     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                             August 20, 2020

                               2020COA126

No. 19CA0356, Trujillo v. Vail Clinic — Evidence — Testimony
by Experts

     A division of the court of appeals addresses whether the trial

court erred by ruling that expert testimony about Cranial

Compression Ischemic Encephalopathy (CCIE) was inadmissible

under CRE 702. The division concludes that because CRE 702’s

liberal admission standard requires only that expert testimony be

reasonably reliable and any expert testimony will be further vetted

at trial by cross-examination and the presentation of contrary

testimony, the CCIE testimony here was admissible.
COLORADO COURT OF APPEALS                                      2020COA126


Court of Appeals No. 19CA0356
Eagle County District Court No. 14CV30248
Honorable Russell H. Granger, Judge


Brandon Trujillo, by and through his Co-Conservators; Rosalina Chaparro-
Leyva; and Victor Trujillo,

Plaintiffs-Appellants,

v.

Vail Clinic, Inc., d/b/a Vail Valley Medical Center; Pamela Bock; Gale Santa
Maria,

Defendants-Appellees.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                   Division II
                           Opinion by JUDGE PAWAR
                           Román and Tow, JJ., concur

                           Announced August 20, 2020


Leventhal Puga Braley P.C., James E. Puga, Molly I. Greenblatt, Benjamin I.
Sachs, Denver, Colorado; Levin Sitcoff PC, Bradley A. Levin, Nelson A. Waneka,
Denver, Colorado, for Plaintiffs-Appellants

Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado, for
Defendants-Appellees
¶1    During plaintiff Brandon Trujillo’s birth in 2013, he suffered

 injuries that reduced the supply of oxygen to his brain and left him

 with permanent disabilities. He and his parents, Rosalina

 Chaparro-Leyva and Victor Trujillo, the plaintiffs in this case, sued

 defendant health care providers for causing these injuries. Before

 trial, the district court excluded testimony from plaintiffs’ experts

 about plaintiffs’ theory of causation. The court held that although

 the scientific principles underlying the theory were reliable, the

 theory itself was not because it had not been tested, been published

 in peer-reviewed publications, or gained widespread acceptance in

 the medical field. Based on this ruling, the court granted

 defendants summary judgment, holding that without the excluded

 testimony, plaintiffs could not prove that defendants caused

 Brandon’s injuries. We conclude that the district court erred by

 excluding the expert testimony. We therefore reverse and remand

 with directions.

                             I. Background

¶2    After being admitted to Vail Clinic, Inc., d/b/a Vail Valley

 Medical Center, for a scheduled induction, Brandon’s mother

 labored for thirty-two hours until Brandon was delivered via


                                    1
 Cesarean section. For the vast majority of the labor, Brandon’s

 mother received Pitocin, a medication that induces contractions.

¶3    When Brandon was born, he was not breathing and required

 cardiac resuscitation. He was subsequently diagnosed with having

 suffered injuries during labor and delivery that significantly reduced

 the blood supply, and therefore oxygen supply, to his brain.

 Brandon now suffers from cerebral palsy, a permanent condition.

¶4    Brandon and his parents sued defendants, alleging that their

 professional negligence caused the injuries that led to Brandon’s

 cerebral palsy. They disclosed several experts who were prepared to

 testify about what caused the reduction of the blood supply, and

 therefore the oxygen supply, to Brandon’s brain.

¶5    According to these experts, excessively strong, prolonged, and

 frequent contractions can increase the external pressure on a

 fetus’s head to the point that the pressure collapses the blood

 vessels in the fetus’s head, thereby preventing sufficient blood and

 associated oxygen from being circulated to the brain. For ease of

 reference in this opinion, we, like the district court, will refer to this




                                     2
 phenomenon as Cranial Compression Ischemic Encephalopathy

 (CCIE).1

¶6    Plaintiffs’ experts would have opined not only about CCIE

 generally, but that based on a differential diagnosis (diagnosis by

 process of elimination), CCIE caused Brandon’s injuries. They

 would have further opined that defendants’ repeated administration

 of Pitocin over a prolonged period and failure to deliver Brandon by

 Cesarean section sooner contributed to his injuries.

¶7    Before trial, defendants moved to limit the testimony of

 plaintiffs’ experts, arguing that CCIE was not a scientifically proven

 phenomenon and therefore any testimony about it generally or as

 the cause of Brandon’s injuries was inadmissible under CRE 702.

 The district court held a multi-day hearing on this issue and

 ultimately granted defendants’ motion in an extensive and helpful

 (for appellate purposes) written order. The court ruled that the

 CCIE testimony was neither reasonably reliable, helpful to the jury,

 nor admissible under CRE 403.


