

 
Appellant’s Motion for Rehearing Overruled; Majority and Dissenting
Opinions of April 20, 2010 Withdrawn; Affirmed and Substitute Majority and
Substitute Dissenting Opinions filed June 17, 2010.
 
 
In The
 
Fourteenth Court of
Appeals
___________________
 
NO. 14-08-00089-CV
___________________
 
LAUREN TABER, INDIVIDUALLY AND AS NEXT FRIEND OF
JORDAN ROBINSON, A MINOR, Appellant
 
V.
 
CATHERINE NGUYEN ROUSH, M.D. AND PLAZA OB-GYN ASSOCIATES,
P.A., Appellees

 

 
On
Appeal from the 334th District Court
Harris County,
Texas

Trial Court Cause No. 2003-45357
 

 
 
SUBSTITUTE MAJORITY OPINION*
Appellant Lauren Taber, acting individually and as next
friend to her minor son Jordan Robinson, sued appellees Dr. Catherine Nguyen
Roush and Plaza Ob-Gyn Associates, P.A.  Dr. Roush provided prenatal care to
Taber and delivered Jordan, who suffered nerve injuries during birth.  Taber attributes
Jordan’s nerve injuries to Dr. Roush’s asserted negligence.[1]
The jury returned a 10-2 verdict in favor of Dr.
Roush, answering “no” to a question asking whether the negligence of Dr. Roush,
if any, was a proximate cause of the injuries in question.  The trial court
signed a take-nothing judgment in conformity with the verdict.
On appeal, Taber asks for a new trial predicated on
contentions that the trial court erroneously refused to (1) exclude expert testimony
relied upon by Dr. Roush; (2) grant a mistrial based on testimony alleged to
have violated an order in limine; and (3) strike venire members for cause.  She
also contends that the trial court’s refusals to exclude expert testimony,
grant a mistrial, and strike venire members for cause resulted in a jury
verdict that is contrary to the great weight and preponderance of the evidence.
We affirm the trial court’s judgment.
Background
Taber was admitted to Park Plaza Hospital in Houston at
7:46 p.m. on October 27, 2002, and remained in the hospital overnight.  Dr.
Roush was paged and gave orders at 9:48 p.m.  Labor was induced because Taber
had pregnancy-induced hypertension; she began receiving Pitocin at 6:30 a.m. on
October 28, 2002.  Dr. Roush performed a vaginal examination at 8:51 a.m. and
ruptured Taber’s membrane at that time.
Taber’s labor progressed during the day on October 28,
and Dr Roush performed another vaginal examination at 1:42 p.m.  Dr. Roush
examined Taber again about 40 minutes later; after this examination, Taber
received epidural anesthetic at 2:35 p.m.  Dr. Roush returned at 3:30 p.m. and
inserted an intrauterine pressure catheter.
At 5:54 p.m., Dr. Roush was notified by telephone
that Taber was fully dilated and had entered the second stage of labor.  Dr.
Roush instructed the nurses to have Taber begin pushing.  At 7:34 p.m., Dr.
Roush was called to the hospital for the delivery because Taber had started
pushing involuntarily.  Dr. Roush testified that she arrived about 15 minutes
before Jordan’s head delivered.
An entry in the nurse’s notes states that the crown
of Jordan’s head was first observed at 8:06 p.m.  At approximately 8:07 p.m., a
“turtle sign” occurred when Jordan’s head delivered.
A “turtle sign” occurs when a baby’s head delivers
and then retracts, indicating that shoulder dystocia has occurred.  Shoulder
dystocia occurs when the baby’s shoulder becomes trapped against the mother’s
symphasis pubis or pubic bone, preventing further descent down the birth canal.
The occurrence of shoulder dystocia greatly increases
the chances of injury to the baby’s brachial plexus.  The brachial plexus is a
series of nerves emanating from the neck to form a network or mesh that
supplies the shoulder, arm, and hand with movement and feeling.  The brachial
plexus allows normal and symmetrical growth of the arm and hand in children.
Shoulder dystocia is an obstetric emergency.  To
avoid brain damage to the baby from lack of oxygen due to cord compression, the
shoulder dystocia must be resolved quickly so that the delivery can be
completed.  According to the textbook Operative Obstetrics, “[V]ery few
graduating residents have seen or handled more than a few cases” involving
shoulder dystocia because it is a rare occurrence.  Therefore, “[w]hen
presented with a case of shoulder dystocia, the inexperienced obstetrician may
panic and become confused, exerting unacceptable and maldirected forces upon
the infant’s head, and thus producing permanent brachial plexus injury.”
At the time of Jordan’s delivery, Dr. Roush was less
than a year out of residency.  She had handled shoulder dystocias before as a
resident; this may have been the first shoulder dystocia she handled without an
attending physician present.
Medical literature reports that “a clinician’s first
reaction to a difficult delivery is to exert considerably larger forces than he
normally would.”[2] 
Operative Obstetrics reports that “[t]he majority of brachial plexus
injuries involve extraction of the child’s body within 3 minutes of the
delivery of the head, that is, before the end of the next uterine
contraction.”  The American College of Obstetricians and Gynecologists
recommends that “[w]hen shoulder dystocia is diagnosed, a deliberate and
planned sequence of events should be initiated.  Pushing should be halted and
obstructive causes should be considered. . . . The presence of another
physician experienced in the management of shoulder dystocia is helpful. 
Additional nursing staff, anesthesia personnel, and pediatricians should be
summoned.”  
Obstetricians have developed maneuvers to address
shoulder dystocia.  While there is no required order in which these maneuvers
must be performed, it is generally accepted that the first two maneuvers attempted
should be (1) the McRoberts maneuver, in which the mother’s legs are removed from
the stirrups and flexed sharply upon the abdomen; and (2) suprapubic pressure, which
involves pushing down on the abdomen to push the baby’s trapped shoulder out
from underneath the pubic bone.
Dr. Roush testified that she diagnosed Jordan’s shoulder
dystocia within 10 seconds of the “turtle sign.”  According to an entry in the
nurses’ notes, Jordan’s delivery was complete at 8:08 p.m.  During the minute
that elapsed between the “turtle sign” at 8:07 p.m. and Jordan’s birth at 8:08
p.m., Dr. Roush testified that she told Taber to keep pushing and then
successfully resolved the shoulder dystocia involving Jordan’s right shoulder;
she testified that she did so with the assistance of nurses through application
of the McRoberts maneuver and then suprapubic pressure.
The nurses who were present for Jordan’s delivery testified
that they had no recollection of the delivery independent of what the medical
records reveal.  The medical records contain nurses’ notes; there is no record
in the nurses’ notes that the McRoberts maneuver and suprapubic pressure were
applied.  The medical records also contain a delivery note written by Dr. Roush
after the delivery stating: “[M]oderate shoulder dystocia resolved with
McRoberts and suprapubic pressure.”
Dr. Roush testified that she applied traction to
Jordan’s head after the shoulder dystocia was relieved.  She denied applying
excessive force to Jordan’s head and neck during the delivery, and denied
applying upward or downward lateral traction to Jordan’s head.  Dr. Roush
testified that she applied traction to Jordan by pulling “along the axis of the
baby.”  She explained that “the way you place your hands is that you make sure
the head and the neck and the shoulders are all in alignment without actually
trying to torque the head in any way.  So I keep it along the same axis.  It is
like a straight axis from head to neck down through the shoulders.”  In
contrast to upward or downward lateral traction, Dr. Roush testified that axial
traction “is really almost parallel to the floor.”  Dr. Roush also testified
that she “restituted” Jordan’s head, meaning that she turned the head so it
would be perpendicular to his shoulders, and that the word “twist” is “just a
layman’s term for restitution.”
Jordan’s grandmothers observed the birth in the
delivery room while flanking Dr. Roush.  Both grandmothers testified that Dr.
Roush twisted, turned, and pulled on Jordan’s head with violent and frightening
force.  Jordan’s father also was present in the delivery room at Taber’s head. 
Taber, Jordan’s father, and Jordan’s grandmothers disputed Dr. Roush’s
testimony that the McRoberts maneuver and suprapubic pressure were applied.
Dr. Roush testified that four drapes were positioned
for Jordan’s delivery.  According to Dr. Roush’s testimony, one drape was
placed under Taber’s buttocks; one was placed on each leg; and one was placed
on her abdomen.  Dr. Roush testified that she uses drapes for every delivery.  Dr.
Roush further testified that “suprapubic pressure is done underneath the drapes
and sometimes having the drapes there to a lay person can obscure what
maneuvers we are doing.”  She also testified that the McRoberts maneuver is
performed underneath leg drapes, and “[t]hey are not going to see it . . . if
it’s draped.”  Taber and Jordan’s grandmothers testified that drapes were not used
during Jordan’s delivery.
Sheryl Taber, Jordan’s maternal grandmother,
testified that she did not recall seeing Dr. Roush push Jordan’s head down
toward the floor or pull it up toward the ceiling during delivery.  Gloria
Robinson, Jordan’s paternal grandmother, also testified that she did not
remember seeing Dr. Roush pull Jordan’s head down toward the floor or up toward
the ceiling during delivery.
Jordan was born with a limp right arm, which immediately
indicated that he had a brachial plexus injury.  There are four types of
brachial plexus injuries; most are transient and heal on their own or can be
repaired surgically.  Because most brachial plexus injuries are transient, a
permanent brachial plexus injury is not finally diagnosed until it persists for
more than a year or is confirmed surgically.
The least severe brachial plexus injury is a
neuropraxia or stretch, in which a nerve has been damaged but not torn.  The
neuropraxia is the most common form of brachial plexus injury and resolves over
time.  Next on the scale of severity is a neuroma.  In a neuroma, a nerve has
attempted to heal itself but scar tissue has grown around the injury; this places
pressure on the injured nerve and prevents it from conducting signals to the
muscles.  Next is a rupture, in which a nerve is torn but not at the spinal
attachment.  The most severe brachial plexus injury is an avulsion, which occurs
when a brachial plexus nerve root is physically pulled out of the spinal cord. 
A brachial plexus avulsion is permanent and cannot be repaired.
Jordan eventually was diagnosed as having an avulsion
of the C7 nerve root and a partial avulsion of the C5 nerve root.  He also was
diagnosed as having neuromas.
At trial, Taber contended that Dr. Roush breached the
standard of care during Jordan’s delivery by (among other things) applying
excessive force to Jordan’s head in response to the shoulder dystocia, and that
this conduct caused Jordan’s permanent brachial plexus injury.  Taber supported
these contentions with expert testimony; the admissibility of the opinions
proffered by Taber’s expert is not challenged.
Dr. Roush agreed during her testimony that brachial
plexus injuries “more often than not” result from downward traction to the head
applied by the doctor during delivery of the trapped shoulder.  However, Dr.
Roush contended that brachial plexus injuries also can result from natural forces
of labor during birth.  Dr. Roush relied upon her own testimony as an expert;
she also relied upon testimony from two other experts who opined that brachial
plexus injuries can result not only from excessive force applied by the
delivering physician, but also from natural forces of labor.
Taber filed a motion before trial challenging the
reliability of the opinions proffered by Dr. Roush’s experts and asked the
trial court to exclude those opinions from the jury’s consideration.  Taber
asserted that “there is no scientific or medical evidence to support a
permanent brachial plexus injury, and in particular an avulsion, in utero from
the maternal forces of labor where you have an otherwise healthy baby.” 
According to Taber, “This is an unsupportable scientific hypothesis created by
[appellees] in an effort to avoid responsibility in malpractice actions.”  The
trial court denied Taber’s motion and allowed Dr. Roush and her retained
experts to testify regarding the maternal forces of labor theory.
The jury answered “no” to the single liability
question submitted on Taber’s negligence claim, and the trial court signed a
take-nothing judgment in conformity with that verdict.  Appellant filed a
motion for new trial, which the trial court denied.  This appeal followed.
Analysis
Taber raises four issues on appeal.
First, Taber challenges the expert testimony relied
upon by Dr. Roush as being unreliable and inadmissible.  Taber contends this
testimony is based on controversial medical literature that suggests maternal
forces of labor may cause some forms of brachial plexus injury.  Taber argues that
this opinion testimony is unreliable because (1) the literature upon which it
relies consists primarily of anecdotal case reports and speculative hypotheses;
and (2) there is an analytical gap between the nonspecific brachial plexus
injuries discussed in the literature and Jordan’s avulsion injury.  Taber
contends that the trial court erred by denying a motion to exclude the
challenged testimony.
Second, Taber contends that Dr. Roush violated an
agreed order in limine and a subsequent agreement when she referred during her
testimony to her desire to show to the jury an example of surgical drapes.  According
to Dr. Roush, these drapes were in place during the delivery and may have
obscured the view of others in the room who witnessed the delivery.  Taber
contends that the trial court erred by denying a motion for mistrial predicated
on Dr. Roush’s statement.
Third, Taber contends that the trial court erred by
denying her motion to strike potential jurors for cause.
Fourth, Taber contends that the three asserted errors
listed above caused the jury to make a “no” finding in response to Question No.
1 that is contrary to the great weight and preponderance of the evidence.
We address each issue in turn.
I.         Admission of
Expert Opinion Testimony 
A.        Standard of Review
“‘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 witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise.’”  Cooper Tire & Rubber Co. v. Mendez, 204
S.W.3d 797, 800 (Tex. 2006) (quoting Tex. R. Evid. 702); see also Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89 (1993).  Expert testimony
is admissible when (1) the expert is qualified, and (2) the testimony is
relevant and based on a reliable foundation.  Mendez, 204 S.W.3d at 800.
 If the expert’s scientific evidence is not reliable, it is not evidence.  Id. 
Courts must determine reliability from all of the evidence.  Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997); see also In the
Interest of J.B., 93 S.W.3d 609, 620 (Tex. App.—Waco 2002, pet. denied).
The trial court’s determination that these
requirements are met is reviewed for abuse of discretion.  Mendez, 204
S.W.3d at 800.  The test for abuse of discretion is whether the trial court
acted without reference to any guiding rules or principles.  Id. 
Admission of expert testimony that does not meet the reliability requirement is
an abuse of discretion.  Id.  Expert testimony must be based on a
reliable foundation of scientific or professional technique or principle.  Wiggs
v. All Saints Health Sys., 124 S.W.3d 407, 410 (Tex. App.—Fort Worth 2003,
pet. denied) (citing E. I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 557 (Tex. 1995)).  When the expert’s underlying scientific
technique or principle is unreliable, the expert’s opinion is no more than
subjective belief or unsupported speculation and is inadmissible.  Id. 
Causation opinions predicated on possibility, speculation, and surmise are no
evidence.  Havner, 953 S.W.2d at 711–12.  
In Robinson, the Texas Supreme Court set forth
six non-exclusive factors to assist courts in determining whether expert
testimony is admissible.  Robinson, 923 S.W.2d at 557.  The Texas
Supreme Court subsequently explained that the Robinson factors cannot
always be used in assessing an expert’s reliability but concluded there must be
some basis for the opinion offered to show its reliability.   Mendez,
204 S.W.3d at 801 (citing Gammill v. Jack Williams Chevrolet, Inc., 972
S.W.2d 713, 726 (Tex. 1998)).  In those circumstances, expert testimony is
unreliable if there is simply too great an analytical gap between the data and
the opinion proffered.  Mendez, 204 S.W.3d at 800.  A reviewing court is
not required to ignore gaps in an expert’s analysis or assertions that are
simply incorrect, and a trial court is not required to admit evidence connected
to existing data only by the expert’s ipse dixit.  Id. at 800-01. 
Bald assurances of validity do not suffice.  Havner, 953 S.W.2d at 712. 
The underlying data should be independently evaluated in determining if the
opinion itself is reliable.  Id. at 713.
B.        The Challenged Expert Testimony
The causation dispute at trial centered on a battle
of the experts.  The opposing experts’ qualifications to opine about the cause
of Jordan’s brachial plexus injury are not challenged.  The substance of those
opinions is hotly contested.
The challenged expert testimony addresses the
defense’s contention that brachial plexus injuries during birth can be caused
by the natural forces of labor.  Before delving into Taber’s specific criticisms
of this contention, it is helpful to describe more fully the parties’ competing
explanations for the mechanism of Jordan’s nerve injury.
Taber relied upon expert testimony from Dr. Charles
Bloom, a board certified obstetrician and gynecologist.  Among other things,
Dr. Bloom testified as follows.
·       
Natural expulsive forces of labor cannot cause an avulsion injury
to the brachial plexus like the one Jordan suffered.
·       
“In the entire archives of medical literature, I am unaware and
we have yet to produce an article today that shows that an unattended delivery,
that is a deliver[y] through the natural forces of labor, has produced an
avulsion, the nature of which Jordan Robinson sustained.”
·       
“The only plausible and probable explanation for Jordan
Robinson’s brachial plexus avulsion or tear is that excessive stress was placed
— stretch, not compression, but stretch was placed on that nerve strong enough
to rip the nerves from their insertion into the spinal cord.”
·       
