IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-60416

 

FRANK TANNER, Individually, and as Father 

and Next Best Friend of Jennifer Renee Tanner, Minor; 

DAISY TANNER, Individually; 

JENNIFER RENEE TANNER, Minor

Plaintiffs-Appellees,

versus

H. WADE WESTBROOK, M.D. ET AL.

Defendants

BAPTIST MEMORIAL HOSPITAL - DESOTO INC., 

A Delaware Corporation

Defendants-Appellants

 

Appeal from the United States District Court

for the Northern District of Mississippi

 

April 27, 1999

Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This complex medical malpractice case stems from the tragic

circumstances surrounding the birth of Jennifer Tanner, a young

girl who now suffers from cerebral palsy. Jennifer’s father, Frank

Tanner, individually and as next friend of his daughter, and Daisy

Tanner, Jennifer’s mother, alleged various acts of negligence in

this diversity action against their obstetrician, Dr. Wade

Westbrook; their pediatrician, Dr. Manoj Narayanan; and the
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hospital where Jennifer was born, Baptist Memorial Hospital-Desoto,

Inc. The jury returned a verdict in favor of the Tanners against

Dr. Westbrook and BMH. On appeal, we vacate the judgment and

remand for a new trial due to the erroneous admission of expert

testimony at trial.

I

Daisy Tanner was admitted to BMH in labor at 9:50 a.m., on

August 29, 1993. Mrs. Tanner’s labor progressed normally

throughout the day, but, at 11:25 p.m., the baby’s fetal heart

tracing became abnormal. The attending nurse was unable to apply

a fetal scalp electrode to properly monitor the baby’s heart rate

between this period and Jennifer’s birth. Dr. Westbrook delivered

Jennifer at 12:03 a.m. Jennifer was not breathing at birth, so Dr.

Westbrook and the delivery staff nurses tried to resuscitate her

with an oxygen mask and then by endotracheal tube. Jennifer began

to breathe on her own at approximately 12:30 a.m. At 12:45 a.m.,

Jennifer was taken to the newborn nursery, and, at approximately

this time, Dr. Narayanan was called to attend to Jennifer. Dr.

Narayanan arrived at approximately 1:30 a.m.

The Tanners urged at trial that between 12:45 a.m. and 1:30

a.m., when Dr. Narayanan arrived, Jennifer was left untreated in

the nursery despite her precarious condition. Dr. Westbrook

conceded that he did not actively monitor Jennifer while she was in

the nursery. According to the Tanners, a nurse’s physical
3

examination of Jennifer during this time revealed respiratory

distress and possible seizure activity.

A blood gas test completed at 1:55 a.m., after Dr. Narayanan

had arrived, indicated the presence of acute severe metabolic

acidosis. Acidosis is caused by a build-up of lactic acid in the

bloodstream that results from diminished tissue oxygenation. Dr.

Narayanan ordered more tests and directed that sodium bicarbonate

be given to Jennifer to help correct the acidosis. The sodium

bicarbonate was administered at 2:45 a.m. and completed at 3:15

a.m. Afterwards, Jennifer’s respiration improved.

At 11:55 a.m., however, Jennifer began to have seizures and

was transferred to LeBonheur Neonatal Intensive Care in Memphis,

Tennessee, for further treatment. Jennifer was later diagnosed

with cerebral palsy.

II

The Tanners filed this suit, alleging that Drs. Westbrook and

Narayanan and BMH were negligent in their treatment of Jennifer and

that their negligence proximately caused or contributed to her

resulting cerebral palsy. At trial, both sides provided

conflicting theories regarding the cause of Jennifer Tanner’s

cerebral palsy and whether the defendants could have done more to

prevent it. The jury, assigning liability to Dr. Westbrook and BMH

equally, but exonerating Dr. Narayanan, returned a verdict of
1Daubert requires that “when expert testimony is offered, the

trial judge must perform a screening function to ensure that the

expert’s opinion is reliable and relevant to the facts at issue in

the case.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th

Cir. 1997).

4

$3,000,000 in favor of Jennifer Tanner and $100,000 in favor of

each parent. Only BMH has prosecuted this appeal.

III

BMH maintains that the trial court erred in admitting the

Tanners’ expert testimony regarding causation and that, had this

testimony been properly excluded, the jury would not have held them

liable. Prior to trial, the defendants filed a motion for an FRE

104 hearing to exclude the testimony of two of the Tanners’ experts

– Drs. St. Amant and Nestrud – as failing to clear the hurdles of

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).1

The district court, making a preliminary assessment that Daubert

review did not apply to the Tanners’ experts, denied the motion and

stated that it would “pass on the qualifications of the said

witnesses at trial.” Thus, to trigger Daubert review of the

experts’ testimony, the defendants were tasked with renewing their

objection to the testimony at trial. Furthermore, to preserve

error on the admissibility of the Tanners’ experts’ testimony, BMH

had to object at trial. See Marceaux v. Conoco, Inc., 124 F.3d

730, 734 (5th Cir. 1997)(stating the general rule in this circuit
5

that an overruled motion in limine does not preserve error on

appeal – objection at trial is still required).