 1 Ischemia is a restricted blood supply to tissue and encephalopathy
 refers to damage to the brain. Therefore, in layman’s terms, CCIE
 means a brain injury caused by cranial compression that reduces
 blood flow to the brain.

                                   3
¶8     Defendants then moved for summary judgment, arguing that

  because CCIE was plaintiffs’ only theory of causation and all

  testimony about it had been ruled inadmissible, plaintiffs could not

  prove that defendants caused Brandon’s injuries. The district court

  granted this motion too, agreeing with defendants that without the

  CCIE testimony, plaintiffs could not establish causation as a matter

  of law.

¶9     On appeal, plaintiffs argue that the district court erred by

  excluding the CCIE testimony. They also argue that even if the

  district court properly excluded the CCIE testimony, defendants

  were still not entitled to summary judgment. We agree with

  plaintiffs that the district court should not have excluded the CCIE

  testimony and on that basis conclude that the court erred by

  granting defendants summary judgment.

                     II. Excluded Expert Testimony

¶ 10   We review the district court’s exclusion of the CCIE expert

  testimony for an abuse of discretion. See Estate of Ford v. Eicher,

  250 P.3d 262, 266 (Colo. 2011). A court’s ruling on the

  admissibility of expert testimony is an abuse of discretion if it is

  manifestly erroneous. Id.


                                     4
                            A. Governing Law

¶ 11   CRE 702 provides for the admission of expert testimony,

  which the rule defines as testimony based on scientific, technical,

  or other specialized knowledge. Expert testimony may be admitted

  under CRE 702 only if it is both reliable and relevant. See Ford,

  250 P.3d at 266. To determine whether the testimony is reliable,

  courts consider whether “(1) the scientific principles underlying the

  testimony are reasonably reliable [and] (2) the expert is qualified to

  opine on such matters.” Id.; see People v. Shreck, 22 P.3d 68, 77

  (Colo. 2001). Expert testimony is relevant if it would be helpful to

  the jury and satisfies CRE 403 (probative value of the evidence

  cannot be substantially outweighed by the danger of unfair

  prejudice). See Ford, 250 P.3d at 266.

¶ 12   In conducting the reliability inquiry, there is no mandatory list

  of factors that a court must consider. See Kutzly v. People, 2019

  CO 55, ¶ 12. Many courts, including the district court here, have

  assigned determinative weight to some or all of the factors identified

  in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579,

  593-95 (1993). But our supreme court has repeatedly made clear

  that whether “expert testimony is reasonably reliable requires


                                     5
  considering the totality of the circumstances surrounding the

  proposed expert testimony and is not contingent on any specific list

  of factors.” Kutzly, ¶ 12.

¶ 13   Our supreme court has also emphasized that CRE 702

  requires only that “the underlying scientific principles are

  reasonably reliable.” Id. The standard for admitting expert

  testimony is liberal because any admitted testimony will be further

  vetted through vigorous cross-examination, presentation of contrary

  evidence, and careful instruction on the burden of proof. Shreck,

  22 P.3d at 78. The trial court’s inquiry is focused on excluding

  junk science, recognizing that two experts may have conflicting but

  nevertheless equally admissible opinions on a particular issue. See

  Estate of Ford v. Eicher, 220 P.3d 939, 942 (Colo. App. 2008), aff’d,

  250 P.3d 262 (Colo. 2011); Farmland Mut. Ins. Cos. v. Chief Indus.,

  Inc., 170 P.3d 832, 835 (Colo. App. 2007). In this way, a trial court

  acts only as a gatekeeper, not the arbiter of which expert’s opinion

  is true or more credible.

¶ 14   The trial court found, and the parties do not dispute, that

  plaintiffs’ experts were qualified to give the opinions they offered.

  We agree. We therefore focus our attention on the contested issue


                                     6
  of the trial court’s determinations that any testimony about CCIE

  generally or as applied to Brandon was not reasonably reliable,

  helpful to the jury, or compliant with CRE 403.

         B. General CCIE Testimony was Reasonably Reliable

¶ 15   The expert testimony excluded here was that excessively long,

  frequent, and powerful uterine contractions during labor can

  increase the intrauterine pressure on a fetus’s head to the point

  that it collapses the fetus’s blood vessels in the head and causes an

  ischemic brain injury (CCIE). Plaintiffs’ experts conceded that this

  concept was not widely accepted in the medical field and had not

  been published in peer-reviewed journals. On the other hand,

  during the hearing, plaintiffs’ expert Dr. Barry Schifrin testified that

  the following underlying pathophysiological concepts were widely

  accepted in the medical field, taught in medical schools, and

  published in peer-reviewed journals: (1) excessive external pressure

  on blood vessels can collapse them and cause ischemic injuries; (2)

  during a contraction, the intrauterine pressure on a fetus increases;

  and (3) in response to this rise in external pressure, a fetus raises

  its own internal blood pressure to ensure that blood circulates to




                                     7
  tissues and organs. The district court found that these concepts

  were reasonably reliable.