Dr. Roush “had to have applied excessive force based on
everything I know about the physics of this.”
·       
Dr. Bloom was not aware of any case in which an avulsion injury resulted
from a mechanism other than excessive force applied during delivery.
·       
“It’s my medical/legal opinion that most probably there was
excess force applied to Jordan Robinson’s head that caused the brachial plexus
injury and may have resulted in the release of the shoulder dystocia.”
·       
Dr. Bloom agreed with an assertion that “there is, in fact, a lot
of medical literature that states that avulsions are caused by improper
traction.”
·       
Dr. Bloom also agreed with an assertion that “[t]here is no medical
literature that states that avulsions are only caused by downward lateral
traction.”  In a separate question, Dr. Roush’s attorney asked:  “Is there any
medical literature out there that says that avulsions specifically are caused
solely and exclusively by downward lateral traction?”  Dr. Bloom responded: 
“No, there is no literature that says it is exclusive.”
·       
Dr. Bloom agreed with an assertion that “the forces of labor can
create [a] situation with the brachial plexus that’s under tension . . . .”
·       
The presence of shoulder dystocia as indicated by the “turtle
sign” meant that Jordan’s brachial plexus nerves already were being stretched
before Dr. Roush touched his head during the delivery.
·       
Dr. Bloom agreed with an assertion that the difference between a
temporary injury to the brachial plexus nerves and a permanent injury “is a
matter of degree of stretch.”
The defense relied upon expert testimony from Dr.
Roush, who is board certified in obstetrics and gynecology, and from Drs.
Graham and Vadasz.  
Dr. Roush testified as follows.
·       
“In this particular instance, I think that what has happened here
is either an intrapartum cause or a cause where the shoulder dystocia developed
and with the maternal expulsive forces of the contractions just caused that
stretch injury to occur.  I think that’s the most likely cause in this case.”
·       
“ . . . I think there was some injury there prior to my even
laying hands on the baby’s head, because from the dystocia that was — that I
encountered, it was just — it wasn’t a very excessive dystocia.  I did not have
to resort to delivering the posterior arm or any other maneuvers.”
·       
She denied applying excessive force to Jordan’s head and neck during
the delivery.
·       
“He can get . . . a brachial plexus injury from excessive
downward lateral traction, excessive upward lateral traction, and any excessive
rotation.”
·       
She applied traction to Jordan only after the shoulder dystocia
already had been relieved through application of the McRoberts maneuver and
suprapubic pressure, and she applied only axial traction.  Axial traction does
not cause or contribute to a brachial plexus injury.  She did not apply upward
or downward lateral traction.
·       
There is no reported case that says the mechanism of injury
described by Dr. Roush can cause an avulsion.
·       
She could identify no literature saying that an avulsion will
occur without the use of excessive force in circumstances involving shoulder
dystocia during the delivery of an otherwise healthy baby.
·       
She could identify no literature saying that “if there’s an
avulsion injury, there has to be an excessive lateral traction or twisting of
the fetal head[.]”
Dr. Graham, who is board certified in obstetrics and
gynecology and in maternal fetal medicine, testified as follows in support of Dr.
Roush.
·       
Dr. Graham identified two causes of movement of a baby’s head during
delivery leading to a brachial plexus injury.  “[I]t can be by traction, which
is described as the physician pulling, pulling down on the head, or other
possibilities are the propulsive mechanisms, which is the uterus contraction itself
which is forcing the baby out or the mother is pushing which is forcing the
baby out.”
·       
Dr. Graham testified that the neck and the side of the face
ordinarily form a 90-degree angle.  “When that shoulder is impinged against
that bone, the body and the head continue to move forward, the shoulder can’t. 
So what happens to that 90-degree angle? That angle is increased and that’s
what caused the damage to the brachial plexus.”
·       
Dr. Roush’s counsel asked: “Is there a relationship between the
anatomy of an individual brachial plexus on an infant, is there a correlation
between that anatomy and whether there is a predisposition to a brachial plexus
injury or a vulnerability to a brachial plexus injury?”  Dr. Graham responded
that “you have to have the brachial plexus that has the susceptibility or the
vulnerability to be damaged in order for it to be damaged, otherwise it would
not be [a]ffected.  So, there needs to be something inherent with that brachial
plexus that allows it to be damaged.  Now, what that something is is what no
one knows.”
·       
Dr. Roush’s counsel asked:  “Has anybody determined up to this
day as to what is causing brachial plexus injuries?”  Dr. Graham responded: 
“To the best of my knowledge, it’s come down to this tugging, like a wagon, or
the propulsion theory, something that drives that anterior shoulder into the
pubic bone and increases that angle from the normal angle that allows that
susceptible brachial plexus to be damaged.”
·       
Dr. Graham said “I would not disagree with that” when asked whether
the concept of maternal forces of labor as a cause of temporary brachial plexus
injuries is referred to in articles as a “hypothesis.”
·       
The American Journal of Obstetrics and Gynecology and the
publication Obstetrics and Gynecology both are peer-reviewed journals. 
Obstetrics and Gynecology is published by the American College of Obstetricians
and Gynecologists (“ACOG”).  Articles published by these journals are reliable
because they “have been reviewed by people expert in the area that the article
is addressed [to] and [they] have found it satisfactory to be dispensed for
reading by the rest of the obstetricians and perinatologists around the
country.”
·       
Dr. Graham agreed with an assertion that one goal of ACOG “is to
write articles to defend lawsuits.”
·       
Dr. Roush’s counsel asked: “Doctor, given the fact that there is
no documented traction and no evidence of traction in Jordan Robinson’s case,
is it more or less likely that he probably had a vulnerable plexus?”  Dr.
Graham answered: “He would, in my opinion, it would be a vulnerable brachial
plexus, yes, sir.”
·       
Dr. Graham had “not seen avulsion addressed in the obstetrical literature.” 
Taber’s counsel asked: “And for an avulsion, there is no literature for an
avulsion?  There is no literature that you have seen that proves anything else
as a possible etiology, is there, sir?”  Dr. Graham responded, “That proves it,
no.”
Dr. Andrew Vadasz, who is board certified in
neurology, neurophysiology, and pediatrics, also testified in support of Dr.
Roush.  He testified as follows.
·       
Downward lateral traction during delivery can be one cause of a
brachial plexus injury.
·       
“[T]here is genetic and individual susceptibility, as some of
this research has pointed out, in — from one child to the next.  As so forces
that are used to assist in the delivery may in some cases result in injury and
other cases they don’t.”
·       
In a shoulder dystocia situation, “the brachial plexus is already
under stretch.  It’s already under — it’s already being stretched even before —
you know, as the head is coming out, before the doctor’s even touching the
baby, the brachial plexus is being stretched . . . .”
·       
The nerve root is “the weak link in the system” of nerves that
makes up the brachial plexus.  This means “an avulsion doesn’t necessarily
require greater forces than — than an injury to the brachial plexus would
require.  It’s a weak link.”
·       
Taber’s counsel asked:  “There’s certainly a wide body of
literature out there, isn’t there, Doctor, that supports the theory or the
conclusion that excessive downward lateral . . . traction can be a cause of
brachial plexus injury, true?”  Dr. Vadasz responded:  “[T]hat’s considered one
of the sources?  It’s considered a potential source, yes.  But that theory is
now in — being disputed.”
·       
The presence of a brachial plexus injury does not necessarily indicate
that a physician applied excessive force during delivery.  “[T]here’s numerous
cases and . . . I’ve got the literature here, that clearly document[s] that the
physician[s] in some cases are not even involved in the delivery and a child
was found to have a brachial plexus injury.”
·       
The “literature is changing.”
These competing expert opinions were proffered
against a backdrop of conflicting testimony regarding certain facts surrounding
Jordan’s delivery.
Dr. Roush testified that she did not use excessive
force; denied using upward or downward lateral traction on Jordan’s head; and
denied twisting Jordan’s head.  She testified that the McRoberts maneuver and
suprapubic pressure were applied to relieve the shoulder dystocia, after which
she restituted Jordan’s head and used axial traction to guide him out by
pulling “along the axis of the baby” parallel to the floor.  She also testified
that she used drapes.  Jordan’s grandmothers, Sheryl Taber and Gloria Robinson,
witnessed the delivery.  Both grandmothers testified that the McRoberts
maneuver and suprapubic pressure were not applied.  Both testified that they did
not remember seeing Dr. Roush push Jordan’s head towards the floor or pull it
up toward the ceiling.  Both testified that Dr. Roush twisted Jordan’s head and
pulled on it violently.  Taber and Jordan’s grandmothers testified that drapes
were not used.
C.        Gauging the Expert Testimony’s Admissibility
The challenged opinions regarding natural forces of
labor as a cause of brachial plexus injury must be assessed according to the
well-established factors for gauging the admissibility of expert testimony.  Those
factors are (1) the extent to which the theory has or can be tested; (2) the
extent to which the technique relies on the expert’s subjective interpretation;
(3) whether the theory has been subject to peer review and/or publication; (4)
the technique’s potential rate of error; (5) whether the underlying theory or
technique has been generally accepted as valid by the relevant scientific
community; and (6) the nonjudicial uses that have been made of the theory or
technique.  Mendez, 204 S.W.3d at 801 (citing Robinson, 923
S.W.2d at 557).
1.      Testing
and potential error rate
In the specific context of this case, factors (1) and
(4) go to Taber’s criticism of reliance upon retrospective studies to support
the natural forces of labor theory and the accompanying concern regarding
ascertainment bias.
Taber challenges the reliability of the natural
forces of labor theory because it relies on retrospective studies rather than
prospective studies.  A retrospective study analyzes existing medical records;
in contrast, Dr. Bloom explained that a prospective study “set[s] the
determination of what you are going to do, the parameters of your study prior
to the study being performed, as opposed to anecdotal evidence looking backward
in time historically.”
Generally speaking, retrospective studies are
considered to be less reliable than prospective studies because of the
potential for inclusion of inaccurate, incomplete or inconsistent information
in the records being reviewed.  One aspect of this reliability concern involves
ascertainment bias — “the possible over- or under-reporting of shoulder
dystocia in the underlying data” that is being relied upon.  See Potter v.
Bowman, No. 05-CV-00827-REB-PAC, 2006 WL 3760267, at *2 (D. Colo. Dec. 18,
2006).
The Texas Supreme Court has noted that “[t]esting is
not always required to support an expert’s opinion, but lack of relevant
testing to the extent it was possible, either by the expert or others, is one
factor that points toward a determination that an expert opinion is
unreliable.”  Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 642 (Tex.
2009) (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 580 (Tex.
2006), Mendez, 204 S.W.3d at 802, and Volkswagen of Am., Inc. v. Ramirez,
159 S.W.3d 897, 906 (Tex. 2004)).  “If testing of critical aspects of an
expert’s testimony has not taken place either by the expert or others in the
relevant scientific or expert community, then an explanation of why it has not
is an important consideration in evaluating the expert opinions and determining
whether they are substantively more than merely the expert’s conclusory,
subjective opinion.”  Whirlpool Corp., 298 S.W.3d at 642-43.
The dearth of prospective testing in support of the
natural forces of labor theory is explained by ethical considerations that
preclude a prospective study subjecting mothers and babies to potential injury while
measuring excessive traction.  See Ford v. Eicher, 220 P.3d 939, 945
(Colo. App. 2008, cert. granted) (“[T]he trial court overlooked the evidence in
the record establishing that there is no ethical way in which to test
the in utero causation theory of brachial plexus injury or to measure how much
traction is ‘excessive’ without subjecting mothers and their infants to
potentially injurious conduct.”) (original emphasis).  This is the explanation
demanded by Whirlpool Corp., 298 S.W.3d at 642-43; it provides assurance
that the absence of prospective testing of the natural forces explanation is
attributable to unique considerations governing this specific medical issue
rather than inherent deficiencies in the challenged expert opinions.[3]  The concern
regarding ascertainment bias in connection with retrospective hospital record
studies of brachial plexus injuries is legitimate, but this concern goes to
weight rather than admissibility.  See Potter, 2006 WL 3760267, at *2; see
also D’Amore v. Cardwell, 2008 WL 852791, at *6-*7 (Ohio Ct. App. No.
L-06-1342, Mar. 31, 2008).  This concern is properly addressed by cross-examination
rather than exclusion.  See Ford Motor Co. v. Ledesma, 242 S.W.3d 32,
40-41 (Tex. 2007).[4]
Taber’s challenges predicated on reliance upon retrospective
studies and the potential for ascertainment bias do not warrant exclusion of
the disputed expert testimony regarding the cause of Jordan’s brachial plexus
injury.
2.     
Subjective interpretation, support from peer-reviewed studies,
and “analytical gap”
Factors (2) and (3) go to Taber’s contention that the
challenged expert testimony is unduly subjective and lacks support from
peer-reviewed medical literature addressing natural forces of labor as a cause
of brachial plexus injuries.  Taber contends that support is lacking because
there is an “analytical gap” between non-specific brachial plexus injuries
discussed in the literature and the particular avulsion injury Jordan suffered.
The parties’ arguments regarding this asserted
analytical gap cannot be addressed on appeal by weighing the relative persuasive
power of competing medical articles in a vacuum; by eschewing analysis of the
testimony; or by asking in the abstract whether an excessive lateral traction
explanation for brachial plexus injuries has more medical merit than a natural
forces of labor explanation.  Courts are not equipped to make medical judgments
of this nature, and they are not called upon to do so.  See TXI Transp. Co.
v. Hughes, ___ S.W.3d ___, ___ (Tex. 2010) (“The court’s ultimate task,
however, is not to determine whether the expert’s conclusions are correct, but
rather whether the analysis the expert used to reach those conclusions is
reliable and therefore admissible.”) (citing Exxon Pipeline Co. v. Zwahr,
88 S.W.3d 623, 629 (Tex. 2002), and Gammill, 972 S.W.2d at 728).
Fair and equitable application of the standards
governing admissibility of expert testimony begins with fidelity to the
record.  The specific legal task this court is called upon to perform — applying
the governing legal standards to determine admissibility of particular expert testimony
at a trial focused on Jordan’s delivery — must be accomplished in the context
of specific testimony.  This context encompasses not only the disputed expert
testimony itself, but also Taber’s competing expert testimony and the testimony
of fact witnesses.
The doctors testifying in support of Dr. Roush
acknowledged that no medical literature attributes permanent avulsion injuries
like the one Jordan suffered to the natural forces of labor.  Dr. Bloom,
testifying in support of Lauren Taber, acknowledged that no medical literature says
permanent avulsion injuries like the one Jordan suffered result only from
excessive lateral traction during delivery.
Dr. Bloom testified that he knew “with 100 percent
certainty” that Jordan’s neck was subjected to “excessive stretch,” meaning “enough
stretch to rupture the brachial plexus nerves C5 through 7.”  He continued,
“What I don’t know is exactly how, when it was done.  So was it lateral?  Was
it rotation and upward?  Was it rotation and sideways?  Was it rotation and
downward?”  He concluded, “I really couldn’t speculate as to — again,
speculation — but I couldn’t state exactly how it happened, but with, to a
reasonable degree of medical probability, excess traction was applied and
enough traction, enough stretch was applied to rupture . . . the brachial
plexus.” 
Uncertainty regarding the specific mechanism of
injury was underscored by the following exchange during Dr. Bloom’s cross-examination.
Q.        Next,
what I would like to do is show you a title — a journal titled Brachial Plexus
Associated With Caesarian Section & In Utero Injury by Dr. Gherman . . .
and this is from the American Journal of Obstetrics & Gynecology from 1999.
“The injury
attributed to excessive lateral traction ranges from limited nerve dysfunction
to root avulsion with subsequent permanent damage.  We have presented six cases
in which it is virtually certain that this mechanism played no role.  It is
remarkable that in all six of the described Erb’s palsies [there was] evidence
of persistent nerve root avulsion at age one year, a time at which continued
nerve dysfunction is equivalent to permanent nerve injury.”
So Dr. Gherman,
in his study that was accepted in a peer-reviewed journal, said that there was
[sic] nerve root avulsions in which traction played no role.  Correct?
A.        That’s
what it said there.
Q.        And I
suppose that you would disagree with Dr. Gherman and the American Journal of
Obstetrics & Gynecology, wouldn’t you?
A.        Well,
it’s hard to disagree and it is hard to agree.  It lends itself open to
interpretation.
 
