                United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3863
                         ___________________________

       Dawn Lawrey, Mother and Next Friend of Aubree Lawrey, a Minor

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                              Good Samaritan Hospital

                              lllllllllllllllllllll Defendant

                 Kearney Clinic, P.C.; Dawn M. Murray, M.D.

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                      Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                           Submitted: December 18, 2013
                               Filed: June 4, 2014
                                  ____________

Before BYE, BRIGHT, and SMITH, Circuit Judges.
                            ____________

BYE, Circuit Judge.

       After Dawn Lawrey's daughter was born with permanent nerve damage in her
right shoulder and arm, Lawrey brought a medical malpractice action against Dr.
Dawn Murray, the physician who performed the delivery. The case went to trial with
a jury issuing a verdict in favor of Dr. Murray. Lawrey appeals claiming the district
court1 abused its discretion by excluding certain testimony from her experts prior to
trial. Lawrey also argues she was entitled to judgment as a matter of law on the issue
of informed consent; in the alternative Lawrey contends she should have been granted
a new trial because of allegedly inflammatory and prejudicial statements Dr. Murray's
counsel made in closing arguments. We affirm.

                                            I

       During a vaginal delivery, a newborn's shoulder can sometimes get stuck in the
birth canal behind parts of the mother's anatomy. This condition is called shoulder
dystocia. There are two places where a newborn's shoulder can get stuck. The first
is behind the mother's sacral promontory, a part of the tailbone. When a newborn's
shoulder gets stuck in this location, the condition is referred to as a posterior shoulder
dystocia. A posterior shoulder dystocia occurs before the newborn's head has
crowned.

       The second place a newborn's shoulder can get stuck is behind the mother's
pubic symphysis. The pubic symphysis is the fixed joint located at the front of the
pelvic girdle, where the two pubic bones meet. It is not actually a bone, but is
comprised of cartilage, so is similar to a bone in terms of its rigidity. This location
is farther along the birth canal. When a newborn's shoulder gets stuck in this
location, the condition is referred to as an anterior shoulder dystocia. An anterior
shoulder dystocia occurs after the newborn's head has crowned. In fact, a newborn's
head commonly retreats back into the birth canal after initially crowning if there is
an anterior shoulder dystocia, a condition known as the turtle sign.


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

                                           -2-
       Shoulder dystocia can cause injury to the brachial plexus, the network of
nerves running from the spinal cord to the shoulder and arm. These nerves can
stretch or tear while the newborn's shoulder is becoming dislodged from behind the
sacral promontory or the pubic symphysis. In those instances of shoulder dystocia
when an injury does occur, the injury is usually temporary. In rare instances, the
condition results in permanent injury.

       Aubree Lawrey was born on March 1, 2008, with a permanent brachial plexus
injury to her right shoulder and arm. The injury resulted from a posterior shoulder
dystocia, meaning Aubree's shoulder got stuck behind her mother's tailbone, before
her head had crowned. During prenatal visits with Dawn Lawrey, Dr. Murray had
discussed the possibility of the baby getting stuck during the delivery. Dr. Murray
had these discussions because of the problems Lawrey had during her first childbirth,
and the anticipated size of the second baby. Although Dr. Murray discussed the
possibility of the baby getting stuck during delivery, she did not mention the
possibility of a permanent injury. Lawrey opted to have a vaginal delivery rather than
a cesarean section.

       After Lawrey realized her daughter's injury was permanent, she brought a
medical malpractice action against Dr. Murray claiming the injury was caused by
negligent treatment. She also claimed a lack of informed consent, alleging Dr.
Murray was obligated to warn her of the possibility that a vaginal delivery could
result in a permanent nerve injury, and if she had been informed of the possibility of
permanent injury, she would have chosen to have a cesarean section.

       As the suit progressed, Lawrey disclosed the reports of two expert physicians.
Both physicians opined the injury resulted from Dr. Murray applying excessive lateral
traction to Aubree's head during delivery, notwithstanding the fact that Aubree's
shoulder had been stuck behind her mother's tailbone before her head had even
crowned. Both experts further believed the maternal forces of labor (i.e., the mother

                                         -3-
pushing) can never cause permanent nerve injuries of the type suffered by Aubree,
and permanent injuries are always the result of excessive physician-applied traction
(i.e., the doctor pulling).

