Csiszer et al v. Wren et al
Court Docket Sheet

Western District of Arkansas

3:2008-cv-03011 (arwd)

MOTION to Exclude Certain Opinions of Defense Experts by Rozanna Csiszer, Charles Csiszer.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION ROZANNA CSISZER and CHARLES CSISZER, Individually and As Next Friends of ALLISON CSISZER, a Minor, PLAINTIFFS, vs. Civil No. 08-3011 MARY R. WREN, M.D., WREN & BARROW OBSTETRICS & GYNECOLOGY, PLLC d/b/a THE CENTER FOR WOMEN, and CONTINENTAL CASUALTY COMPANY, DEFENDANTS. PLAINTIFFS’ MOTION TO EXCLUDE CERTAIN OPINIONS OF DEFENSE EXPERTS; The Plaintiffs move for an order excluding any testimony by defense experts, Drs. Frank H. Boehm, M.D. and James R. Rohrbaugh, M.D. and Dr. Whit Hall, M.D., regarding their opinions, referred to in their respective depositions, concerning application in this case of the Criteria to Define An Acute Intrapartum Event as Sufficient to Cause Cerebral Palsy, found in a publication published by the American College of Obstetrician and Gynecologists (ACOG) entitled Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiciology ("NEACP")1, and also reference to such publications, as follows: 1. Obstetricians do not diagnose or treat hypoxic ischemic encephalopathy. They do not diagnose or treat cerebral palsy. 1 The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiciology, (2003) Chapter 8. Please see appendix attached to the Brief in Support of this Motion. Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 1 398137v1 2. The purported criteria are not widely accepted in the pediatric neurology or neonatology communities, i.e. by those who do diagnose and treat such conditions. Moreover, the purported criteria were created for litigation and are not reliable. Moreover still, the purposed criteria are not scientifically valid. 3. For the reasons stated in Plaintiff’s Attached Brief in Support of this Motion these opinions are inadmissible at trial because they fail to comply with Fed. R. Evid. 702 and the reliability requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Accordingly, the court should exclude from trial that testimony and any other concerning application of the NEACP criteria. WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray the Court that the Motion be granted and for such other relief to which Plaintiffs are entitled. Respectfully submitted, MILLER CURTIS & WEISBROD, LLP By: __/s/Max Freeman____________ LES WEISBROD, ABN 2005301 Texas State Bar No. 21104900 Arkansas Bar No. 2005301 MAX FREEMAN, ABN 2007169 Texas State Bar No. 07427000 Arkansas Bar No. 2007169 11551 Forest Central Drive Suite 300 Dallas, Texas 75243 (214) 987-0005 (214) 978-2545-FAX lweisbrod@mcwlawfirm.com mfreeman@mcwlawfirm.com and Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 2 398137v1 THE BRAD HENDRICKS LAW FIRM GEORGE WISE, ABN 78171 500 C Pleasant Valley Drive Little Rock, Arkansas 72227 (501) 221-0444 (501) 219-0608 – FAX gwise@bradhendricks.com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of Motion to Exclude Certain Opinions of Defense Experts, was served upon the following attorneys of record on the 23rd day of January, 2009, to: Walter B. Cox ELECTRONIC DELIVERY __X_____ James (Jamie) R. Estes CERTIFIED MAIL _______ COX, COX & ESTES, PLLC FACSIMILE _______ P.O. Box 878 FIRST CLASS MAIL _______ Fayetteville, Arkansas 72702 Laura Hensley Smith ELECTRONIC DELIVERY ___X____ FRIDAY ELDREDGE & CLARK CERTIFIED MAIL _______ 400 West Capitol Avenue FACSIMILE _______ Suite 2000 FIRST CLASS MAIL _______ Little Rock, AR 72201-3522 _/s/Max Freeman___________ Max Freeman. Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 3 398137v1

MEMORANDUM BRIEF in Support of {{91}} MOTION to Exclude Certain Opinions of Defense Experts by Rozanna Csiszer, Charles Csiszer.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION ROZANNA CSISZER and CHARLES CSISZER, Individually and As Next Friends of ALLISON CSISZER, a Minor, PLAINTIFFS, vs. Civil No. 08-3011 MARY R. WREN, M.D., WREN & BARROW OBSTETRICS & GYNECOLOGY, PLLC d/b/a THE CENTER FOR WOMEN, and CONTINENTAL CASUALTY COMPANY, DEFENDANTS. BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION TO EXCLUDE CERTAIN OPINIONS OF DEFENSE EXPERTS; The Plaintiffs move for an order excluding any testimony by defense experts, Drs. Frank H. Boehm, M.D. and James R. Rohrbaugh, M.D. and Dr. Whit Hall, M.D., regarding their opinions, referred to in their respective depositions, concerning application in this case of the Criteria to Define An Acute Intrapartum Event as Sufficient to Cause Cerebral Palsy, found in a publication published by the American College of Obstetrician and Gynecologists (ACOG) entitled Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiciology ("NEACP")1 Obstetricians do not diagnose or treat hypoxic ischemic encephalopathy. They do not diagnose or treat cerebral palsy. The purported criteria are not widely accepted in the pediatric neurology or neonatology communities, i.e. by those who do diagnose and treat such conditions. 1 The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiciology, (2003) Chapter 8. Please see Appendix. The appendix contains all references to medical literature and depositions. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 1 398737v1 Moreover, the purported criteria were created for litigation and are not reliable. Moreover still, the purposed criteria are not scientifically valid. For the reasons stated herein, these opinions are inadmissible at trial because they fail to comply with Fed. R. Evid. 702 and the reliability requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Accordingly, the court should exclude from trial that testimony and any other, concerning application of the NEACP criteria. I. Applicable Law Under Federal Rule of Evidence 702, an expert may testify if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. In order to determine whether proffered expert testimony is admissible, the Court must "make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be properly applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The District Court must act as a "gatekeeper" by evaluating whether the proffered testimony is both sufficiently relevant and sufficiently reliable. The familiar Daubert factors the Court is to use in assessing the reliability of an expert’s opinion are: (1) whether the theory or technique offered can be and has been tested; (2) the extent to which the technique relies upon the expert’s subjective interpretation; (3) whether the theory or technique has been subjected to peer review and Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 2 398737v1 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 non-judicial uses that have been made of the theory or technique. Id. at 593-594. These are, of course, nonexclusive criteria. See also Farm Bureau Mutual Insurance Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); CocaCola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); Arrow Int'l, Inc. v. Sparks, 81 Ark.App. 42, 51, 98 S.W.3d 48, 54 (2003). In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the trial judge's basic gatekeeping function imposed in Daubert applies to all, and not just scientific, expert testimony. See also Graftenreed v. Seabaugh, 100 Ark.App. 364, S.W.3d 2007 WL 4180757 (2007), applying Ark. R. Evid. 702. "It is necessary … that the facts upon which the expert bases his opinion or conclusions permit reasonably accurate conclusions as distinguished from mere guess or conjecture." See Am. Jur. 2d, Expert and Opinion Evidence § 259, cited in TRIAL HANDBOOK FOR ARKANSAS LAWYERS, 3 ARTRHB § 61:8. Id., citing Miller v. State, 240 Ark. 340, 399 S.W.2d 268 (1966); Duncan v. State, 38 Ark. App. 47, 828 S.W.2d 847 (1992). When the methodology used by an expert is not reliable, the resulting opinion and testimony is not "knowledge" and does not assist the jury. See, e.g., Harvey Brown, Eight Gates for Expert Witnesses, 36 HOUS. L. REV. 743, 747 (1999). The reliability requirement applies to all types of expert evidence. Kumho Tire Co. Ltd. v. Carmichael, Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 3 398737v1 526 U.S. 137 (1999); Daubert refers to this reliability test as the "evidentiary reliability" test. Daubert, 509 U.S. at 590 n. 9. Kumho Tire requires the gatekeeper to ensure that an expert’s extrapolation from the basis of the opinion to the expert’s conclusion is sound. In Kumho Tire, the Supreme Court emphasized that the district court's responsibility is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." 