Case Study #4


Successful Motion in Limine Brings Dismissal

Client:  A major New York City hospital and attending obstetrician.

Type of Case:  Infant brain damage alleged to result from labor and delivery events. 

Background:  The plaintiff alleged negligence during a labor and delivery in July 2001 and claimed the infant sustained fetal distress with resulting cerebral palsy and spastic hemiparesis due to a delay in the performance of a C-section.  

Suit Filed:  Lawsuit was brought by plaintiff in New York State Supreme Court, Kings County, a notorious plaintiff’s jurisdiction. 

Client’s Concern:  The inherent sympathy factor in a brain-damaged baby case, the severity of the infant’s injuries and the absence of placental pathology to support the defense’s position.

Action Strategy:  Aaronson Rappaport attacked plaintiff’s case on several fronts.  Regarding the alleged delay in delivery, we were prepared to prove that occasional decreases in fetal heart rate were transient and did not indicate distress.  Once a non-reassuring fetal heart rate tracing was noted, a C-section was promptly performed and the infant had acceptable arterial and venous blood gas results to prove no distress had occurred.  On the issue of causation, we argued the infant’s symptoms and MRI findings were consistent with a middle cerebral artery infarct, a condition that is not caused by hypoxic-ischemic encephalopathy. 

Based on the above, as well as plaintiff’s $12 million demand, we moved for a Frye hearing prior to the first witness, to preclude plaintiff’s theory of causation as unreliable and not accepted by the scientific community.  Plaintiff’s expert was prepared to opine that the infant sustained asphyxia during the labor as a result of an increased intracranial pressure causing a stroke.

Result:  After extensive testimony and cross-examination of both the plaintiff’s expert and our expert, the court granted Aaronson Rappaport’s motion.  Plaintiff’s expert was precluded from testifying as to his novel theory of causation.  The court agreed the expert’s theory did not make physiological sense and the scientific research the expert attempted to use did not support the proposition the expert tried to advance.  As a result, the plaintiff’s case was dismissed.