      Prior to trial, Dr. Murray filed a motion in limine seeking to preclude both of
Lawrey's experts from testifying that maternal forces of labor cannot cause permanent
brachial plexus injuries and that such injuries are always the result of excessive
physician-applied traction. Dr. Murray further argued the two experts' testimony
should be excluded because it did not fit the facts of this case, in that the medical
records of the birth showed the delivery was not difficult, the delivery involved a
posterior shoulder dystocia before the baby's head had crowned, and Dr. Murray did
not apply excessive traction to Aubree's head or neck during the delivery.

        The district court granted the motion in limine. The district court equated the
two experts' testimony – brachial plexus injuries are always the result of physician
applied traction – with essentially advancing a theory of res ipsa loquitur (i.e., a
brachial plexus injury is an occurrence which would not happen in the absence of
negligence). The district court determined the doctrine of res ipsa loquitur was
inapplicable as a matter of law to the circumstances involved in this case because
"[a]ll credible evidence before this Court suggests that brachial plexus injuries . . . can
and do occur in a fixed percentage of births where no traction is applied by the birth
attendant." The district court precluded the two experts "from offering any opinion
that maternal expulsive forces cannot cause permanent brachial plexus injuries, or
that birth-related brachial plexus injuries are always the result of traction applied to
an infant's head and neck by the birth-attendant."

      The district court further precluded the two experts from testifying "that the
injury to Plaintiff Aubree Lawrey was caused by Defendant Dr. Murray applying
excessive traction to infant Aubree's head and neck." Lawrey filed a motion for
reconsideration, which was denied, with the district court noting there was no

                                           -4-
evidence "to suggest Dr. Murray applied any traction to Aubree's head or neck during
delivery[.]" In the absence of such evidence, the district court reiterated its belief the
two experts were essentially advancing a theory of res ipsa loquitur.

        With her experts prohibited from testifying about what they believed caused
the injury, Lawrey proceeded at trial solely on the issue of a lack of informed consent.
Lawrey argued the standard of care required Dr. Murray to warn her about the risk of
a permanent brachial plexus injury. At trial, Dr. Murray said she warned Lawrey
about the possibility of an injury to the child during a vaginal delivery, but admitted
she failed to warn of the possibility of a permanent injury. Dr. Murray's expert
testified, however, that such a warning was only required in the three situations
mentioned in guidelines provided by the American Congress of Obstetricians and
Gynecologists (ACOG). The ACOG guidelines advise physicians to consider
performing a cesarean section to prevent possible permanent nerve damage from
shoulder dystocia in three circumstances: (1) if the mother is diabetic and the baby
weighs over 4500 grams (just short of ten pounds); (2) if the mother is non-diabetic
but the baby weighs over 5000 grams (just over eleven pounds); or (3) if the mother
had a prior delivery complicated by a severe shoulder dystocia or a birth-related
brachial plexus injury. None of the three circumstances applied to Dawn Lawrey, so
Dr. Murray's expert testified a warning about possible permanent injury was not
required. The jury rendered a defense verdict in favor of Dr. Murray, concluding she
did not violate the standard of care by failing to warn Lawrey about the possibility of
a permanent injury to her child.

       Lawrey filed a post-trial motion for judgment as a matter of law and, in the
alternative, a motion for new trial. The motion for a new trial was brought, in part,
on the grounds that defense counsel made improper and unfairly prejudicial
comments during his closing argument. Specifically, Lawrey claimed it was improper
and prejudicial for defense counsel to refer to plaintiff's counsel as "disingenuous,
inaccurate, and non-forthright." Lawrey also claimed it was improper and prejudicial

                                           -5-
for defense counsel to claim a plaintiff's verdict would send a message to other
doctors to perform more cesarean sections than necessary in order to avoid being sued
– "[t]he medical community is going to be listening to your verdict," and "the
community needs to hear from you." The district court denied both motions.