We find that BMH preserved error on the admissibility issue by

objecting at trial to Dr. Nestrud’s opinion on causation. Near the

beginning of Dr. Nestrud’s testimony, the following exchange

occurred:

Q . . . . But based on your experience and training,

and the literature you have read about this subject, do

you have an opinion to a reasonable degree of medical

certainty as to whether had Jennifer been properly

resuscitated she more than likely, more than likely would

have been normal?

A Yes.

Mr. Dunbar: I make an objection to that, Your Honor, for

the record. The foundation has not been laid that there

is any scientific basis for that opinion beyond this

gentleman’s objective opinion on the point.

 . . . 

THE COURT: Very well. The objection will be overruled.

BY MR. TOLLISON:

Q Do you have an opinion?

A It is my opinion that a baby with an APGAR score of 3

with no other problems can be – can be fully

resuscitated.

Dr. Nestrud went on explicitly to claim that birth asphyxia which

began shortly before delivery led to Jennifer’s cerebral palsy, and

had the defendants followed proper procedures in treating the

asphyxia, Jennifer “would not have had the brain damage that she

has now.”
6

In overruling the defendants’ objection, and thus allowing Dr.

Nestrud to espouse his views on the etiology of Jennifer’s cerebral

palsy and on whether different treatment would have allowed

Jennifer Tanner to have a normal life, the district court

effectively conducted a Daubert inquiry, presumably basing its

conclusion on the arguments and scientific literature submitted in

regard to the pretrial motion for an FRE 104 hearing. On the basis

of these materials, the district court concluded that the expert

testimony was relevant and reliable, and it admitted Dr. Nestrud’s

expert testimony.

Daubert inquiry was appropriate. See Kumho Tire Co., Ltd. v.

Carmichael, 1999 WL 152455, at *9 (U.S. Mar. 23, 1999)(stating that

when an expert’s “testimony’s factual basis, data, principles,

methods, or their application are called sufficiently into question

. . . , the trial judge must determine whether the testimony has ‘a

reliable basis in the knowledge and experience of the relevant

discipline.’” (quoting Daubert, 509 U.S. at 592)). BMH, in its

motion for an FRE 104 hearing, called the Tanners’ experts’

opinions on causation “sufficiently into question,” id., by

providing conflicting medical literature and expert testimony.

Further, that a component of the experts’ testimony was based on

their personal knowledge or experience does not exempt the experts’

opinions from the rigors of Daubert. See id. (noting that “the
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relevant reliability concerns may focus upon personal knowledge or

experience”).

We review the district court’s admission of expert testimony

for an abuse of discretion. See Moore v. Ashland Chem., Inc., 151

F.3d 269, 274 (5th Cir. 1998)(en banc). That is, “the discretion

of the trial judge and his or her decision will not be disturbed on

appeal unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121

F.3d 984, 988 (5th Cir. 1997)(internal quotation marks and

citations omitted). If we find an abuse of discretion in admitting

evidence, we review the error under the harmless error doctrine,

affirming the judgment, unless the ruling affected substantial

rights of the complaining party. See FED. R. EVID. 103(a); United

States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996). In

determining whether district courts have abused their discretion in

admitting or excluding expert testimony, we ask whether the expert

testimony meets or fails to meet the Daubert standard of

admissibility. See, e.g., Watkins, 121 F.3d at 988. The

“overarching subject [of a Daubert inquiry] is the scientific

validity and thus the evidentiary relevance and reliability of the

principles that underlie a proposed submission.” Id. at 989. 

We grant the trial court “the same kind of latitude in

deciding how to test an expert’s reliability, and to decide whether

or when special briefing or other proceedings are needed to

investigate reliability, as it enjoys when it decides whether or
8

not that expert’s relevant testimony is reliable.” Kumho Tire Co.,

Ltd. v. Carmichael, 1999 WL 152455, at *11 (U.S. Mar. 23, 1999).

This case is unique in that the trial judge did not specify on what

basis he decided to admit Dr. Nestrud’s testimony. Thus, we

proceed directly to consideration of whether the district court

abused its discretion in admitting the testimony. Cf. United

States v. Nichols, 1999 WL 107021 (10th Cir. Feb. 26, 1999)(stating

that, in reviewing the denial of a Daubert evidentiary hearing, the

appellate court required “a sufficiently developed record in order

to allow a determination of whether the district court properly

applied the relevant law”). In making this determination, we rely

upon the materials the trial court had before it to judge Dr.

Nestrud’s reliability: submissions made to the district court by

both sides in regard to BMH’s motion for an FRE 104 hearing.