526 U.S. at 152. See also. See Graftenreed v. Seabaugh, 100 Ark.App. 364, ___ S.W.3d ___, 2007 WL 4180757 (2007), citing Turbyfill v. State, 92 Ark.App. 145, 211 S.W.3d 557 (2005). This test, which is referred to as "connective reliability," focuses on the reasoning used by the expert to lead from certain data or assumptions to the expert’s conclusion or opinion and whether an analytical gap exists between the data and the expert’s conclusion. Brown, Eight Gates, at 804-810. If an expert’s methodology or foundational data is sound but the expert’s reasoning process applying that methodology or data is not sound or is not demonstrated, the opinion will not be admissible. Connective reliability requires the expert to explain her reasoning. In this case the reasoning of the underlying article, the NEACP is fatally flawed. And the NEACP itself violates the sixth Daubert standard in that is primarily, if not exclusively, a litigation tool, with little application beyond the medico-legal context. Therefore the Defense experts cannot reliably reach a conclusion about the cause of Allison Csiszer’s cerebral palsy. Like any other evidence, expert testimony must be relevant to be admissible. Daubert held that another aspect of relevancy is that the evidence must "fit" the issues in Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 4 398737v1 the case. Daubert, 509 U.S. at 591. It must be "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Id. The evidence must have a valid "connection to the pertinent inquiry." Id. at 591-92. It must be "properly... applied to the facts in issue." Id. at 591. The Court in Daubert observed that "scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Id. Thus, the fit requirement requires proof that the expert’s entire reasoning process from the beginning to end is valid. II. ACOG Monograph/The Green Book/NEACP The Defense experts Drs. Boehm2, Rohrbaugh3 and Hall4 rely upon the NEACP, arguing that Allison did not meet the ACOG criteria to establish a hypoxic-ischemic event during labor sufficient to cause neonatal brain injury and cerebral palsy. Defense experts imply that the ACOG criteria are definitive and necessarily support their position with respect to the mechanism and timing of injury. They are incorrect.. First, the diagnosis and treatment of hypoxic ischemic encephalopathy and cerebral palsy are within the fields of child neurology and neonatology, not obstetrics. The Obstetrical Monograph, NEACP, is not widely accepted by the neurological or neonatology communities that actually make the diagnosis. Indeed, the physicians who actually make the diagnosis and treat these children use different criteria. Second, the ACOG criteria was created for litigation and is not reliable. Third, the ACOG criteria is scientifically unreliable. Fourth, the use of the criteria has been rejected by other courts. 2 Deposition of Boehm p. 45 3 Deposition of Rohrbaugh, p. 106 4 Anticipated. Deposition pending. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 5 398737v1 A. The NEACP criteria are not widely accepted. Dr. Boehm neither diagnoses nor treats either hypoxic ischemic encephalopathy or cerebral palsy in his own practice.5 Indeed, he declined to give true causation opinions, admitting it was essentially out of the area of obstetrics6. He nevertheless claimed reliance on the NEACP for portions of his stand-of-care opinions, deferring to the neurologists and neonatologists for causation.7 Of course, NEACP does not purport to address standard of care. Still, Dr. Boehm thinks it’s relevant in that it shows that: "there are a lot of doctors who do very good things, treat patients appropriately, and wind up with bad outcomes. It helps physicians understand that it may not be their fault, so to speak, or that they did something wrong.").8 Dr. Rohrbaugh explicitly relies on the NEACP criteria for his opinions.9 Defendants claim that Allison does not meet criteria for a classic hypoxic injury. This is disingenuous. Joseph J. Volpe, Branson Crothers of Neurology, Harvard Medical School and Neurologist in Chief at Boston’s Children’s Hospital, is one of the preeminent neurologists in the country, and has published extensively in the field. In his widely-used textbook10 Neurology of the Newborn (4th Edition, 2001), Dr. Volpe addressed the criteria for intrapartum asphyxia, as follows: The Neurological syndrome that accompanies serious intrauterine asphyxia is the prototype for neonatal hypoxic-ischemic encephalopathy. The occurrence of a neonatal neurological syndrome, indeed, is a sina qua non for attributing subsequent brain injury to intrapartum insult(s). 5 For this reason alone, his opinions on the NEACP ought to be stricken. 6 Deposition of Boehm p. 24-25. 7 Deposition of Boehm p. 36-37. Not only are NEACP criteria insufficient bases for expert opinion on causation, they aren’t intended to establish practice guidelines or standards of care. 8 Deposition of Boehm p. 49-50. 9 Deposition of Rohrbaugh p. 106, ll 5-15 10 Deposition of Rohrbaugh. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 6 398737v1 Indeed, I consider that three features are important in considering that intrapartum insult is the likely cause of neonatal brain injury: (1) evidence for fetal distress (e.g., fetal heart rate abnormalities, meconium-stained amniotic fluid), (2) depression at birth, and (3) an overt neonatal neurological syndrome in the first hours and days of life.11 As mentioned, the NEACP monograph was published in 2003. Five years later, Dr. Volpe readdressed intrapartum asphyxia in the 5th Edition of his text. He stated: The neurological syndrome that accompanies serious intrauterine asphyxia is the prototype for neonatal hypoxic-ischemic encephalopathy. The occurrence of a neonatal neurological syndrome, indeed, is a sine qua non for attributing subsequent brain injury to intrapartum insult. Indeed, I consider three features important in considering that intrapartum insult is the likely cause of neonatal brain injury: (2) evidence of fetal distress (e.g., fetal heart rate abnormalities, meconium-stained amniotic fluid), (2) depression at birth, and (3) an overt neonatal neurological syndrome in the first hours and days of life.12 It is important that the neurological community has not adopted the ACOG criteria for intervention. For example, a recent experimental therapy for term infants suffering an acute brain injury is whole-body hypothermia.13 The idea is that if the brain temperature is reduced 2°C to 5°C, it would provide neuroprotection to baby’s suffering from ischemic insult to the brain. This was recently studied in fifteen participating centers of the National Institute of Child Health and Human Development Neonatal Research Network. The criteria for inclusion in the study were different from ACOG’s "essential criteria".14 11 Volpe, Joseph J, Neurology of the Newborn, 4th Edition, p. 332. 12 Vole, Joseph J. Neurology of the Newborn, 5th Edition, p. 401. 13 Shankaran, S., et al., Whole-Body Hypothermia for Neonates with Hypoxic-Ischemic Encephalopathy, N.Eng. J. Med. 353:1575 (2005). 14 Id. It is anticipated that Defendants’ expert, Dr. Hall, will admit this criteria was used at his own institution when he is deposed. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 7 398737v1 Further, the FDA has in fact defined intrapartum asphyxia differently from ACOG’s NEACP, and in doing so, specifically pointed out it was rejecting the ACOG criteria: FDA approved protocol for the definition of moderate to severe HIE... Recently the FDA has approved the use of the Olympic Cool-Cap to treat term infants with moderate to severe HIE, within the first six hours of life. In doing so, the FDA gave approval to the proposed definition of moderate to severe HIE, which is considerably different from that found in The American College of Obstetricians and Gynecologists publication Neonatal Encephalopathy and Cerebral Palsy (2003). This definition of moderate to severe HIE is similar to the one used in a nation-wide study of body cooling organized by the HIE, the results of which were published in the New England Journal of Medicine, 2005, 353; 1574-84 (October 13, 2005 issue).15... B. The ACOG Criteria Are Unreliable and Are Designed for Litigation, Not Medicine The ACOG criteria are a political tort reform effort by ACOG. The reality of the 2003 ACOG monograph is that it is a political agenda masquerading as medical science. Dr. Karin Nelson, a pediatric neurologist, credited with work to try to prove that physicians only rarely if ever cause cerebral palsy16 conceded on the release of the NEACP criteria that she "is not a fan of the report's nine-point checklist –'It's intended for litigation,17’ she said-she believes juries don't understand the limits of current technologies."18 15 Redefinition of Hypoxic Ischemic Encephalopathy (HIE) by the U.S. Food and Drug Administration (DFA) and by the National Institutes of Health (NIH). 