       Lawrey filed a timely appeal. On appeal, Lawrey contends the district court
abused its discretion in granting the motion in limine precluding her experts from
giving their opinion that the only possible cause of Aubrey's injury was excessive
physician-applied traction. Lawrey also claims she proved a lack of informed consent
as a matter of law based on Dr. Murray's admission that she failed to warn about the
possibility of a permanent injury, and thus the district court erred in denying her
motion for judgment as a matter of law. Finally, Lawrey contends the district court
erred in denying the motion for a new trial on the grounds that defense counsel's
closing argument was improper and unfairly prejudicial.

                                           II

                                           A

       Lawrey first challenges the district court's pretrial order granting Dr. Murray's
motion in limine, which limited the testimony Lawrey's experts could provide on the
relationship between excessive physician-applied traction and brachial plexus
injuries. Before addressing the merits, however, we need to resolve a dispute over
the proper standard of review. Although we generally review the exclusion of expert
testimony for an abuse of discretion, see, e.g., Sappington v. Skyjack, Inc., 512 F.3d
440, 448 (8th Cir. 2008), Dr. Murray argues we should apply the more stringent plain
error standard in this case because Lawrey failed to make an offer of proof at trial
regarding her experts' testimony. Relying upon our decision in Smith v. Hy-Vee, 622
F.3d 904 (8th Cir. 2010), Dr. Murray contends Rule 103 of the Federal Rules of



                                          -6-
Evidence requires a party to make an offer of proof at trial to preserve an objection
to evidence excluded by a pre-trial motion in limine. We disagree.

       A 2000 amendment to Rule 103 states "[o]nce the court rules definitively on
the record—either before or at trial—a party need not renew an objection or offer of
proof to preserve a claim of error on appeal." In Hy-Vee, a divided panel of this court
interpreted the amended rule as still requiring an offer of proof at trial after a
definitive ruling on a motion in limine, reasoning that the rule refers to renewing an
objection, and thus an initial offer of proof must be made before it can be renewed.
See Hy-Vee, 622 F.3d at 909 ("The point we make here is that no offer of proof was
ever made, not that one was not renewed."). Although our court en banc had
construed the 2000 amendment as not requiring an offer of proof to preserve an
objection when "the evidence was excluded pursuant to a motion in limine," Moran
v. Clarke, 296 F.3d 638, 649 (8th Cir. 2002) (en banc), the Hy-Vee majority
dismissed this comment as dicta, stating

      we cited no case in support of this proposition and we don't believe that
      the court intended to overrule our clear, contrary precedents on the
      matter, especially without discussion. In fact, the matter of whether a
      motion in limine had been made does not seem to have been in issue in
      Moran, so we think that the assertion there about offers of proof being
      unnecessary was inadvertent and dictum.

Hy-Vee, 622 F.3d at 909.

       The Hy-Vee majority, however, overlooked several other Eighth Circuit
decisions that had already considered whether – following the 2000 amendment –
Rule 103 required an offer of proof at trial to preserve a claim of error following a
definitive ruling on a pre-trial motion in limine. All those cases held the error was
preserved without requiring an offer of proof at trial, essentially recognizing that the
motion in limine itself (or the opposition to the same) served as the required objection

                                          -7-
which the Hy-Vee majority found lacking. See Shelton v. Kennedy Funding, Inc.,
622 F.3d 943, 958-59 & n.14 (8th Cir. 2010); United States v. Davis, 534 F.3d 903,
920-21 (8th Cir. 2008); United States v. Flenoid, 415 F.3d 974, 976 (8th Cir. 2005);
United States v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003); see also WWP, Inc. v.
Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039-40 (8th Cir. 2011)
(applying the above line of cases rather than the rule stated in Hy-Vee).

       The Hy-Vee majority was not at liberty to disregard these prior panel decisions.
See United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997) ("One panel may
not overrule another."). Because Shelton, Davis, Flenoid and Malik were all decided
prior to Hy-Vee, the reasoning expressed in these earlier cases is the correct statement
of the law, not the contrary rule stated in Hy-Vee. See Mader v. United States, 654
F.3d 794, 800 (8th Cir. 2011) (en banc) ("[W]hen faced with conflicting panel
opinions, the earliest opinion must be followed as it should have controlled the
subsequent panels that created the conflict.") (internal quotation marks and citation
omitted). Because the order limiting the testimony of Lawrey's experts was the
subject of a definitive motion in limine, Lawrey's counsel was not required to make
an offer of proof at trial to preserve a claim of error on appeal. Thus, the proper
standard for our review of the district court's order granting the motion in limine is
abuse of discretion, not plain error.