Our review of the admissibility issue is, of course, guided by

Daubert, the cases applying it, and Kumho Tire. In Daubert, the

Supreme Court provided a list of factors, such as testing, peer

review, error rates, and acceptance of the opinion in the relevant

scientific community, that a court may choose to use in determining

the reliability of an expert’s testimony. See Daubert, 509 U.S. at

593-94; see also Kumho Tire, 1999 WL 152455, at *9 (emphasizing

that the list of factors was not exclusive and that the factors may

not always apply to the testimony at issue). The test of

reliability is flexible and bends according to the particular
9

circumstances of the testimony at issue. See Kumho Tire, 1999 WL

152455, at *9; see also Black v. Food Lion, Inc., No. 97-11404,

1999 WL 173001, at *4 (5th Cir. Mar. 30, 1999) (advising that

courts should use the traditional Daubert factors as a starting

point for evaluating proffered expert testimony). Whatever the

test employed, the objective is to ensure the reliability and

relevance of the expert testimony. See id.

“The proponent [of the expert testimony] need not prove to the

judge that the expert’s testimony is correct, but she must prove by

a preponderance of the evidence that the testimony is reliable.”

Moore, 151 F.3d at 276. The theory of the Tanners’ case was that

Jennifer Tanner’s cerebral palsy was caused by birth asphyxia that

the defendants improperly treated in the hours immediately

following her birth. The Tanners’ experts, Drs. St. Amant and

Nestrud, supported this theory at trial by stating generally that

birth asphyxia is a cause of cerebral palsy. The doctors made this

statement based on their personal knowledge and training and

supported it with medical literature. The doctors also opined,

based on their experience in the fields of obstetrics and

neonatology, that Jennifer suffered from birth asphyxia and that,

through proper treatment of this condition, Jennifer’s cerebral

palsy could have been avoided. 

BMH, on the other hand, insists that the cerebral palsycausing incident occurred some time before Jennifer Tanner was
10

born. BMH asserts that the major insult suffered by Jennifer prior

to her birth caused a difficult labor and delivery, during which,

as a result of this difficulty, she suffered birth asphyxia. That

is, BMH agrees with the Tanners that Jennifer Tanner suffered from

asphyxia at birth; BMH does not agree, however, that birth asphyxia

or the hospital’s treatment of it caused Jennifer Tanner’s cerebral

palsy. 

BMH supported its theory by submitting with its motion for an

FRE 104 hearing an expert’s affidavit and scientific literature

pointing out that Jennifer’s condition is not indicative of

cerebral palsy caused by birth asphyxia. The medical literature

states that birth asphyxia is rarely a cause of cerebral palsy and

that a large proportion of cases of cerebral palsy remains

unexplained. See Karin B. Nelson & Jonas H. Ellenperg, Antecedents

of Cerebral Palsy, NEW ENGLAND J. MED., July 10, 1986, at 85-86. The

medical literature also indicates that when birth asphyxia is

severe enough to cause cerebral palsy, there is usually evidence of

corresponding major organ damage. See Richard L. Naeye et al.,

Origins of Cerebral Palsy, 143 AM. J. DISEASES CHILDREN 1160 (1989).

The organ damage is caused by preferential perfusion, a phenomenon

triggered by asphyxia in which there is a redistribution of blood

flow, with increased flow to the head and heart and decreased flow

to non-vital organs. See AVROY A. FANAROFF & RICHARD J. MARTIN, NEONATALPERINATAL MEDICINE (5th ed.). Jennifer Tanner did not suffer from
11

major organ damage in conjunction with her cerebral palsy.

Furthermore, the literature maintains that many of Jennifer’s

symptoms in the hours after her birth support the conclusion that

she suffered from congenital defects which, rather than asphyxia,

probably triggered her cerebral palsy. See Naeye et al., supra, at

1159. Moreover, one study specifically stated that “[a] failure of

medical personnel to react to evidence of . . . asphyxia was

followed by a greater-than-expected frequency of neonatal apnea and

seizures, but not CP.” Id.

In response to BMH’s FRE 104 motion materials, the Tanners

provided copies of their experts’ deposition testimony and

supporting medical literature. These materials addressed BMH’s

contention that Jennifer’s cerebral palsy was likely caused by some

congenital defect, rather than birth asphyxia. The affidavits of

both Dr. St. Amant and Dr. Nestrud state that there was no evidence

of a congenital defect and that, as a result, they eliminated that

explanation for her resulting condition. The doctors also opined

that the lack of damage to Jennifer’s nonvital organs was

“consistent with [their] opinions that most of Jennifer’s asphyxial

damage occurred following her birth, and not in utero . . . .” The

Tanners, however, provided no medical literature supporting their

experts’ claims that Jennifer’s symptoms – including the absence of

nonvital organ damage – were consistent with their theory of

causation. Further, in his deposition, Dr. Nestrud testified that
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he was not aware of any genetic causes for Jennifer’s cerebral

palsy, but, in order to rule out genetic causes, “a good physical

examination by a qualified physician” was necessary; Dr. Nestrud

had neither conducted such an exam nor reviewed the results of such

an exam when he testified at his deposition.