¶ 16   Put differently, it was beyond dispute that contractions

  pressurize a fetus’s blood vessels. It was also beyond dispute that

  to prevent those blood vessels from collapsing and causing an

  ischemic injury, a fetus raises its own blood pressure, effectively

  overcoming the external pressure of a contraction. The only piece of

  plaintiffs’ experts’ testimony that the trial court found unreliable

  was that the extracranial pressure of a contraction can raise the

  intracranial pressure on a fetus’s blood vessels to the point that a

  fetus cannot sufficiently raise its blood pressure to counteract it,

  resulting in the intracranial blood vessels’ collapse and the brain

  being deprived of necessary blood (and the oxygen it carries). Dr.

  Schifrin, a highly credentialed and experienced expert in maternal

  fetal medicine with years of experience researching the mechanism

  of injury for fetal brain damage, testified that this was possible.

  Defendants’ experts, also highly credentialed and experienced in the

  field, testified that it was not possible.

¶ 17   The trial court effectively resolved this conflict in the testimony

  by determining that defendants’ experts’ opinions were reliable


                                       8
  while those of Dr. Schifrin and plaintiffs’ other experts were not. In

  its order, the trial court discussed CCIE in terms of building blocks

  being added together to form the theory of CCIE. The trial court

  recognized that all of the building blocks were reasonably reliable

  and widely accepted in the medical community. But the court held

  that “support for each block is not the same as support for the

  theory.” The court wrote, correctly, that the assembly of these

  building blocks into the theory of CCIE had not been published in a

  peer-reviewed journal, was not taught in medical schools, had not

  been tested, and was not generally accepted or known in the

  medical field. The court therefore held that the theory was not

  scientifically reliable.

¶ 18   The trial court went to admirable lengths to learn about this

  technical medical subject. But we conclude that the trial court

  exceeded the bounds of its role as a gatekeeper charged only with

  keeping junk science from the jury. As mentioned above, the

  standard for admitting expert testimony is liberal because any

  expert opinion will be subject to further vetting at trial.

  Consequently, it is not for the trial court to determine whether an

  expert opinion is unimpeachable. To be admissible, expert opinion


                                      9
  need only be reasonably reliable based on the totality of the

  circumstances.

¶ 19   The trial court erroneously put determinative weight on the

  fact that CCIE, as a complete theory, had not been tested, widely

  accepted in the medical field, or published in peer-reviewed

  journals. While these factors were certainly appropriate for the

  court to consider, the totality of the circumstances also included

  the reliability of the underlying pathophysiological mechanisms and

  concepts on which CCIE is based. This underlying

  pathophysiology, combined with Dr. Schifrin’s testimony that the

  pathophysiology was consistent with and supported the validity of

  CCIE, rendered CCIE reasonably reliable in the context of the

  liberal admission standard for expert testimony.

¶ 20   While CCIE is not junk science, its lack of testing, widespread

  acceptance, and publication will almost certainly be the subject of

  cross-examination and countervailing expert testimony at trial and

  may cause a jury to reject CCIE as the cause of Brandon’s injuries

  here. But that determination must be made by a jury, not a judge.

¶ 21   Our supreme court’s opinion in Ford illustrates that the

  admission standard for expert testimony is liberal and depends on


                                   10
  the unique factual circumstances surrounding the testimony. In

  that case, a child was born with a brachial plexus injury (an injury

  to the nerves that originate from the spinal cord in the neck and

  control movement and sensation in the shoulder and arm). Ford,

  250 P.3d at 264. The plaintiffs alleged that the doctor who

  performed the delivery caused the injury by applying too much force

  when applying traction on the child. Id. The defendant doctor’s

  experts intended to testify that the child’s injury was not caused by

  the doctor, but by “maternal intrauterine forces”; in other words,

  that “the internal forces of labor and delivery” caused the injury. Id.

  at 264-65.

¶ 22   The trial court held that the intrauterine forces theory was not

  scientifically reliable because there was no data available to

  establish its reliability. Id. at 265. The supreme court reversed,

  explaining that because the nature of the intrauterine forces theory

  made it impossible and unethical to test, the absence of testing and

  data was not a proper ground on which to find the theory

  unreliable. Id. at 268-69. The supreme court held that the theory

  was reasonably reliable based on the totality of the circumstances,

  which included the fact that other jurisdictions had admitted expert


                                    11
  testimony on the theory, a body of peer-reviewed literature existed

  challenging the previously accepted theory that applying traction is

  “the sole or primary cause of brachial plexus injuries” under similar

  circumstances, and the American College of Obstetrics and

  Gynecologists (ACOG) had “recognized” the intrauterine forces

  theory. Id.