16 Deposition of Boehm p. 35-36 17 i.e., not for use in treatment or as a diagnostic tool 18 McCullough, A Dispute On Doctors' Cerebral Palsy Role, Features Health & Science Section, 2/10/03 PHILA. INQUIRER (Philadelphia Newspapers Inc. 2003) Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 8 398737v1 1. The ACOG criteria are a political tort reform effort by ACOG. The Court should not be misled by the Defendants’ use of the word "essential" because the reality of the 2003 ACOG monograph is that it is a political agenda masquerading as medical science. If there is any doubt that ACOG is not a lobbyist for so-called "Medical Liability Reform", one has only to visit its website and view numerous ACOG News Releases promoting the passage of tort reform litigation. Plaintiffs are attaching a copy of ACOG’s February 1, 2006, press release, which is directly on point.19 ACOG admits that one of its main purposes is to defend against lawsuits. In July 2004, ACOG’s president, Dr. Franklin Miller, admitted under oath that the 2003 monograph was developed in order to defend against lawsuits. Q. But your – your point was – the reason you were developing it, or stated reason, was to defendant lawsuits? A. Well, I thought that – that we were in an area where the – where were being sued for reasons that we – over which we had no control. And – in a high percentage of the time. And so, yes, that’s – that was one of the area – one of the things I wanted to address. And I – and I – and I will stand by that.20 Dr. Boehm was questioned in this case about Dr. Miller’s statement. Dr. Boehm stated: 49 8 Q. Yes. Do you know who Frank Miller is? 9 A. I do. 10 Q. Was he president of ACOG? 11 A. He was. 12 Q. Was he president of ACOG in 2000? 19 ACOG News Release, http://www.acog.com/from_home/publications/press_release/nr02-01-06.cfm 20 Deposition of Dr. Franklin Carl Miller, In the United States District Court of the Western District of Tennessee at Memphis, Miller v. Dacus, Case No. 03-2701 M1 V, July 22, 2004 at p. 46, lls. 14-25,. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 9 398737v1 13 A. That sounds about right. I don't remember 14 the exact year, but he was the one that initiated 15 the--the Neonatal Encephalopathy Group. 16 Q. Which ultimately generated the neonatal 17 encephalopathy and cerebral palsy publication that we 18 have talked about a moment ago? 19 A. Correct. 20 Q. And in fact, he was the one that picked who 21 was going to be on the group, didn't he, sir? 22 A. I don't know if he personally picked 23 everybody, but he was certainly the one who was the 24 stimulus to put the group together.21 One of Dr. Miller’s stated goals for ACOG during this decade was to "reduce medico legal risks for obstetrician-gynecologists" by developing evidence that could be "used to defend against unwarranted claims and challenge false testimony by expert witnesses and others".22 Or, as Dr. Boehm stated: 50 3 Are you aware that he's testified that the 4 purpose of that undertaking was to help defend 5 lawsuits? 6 MS. SMITH: Object to form. 7 THE WITNESS: No. 8 BY MR. FREEMAN: 9 Q. If he testified that the purpose was to 10 undertake to defend lawsuits, would you take him at 11 his word? 12 MS. SMITH: Object to form. 13 THE WITNESS: Sure. I don't take that 14 as a pejorative statement. The--80 percent of 15 obstetricians are sued at least once, and 25 percent, 16 at least the latest figures I had, are sued four 17 times or more. 18 So from my review of cases over the last 20 19--almost 29 years, I think there are many cases 20 where our literature was in bad need of--of 21 terminology that was clear and consistent with facts 22 that were evidence-based so that we could defend 21 Deposition of Boehm, p.49 22 Miller, F., "Ten Goals for ACOG for the First Decade of the Next Millennium," OB&GYN, 94(1):1 (2000) at pg. 4. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 10 398737v1 23 ourselves against experts who clearly spoke outside 24 the system of using evidence-based medicine and 25 giving opinions based on their own personal 51 1 experience. 2 So I mean, I think that material has aided 3 plaintiff attorneys frequently in being able to 4 settle lawsuits or to win trial cases. It works both 5 ways. This is--this is the best evidence we have, 6 and when we violate the tenets that result in--in 7 the outcomes that--that the group wrote about, then 8 we are at fault, and we belong to the--to 9 a--we--we are required, then, to--to make 10 restitution. 11 So I--I think that that document both 12 protects physicians and nurses and holds them 13 accountable so that when there is departure from the 14 standard where these tenets are violated or there's 15 a--or there's evidence to support that, then I 16 believe the physician and nurse should be held 17 liable. 18 So I think it is not a pejorative or negative 19 thing to say, "I did this to defend lawsuits." It 20 was an intellectual exercise to help lawyers and 21 doctors understand the complexities of these issues 22 and that they're not just associated with one expert 23 giving an opinion on something that has nothing to do 24 with evidence-based medicine. 25 So the answer to your question is, if he said 52 1 it, I agree with it, and I don't have a problem that 2 it sounds something negative to patients or--or 3 plaintiff attorneys.23 2. History of NEACP Neither the "essential criteria" nor the purpose for them are new. ACOG’s monograph derives from two earlier sources: ACOG Technical Bulletin 163 (1992) and a British medical journal article published in 1999 and referred to as the The Template.24 23 Deposition of Boehm, pp. 51 – 52. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 11 398737v1 According to the author of The Template, Dr. Alistair MacLennan, the International Cerebral Task Force was convened to bring together the modern literature on the cause of cerebral palsy to benefit research into cause and prevention and to help those who offer expert testimony in court.25 Dr. MacLennan even provided "recommendations for expert witnesses giving evidence on cerebral palsy causation." The recommendations included criteria for the qualifications of expert witnesses on cerebral palsy causation and suggestions concerning how the expert witness should conduct himself or herself.26 This motive was carried forward from Technical Bulletin #163. It is underscored by the following comments by Dr. Richard Perkins to Dr. Goodlin’s article criticizing previous "essential criteria" in ACOG Technical Bulletin #163. The request was to reach a generalization that vastly exceeded the legal concept of "reasonable medical probability" (that is, somewhat >50% of the time) and to approach the medically tolerable concept of "reasonable medical probability" (that is, with only rare exception). It was an honest effort to stop the bleeding. It cured most ills fairly and staunched an evil tide of wild speculation and unsound litigation while awaiting refinement in perspective.27 Notably, Dr. Boehm is of a similar mind. In his view, the NEACP criteria raised the statistical confidence level of intrapartum asphyxia to 95%: 64 17 If you meet these criteria set forth in 18 Chapter 8, does that give you a 95 percent confidence 19 level that you've had an intrapartum asphyxia? 20 MS. SMITH: Object to form. 21 THE WITNESS: Well, it does for me. I 24 MacLennan, A., "A Template for Defining Causal Relation Between Acute Intrapartum Events and Cerebral Palsy: International Consensus Statements, " Brit.Med.J. 319:1054 (1999. 25 Id. 26 Id. at 1059. 27 Perkins, R., "Letters," Am.J.Obstet.Gynecol. 174:2 (1996) at pp. 798-799. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 12 398737v1 22 don't know whether it does for all scientists 23 involved. What I can tell--well, it does for me. 24 I don't know what the literature says, what 25 confidence level, but it certainly does for me. Dr. Goodlin’s response back to Dr. Perkins is instructive:28 If the framers of the ACOG bulletin had spoken in terms of Perkins’ "reasonable medical probability" instead of their "must be" criteria, the impact of their concepts on obstetric through would have been different. The "must be" criteria go far beyond the legal issues, for they now appear as definitions of fetal asphyxia and neonatal hypoxic-ischemic encephalopathy. These criteria intrinsically eliminate intrapartum insults as the cause in most cases of cerebral palsy and lead to the view that obstetricians can do nothing to prevent cerebral palsy. In their apparent desire to stem Perkins’ figurative "bleeding with ligature," the framers of ACOG criteria ignored scientific principles and created hard dogmatic rules from soft data (as described in my paper)."29 Clearly ACOG’s purpose in drafting ACOG 163 was to create a virtually impossible causation hurdle for malpractice cases. It is not a great leap of faith to conclude that ACOG has the same motivation concerning the current "essential criteria". The ACOG criteria do not represent the knowledge and beliefs of the relevant medical community for Daubert purposes. Further, there are no well-done laboratory or clinical studies that supposed ACOG’s four stringent criteria, much less that all four must be present.30 The 2003 ACOG monograph, The Template, and the ACOG Technical Bulletin 163, are powerful examples of the inherent conflict of interest these publications 28 Deposition of Boehm, p. 64. 