In later testimony during re-direct examination, Dr.
Bloom returned to this article discussing six cases involving permanent
brachial plexus injuries following deliveries by caesarian section.
Q.        Well,
now, that one piece — article that he showed you about the Caesarian sections
and injuries, what’s the problem with that article in terms of what happened? 
Does it show us what happened before the Caesarian section?
A.        Well,
again, that’s a total of six cases, and it addresses each individual, but there
were problems with prolonged arrests in five of the six cases.  And one of the
ways you can get a brachial plexus injury is through a difficult Caesarian
where you have allowed the baby to labor very far down and the baby’s head gets
stuck, and by pulling — anybody who’s done Caesarians and any skillful
obstetrician knows when you get a baby whose head is down that far and you
start pulling, what you frequently have to do is get somebody actually below
the drapes — hard to believe, but below the drapes, underneath, and push that
baby’s head up as you pull up to prevent injury to the brachial plexus.  Five
of the six of those cases in that article had that exact clinical situation. 
Whether or not — that’s just the plausible explanation for that even though
there was a[] Caesarian.
There was one
other case that was not related to that, but we do not know the circumstances
of how big the incision was, what was involved.  Apparently — I think there was
a fibroid that may have been . . . in the way, where again, you have the same
situation through the pelvis, and if you don’t make a big enough incision and
you yank too hard, you can injure the baby.
 
