given by two of her other experts, Dr. Daune MacGregor, a pediatric

neurologist and Dr. Thomas Paul Naidich, a neuroradiologist, notwithstanding the

fact that the trial court cites to both Dr. Naidich’s and Dr. MacGregor’s deposition

testimony in its order. Dr. Naidich deposed that he “will leave [clinical opinions

about what specifically took place during the labor and delivery that might have

caused or contributed to these injuries] to those who are truly expert in that. I’m the

radiologist. Specific mechanical events in labor and delivery will be discussed by

others. I will offer no opinion on those.” Likewise, Dr. MacGregor deposed that her

“understanding is [what causes compression resulting in injury] has to do with the

amount of pressure that’s put on by uterine contractions, that overcomes the natural

case and that Dr. Schifrin uses the label CCIE to describe the theory.

                                              5
mechanisms that maintain brain and blood supply” but she is “not an expert in the

mechanics of delivery.” Contrary to Smith’s assertion that Dr. Schifrin’s role is only

one part of the causation theory, the case hinges upon the testimony of Dr. Schifrin

as to the mechanical forces in labor that allegedly caused J. H.’s injury.

      Dr. Schifrin co-authored a chapter of a book titled, “Cranial Compression

Ischemic Encephalopathy: Fetal Neurological Injury Related to the Mechanical

Forces of Labor and Delivery.” In that chapter, Dr. Schifrin proposes the concept of

CCIE and explains that “[t]he overall contribution of [mechanical] forces to ischemic

brain injury during labor is difficult to establish, in no small measure because in

modern obstetrics necessary details about theses various factors are often

unmeasured, unrecorded, and not considered.” In regards to testing of the theory, Dr.

Schifrin writes, “[t]o isolate the contribution of mechanical factors it will be

necessary for epidemiologic studies to adjust for the role of potentially mitigating

factors” because “[w]e must learn more about the ability of the fetal skull to protect

the fetal brain.” Dr. Schifrin deposed that there have not been any long-term

epidemiological studies on the mechanism of injury and that he “recommend[s] them

in the context of understanding [CCIE] as a potential cause of injury.” Dr. Naidich

deposed that he was not aware of any studies that have looked at external pressure on

                                           6
the skull causing this type of injury. Dr. Naidich deposed that if such studies existed

he “would appreciate the reference just for [his] general knowledge.” Dr. MacGregor

deposed that she is not aware of any studies that determined the incidence rate of the

proposed mechanism of injury in this case. Additionally, another one of Smith’s

experts, Dr. Paul Govaert, a neonatologist and pediatrician in Belgium and Holland,

deposed that the “hypothesis” proposed by Dr. Schifrin was “possible” but that “we

. . . still need some more research in science.”

      In regards to peer-reviewed literature about the alleged mechanism of injury

in this case, Dr. Govaert deposed that he was not aware of any peer-reviewed articles

about this type of injury caused by increased intracranial pressure because of

increased intrauterine pressure. Because of this lack of peer-reviewed literature, Dr.

Govaert deposed that he “should publish it if I can.” Another one of Smith’s experts,

Dr. Cheng, a pediatric neurologist, deposed that he has never read any peer-reviewed

literature on the alleged mechanism of injury in this case.

      In his book chapter, Dr. Schifrin explains, himself, how this mechanism of

injury is not accepted in the scientific community. Dr. Schifrin writes that “[i]n recent

decades, only scant attention has been turned to the effects of the mechanical forces

of labor and delivery on intracranial pressure” and “[t]he prevailing monolithic view

                                           7
is that . . . contractile forces cannot be “excessive.”“ Additionally, Dr. Goavert

deposed that Schifrin’s theory is not well known amongst his colleagues which is a

reason why he intended to write an article about the theory and publish it. See

Hendrix v. Evenflo Co., Inc., 609 F3d 1183, 1194 (B) (1) (11th Cir. 2010) (“Given

time, information, and resources, courts may only admit the state of science as it is.

Courts are cautioned not to admit speculation, conjecture, or inference that cannot be

supported by sound scientific principles. The courtroom is not the place for scientific

guesswork, even of the inspired sort. Law lags science; it does not lead it.”) (citations

and punctuation omitted.).

      Additionally, the trial court determined that lack of diagnosis in other patients

of this mechanism of injury weighed against the theory’s reliability.7 Dr. Goavert

deposed that he had never diagnosed one of his patients as having ischemic injury

because of intrauterine pressure due to excessive intrauterine activity. Dr. Cheng

deposed that he had never seen this mechanism of injury applied to this condition in

terms of diagnosis. Dr. MacGregor deposed that she had never diagnosed this


      7
          Smith argues the trial court erred by analyzing whether her experts had
previously diagnosed this mechanism of injury. However, as noted above, the test of
reliability is flexible and the factors do not necessarily or exclusively apply to every
expert. See HNTB Ga., Inc., 287 Ga. at 643 (1).

                                           8
mechanism of injury but wondered if it would have applied to one previous patient.

Moreover, Dr. Schifrin deposed that he had not diagnosed one of his patients in the

past decade with an ischemic injury due to this mechanism of injury but that it “may”

have happened to a previous patient.

       Accordingly, under the circumstances of this case, the trial court did not abuse

its discretion in concluding that “the preponderance of the evidence weighs against

the admissiblity of the CCIE theory of causation under OCGA § 24-7-702 (b)” and

thus “exclud[ing] the theory and Dr. Schifrin’s testimony.” See Webster v. Desai, 305

Ga. App. 234, 237 (1) (699 SE2d 419) (2010) (trial court properly excluded expert

testimony in a medical malpractice case when the expert’s theory was not supported

by studies or peer-reviewed literature); see also HNTB Ga., Inc. 287 Ga. at 643 (1)

(in a negligence action, trial court did not abuse its discretion in excluding expert

testimony where the expert could not prove its theory was accepted and recognized

by other practitioners in his field).

       2. Smith contends that the trial court erred by granting summary judgment to

Braswell. We disagree.

       “In a medical malpractice case, the plaintiff must present expert medical

testimony establishing that the defendant’s negligence either proximately caused or

                                           9
contributed to his injuries.” (Footnote and punctuation omitted.) Webster, 305 Ga.

App. at 238 (2). Contrary to Smith’s assertion that additional evidence of causation

remains in the record, the trial court clearly excluded not only Dr. Schifrin’s

testimony but all testimony as to the alleged mechanism of injury in this case. The

trial court properly concluded that “[b]ecause the [trial court] has excluded [Smith’s]

theory of causation . . . an essential element of [Smith’s] case is absent and summary

judgment . . . must be granted.” Accordingly, the trial court properly granted

Braswell’s motion for summary judgment. See Id.

      Judgment affirmed. Ellington, P. J., and Andrews, J., concur.




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