       Turning now to the merits, the district court precluded Lawrey's experts from
testifying that the only possible cause of a brachial plexus injury is excessive
physician-applied traction. The district court also precluded Lawrey's experts from
testifying that the injury in this case was caused by Dr. Murray applying excessive
traction to Aubree's head and neck during the delivery. Lawrey contends the district
court abused its discretion in precluding her expert testimony, arguing the testimony
was based on a comprehensive differential diagnosis which ruled in excessive
physician-applied traction as the most likely cause of Aubree's injury, and ruled out
maternal expulsive forces and other potential causes. Lawrey argues the district court

                                          -8-
should have allowed her experts to testify because their testimony was based on a
proper differential diagnosis. We disagree.

       In Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410 (8th
Cir. 2005), we examined whether a district court abused its discretion by excluding
certain expert opinions "because they did not fit the facts of the case." Id. at 415. We
noted the general rule that "the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility," but also said "if the expert's
opinion is so fundamentally unsupported that it can offer no assistance to the jury, it
must be excluded." Id. at 416; see also Concord Boat Corp. v. Brunswick Corp., 207
F.3d 1039, 1056 (8th Cir. 2000) ("Even a theory that might meet certain Daubert
factors, such as peer review and publication, testing, known or potential error rate,
and general acceptance, should not be admitted if it does not apply to the specific
facts of the case.") (footnote omitted).

        Here, the opinions offered by Lawrey's experts did not fit the specific facts of
this case. Brachial plexus injuries are caused by the force which dislodges a
newborn's stuck shoulder and occur when the shoulder becomes dislodged. Aubree's
injury resulted from a posterior shoulder dystocia which, as previously noted, occurs
before a baby's head has crowned. This means the force which caused Aubree's
injury must have been applied while her head and neck were still in the birth canal.
Lawrey's experts failed to explain how Dr. Murray could or did apply traction to
Aubree's head and neck while her head and neck were still in the birth canal.
Lawrey's experts also failed to explain how any traction Dr. Murray allegedly applied
after Aubree's head and neck exited the birth canal could have caused an injury which
occurred before her head had crowned. In short, the testimony concluding Aubree's
injury was caused by physician-applied traction to her head and neck simply did not
fit the facts of this case. As a result, the district court did not abuse its discretion by
excluding the testimony.



                                           -9-
                                          B

       Lawrey next contends the district court erred when it denied her motion for
judgment as a matter of law on the issue of informed consent. We review the denial
of a motion for judgment as a matter of law de novo; the evidence is viewed in the
light most favorable to the prevailing party and we do not reweigh the evidence or
consider questions of credibility. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418
F.3d 820, 832 (8th Cir. 2005).

        Lawrey contends Dr. Murray's expert testified the alleged risk factors present
in this case required Dr. Murray to inform Lawrey of the possibility of a permanent
injury to her child if she chose a vaginal delivery. Lawrey therefore claims she was
entitled to judgment as a matter of law on the issue of informed consent because Dr.
Murray admitted she did not warn Lawrey about the possibility of a permanent injury.
Our review of the record does not support the contention that Dr. Murray's expert
testified the risk factors present in this case required a physician to warn a patient
about the possibility of a permanent injury.

       As described above, the expert's testimony clearly conditioned the need to warn
a patient about a permanent injury on whether the risk factors justifying such a
warning were present. The risk factors outlined by Dr. Murray's expert tracked the
ACOG guidelines for when a physician should consider performing a cesarean
section to avoid the possibility of shoulder dystocia. None of the ACOG guideline
risk factors (i.e., diabetic mother and baby weight over 4500 grams; non-diabetic
mother and baby weight over 5000 grams; or prior delivery complicated by a severe
shoulder dystocia or a birth-related brachial plexus injury) were present in this case.
As a result, Lawrey was not entitled to judgment as a matter of law on the issue of
informed consent, and the district court did not err in denying Lawrey's motion.