Dr. Graham subsequently addressed Dr. Bloom’s
testimony regarding Dr. Gherman’s article discussing the six case studies.
            Q.        Okay. 
The conclusion of this article is — let me get it where we can all see it.  Can
you read what I have highlighted there?
            A.        “Brachial
plexus palsy can be associated with Caesarian delivery.  Such palsies appear to
be of intrauterine origin and are more likely to persist.”
            Q.        Now,
Dr. Bloom had testified on Thursday that this study had to do with Caesarian
deliveries where the head had become engaged and, therefore, was more difficult
to extract and therefore could have been a traumatic delivery.  What do[] the
results there have to say about that?
            A.        Well,
the results say that they excluded the nine cases of brachial plexus injury
associated with a breached delivery and the two cases where the operative
report documented difficulty with delivery of the head, so they tried to remove
confounding factors.
            Q.        So
in these six cases, you have read this article, have you not?
            A.        Yes,
sir.
            Q.        I
am not going to go into a lot of detail except to point out on the last page,
if you can read the persistence of palsy — can you read that, please?
            A.        “The
persistence of the palsy in all six of these infants suggests a[] qualitatively
different mechanism of injury.  Long-standing in utero stretching of the
brachial plexus may represent a common unifying basis accounting for the
permanency of these injuries.”
            Q.        By
— let me get my word right — permanence of these injuries.  So they had
determined through this study that these injuries were permanent?  
            A.        That’s
what their implication was.
 