29 Id. (emphasis added) 30 Goodlin, R., "Do concepts and prevention of cerebral palsy require revision?," Am.J. Obstetrics and Gynecology 172:1830 (1995. See also, Lisa M. Korst, et al., Acute Fetal Asphyxia and Permanent Brain Injury: A Retrospective Analysis of Current Indicators, J. Maternal-Fetal Med. 8:101 (1999) See Phelan, J., et al., "Intrapartum Fetal Asphyxial Brain Injury with Absent Multi-Organ System Dysfunction." J. Maternal-Fetal Med. 7:1 (1998). Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 13 398737v1 represent. All embody what has been labeled as "inherently unacceptable behavior that directly threatens the integrity of research."31 In a "National Survey of Policies on Disclosure of Conflicts of Interest in Biomedical Research" published in the New England Journal of Medicine, the authors conclude that these conflicts of interest may appropriately influence the design, conduct, or reporting of research, thus threatening its scientific value.32 The implications for these litigation-driven publications have even more dire consequences. According to the ACOG Task Force, one goal of "overriding importance" is to "develop recommendations for evaluation of the newborn with encephalopathy to assist the clinician in defining both the cause and the timing of the encephalopathy."33 ACOG, in this publication, is mixing its political agenda with the medical/scientific advice it offers its members concerning the diagnosis and treatment of the fetus and the newborn. This is a conflict of interest that has far-reaching repercussions, not just for the obstetricians who deliver babies, but also for the babies themselves. The ACOG 2003 monograph, NEACP, is precisely the kind of "junk science" that the United States Supreme Court decried and which was the rationale for the far-reaching changes in evidentiary standards promulgated by the Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, (1993). In Neurology of the Newborn, Dr. Volpe addressed the dangers of the medical profession’s attempt to deny the importance or even the existence of intrapartum brain 31 McCrary, V., et al., "A National Survey of Policies on Disclosure of Conflicts of Interest in Biomedical Research," N. Eng. J. Med. 343:1621-1626 (2000). 32 Id. 33 "The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysicology, (2003) at xiv. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 14 398737v1 injury in the face of an explosion of obstetrical litigation. His words deserve serious consideration, particularly in light of the Defendant’s attempt to impose "mandatory" criteria for the assessment and treatment of intrapartum hypoxic injury to the exclusion of all other factors: The occurrence of injury to brain during the birth process has been the focus of clinical research for over a century. In my view that work has shown that brain injury in the intrapartum period does occur, affects a large absolute number of infants worldwide, is obscure in most cases in terms of exact timing and precise mechanisms, awaits more sophisticated means of detection in utero, and represents a large source of potentially preventable neurological morbidity. (emphasis added). Among the many adverse consequences of the explosion in obstetrical litigation has been a tendency in the medical profession to deny the importance or even the existence of intrapartum brain injury. (emphasis added). Although it is unequivocally clear that true obstetrical malpractice is a rare occurrence and that the obstetrician is called upon to deal with perhaps the most dangerous period in an individual’s life with inadequate methods, this tendency is particularly unfortunate. With the recognition from experimental studies that much of hypoxic-ischemic brain injury evolves after cessation of the insult and can be interrupted to a considerable extent by several approaches (see Chapters 6 and 8), the ultimate possibility of intervention both in utero and in the early post natal period is strongly suggested. Denial that intrapartum injury occurs may impair development and application of such brain-saving intervention. (emphasis added). 34 It is unthinkable that the development and application of brain-saving 35 interventions would be sacrificed to the self-interests of ACOG and its membership, To adopt the argument that the four essential criteria are "mandatory" and must be met before diagnosis, and therefore treatment, is unconscionable. It is a position based upon nothing but literature clearly generated for purposes of litigation and is wholly unreliable. See, Daubert v. Merrell Dow, Pharms., Inc. 43 F.3d 1311, 1317 (9th Cir. 1995) (research 34 Volpe 4th Edition at p. 283. 35 These physicians are called upon in the Hippocratic Oath to "prescribe regiments for the good of my patients according to my ability and my judgment and never do harm to anyone." Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 15 398737v1 conducted independently of litigation provides important, objective proof that the research comports with the dictates of good science). C. The ACOG criteria and its predecessors are and were scientifically unreliable. 1. Technical Bulletin 163. ACOG Technical Bulletin 163 previously claimed that four criteria must be present before cerebral palsy could "plausibly" be linked to birth asphyxia. Criticism of these criteria came quickly.36 In one study, researchers evaluation 47 newborns diagnosed with cerebral palsy.37 No cause was found for the infants’ neurologic injuries other than intrapartum asphyxia. Yet only 10 infants satisfied all of the ACOG Technical Bulletin 163 criteria and only 24 satisfied at least three of those four criteria. Fourteen of the babies had no other organ damage. Many of the babies had a blood pH level greater than 7.0. Only slightly more than half had APGAR scores of less than three at five minutes. Two of the babies did not have documented seizures in the early neonatal period. The authors concluded that the ACOG Technical Bulletin 163 criteria were not valid.38 Another study of 292 infants with permanent neurologic injury caused by fetal asphyxia revealed that 36% did not have multi-system organ damage.39 Another study reported that about 20% of infants with apparent fetal asphyxia have no evidence of end organ injury. Yet this was an essential criteria under Technical Bulletin 163.40 Clearly, Technical Bulletin 163 was not valid. 36 Goodlin, supra. 37 Korst, supra. 38 Id. 39 Phelan, supra 40 See, ACOG Technical Bulletin 163. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 16 398737v1 2. The Template The 1999 report of the International Cerebral Palsy Task Force ("The Template") included four essential and five non-essential criteria "suggesting" that acute intrapartum hypoxia was the cause of cerebral palsy. Note: these were not "mandatory" criteria as the hospital would have us adopt in this case. The findings of this task force were targeted for criticism soon after publication. Several British obstetricians observed, among other things, that the cord blood pH cut-off of less than 7.0 was too low and excluded a significant number of babies who may have suffered intrapartum asphyxia.41 These critics pointed out that "none of the evidence on which the …document is based meets the criteria for grade-A [medical] evidence" and that "the level of evidence is at best grade C."42 The Template was no more valid than Technical Bulletin 163. 3. ACOG 2003 Monograph a. A lack of input from neuro-scientists. The purposed objective of Task Force on Neonatal Encephalopathy and Cerebral Palsy was to "create a multidisciplinary task force to review and consider the current state of scientific knowledge about the mechanism and timing of possible etiologic events which may results in neonatal encephalopathy.43 However, in the end analysis, one of the problems with the findings of the task force was the lack of input from neuroscientists – a critical discipline to any multidisciplinary task force studying brain neurologic injury. Of the 29 people listed as either members of the task force, staff or consultants, there was not 41 Dear, P., et al. "Response to the Proposal of a Template of Defining and Causal Relation Between Intrapartum Events and Cerebral Palsy," Clinical Risk 6:137-142 (2000). 42 Id. At 138. 43 The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogeneis and Pathophysicology, (2003) at xiii. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 17 398737v1 a single practicing pediatric neurologist listed.44 Indeed, the only child neurologist included is Karin Nelson, M.D., who has not treated patients in decades and whose writings have been criticized in the peer-reviewed literature.45 It is not surprising that actual neuroscientists’ views differ from those of the monograph and ACOG. The "essential criteria" were developed from studies that lacked proper statistical analyses and were conducted before data from more reliable contemporary imaging studies were available. Again, for example, ACOG’s President Franklin Miller admitted in wrong testimony last year: Q. Do they, in your mind and understanding of them, take into account the imaging studies one would expect to see after a sudden near-total occlusion of the cord – and acute near-subtle – sudden occlusion of the cord? A. Imaging of? Q. The brain. A. I don’t believe that they do that, no.46 In March 2002, the American Academy of Neurology published a practice parameter for the diagnostic assessment of children with cerebral palsy.47 According to the actual neuroscientists, not only should the neuro-imaging studies of the brain be taken into account, they are the starting point of the analysis.48 44 The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogeneis and Pathophysicology, (2003) at v-viii 45 In fact her epidemiology based conclusions about the lack of correlation between increased cesarean section and rate of cerebral palsy have been criticized as using "fallacious logic", Shier and Tilson, Scientific Contribution: The Temporal Stage Fallacy: A novel statistical fallacy in the medical literature, MEDICINE, HEALTH CARE AND PHILOSOPHY (2006) 9:243–247. 46 Deposition of Franklin Carl Miller at p. 37, lls, 12-21. 47 "Practice Parameter: Diagnostic Assessment of the Child with Cerebral Palsy (Report of the Quality of Standard Subcommittee of the American Academy of Neurology in the Practice Committee of the Child Neurology Society),", Neurology 62:851 (2004) 48 Id. At 861. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 18 398737v1 Barkovich and his associates also observe that MR spectroscopy performed in the first 24 hours after birth is sensitive to the severity of hypoxic-ischemic brain injury and have had considerable effect on the diagnosis of brain injury.49 b. ACOG Statistics are not reliable: One of the principal studies upon which the monograph relies for support is authored by Nadia Badawi and concludes that the "causes of newborn encephalopathy are heterogeneous and many of the causal pathways start before birth."50 A recent study testing this hypothesis unequivocally confirmed that events during labor and delivery, not earlier ones, are responsible for most cases of neonatal encephalopathy and early seizures.51 The investigators studies 351 term infants who exhibited either neonatal encephalopathy, early seizures or both, within 72 hours of birth. Neonatal encephalopathy was indicated by abnormal tone, feeding difficulties, altered alertness, and at least three of the following criteria: late decelerations or meconium staining, delayed onset of respiration, arterial cord blood pH less than 7.1, APGAR scores of less than 7 at five minutes, and multi-organ failure. The babies were all evaluated neuroradiologically and results compared with signs recognized as suggesting an antepartum event or developmental abnormality, as opposed to injury during the labor and delivery process. The scans showed that 261 of the babies met the criteria for neonatal encephalopathy. The scans further revealed that 197 of those babies showed evidence of acutely evolving lesions compatible with a hypoxic-ischemic insult. Of the 351 babies scanned, 306 showed evidence of an acute intrapartum injury. 49 Barkovich, A.J., et al. "Proton Spectroscopy and Diffusion Imaging on the First Day of Life after Perinatal Asphyxia: Preliminary Report," Am.J. Neuroradio 22: 1786-1794 (2001) attached to this Motion as and incorporated fully by reference. 50 Badawi, N. et al., "Intrapartum Risk Factors for Newborn Encephalopathy: The Western Australian Case-Control Study," Brit. Med. J. 317:1549-1554 (1998). 51 Cowan, F., et al, "Origin and Timing of Brain Lesions in Term Infants with Neonatal Encephalopathy," Lancet 361:736 (2003). Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 19 398737v1 Only 45 suggested some evidence developmental, metabolic or other disorders that preceded the labor and delivery process. The authors delivered a clear message.: Some investigators have reported that only 8% to 15% of terms infants with neonatal encephalopathy, and far fewer with neonatal seizures, have evidence of asphyxia immediately before birth. Furthermore, others have suggested that many neurological signs once thought to be caused by intrapartum asphyxia are a manifestation of a process begun during the antenatal period. However, we have found little evidence for the two proposals that acute perinatal injury is uncommon in such infants and that injurious processes have been taking place antenatally. (emphasis added).52 The ACOG 2003 monograph cites the incidence of neonatal encephalopathy attributable to intrapartum hypoxia at an estimated 1.6 per 10,000 births.53 This figure is cited no less than four times in the monograph. However, the reported incidence of conditions labeled birth asphyxia, HIE, or post-asphyxial encephalopathy in term or near-term infants ranges from 1 to 8 per 1,000 births.54 Even the Badawi article, otherwise relied on by the monograph, cites the incidence of newborn encephalopathy as 3.8 per 1,000 term live births.55 Even if one were to accept that only approximately 30% of neonatal encephalopathy is attributable to intrapartum hypoxia as found by Badawi, but contrary to the some 90% found by Cowan, then 30% of 3.8 equals 1.14 per 1,000 births.56 The ACOG 2003 monograph’s figure understates the supported figures by ten-fold. 52 Id. 53 The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysicology (2003) at p. 3 54 The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysicology (2003) at p. 3 55 The American College of Obstetrics and Gynecology (ACOG) and the American Academy of Pediatrics, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysicology (2003) 56 Cowan, supra Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 20 398737v1 c. The ACOG pH criteria is invalid. One of the monograph’s "essential criteria" for determining that a baby’s brain injury was caused by intrapartum asphyxia is a cord blood pH of less than 7.0 and a base excess of 12 or greater. This criteria is not supported by valid data. The medical literature has documented cases in which babies suffering from a hypoxic-ischemic encephalopathy indeed had a blood pH value greater than 7. In fact, the pH value is not even considered in one of the major studies in which the monograph relies for its hypothesis that most cases of cerebral palsy occurred in the antepartum period.57 In Badawi’s study, the criteria used to determine whether a baby was exposed to intrapartum hypoxia were abnormal fetal heart rate, meconium staining, or both, along with a one-minute APGAR score of less than 3 and a five-minute score of less than 7. Several of the babies included in that study had a cord pH greater than 7.58 This is not surprising. In point of fact, Hermansen recently studied the relationship between acute birth asphyxia, acidosis and brain injury. He challenged the "traditional assumptions" regarding pH. Dr. Hermansen noted that: Ruth and Raivio reported a series of infants who had an adverse outcome with perinatal asphyxia as a possible or the most credible cause from an initial sample of about 1000 consecutive births. Nearly all (93%) had a pH of >7.15 and 79% had pH >7.18.59 Clearly the monograph’s criteria are not valid. Dr. Hermansen is one of the Plaintiffs’ experts in this case. He testified unequivocally that the criteria is not valid. 57 Badawi, supra 58 Id. At 1555 59 Hermansen, M., "The acidosis paradox: asphyxial brain injury without coincident acidemia," Developmental Medicine & Child Neurology, 45:353-356, (2003); see also, Casey, B., et al., "Outcomes Among Term Infants When Two-Hour Post Natal pH is Compared with pH at Delivery," Am. J. Obstete. Gyncol., 184: 44 (2001). Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 21 398737v1 63 2 Q. Have you testified before that if the 3 criteria is met, you can state that birth asphyxia 4 did occur during the intrapartum period sufficient to 5 cause cerebral palsy? 6 A. I don't know my exact words and the case it 7 was relevant to. But I'll tell you, the criteria are 8 worth looking at as you assess a case. And the more 9 criteria you have, the stronger the case is going to 10 be as an asphyxia/cerebral palsy connection. If you 11 have all the criteria, it's probably a very strong 12 asphyxia case. You don't need them all. There are, 13 in truth, no essential criteria. But they are worth 14 looking at. And if you meet the criteria, I suspect 15 you're going to call it asphyxia.60 65 19 Q. And you agree that Apgar scores don't need 20 to be part of the four essential criteria? You agree 21 with that? 22 MR. FREEMAN: Objection. Form. 23 THE WITNESS: They don't include those in 24 their essential criteria. See, my problem with 25 agreeing with it is it suggests that I even agree 66 1 that there are essential criteria. I think the whole 2 concept is a fraud. 