                                         -10-
                                           C

       Finally, Lawrey contends the district court should have granted her a new trial
based on allegedly prejudicial and inflammatory comments made by defense counsel
during closing arguments. We review the denial of a motion for a new trial "for a
clear abuse of discretion," only granting the motion when necessary "to avoid a
miscarriage of justice." Harrison v. Purdy Bros. Trucking Co., Inc., 312 F.3d 346,
351 (8th Cir. 2002). When a new trial motion is based on improper closing
arguments, "a new trial should be granted only if the statements are plainly
unwarranted and clearly injurious and cause prejudice to the opposing party and
unfairly influence a jury's verdict." Id. (internal quotation marks and citation
omitted). To the extent Lawrey claims defense counsel engaged in improper personal
attacks impugning the character of plaintiff's counsel, there was no objection at trial
and thus this claim is reviewed only for plain error. Manning v. Lunda Constr. Co.,
953 F.2d 1090, 1092-93 (8th Cir. 1992).

       Lawrey first claims defense counsel made prejudicial and inflammatory
personal attacks on plaintiff's counsel by referring to him as "disingenuous,
inaccurate, and non-forthright." It is not improper, however, for an attorney to tell
the jury his opponent's argument is false or disingenuous if such statements are
consistent with the facts developed at trial. See Sanden v. Mayo Clinic, 495 F.2d
221, 227 (8th Cir. 1974) ("Normally, it is improper for an attorney to argue before the
jury that the case of his opponent is false or fraudulent. Yet here the supporting facts
were developed at trial and the conclusion, if such evidence was believed, was at least
a permissible one.") (internal citations omitted). In this case, Lawrey's counsel told
the jury several times that Dr. Murray's own expert agreed Dr. Murray breached the
standard of care by not informing Lawrey of the risk of permanent injury. As we
noted above, however, the expert clearly conditioned the need to give such a warning
on the presence of the risk factors outlined in the ACOG guidelines. Because none
of those risk factors were present in this case, it was not improper for defense counsel

                                         -11-
to argue the plaintiff's argument was unsupported by the record. We find no plain
error present here.

       Lawrey also claims defense counsel engaged in an inappropriate "send a
message" argument when he said the "medical community is going to be listening to
your verdict." See, e.g., Sinisterra v. United States, 600 F.3d 900, 910 (8th Cir. 2010)
(generally explaining the impropriety of "send a message" closing arguments). We
disagree this statement resulted in a miscarriage of justice that warrants a new trial.
Our review of the record shows the comment was made in the context of asking the
jury to determine the appropriate community standard of care. See, e.g., Stecker v.
First Commercial Trust Co., 962 S.W.2d 792, 797 (Ark. 1998) (stating a mistrial was
not warranted when it was at least plausible defense counsel's reference to "protecting
the children" had to do with the standard of care rather than sending a message). In
addition, the comment about the medical community listening to the jury's verdict
comprised a very small portion of a lengthy closing argument properly commenting
on the facts involved in the case, and thus was not the primary theme of the closing
argument. The district court instructed the jury that statements by the attorneys were
not evidence and the case should be decided based upon the facts presented at trial.
See Anastasio v. Schering Corp., 838 F.2d 701, 706 (3d Cir. 1998) (concluding
"isolated comments" in the context of an otherwise proper closing argument did not
warrant a new trial, especially where the district court instructed the jury that
counsels' statements were not evidence).

                                          III

      We affirm the district court.




                                         -12-
BRIGHT, Circuit Judge, concurring.

       I concur in the result but write separately to emphasize that, in my opinion, the
decision to exclude the expert testimony in this case was a close call, but was not an
abuse of the discretion afforded to the district court under the Daubert rule. See
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (charging district
court judges with the responsibility of acting as gatekeepers to “ensure that any and
all scientific testimony or evidence admitted is not only relevant, but reliable”).
                         ______________________________




                                         -13-