In short, this record demonstrates that both Taber
and Dr. Roush relied on a degree of “interpretation” (to use Dr. Bloom’s word)
in applying the existing literature to opine about causation based upon specific
circumstances surrounding Jordan’s birth.  Notwithstanding the severity of
Jordan’s avulsion injury, Drs. Roush, Graham, and Vadasz relied on testimony
regarding the absence of upward and downward lateral traction in the course of
concluding that other factors caused the injury.  Notwithstanding testimony from
Dr. Roush regarding the absence of upward and downward lateral traction, and
the grandmothers’ testimony that they did not recall seeing Dr. Roush apply upward
or downward lateral traction to Jordan’s head, Dr. Bloom relied on the severity
of Jordan’s avulsion injury in the course of concluding that it was caused by excessive
traction.
Both sides looked for support in the medical
literature.  The experts testifying on behalf of Dr. Roush relied in
significant part on peer-reviewed articles appearing in the American Journal of
Obstetrics and Gynecology, along with other medical journal articles and
textbooks.  Articles from the American Journal of Obstetrics and Gynecology
account for at least nine of the 22 publications relied upon by Dr. Roush and
her experts.[5] 
This collection included Dr. Gherman’s peer-reviewed 1999 caesarian section
article, which was discussed at length in the testimony as set forth above.  On
this record, the trial court had a valid basis for concluding that the asserted
gap had been bridged as between (1) natural forces of labor as an explanation
for brachial plexus injuries in general; and (2) Jordan’s specific avulsion
injury.  This record warranted submission of testimony regarding a natural
forces of labor explanation for the jury’s consideration in deciding a
causation issue that — as Dr. Bloom noted — unavoidably involves an element of
speculation.[6]
Similar cases from other states inform our analysis
of Taber’s “analytical gap” argument.  In D’Amore, the Court of Appeals
of Ohio addressed the admissibility of expert testimony regarding causation of
an alleged brachial plexus avulsion attributed to the delivering doctor’s use
of excessive traction.  2008 WL 852791, at *6-*7. [7]  The appellate
court concluded that the trial court acted within its discretion by overruling
a motion in limine and allowing two medical experts to testify “regarding the
in utero causation theory of brachial plexus injuries and their opinions as to
an alternative cause of the injury to Hannah D’Amore other than excess lateral
traction.”  Id. at *7.  One of the defense experts at issue was Dr.
Gherman.  Id. at *6.
In so holding, the court of appeals stressed in D’Amore
that “[t]he trial court’s role is not to evaluate which competing scientific
analysis or conclusion is correct.”  Id. at *7.  “Under Daubert
and Evid. R. 702, the trial court is to determine whether expert opinion
testimony is sufficiently relevant and reliable to be admitted into evidence
for jury consideration.”  Id.  “Where the evidence is admitted, it is
for the jury to decide the weight to give such testimony.”  Id.[8]
A decision from Colorado also has addressed the
admissibility of expert testimony supporting the natural forces of labor theory
to explain causation of an avulsion injury to the brachial plexus during birth. 
See Ford, 220 P.3d at 941-47.
The delivery at issue in Ford involved
shoulder dystocia.  Id. at 941.  The defendant doctor testified that he
used the McRoberts maneuver and suprapubic pressure to dislodge the impacted
shoulder, and then applied traction to deliver the baby.  Id. at 942. 
The baby was diagnosed with a “brachial plexus injury to the right shoulder.”  Id.[9]  In a subsequent
medical malpractice action, the plaintiff asserted (among other things) that
the defendant doctor applied excessive traction to deliver the baby.  Id. 
The jury returned a verdict for the plaintiff after the court granted the
plaintiff’s pretrial motion to preclude two defense experts from expressing
opinions regarding the cause of the baby’s injury, and the defendant doctor
appealed.  Id.
Applying admissibility standards that parallel those
used in Texas,[10]
the court of appeals reversed the trial court’s judgment and remanded for a new
trial because the trial court abused its discretion in excluding causation
testimony from the defendant doctor’s experts.  Id. at 943-48.  The
experts were prepared to testify that the injury to the baby’s right brachial
plexus “occurred prior to Dr. Eicher’s efforts to deliver the anterior
shoulder;” that her “injury was not caused by anything that Dr. Eicher did or didn’t
do;” and that “a planned [caesarian] section would not necessarily have
prevented injury to [her].”  Id. at 943.[11]  In support of
these opinions, the defendant doctor’s experts relied on a number of the same
articles that Dr. Roush’s experts rely upon in this case.[12]
In holding that the trial court erred by excluding
the challenged expert opinions as being scientifically unreliable, the court of
appeals stressed that the trial court applied an incorrect legal standard.  Id.
at 944.  “Instead of evaluating whether the theory propounded . . . was
reasonably reliable . . . the trial court determined which medical theory of
causation was more plausible.”  Id.  “This is beyond the trial court’s
gatekeeping function.”  Id.[13];
see also Luster v. Brinkman, 205 P.3d 410, 414-15 (Colo. App.
2008); Potter, 2006 WL 3760267, at *2; cf. Salvant v. State,
935 So.2d 646, 659 (La. 2006) (sufficient evidence supported findings that
physicians did not cause baby’s brachial plexus injury, “in which the C-5 nerve
root was pulled from his spinal cord;” court reasoned that “[a]lthough brachial
plexus injuries sometimes occur in connection with shoulder dystocia when
excessive traction is applied to the baby’s head, the evidence presented in
this case provided a reasonable factual basis for the trial court to find that
the plaintiffs did not prove that either Dr. Javate or Shoebari was negligent
in his treatment of the shoulder dystocia or that such negligence caused the
brachial plexus injury.”).[14]
Like the claimants in D’Amore and Ford,
Taber invites us to determine which explanation for Jordan’s avulsion injury is
medically correct.  We decline this invitation, and focus instead on
application of the Robinson gatekeeping factors.  On this record, factors
(2) and (3) support the trial court’s admission of the challenged opinions of
Drs. Roush, Graham, and Vadasz for the jury’s consideration.
3.      General
acceptance
Relying on a characterization during Dr. Graham’s
testimony of the natural forces of labor theory as a “hypothesis,” Tabor
invokes factor (5) to argue that this theory has not been generally accepted as
a potential cause of brachial plexus injuries during birth.
Labeling the natural forces of labor theory as a
“hypothesis” is not dispositive because this characterization by itself does
not answer the reliability question.  If the “hypothesis” is supported by reliable
data and methodology, and proffered in conformity with existing standards
governing admission of expert testimony, then it is admissible.  See Ford,
220 P.3d at 945 (citing D’Amore, 2008 WL 852791, at *6-*7, and Luster,
205 P.3d at 414-15).
Similarly, the reliability issue is not resolved by pointing
to a characterization of the natural forces of labor theory as “not the most
commonly accepted at all” by Dr. Nath, one of Jordan’s treating physicians.  Dr.
Nath went on to state: “The obstetric literature recently has discussed things
like the child being pushed from behind by expulsive forces and then the
brachial plexus being pushed up against the bone of the pubis and that would be
what caused the injury.  That’s where the obstetric literature seems to be
going.”  In response to a question asking whether this body of medical
literature is “based on well-reasoned medical principles,” Dr. Nath responded:
“[T]he standard that we typically apply for any study is that it’s peer
reviewed, and — and I think those have been in peer-reviewed literature.” 
According to Dr. Graham, obstetricians have not come to a consensus as to the
causes of brachial plexus injuries and the issue is still under discussion.
In light of this evidence, the “general acceptance”
factor does not foreclose admission of the challenged expert testimony.
4.      Nonjudicial
uses
Lastly, Taber invokes factor (6) by emphasizing testimony
in which Dr. Graham agreed with an assertion by Taber’s counsel that one goal
of the American College of Obstetricians and Gynecologists “is to write
articles to defend lawsuits.”  This testimony is not dispositive in light of (1)
other goals of ACOG discussed at trial, including the provision of guidance to
practitioners; and (2) the peer-reviewed nature of articles appearing in ACOG’s
publication Obstetrics and Gynecology.  Even if extra and unwarranted emphasis
is placed upon this particular snippet of testimony, it pertains at most to
ACOG’s publication; it has no bearing on articles appearing in a competing peer-reviewed
publication, the American Journal of Obstetrics and Gynecology, including Dr.
Gherman’s 1999 caesarian section article discussed during Dr. Bloom’s testimony. 
It also has no bearing on other peer-reviewed publications.
5.      Conclusion
of admissibility analysis under Robinson
For the reasons discussed above, the challenged
expert testimony regarding natural forces of labor as a potential cause of
Jordan’s brachial plexus injury was admissible under the Robinson
standard.  The trial court acted within its discretion when it overruled
Taber’s motion to exclude the challenged expert testimony.  We overrule Taber’s
first issue.
II.        Denial of Motion
for Mistrial
In her second issue, Taber contends that the trial
court erred when it denied her motion for mistrial predicated on an assertedly
incurable statement concerning leg drapes made by Dr. Roush during
cross-examination near the end of trial.  We review the trial court’s denial of
a motion for mistrial under an abuse of discretion standard.  Schlafly v.
Schlafly, 33 S.W.3d 863, 868 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied).
As noted above, the parties disputed whether drapes
were used during Jordan’s delivery.  Drapes were discussed while Dr. Roush
testified during Taber’s case-in-chief.  Dr. Roush testified that she uses
drapes for every delivery; asserted that she used drapes for Jordan’s delivery;
and described the placement of those drapes.  Taber and Jordan’s grandmothers testified
that Taber was not draped.
Dr. Roush returned to the topic of drapes when she
testified during the defense’s case-in-chief.  She identified a line item in
Taber’s hospital bill listing a charge of $405.25 for a “labor and delivery
kit,” which also was referred to during trial as an “OB pack.”  At this
juncture, Dr. Roush’s counsel offered a labor and delivery kit in front of the
jury as a demonstrative exhibit.  Taber’s counsel objected, arguing that the
proffered demonstrative exhibit violated an order in limine requiring counsel
to show demonstrative exhibits to opposing counsel first before referencing
them in front of the jury.
The parties resolved this objection outside of the
jury’s presence by agreeing “to allow only this piece of paper describing what
the contents are to be used and that we will not have any demonstrations with
pulling this out and playing with it or anything like that at this time.”  They
further agreed that Dr. Roush “can go ahead and describe . . . the way she
wants to describe it using simply this piece of paper and that’s it.”  After
this agreement was reached, Taber’s counsel raised the possibility of moving
for a mistrial based on the proffer of the labor and delivery kit but did not
do so.  Counsel stated, “Well, it may be premature.  It may be that we need to
make a motion for mistrial with the next couple of questions.”
When testimony resumed in front of the jury, Dr.
Roush was asked about the piece of paper discussed during the attorneys’
colloquy with the court.  The paper was referred to as a “Proxima OB Pac III
reorder” form.  Dr. Roush testified that the contents listed on the form are
the same items contained in the kit for which Taber was charged in connection with
Jordan’s delivery.  Dr. Roush was asked, “[W]ith regard to the contents of the
Exhibit 75 kit, how can you determine from your experience and practice that
the contents of that kit are the same contents that were used with Lauren
Taber’s delivery?”  Dr. Roush answered, “I have been delivering babies for ten
years, over 1500 deliveries.  All of these kits are the same.”
Dr. Roush then described the kit’s contents, which
included hand towels; a surgeon’s gown; an underbuttocks drape; an abdominal
drape; baby blankets; ear syringes; gauze sponges; and two “leggings.”  Dr.
Roush stated, “Those are the leggings that you place over the maternal legs to
keep that area sterile.”  She continued, “They cover the entire leg while the
patient is in stirrups.”  In response to further questioning, Dr. Roush stated
that “[i]t goes all the way from the foot to the abdomen” and “[t]he entire leg
is in the drape.”  She testified that her practice is to place the
underbuttocks drape first, then one leg drape, then the other leg drape, then
the abdominal drape.
During the subsequent cross-examination, Taber’s
counsel and Dr. Roush engaged in multiple exchanges regarding the “leggings.” 
Dr. Roush described the “leggings” as “drapes.”  Taber’s counsel disagreed with
Dr. Roush and asserted that “leggings” are “like socks that you put on and pull
up when mom is put into the stirrups to begin with.”  Dr. Roush rejected counsel’s
assertion and stated, “I think you are thinking about TET hose and that’s
different from the leggings for this particular purpose in an OB pack.”  She
further stated that “there were no TET hose in the OB pack.”
The back-and-forth between Taber’s counsel and Dr.
Roush regarding leggings culminated in the following exchange, which is the
basis of Taber’s appellate complaint:
Q.        Now,
the stirrups are in the leggings, but Lauren’s legs, are they in the leggings
or not?
A.        Lauren’s
legs are in the stirrups and so they are covered by the legging drapes, yes.
Q.        Well,
the leggings aren’t drapes, are they, Doctor?
A.        In
this particular instance, they are — I wished I could show it to you.  It’s in
the pack, but I can’t.  You won’t let me.
 