3 BY MS. SMITH: 4 Q. A fraud? 5 A. Yes. It's not honest. It's not science. 6 Q. Well, if--7 A. There's no scientific basis for it. It was 8 done for legal reasons.61 It is interesting to note that over the course of several years, ACOG has aggressively tried to lower the value of blood pH values that is significant in evaluating the condition of neonates. In 1976, ACOG stated in Technical Bulletin No. 42 that a pH of below 7.20 60 Deposition of Hermansen, p. 63. 61 Deposition of Hermansen, pp. 65, 66 Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 22 398737v1 determined fetal distress.62 Only one year later in 1977, ACOG states that when a pH of 7.20 occurred, expeditious delivery was required.63 In 1989, ACOG started backing off this position, stating that a pH of less than 7.20 was required for medical intervention.64 In 1992, ACOG further restricted their position, stating that a cord pH as low as 7.00 was required to justify a causal link between intrapartum asphyxia and neurologic injury.65 "The poor predictive value of newborn blood pH for subsequent cerebral palsy has been repeatedly noted.66 The problem is that there is no pH value that clearly separates those babies who have experienced potentially damaging intrapartum asphyxia from those who have not.67 In clinical and medico-legal practice, no diagnoses can be made or refuted on the basis of a single laboratory measurement and the idea of a set cut-off is naïve. The recommended cut-off value of 7.0 is too low and will exclude a significant number of babies who have possible encountered damaging intrapartum asphyxia.68 Unfortunately, there is no pH value that separates cleanly those babies who have experienced intrapartum injury from those who have not – no prognosis can be made or refuted on the basis of a single laboratory measurement.69 d. The monograph’s literature does not support its conclusions ACOG and the Defendants exaggerate the persuasive power of NEACP and its underlying studies. The much touted essential criteria are set forth in chapter eight of ACOG’s 2003 monograph. The criteria are allegedly based on data from 72 articles. A 62 Technical Bulletin No. 42, Am.C. Obstetricians & Gynecologists (1976) 63 Technical Bulletin No. 44, Am. C. Obstetricians & Gynecologists (1977) 64 Technical Bulletin No. 127, Am.C. Obstetricians and Gynecologists (1989) 65 Technical Bulletin No. 163, Am. C. Obstetricians & Gynecologists (1992) 66 Goodlin at p. 1831 67 Dear at p. 139. 68 Id. 69 Schifrin at 439, Socol, M., et al, "Depressed Apgar scores, acid-base status, and neurologic outcome." Am. J. Obstet. Gynecol., 170-991 (1994 reference. (reporting that several newborns with complicated neonatal course had pH> 7.0 and base excess < 12). Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 23 398737v1 careful analysis of these articles, however, reveals that the monograph criteria is a classic example of "junk science". Twenty-seven of the articles support none of the essential criteria. Another 16 of the articles represent nothing more than their authors’ opinions. Of the 29 articles cited to support one or more criteria, not a single one is based on a properly designed, randomized, control trial.70. Contrary to ACOG’s pronouncements in the 2003 monograph, asphyxia sets into motion a series of biochemical and clinical events that vary from one patient to the next. As states by Dr. Pasternak: Hypoxic ischemic encephalopathy is notoriously variable from infant to infant. Seemingly similar degrees of insult may completely spare one child and devastate another. To some extent, this extraordinary variability is evidence of inability to accurately quantify the magnitude of the impairment of gas exchange in utero. Thus, seeming similar degrees of insult may in fact not be similar at all. Furthermore, intrinsic fetal differences... may also affect the response to hypoxic insult and play a key role in determining outcome.71 III. The ACOG criteria has been rejected by other Courts. Use of the essential criteria set out in some form in all three publications is a common defense strategy and has been rejected by at least two courts. In Koval v. Kincheloe, 2001 WL 35748892 (W.D. Okla. 2001), the defendants moved for summary judgment alleging that the plaintiffs did not have a sufficient scientific basis for their opinion that the minor plaintiff’s cerebral palsy was caused by hypoxia or ischemia. Id. at 1. Specifically, they contended that there were criteria which according to ACOG must be present in the newborn 70 The 72 articles cited in Chapter 8 are in the Appendix. 71 Pasternak, J.F., "Hypoxic-ischemic Brain Damage in the Term Infant," Pediatric Clinics N.Am. 40:1061, 1062 (1993). Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 24 398737v1 before cerebral palsy can be linked to the events of labor and delivery as set out in ACOG Technical Bulletin No., 163 and in the Template. Id. at 2-3. In response to this contention, the district court observed that "while the ACOG criteria are significant, they are not necessarily the only determinative factors on which a physician may reasonably rely in considering the cause of cerebral palsy." Koval v. Kincheloe, 2001 W.L. 34748892 at 4. As to the factors laid out in The Template, this consensus statement was simply suggestive of a disagreement in the medical community regarding whether cerebral palsy can be shown to have been caused by intrapartum event of hypoxia. Id. In 1st of America Bank, Mid-Michigan, N.A. v. U.S., 752, F. Supp. 764, 765 (E.D. Mich. 1990), the court determined that Air Force physicians were guilty of malpractice and that their malpractice was a proximate cause of the cerebral palsy suffered by the minor plaintiff, Michaela King. Mrs. King testified that after Michaela’s birth, she was told by two physicians that the child’s injuries were the result of anoxia at birth. Id. at 769. However, after the lawsuit involving Michaela’s care was filed, they "stopped referring to anoxia, and only referred to cerebral palsy". Id. In its written opinion, the District Court found particularly "troublesome" the fact that the defendant’s witnesses had not held a consistent position with regard to causation; most notably, Dr. Silverstein, who treated Michaela in 1985 and 1986 and clearly determined that perinatal asphyxia was the most likely cause of her condition. Id. at 772. At trial, she testified that perinatal asphyxia was not the cause of Michaela’s condition, despite the fact that she did not see Michaela in between her change in position. The court noted: In response to questions from the Court about why she had changed her position, Dr. Silverstein stated that in the profession generally, in Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 25 398737v1 response to litigation, there had been writing and discussion on diagnosing asphyxia in more limited circumstances, and that her thinking had evolved as a result of what she had read. The Court finds her testimony evasive, her attitude disdainful and arrogant, and the motivation for her change of opinion clearly suspect. The Court will disregard her changed opinion. 752 F. Supp. at 772. Noting that other physicians likewise changed their positions subsequent to the filing of the lawsuit, the Court said it looked "with suspicion on the testimony of those witnesses who changed their position." Id. Dr. Silverstein testified that an article by Dr. Karin Nelson, provided to many of the doctors and upon which they relied in changing their opinions, was written in response to litigation. Id. at 773. Dr. Nelson set out certain criteria that had to be satisfied before a diagnosis of cerebral palsy could be made: (1) intrapartum difficultly; (2) other organ difficulties and a newborn course consistent with asphyxia; (3) other causes ruled out, and (4) all studies complete. Id at 774. The District Court rejected these criteria finding that they were of "questionable value" in litigation and observing that if a court held a plaintiff to these criteria before finding causation, the plaintiff would be required to do more than demonstrate causation by a preponderance of the evidence. The plaintiff would have to produce essentially conclusive proof. Id. Plaintiff asks this court to reject the Defendant’s attempt to place a higher evidentiary burden than imposed by Arkansas law. In Tavares v. New York City Health and Hospitals Corp., No. 45757/00, 2003 WL 22231534 (N.Y. Sup. Ct. June 23, 2003), the court was asked to conduct a Frye72 hearing to determine if the plaintiffs' theory regarding the cause of an infant's injuries was 72 Frye v. United States, 293 F. 1013 (1023), still applied in name at least in New York (holding that innovative scientific evidence must be based on a principle or procedure which has gained general acceptance as reliable in the relevant scientific community). Tavares notes that the same result is reached under the more liberal Daubert standard. Tavares 2003 WL 22231534, at *18. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 26 398737v1 admissible. The defendants claimed that ACOG Technical Bulletin No. 163, the International Template, and Chapter 8 of the NEACP precluded the plaintiffs’ experts from testifying that the infant's exposure to intrapartum asphyxia caused Cerebral Palsy.73 Tavares cites Koval with approval and reached the same conclusion: there is sufficient evidence in the medical literature criticizing the validity of the obstetrical community's litigation criteria, supporting that the notion that "a rigid criteria of three or four factors must be present to find that cerebral palsy was caused by asphyxia or by a hypoxic event, [is] not generally accepted by the medical community as necessary to a diagnosis of neurological defect. Rather, plaintiffs have demonstrated that many authorities have indicated that the Apgar score and pH level are poor indicators of neurological defects and that not all infants born suffering from cerebral palsy have multiorgan involvement. Further, the literature cited also demonstrates that Bulletin 163, the BMJ Template, and Chapter 8 have been criticized for lack of reliability." Tavares 2003 WL 22231534, 18. The reasoning of the dissenting opinion of Justice Castille in Blum v. Merrell Dow Pharmaceuticals, 764 A.2d 1 (PA 2000), is relevant, by way of example, to ACOG's NEACP criteria too. Blum is a products liability case, applying Frye, in which the relevant scientific community appears to have rejected a causal link between the drug Bendectin and birth defects. Justice Castille was concerned that there must be a limited exception to Frye when there is evidence to show that the scientific orthodoxy that is invoked to exclude minority views was a result of proprietary research influenced by an interested party, similar to the case with ACOG and its criteria. In Blum, Justice Castille emphasized that Merrell Dow largely created the "generally accepted orthodoxy" that 73 Tavares, 2003 WL 2223 1534, at *9-11 Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 27 398737v1 would freeze out viewpoints contrary to their litigation interests. Merrell Dow subsidized or otherwise influenced most of the studies that concluded that Bendectin does not cause birth defects. Merrell Dow's role in virtually creating, and then slanting, the "scientific community" should be a relevant factor in the analysis. Castille said, "[t]here is something not a little offensive about an entity, creating a biased, litigation-driven scientific'orthodoxy,’ and then being permitted to silence any qualified expert holding a dissenting view on grounds of'unorthodoxy.’ Where the would-be relevant scientific community is a community beholden to the defendants' litigation interests, then that biased community should not be permitted to squelch dissenting opposing opinions. The trial court here properly refused to allow that unjust result to occur." Blum, 764 A.2d at 16-17. State and federal trial and appellate judges should follow Justice Castille's lead and prevent any biased organization or limited scientific community from attempting to squelch dissenting opinions from otherwise-qualified experts. Conclusion Any testimony based on NEACP’s purported Criteria to Define An Acute Intrapartum Event Sufficient to Cause Cerebral Palsy should not be allowed for the reasons stated. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 28 398737v1 Respectfully submitted, MILLER CURTIS & WEISBROD, LLP By: ___/s/Max Freeman_____________ LES WEISBROD, ABN 2005301 Texas State Bar No. 21104900 Arkansas Bar No. 2005301 MAX FREEMAN, ABN 2007169 Texas State Bar No. 07427000 Arkansas Bar No. 2007169 11551 Forest Central Drive Suite 300 Dallas, Texas 75243 (214) 987-0005 (214) 978-2545-FAX lweisbrod@mcwlawfirm.com mfreeman@mcwlawfirm.com THE BRAD HENDRICKS LAW FIRM GEORGE WISE, ABN 78171 500 C Pleasant Valley Drive Little Rock, Arkansas 72227 (501) 221-0444 (501) 219-0608 – FAX gwise@bradhendricks.com ATTORNEYS FOR PLAINTIFFS Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 29 398737v1 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions of Defense Experts, was served upon the following attorneys of record on the 23rd day of January, 2009, to: Walter B. Cox ELECTRONIC DELIVERY __X_____ James (Jamie) R. Estes CERTIFIED MAIL _______ COX, COX & ESTES, PLLC FACSIMILE _______ P.O. Box 878 FIRST CLASS MAIL _______ Fayetteville, Arkansas 72702 Laura Hensley Smith ELECTRONIC DELIVERY __X_____ FRIDAY ELDREDGE & CLARK CERTIFIED MAIL _______ 400 West Capitol Avenue FACSIMILE _______ Suite 2000 FIRST CLASS MAIL _______ Little Rock, AR 72201-3522 _/s/Max Freeman_____ Max Freeman. Brief in Support of Plaintiffs’ Motion to Exclude Certain Opinions Of Defense Experts Page 30 398737v1

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Description
1
01/30/2008
COMPLAINT against Continental Casualty Company, Perry L. Wilbur, M.D., Perry L Wilbur, M.D., P.A., Mary R. Wren, Wren & Barrow Obstetrics & Gynecology, PLLC, Baxter County Regional Hospital, Inc. (Filing fee $ 350 receipt number 2001883.) filed by Rozanna Csiszer and Charles Csiszer.
01/30/2008
6 Summons Issued as to Continental Casualty Company, Perry L. Wilbur, M.D. Perry L Wilbur, M.D., P.A., Mary R. Wren, Wren & Barrow Obstetrics & Gynecology, PLLC, Baxter County Regional Hospital, Inc. and returned to attorney/plaintiff for service (Text entry; no document attached.)
2
02/19/2008
ANSWER to 1 Complaint, with Jury Demand by Wren & Barrow Obstetrics & Gynecology, PLLC.
3
03/03/2008
ANSWER to 1 Complaint, with Jury Demand by Mary R. Wren, MD.
4
03/10/2008
NOTICE of Appearance by Laura Hensley Smith on behalf of Continental Casualty Company, Baxter County Regional Hospital, Inc.
5
03/10/2008
ANSWER to Complaint with Jury Demand by Continental Casualty Company, Baxter County Regional Hospital, Inc.
03/10/2008
TEXT ONLY ORDER OF RECUSAL. Honorable Jimm Larry Hendren recused. Case reassigned to Honorable Robert T. Dawson for all further proceedings. Signed by Honorable Jimm Larry Hendren on March 10, 2008. (Text entry; no document attached.)
6
03/10/2008
INITIAL SCHEDULING ORDER: Rule 26 Meeting Report due by 6/2/2008. Final Scheduling Order issue date 6/10/2008. Jury Trial set for 2/9/2009 09:00 AM in Harrison -- 2nd flr (Rm 231) before Honorable Robert T. Dawson. Signed by Honorable Robert T. Dawson on March 10, 2008.
7
03/11/2008
NOTICE of Appearance by R. T. Beard, III on behalf of Perry Wilbur, MD, Perry L. Wilbur, MDPA (Beard, R.)
8
03/11/2008
ANSWER to Complaint with Jury Demand by Perry Wilbur, MD, Perry L. Wilbur, MDPA.(Beard, R.)
9
04/15/2008
***PLEASE DISREGARD. REFILED with appropriate signatures. Please see document 10. AFFIDAVIT of Service for Complaint and Summons, filed by Rozanna Csiszer, Charles Csiszer. Continental Casualty Company served on 2/11/2008, answer due 3/3/2008; Perry Wilbur, MD served on 2/25/2008, answer due 3/17/2008; Perry L. Wilbur, MDPA served on 2/25/2008, answer due 3/17/2008; Mary R. Wren, MD served on 2/26/2008, answer due 3/17/2008; Wren & Barrow Obstetrics & Gynecology, PLLC served on 2/7/2008, answer due 2/27/2008; Baxter County Regional Hospital, Inc. served on 2/26/2008, answer due 3/17/2008. Modified on 4/15/2008 to add docket text and filer information
10
04/15/2008
AFFIDAVIT of Service for Complaint and Summons, filed by Rozanna Csiszer, Charles Csiszer.
11
06/02/2008
NOTICE of Appearance by Jory D. Lange on behalf of Rozanna Csiszer, Charles Csiszer
12
06/02/2008
REPORT of Rule 26(f) Planning Meeting by Rozanna Csiszer, Charles Csiszer.
13
06/04/2008
FINAL SCHEDULING ORDER: Discovery due by 12/22/2008. Motions due by 12/22/2008. Jury Trial set for 2/9/2009 09:00 AM in Harrison -- 2nd flr (Rm 231) before Honorable Robert T. Dawson. Signed by Honorable Robert T. Dawson on June 4, 2008.
1
Exhibit and Witness List)(mop
1 Attachment
14
06/18/2008
NOTICE by Perry Wilbur, MD, Perry L. Wilbur, MDPA Of Filing Rule 26(a) Initial Disclosures (Beard, R.)
15
06/18/2008
NOTICE by Continental Casualty Company, Baxter County Regional Hospital, Inc. OF RULE 26(A) INITIAL DISCLOSURES
16
08/14/2008
NOTICE of Appearance by Ken Cook on behalf of Perry Wilbur, MD, Perry L. Wilbur, MDPA
17
08/21/2008
MOTION for Summary Judgment by Baxter County Regional Hospital, Inc.
1
Exhibit A - Articles of Incorporation
2
Exhibit B - USDC ED Ark Order re: Charitable Immunity
3
Exhibit C - USDC ED Ark Order re: Summary Judgment
3 Attachments
18
08/21/2008
MEMORANDUM BRIEF in Support of 17 MOTION for Summary Judgment by Baxter County Regional Hospital, Inc.
19
08/21/2008
MOTION for Protective Order by Baxter County Regional Hospital, Inc.
1
Exhibit A - Proposed Protective Order
1 Attachment
20
08/21/2008
MEMORANDUM BRIEF in Support of 19 MOTION for Protective Order by Baxter County Regional Hospital, Inc.