The trial judge could have correctly concluded, based on the

FRE 104 motion materials, that Dr. Nestrud had sufficient

expertise, based on his experience and training, to testify about

the standard of care to be given to a baby suffering from asphyxia.

His ability to testify reliably about the cause of Jennifer’s

cerebral palsy, however, hinges on the validity of his opinion

linking the post-birth asphyxia to Jennifer Tanner’s cerebral palsy

– specifically the depth of his knowledge of a complicated,

specialized medical subject matter. He has no background in

studying the causes of cerebral palsy. He bases his opinion on

causation in part upon articles which state that asphyxia causes

cerebral palsy. This fact is not disputed. What is in dispute is

whether it is more likely than not that a baby with Jennifer

Tanner’s symptoms developed cerebral palsy as a result of the

hospital’s negligent treatment of her birth asphyxia. “[T]he

question before the trial court was specific, not general. The

trial court had to decide whether this particular expert had

sufficient specialized knowledge to assist the jurors in deciding

the particular issues in this case.” Kumho Tire, 1999 WL 152455,
13

at *13 (internal quotation marks and citations omitted). Based on

the materials before the trial judge, Dr. Nestrud did not have the

kind of specialized knowledge required to testify regarding

causation, nor did he rely upon medical literature directly

addressing the causation issue in this case. This deficiency

rendered his expert testimony as to a critical issue in the case –

causation – unreliable. Thus, admitting the testimony, based on

the materials submitted in support of its validity, was an abuse of

discretion.

As we have explained, even though the court abused its

discretion in admitting Dr. Nestrud’s testimony, FRE 103(a)

provides that courts of appeals should not reverse on the basis of

erroneous evidentiary rulings unless a party’s substantial rights

are affected. See Munn v. Algee, 924 F.2d 568, 573 (5th Cir.

1991). This question is not susceptible to mechanical analysis;

decisions are made on a case-by-case basis. See id. In this case,

whether BMH’s substantial rights were affected depends on whether

the timing of BMH’s objection to the expert testimony rendered the

error harmless because the content of the inadmissible testimony

had already been admitted without objection. An error is harmless

if the court is certain, after reviewing the record, that the error

did not influence the jury or had only a slight effect on its

verdict. See EEOC v. Manville Sales Corp., 27 F.3d 1089, 1094 (5th

Cir. 1994). 
14

Dr. Nestrud’s testimony followed testimony by Dr. St. Amant,

who also told the jury that birth asphyxia caused Jennifer Tanner’s

cerebral palsy and that, had the doctors treated her properly after

birth, she “would have done better.” In addition, directly prior

to the objection to Dr. Nestrud’s testimony, Dr. Nestrud had

provided unsolicited testimony that Jennifer Tanner’s chances for

recovery were probably harmed by the defendants’ allegedly

lackluster resuscitation efforts. 

Dr. St. Amant’s prior testimony and Dr. Nestrud’s limited

comment prior to the objection do not dilute Dr. Nestrud’s

testimony to harmless error. Dr. Nestrud did not hedge. He

testified that had the doctors acted properly, Jennifer would have

been normal, a stronger conclusion than that reached by Dr. St.

Amant – that Jennifer would have been “better.” Moreover, in this

complicated medical malpractice case containing complex issues of

causation, if the court had excluded Dr. Nestrud’s testimony,

which, in greater detail than the testimony provided by Dr. St.

Amant, put forth the Tanners’ explanation for Jennifer Tanner’s

current condition, then the Tanners’ case would have suffered

markedly, and the jury may have reached a different verdict. We

cannot conclude that the error was harmless. Indeed, whether Dr.

St. Amant’s testimony could, without the testimony of Dr. Nestrud,

have supported the jury’s finding of causation is a close call.

Admitting the opinion of Dr. Nestrud affected BMH’s substantial

rights.
15

IV

We add a final word. This record lacks support for the

reliability of Dr. Nestrud’s opinion that birth asphyxia was more

likely than not the cause of the child’s cerebral palsy. Whether

this weakness is a by-product of the absence of exploration of the

Daubert issues at a pretrial hearing, we do not know. Nor do we

know if his opinion is supportable. We say only that it was not

supported in this record. 

Because the district court abused its discretion in admitting

Dr. Nestrud’s testimony regarding causation, and because this error

affected BMH’s substantial rights, we vacate the judgment of the

trial court and remand for a new trial consistent with this

opinion.

VACATED and REMANDED for a new trial.