Taber’s counsel promptly objected to Dr. Roush’s
statement and moved to strike it from the record; the trial court sustained the
objection and struck the statement.  At the request of Taber’s counsel, the
trial court immediately instructed the jury as follows:  “Ladies and gentlemen,
please disregard the last statement of the witness for all purposes.”  Counsel
for both sides then approached the bench, where Taber’s counsel moved for a
mistrial based on Dr. Roush’s statement.  The trial court carried the motion
with the case.  The trial court ultimately overruled the motion for mistrial in
a written order signed after verdict.  
In light of trial counsel’s prompt objection and
request for an instruction, and the trial court’s immediate instruction to
disregard, Dr. Roush’s statement warrants a new trial only if it is incurable. 
Taber and Dr. Roush both invoke the incurable harm standard from cases addressing
improper jury argument by counsel and improper statements by the trial court to
address this situation involving an improper statement by a litigant.  We do
the same.  See Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009) (“Incurable
jury argument is rare . . . because ‘[t]ypically, retraction of the argument or
instruction from the court can cure any probable harm . . . .’”) (quoting Living
Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008) (per
curiam)); see also Living Ctrs. of Tex., Inc., 256 S.W.3d at 680-81 (“To
prevail on a claim that improper argument was incurable, the complaining party
generally must show that the argument by its nature, degree, and extent
constituted such error that an instruction from the court or retraction of the
argument could not remove its effects.”); Gen. Motors Corp. v. Iracheta,
161 S.W.3d 462, 472 (Tex. 2005) (applying incurable harm standard to determine
whether timely objection was necessary to preserve complaint based on conduct
of litigant who personally addressed all-Hispanic jury in Spanish to thank them
before closing argument).
Instances of incurable statements include appeals to
racial prejudice, see Tex. Employers’ Ins. Ass’n v. Haywood, 153 Tex.
242, 266 S.W.2d 856, 858 (1954); unsupported, extreme, and personal attacks on
opposing parties and witnesses, see Standard Fire Ins. Co. v. Reese, 584
S.W.2d 835, 840 (Tex. 1979); and “accusing the opposing party of manipulating a
witness, without evidence of witness tampering . . . .”  Living Ctrs. of Tex.,
Inc., 256 S.W.3d at 681 (citing Howsley & Jacobs v. Kendall, 376
S.W.2d 562, 565-66 (Tex. 1964)).
The Texas Supreme Court has cautioned that “[n]ot all
personally critical comments concerning opposing counsel are incurable.”  Living
Ctrs. of Tex., Inc., 256 S.W.3d at 681.  Rather, incurable statements
encompass “arguments that strike at the courts’ impartiality, equality, and fairness”
because they “inflict damage beyond the parties and the individual case under
consideration if not corrected.”  Id.  An example of such a statement
occurred in Living Centers of Texas, in which opposing counsel compared
trial counsel for Living Centers to the perpetrators of atrocities who
experimented upon and purposefully killed humans during the Nazi era in
Germany.  Id. at 681-82.
Characterizing a statement as “incurable” does not
end the inquiry; we also must address whether the “incurable” statement creates
reversibly harmful error.  See Manon v. Solis, 142 S.W.3d 380, 391 (Tex.
App.—Houston [14th Dist.] 2004, pet. denied); see also Reese, 584 S.W.2d
at 839-40 (“[T]he complainant must show that the probability that the improper
argument caused harm is greater than the probability that the verdict was
grounded on the proper proceedings and evidence.”).
We conclude that Dr. Roush’s statement regarding her
inability to show the labor and delivery kit to the jury is not “incurable” and
does not rise to the level of reversibly harmful error warranting a new trial. 
This statement is an improper critical comment directed at opposing counsel at
the end of a heated exchange.  However, it is not one of those “rare”
statements that is so inflammatory as to be “incurable.”  More is required to
meet that criterion.  See, e.g., Living Ctrs. of Tex., Inc., 256 S.W.3d
at 682 (“Counsel for Living Centers was entitled to urge a smaller damages
amount than the plaintiffs sought without being painted as modern-day equivalents
of T-4 Project operators who experimented on and purposefully killed humans.”);
cf. TXI Transp. Co., ___ S.W.3d at ___ (“[A]ppeals to racial and ethnic
prejudices, whether ‘explicit and brazen’ or ‘veiled and subtle,’ cannot be
tolerated because they undermine the very basis of our judicial process.”)
(citations omitted).  Moreover, we cannot say that this single statement —
which arose near the end a lengthy, hard-fought trial that focused primarily on
a battle of the experts — “would have persuaded a juror of ordinary
intelligence to reach a verdict contrary to that which he would have reached
but for the [statement].”  Manon, 142 S.W.3d at 392; cf. TXI Transp.
Co, ___ S.W.3d at ___ (reversing judgment based in part on 35 references
during trial to defendant’s employee as an “illegal immigrant” and extensive
testimony concerning employee’s immigration status).  The trial court’s
immediate instruction to disregard was sufficient to address any harm flowing
from the offending statement, which focused on a disagreement regarding draping
that had been discussed repeatedly and thoroughly in front of the jury.
The trial court acted within its discretion in
denying Taber’s motion for mistrial predicated on Dr. Roush’s statement. 
Therefore, we reject Taber’s second issue.
III.      Denial of Motion
to Strike Venire Members
In her third issue, Taber contends that the trial
court erred by denying her motion to strike venire member number five for
cause.[15] 