¶ 23   As we understand Ford, the supreme court did not hold that

  ACOG’s recognition of the intrauterine forces theory and the

  existence of a body of literature challenging a competing theory

  were prerequisites for admission of the intrauterine forces

  testimony. Instead, these were factors that, under the unique

  totality of the circumstances of the case, justified the acceptance of

  the intrauterine forces theory as scientifically reliable.

¶ 24   Although the facts of our case are similar to Ford, they are not

  completely analogous. Like Ford, there is no testing data for CCIE,

  and for similar reasons — causing CCIE would be unethical and

  therefore it is impossible to test. But unlike Ford, we are aware of

  no previously accepted theory explaining what causes injuries like

  Brandon’s. The absence of a body of literature challenging that

  nonexistent orthodoxy is therefore irrelevant. We therefore see little


                                     12
  utility in a fact-by-fact comparison of our case to Ford. Instead, we

  conclude that, because the trial court exceeded the bounds of its

  gatekeeper function in evaluating the totality of the circumstances

  described above, the trial court’s exclusion of the CCIE testimony

  was an abuse of discretion.

       C. Testimony Applying CCIE to Brandon’s Case was Reasonably
                                 Reliable

¶ 25      Having concluded that CCIE testimony generally is reasonably

  reliable, we next turn to the question of whether plaintiffs’ experts’

  testimony that CCIE was the cause of Brandon’s ischemic injuries

  was reasonably reliable. We conclude it was.

¶ 26      At the hearing, Dr. Schifrin testified that he had thoroughly

  reviewed Brandon’s medical records and used a differential

  diagnosis to arrive at the conclusion that CCIE caused his hypoxic

  ischemia. A differential diagnosis is a widely accepted diagnostic

  technique that identifies a cause of injury through a process of

  elimination — in other words, ruling out all but one possible cause.

  Dr. Schifrin testified in detail about why all the other potential

  causes of Brandon’s hypoxic ischemia were implausible. He then

  explained that because CCIE fit as a cause of Brandon’s hypoxic



                                      13
  ischemia, and no other causes were plausible, CCIE likely caused

  Brandon’s injury. This testimony was uncontroverted —

  defendants’ experts did not opine that there was an alternative

  cause of Brandon’s injuries. We therefore conclude that this

  testimony was reasonably reliable as well.

       D. All CCIE Testimony was Relevant and Admissible under CRE
                                   403

¶ 27      The district court determined that the CCIE testimony was not

  relevant because it was not helpful to the jury, and that it was

  inadmissible under CRE 403. We disagree with both rulings.

¶ 28      The district court concluded that the CCIE testimony was not

  helpful to the jury because it was not “scientifically valid or

  reasonably reliable” and “cannot be tied to the events of Brandon

  Trujillo’s delivery.” As explained above, the theory was sufficiently

  reliable to survive the court’s gatekeeper inquiry. And plaintiffs’

  experts tied CCIE to Brandon’s injuries through a differential

  diagnosis, a widely accepted diagnostic methodology for

  ascertaining diagnosis. Because the testimony was reliable and

  bore on causation, one of the central issues in the case, we

  conclude that it was helpful to the jury and therefore relevant.



                                     14
¶ 29   We also disagree with the district court’s ruling that the CCIE

  testimony was inadmissible under CRE 403 because “the CCIE

  theory did not exist” at the time of the events in question. The

  theory may not have had an official name or acronym. But, as

  explained above and as the trial court itself stated, the

  pathophysiological concepts on which CCIE is based (excessively

  long, powerful, and frequent contractions can threaten the health of

  a fetus by reducing the circulation of blood and oxygen in the fetus)

  are widely accepted. We therefore conclude that the probative value

  of the CCIE testimony was not substantially outweighed by any

  danger of unfair prejudice.

¶ 30   In sum, because the CCIE testimony was reasonably reliable,

  helpful to a jury, and admissible under CRE 403, the district court

  manifestly erred by excluding it. Based on this conclusion, we also

  reverse the district court’s order granting defendants summary

  judgment. The court’s sole basis for granting summary judgment

  was that all expert testimony about plaintiffs’ single theory of

  causation — CCIE — was inadmissible. Because the CCIE

  testimony was admissible, plaintiffs had a causation theory

  sufficient to preclude summary judgment.


                                    15
                            III. Conclusion

¶ 31   The order granting defendants summary judgment is reversed

  and the case is remanded to the district court with directions to

  reinstate plaintiffs’ claims and conduct further proceedings

  consistent with this opinion.

       JUDGE ROMÁN and JUDGE TOW concur.




                                   16