A venire member is disqualified and a challenge for
cause is warranted when there is “bias or prejudice in favor of or against a
party in the case” or bias involving the litigation’s subject matter.  Tex.
Gov’t Code Ann. § 62.105(4) (Vernon 2005); Hyundai Motor Co. v. Vasquez,
189 S.W.3d 743, 751 (Tex. 2006) (citing Compton v. Henrie, 364 S.W.2d
179, 182 (Tex. 1963)).  Bias is “an inclination toward one side of an issue
rather than to the other[.]”  Vasquez, 189 S.W.3d at 751.   Bias is not presumed.  See Murff v. Pass, 249 S.W.3d
407, 411 (Tex. 2008); Gant v. Dumas Glass and Mirror, Inc., 935 S.W.2d
202, 208 (Tex. App.—Amarillo 1996, no writ).  The party challenging a
venire member for cause bears the burden of showing that the venire member’s
state of mind naturally would lead to the inference that he could not act
impartially.  See Buls v. Fuselier, 55 S.W.3d 204, 209 (Tex. App.—Texarkana
2001, no pet.). 
A venire member is disqualified as a matter of law on
the basis of bias if it appears that “the state of mind of the [venire
member] leads to the natural inference that [the venire member] will not or did
not act with impartiality.”  Vasquez, 189 S.W.3d at 751.  When a venire
member’s asserted bias is not established as a matter of law, determining
whether the venire member is biased so as to warrant disqualification is a
factual determination to be made by the trial court.  See Sullemon v. U.S.
Fid. & Guar. Co., 734 S.W.2d 10, 15 (Tex. App.—Dallas 1987, no
writ).     
We review a trial court’s ruling on a challenge for cause
for abuse of discretion.  Vasquez, 189 S.W.3d at 753-54.  A trial court
abuses its discretion in refusing to disqualify a venire member for cause only
if the record shows that the venire member was not able or willing to set aside
personal beliefs to act impartially.  Buls, 55 S.W.3d at 210.  A trial
court’s decision overruling a challenge for cause carries with it an implied
finding that bias does not exist to the degree necessary to warrant
disqualification.  Id. at 209-10.  When the evidence does not
conclusively establish a venire member’s disqualification, we consider the
evidence in the light most favorable to the trial court’s ruling.  Id.
at 210.  
During voir dire, venire
member number five stated that he was an environmental attorney for Shell Oil
Company, and that he formerly worked as a defense litigator defending insurance
companies and medical malpractice suits.  He also stated that he had “friends”
that work at defense counsel’s firm, but he did not know any of the lawyers
present at voir dire.  
The following exchange
took place between venire member number five and Taber’s counsel:
Q.        So
with your background in this case, do you feel like that despite your
background in this case, you could be fair and impartial and good for this
jury?
 
A.        Well,
I — I would like to believe that I am a fair and impartial person, and I
probably understand more than most my role as a juror.
 
Q.        Okay. 
So are you telling me that you believe that you would be a good juror for this
case or not?
 
A.        I
would be a good juror. . . .   
 
Later during voir dire, Taber’s counsel asked the entire panel a group of
questions regarding mental anguish damages.   Counsel first asked, “Now, how
many of you feel that no matter what the evidence is, no matter what the
instructions are, you simply could not ever award money damages for mental
anguish?”  Venire member number five did not raise his hand.  Next, counsel
asked, “Now, some people think, okay, I could award money for mental anguish. 
I could do that, but if you want me to award money for mental anguish in a
case, then you are going to have to prove it to me by more than a preponderance
of the evidence.  I am not going to award money for mental anguish just on more
likely than not.  You would have to prove it to me beyond that for me to award
money for mental anguish.  How many feel that way?”  Venire member number five
did not raise his hand.  Lastly, counsel asked, “Who feels . . . that under no
circumstances, no matter what the evidence is, could you ever award a million
dollars or more for mental anguish in a case?”  Venire member number five
raised his hand in response to this question.  Taber’s counsel did not
ask venire member number five any individual follow up questions after he
raised his hand.    
Taber contends that
venire member number five “revealed himself to be disqualified as a matter of
law . . . [because] Juror 5 indicated that, no matter what the evidence,
he could not award a million dollars for mental anguish.” (emphasis in
original).  Taber argues that by raising his hand in response to her
counsel’s question, venire member number five made an “explicit,” and “direct,
unequivocal” statement that “he could not follow that law.”  We disagree.  
Contrary to Taber’s arguments, venire member number
five’s response to a question about awarding $1,000,000 or more in damages for
mental anguish does not establish that he “could not follow the law.”  The law
does not require a juror to award any specific amount of damages for mental
anguish.  See Saenz v. Fid. & Guar. Ins. Underwriters, 925
S.W.2d 607, 614 (Tex. 1996) (“[T]he impossibility of any exact evaluation of
mental anguish requires that juries be given a measure of discretion in finding
damages[.] . . . [The jury] must find an amount that, in the standard language
of the jury charge, ‘would fairly and reasonably compensate’ for the loss.”). 
Further, by not raising his hand in response to Taber’s counsel’s first two
questions regarding mental anguish damages, venire member number five indicated
that he could award damages for mental anguish, follow the instructions of the
court, and consider the evidence in determining whether an award for mental
anguish damages was appropriate.  He also indicated that he could award damages
for mental anguish if proven by a preponderance of the evidence, as required by
law.             
Taber also argues that
venire member number five was disqualified as a matter of law due to his
background: “He was also a lawyer for Shell Oil and a former insurance/medmal
defense lawyer who had worked on cases like this one, had friends working for
the defense firm and close friends who are doctors or nurses.”  We disagree. 
Venire member number five stated that he did not know any of the attorneys
participating in voir dire.  Nothing in this record indicates that venire
member number five’s professional background or relationships with doctors and
nurses would have precluded him from being a fair and impartial juror.  To the
contrary, the evidence indicates that venire member number five could be “fair
and impartial” and “would be a good juror” in this case.
We conclude that venire member number five was not
disqualified as a matter of law.  Based on this record, the trial court acted
within its discretion by denying Taber’s challenge for cause.  See Vasquez,
189 S.W.3d at 751.   
In her motion for
rehearing, Taber also argues that venire member number five “demonstrated a
bias against out-of-state experts.”  Taber’s counsel asked during voir
dire, “[I]s there anybody that feels that since the plaintiff would have an
out-of-state expert and the defense would have an in-state expert, that before
you hear any of the evidence, you would have difficulty giving the same weight
to an out-of-state expert as an in-state expert?”  Venire member number five
raised his hand in response to this question.
Bias is not established as a matter of law merely
because venire members raise their hands in response to a general question
addressed to the entire panel.  Smith v. Dean, 232 S.W.3d 181, 191 (Tex.
App.—Fort Worth 2007, pet. denied); Sosa v. Cardenas, 20 S.W.3d 8, 12
(Tex. App.—San Antonio 2000, no pet.).  General questions usually are
insufficient to satisfy the diligence required in probing the mind of a venire
member with respect to a legal disqualification for bias or prejudice.  See
Murff, 249 S.W.3d at 411; Gant, 935 S.W.2d at 208.
At most, venire member number five indicated that he
would have “difficulty” giving the same weight to an out-of-state expert as an in-state expert.   He never expressed
an inability to find in favor of Taber if she proved her case, or an inability
to make his decision based on the evidence and the law.  Venire member number
five stated that he believed he was a “fair and impartial person” and “would be
a good juror” in this case.  Any asserted bias expressed by venire member
number five towards out-of-state experts was equivocal at best, which is not
grounds for disqualification.  See Cortez v. HCCI-San Antonio, 159
S.W.3d 87, 94 (Tex. 2005).
We overrule
appellant’s third issue.[16]
Conclusion
We affirm the trial court’s judgment.
                                                                                    
                                                            /s/                    William
J. Boyce
                                                                                    Justice
 
Panel
consists of Chief Justice Hedges, and Justices Anderson and Boyce.  (Anderson,
J. dissenting).




* We
overrule appellant’s motion for rehearing.  We withdraw our majority opinion
issued April 20, 2010, and issue the following substitute majority opinion in
its place.
  


[1]
Dr. Roush was employed by Plaza Ob-Gyn Associates, P.A.  It was uncontested at
trial that Dr. Roush acted in the course and scope of her employment at all
relevant times.  Accordingly, we do not separately address the liability of
Plaza Ob-Gyn Associates, P.A.


[2]
Robert Allen, et al., Risk Factors for Shoulder Dystocia: An Engineering
Study of Clinician-Applied Forces, 77 Obstetrics & Gynecology 352, 354
(1991).


[3]
Taber contends that an article from Sweden describes a prospective study
supporting the excessive traction explanation for brachial plexus injuries
during birth.  See Mollberg, et al., Acta Obstetrica et Gynecologica,
2007 Volume 86.  Dr. Graham criticized this study, asserting that it is not
reliable and would not survive peer review in the United States because it
involved an intentional effort to create an Erb’s palsy through use of traction
on the head.  Regardless of whether this criticism of the Swedish prospective
study is valid, the absence of corresponding prospective studies supporting the
natural forces of labor theory is sufficiently explained on this record.  See
Whirlpool Corp., 298 S.W.3d at 642-43.


[4] The dissent’s stated
concern regarding reliance upon retrospective studies of hospital records
serves as its only basis for rejecting at least six of the articles relied upon
by Dr. Roush.  See Robert B. Gherman et al., Brachial Plexus Palsy:
An in Utero Injury?, 180 Am. J. Obstetrics & Gynecology 1303 (1999);
Robert G. Gherman et al., Spontaneous Vaginal Delivery: A Risk Factor for
Erb’s Palsy?, 178 Am. J. Obstetrics & Gynecology 423 (1998);
Joseph G. Ouzounian et al., Permanent Erb’s Palsy:  A Lack of a Relationship
with Obstetrical Risk Factors, 15 Am.J. Perinatology 221 (1998); Ernest M.
Graham et al., A Retrospective Analysis of Erb’s Palsy Cases and Their
Relation to Birth Weight and Trauma at Delivery, 61 Maternal-Fetal Med. 1
(1997); David Peleg et al., Fractured Clavicle and Erb’s Palsy Unrelated to
Birth Trauma, 177 Am. J. Obstetrics & Gynecology 1038 (1997); Gary D.V.
Hankins et al., Brachial Plexus Palsy Involving the Posterior Shoulder at
Spontaneous Vaginal Delivery, 12 Am. J Perinatology 55 (1995).  The dissent
offers no other basis for discounting or ignoring these articles.


[5]
Robert H. Allen & Edith D. Gurewitsch, Temporary Erb-Duchenne Palsy
Without Shoulder Dystocia or Traction to the Fetal Head, 105 Am. J.
Obstetrics & Gynecology 1210 (2005); Robert B. Gherman et al., Brachial
Plexus Palsy Associated with Caesarian Section: An In Utero Injury?, 177
Am. J. Obstetrics & Gynecology 1162 (1997); Robert B. Gherman et al., Brachial
Plexus Palsy: An in Utero Injury?, 180 Am. J. Obstetrics & Gynecology
1303 (1999);  Robert B. Gherman et al., Shoulder Dystocia: The Unpreventable
Obstetric Emergency with Empiric Management Guidelines, 195 Am. J.
Obstetrics & Gynecology 657 (2006); Robert G. Gherman et al., Spontaneous
Vaginal Delivery: A Risk Factor for Erb’s Palsy?, 178 Am. J.
Obstetrics & Gynecology 423 (1998); Bernard Gonik et al., Mathematic
Modeling of Forces Associated with Shoulder Dystocia: A Comparison of
Endogenous and Exogenous Sources, 182 Am. J. Obstetrics & Gynecology
689 (2000); Bernard Gonik et al., Prediction of Brachial Plexus Stretching
During Shoulder Dystocia Using a Computer Simulation Model, 189 Am. J.
Obstetrics & Gynecology 1168 (2003); Raymond J. Jennett et al., Erb’s
Palsy Contrasted with Klumpke’s and Total Palsy: Different Mechanisms are
Involved, 186 Am. J. Obstetrics & Gynecology 1216 (2002); David Peleg
et al., Fractured Clavicle and Erb’s Palsy Unrelated to Birth Trauma,
177 Am. J. Obstetrics & Gynecology 1038 (1997).  


[6] The dissent overreaches
when it asserts that the body of literature relied upon by Dr. Roush “began
with the conclusion that the maternal forces of labor can cause a brachial
plexus injury and then did research, usually by simply excluding contrary
studies, which supported the desired conclusion.”  ___S.W.3d at ___.  The
dissent overreaches again when it asserts that the natural forces of labor
theory “has no established use outside the area of litigation” and has been
“manufactured by a small number of doctors laboring to create a defense to
lawsuits of this type.”  These sweeping pronouncements ignore extensive
testimony regarding the peer review process that leads to publication of
articles in medical journals including the American Journal of Obstetrics and Gynecology. 
Dr. Graham testified that all articles appearing in this publication “are
peer-reviewed by experts in that particular area, and the editors then rely on
those panels of experts to render an opinion whether that article is qualified
to be published.”  The expert panels “review for appropriateness [and] . . .
for accuracy” and raise questions if necessary to explore the articles’
scientific validity.  Any such questions must be answered to the expert panels’
satisfaction before an article will be accepted for publication.  This process
ensures that the “articles have been reviewed by people expert in the area . .
. [who] have found it satisfactory to be dispensed for reading by the rest of
the obstetricians and perinatologists around the country.”


[7]
The claimants in D’Amore contended that Hannah D’Amore suffered a
brachial plexus nerve root avulsion.  2008 WL 852791, at *2.  The court of
appeals concluded that inconsistent testimony from one of Hannah D’Amore’s
treating physicians raised a jury question as to the exact nature of the
permanent nerve root injury she sustained.  Id.


[8] As indicated in the quote
from D’Amore, Ohio has adopted the Daubert guidelines for
determining reliability and admissibility of expert scientific testimony.  See
Terry v. Caputo, 875 N.E.2d 72, 77-78 (Ohio 2007).  Admission of expert
testimony is proper if (1) the expert is qualified to testify regarding the
matters to be addressed; (2) the expert’s methodology is sufficiently reliable;
and (3) the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the evidence or
to determine a fact in issue.  See, e.g., Miller v. Bike Athletic Co.,
687 N.E.2d 735, 739-40 (Ohio 1998).  Reliability is assessed by considering
whether the method or theory relied upon (1) has been tested; (2) has been
subjected to peer review; (3) has a known or potential rate of error; and (4)
is generally accepted in the scientific community.  Id. at 740.


[9]
The published appellate opinion in Ford does not specify the injury’s
exact nature.  See Ford, 220 P.3d at 942.  A copy of the motion
filed in the trial court in Ford to exclude certain expert testimony
regarding the natural forces of labor theory was included as an attachment to the
Brief in Support of Plaintiffs’ Daubert/Robinson Motion Regarding
Causation and in support of Plaintiffs’ Motion in Limine No. 56 filed in this
case by Lauren Taber on September 17, 2007.  The Ford trial court motion
states, “As a result of trauma during her delivery, Catherine Ford suffered an
avulsion of the C-7 nerve root, the most severe type of injury, in which her
C-7 nerve root was torn from its attachment to the spinal court.  Additionally,
Catherine Ford suffered two ruptures, the second most severe type of injury,
which are torn nerve roots, further down the nerve root from where they attach
to the spine.”  


[10]
See People v. Shreck, 22 P.3d 68, 77-78 (Colo. 2001); Colo. R. Evid.
702.  “The purpose of a CRE 702 inquiry is to determine whether the proffered
scientific evidence is reliable and relevant, and for the trial court — acting
as a gatekeeper — to prevent the admission of ‘junk science.’”  Ford,
220 P.3d at 942 (citations omitted).  To perform these tasks, Colorado courts
are instructed to consider (1) whether the scientific principles to which the
witness is testifying are reasonably reliable; (2) whether the witness is
qualified to express an opinion on such matters; and (3) whether the witness’s
testimony would be useful to the jury.  See Shreck, 22 P.3d at 78. 
Other relevant factors may include (1) whether the technique can be and has
been tested; (2) whether it has been subject to peer review and publication;
(3) the existence and maintenance of standards controlling the operation of the
technique; (4) the frequency and type of error generated by the technique; and
(5) whether such evidence has been offered in previous cases to support the
merits of a particular scientific procedure.  Id. at 77-78.  


[11]
According to the trial court motion in Ford, the defendant doctor’s
experts “contend that the natural forces from uterine contractions may have
compressed the posterior shoulder of Catherine Ford against the sacral
promontory causing her severe brachial plexus injury before her head ever
emerged from the vagina and, therefore, before Dr. Eicher ever could have
applied traction to her neck.”


[12]
Robert H. Allen & Edith D. Gurewitsch, Temporary Erb-Duchenne Palsy
Without Shoulder Dystocia or Traction to the Fetal Head, 105 Am. J.
Obstetrics & Gynecology 1210 (2005); Robert B. Gherman et al., Brachial
Plexus Palsy: An in Utero Injury?, 180 Am. J. Obstetrics & Gynecology
1303 (1999); Herbert F. Sandmire & Robert K. DeMott, Erb’s Palsy Causation:
A Historical Perspective, 29 Birth 52 (2002); Herbert F. Sandmire &
Robert K. DeMott, Erb’s Palsy: Concepts of Causation, 95 Am. C.
Obstetrics & Gynecology 941 (2000).


[13]
On December 14, 2009, the Colorado Supreme Court granted a petition for writ of
certiorari in Ford addressing the following issue:  “Whether the court
of appeals properly applied People v. Shreck, 22 P.3d 68 (Colo. 2001),
and People v. Ramirez, 155 P.3d 371 (Colo. 2007), in its review of the
trial court’s exclusion of expert testimony when it concluded that the
causation testimony of two medical experts was reliable and therefore
admissible and reversed the trial court’s exclusion of that testimony.”


[14] Like Ohio, Louisiana
also looks to the Daubert factors in determining admissibility of expert
scientific testimony.  See Chearis v. State, 861 So.2d 536, 541-42 (La.
2003).


[15]
We address only Taber’s arguments regarding venire member number five.  With
respect to venire member number 32, Taber states in her amended opening
appellate brief as follows:  “Number 32, on the other hand, clearly and
consistently admitted bias.”  Taber provides no further arguments, statements
or citations regarding venire member number 32 in her amended opening appellate
brief.  This single assertion does not present a sufficient discussion to
warrant further analysis of venire member number 32 on appeal.  See Tex.
R. App. P. 38.1(h); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.—Houston
[14th Dist.] 2002, no pet.).
 


[16] In a single paragraph,
Taber also contends that the trial court’s asserted errors in denying her
motion to exclude expert testimony, denying a mistrial, and denying her motion
to strike venire member number five for cause led the jury to make a finding in
response to Question No. 1 that is contrary to the great weight and
preponderance of the evidence.  Taber undertakes no independent analysis of the
evidence in support of her factual sufficiency challenge to Question No. 1. 
Having concluded that the trial court acted within its discretion in admitting
the challenged expert testimony, denying a mistrial, and denying the motion to
strike venire member number five for cause, we reject her contention that
errors in these rulings caused the jury to return an answer to question No. 1
that is contrary to the great weight and preponderance of the evidence.