21
08/21/2008
STATEMENT OF FACTS in support of 17 MOTION for Summary Judgment by Baxter County Regional Hospital, Inc.
22
09/02/2008
RESPONSE to Motion re 19 MOTION for Protective Order filed by Rozanna Csiszer, Charles Csiszer.
23
09/08/2008
MOTION to Compel Discovery Responses from Baxter Regional Hospital by Rozanna Csiszer, Charles Csiszer.
24
09/08/2008
MEMORANDUM BRIEF in Support of 23 MOTION to Compel Discovery Responses from Baxter Regional Hospital by Rozanna Csiszer, Charles Csiszer.
1
Exhibit A, 08/05/08 Baxter RFP Responses
2
Exhibit B, 08/05/08 Baxter Interrogatory Responses
3
Exhibit C, 06/26/08 ltr from Laura Smith
3 Attachments
25
09/11/2008
ORDER granting 19 Motion for Protective Order. Signed by Honorable Robert T. Dawson on September 11, 2008.
26
09/11/2008
PROTECTIVE ORDER. Signed by Honorable Robert T. Dawson on September 11, 2008.
27
09/18/2008
RESPONSE to Motion re 23 MOTION to Compel Discovery Responses from Baxter Regional Hospital filed by Baxter County Regional Hospital, Inc.
28
09/18/2008
MEMORANDUM BRIEF in Support of 27 Response to Motion to Compel Discovery Responses by Baxter County Regional Hospital, Inc.
29
10/27/2008
MOTION to Compel the Depositions of Baxter Regional Hospital Personnel by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1, October 9 letter to Laura Smith
2
Exhibit October 24 letter to Laura Smith
3
Exhibit 3, Deposition of Angela Padgett
4
Exhibit 4, Deposition of Mary Wren
5
Exhibit 5, Deposition of Barbara Bremer
5 Attachments
30
10/30/2008
ORDER REFERRING MOTION: 23 MOTION to Compel Discovery Responses from Baxter Regional Hospital filed by Rozanna Csiszer, Charles Csiszer, and 29 MOTION to Compel the Depositions of Baxter Regional Hospital Personnel filed by Rozanna Csiszer, Charles Csiszer. Signed by Honorable Robert T. Dawson on October 30, 2008. Motions referred to James R. Marschewski.
31
10/30/2008
MOTION to Compel Defendant CCC to Permit Inspection and Photographing of Premises by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1, Request to Enter, Inspect and Photograph Premises
2
Exhibit 2, Response to Request to Enter, Inspect and Photograph Premises
2 Attachments
32
10/31/2008
ORDER REFERRING : 31 MOTION to Compel Defendant CCC to Permit Inspection and Photographing of Premises filed by Rozanna Csiszer, Charles Csiszer. Signed by Honorable Robert T. Dawson on October 31, 2008. Motions referred to James R. Marschewski.
33
11/11/2008
MOTION to Compel by Continental Casualty Company, Baxter County Regional Hospital, Inc.
1
Exhibit A
2
Exhibit B
3
Exhibit C
3 Attachments
34
11/11/2008
MEMORANDUM BRIEF in Support of 33 MOTION to Compel by Continental Casualty Company, Baxter County Regional Hospital, Inc.
35
11/11/2008
RESPONSE to Motion re 29 MOTION to Compel the Depositions of Baxter Regional Hospital Personnel filed by Continental Casualty Company, Baxter County Regional Hospital, Inc.
36
11/12/2008
ORDER REFERRING MOTION: 33 MOTION to Compel filed by Baxter County Regional Hospital, Inc., Continental Casualty Company. Signed by Honorable Robert T. Dawson on November 12, 2008. Motions referred to James R. Marschewski for disposition or recommendation, whichever is appropriate. lw) Modified to edit text on 11/12/2008
37
11/12/2008
ORDER Setting/Resetting Hearings: Settlement Conference set for 1/13/2009 01:00 PM in Harrison -- 2nd flr (Rm 231) before Honorable James R. Marschewski. Signed by Honorable James R. Marschewski on November 12, 2008.
38
11/13/2008
MEMORANDUM OPINION AND ORDER granting 17 Motion for Summary Judgment, filed by Baxter County Regional Hospital, Inc. and Baxter County Regional Hospital, Inc. is dismissed with prejudice. Signed by Honorable Robert T. Dawson on November 13, 2008.
39
11/13/2008
RESPONSE to Motion re 31 MOTION to Compel Defendant CCC to Permit Inspection and Photographing of Premises filed by Continental Casualty Company.
1
Exhibit A
1 Attachment
40
11/13/2008
MEMORANDUM BRIEF in Support of 29 MOTION to Compel the Depositions of Baxter Regional Hospital Personnel by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1-Expert Report of Eagon, RN
2
Exhibit 2-Expert Report of Dr. Harlass
3
Exhibit Letter dated 4-28-08
4
Exhibit 4-Letter dated 5-23-08
5
Exhibit 5-Letter dated 7-18-08
5 Attachments
41
11/14/2008
NOTICE of Hearing on Motions: 31 MOTION to Compel Defendant CCC to Permit Inspection and Photographing of Premises; 29 MOTION to Compel the Depositions of Baxter Regional Hospital Personnel; 23 MOTION to Compel Discovery Responses from Baxter Regional Hospital; 33 MOTION to Compel : Motions Hearing set for 11/19/2008 10:00 AM in Fort Smith -- 2nd flr (Rm 226) before Honorable James R. Marschewski.
42
11/17/2008
Joint MOTION for Extension of Time to Complete Discovery by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
43
11/18/2008
MOTION to Dismiss Party Perry L. Wilbur, M.D. and Perry L. Wilbur, M.D., P.A. by Rozanna Csiszer, Charles Csiszer.
1
Exhibit Proposed Order
1 Attachment
44
11/18/2008
RESPONSE to Motion re 33 MOTION to Compel filed by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
3 Attachments
11/19/2008
TEXT ONLY Minute Entry for proceedings held before Honorable James R. Marschewski: Motion Hearing held on 11/19/2008 re 42 Joint MOTION for Extension of Time to Complete Discovery filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC, 23 MOTION to Compel Discovery Responses from Baxter Regional Hospital filed by Rozanna Csiszer, Charles Csiszer, 33 MOTION to Compel filed by Baxter County Regional Hospital, Inc., Continental Casualty Company, 29 MOTION to Compel the Depositions of Baxter Regional Hospital Personnel filed by Rozanna Csiszer, Charles Csiszer, 31 MOTION to Compel Defendant CCC to Permit Inspection and Photographing of Premises filed by Rozanna Csiszer, Charles Csiszer; no testimony given; order to follow. (Court Reporter - Maddox) (Text entry; no document attached.)
45
11/25/2008
ORDER re: 31 Motion to Compel; 33 Motion to Compel; 23 Motion to Compel; and 29 Motion to Compel as set forth. Further granting 42 Joint Motion for Extension of Time to Complete Discovery,that the Defendant's deadline for deposing experts is hereby extended to 1/19/09 and Plaintiff's are given 21 days from the date of receipt of the slides and tissue samples to obtain an expert report from their expert(s). Signed by Honorable James R. Marschewski on November 25, 2008.
46
12/09/2008
ORDER granting 43 Motion for Voluntary Dismissal of Defendants Perry Wilbur, MD and Perry L. Wilbur, MDPA, only. Perry Wilbur, MD and Perry L. Wilbur, MDPA terminated. Signed by Honorable Robert T. Dawson on December 9, 2008.
47
12/10/2008
ORDER re: 23 Plaintiff's Motion to Compel. The court has reviewed the documents in camera and finds that the document are protected by the peer review provisions of Ark. Code. Ann. Section 16-46-105 and that the Plaintiff's Motion to Compel Request for Production numbers 3,4 and 45 is hereby DENIED with regards to the documents provided to the court for in camera review. The documents are furthered order to be sealed by the clerk and subject to review only by the court. Signed by Honorable James R. Marschewski on December 10, 2008. (lw) (Additional attachment(s) added on 5/23/2017: # 1 Sealed Document)
48
12/11/2008
NOTICE by Rozanna Csiszer, Charles Csiszer Rebuttal Expert Designation
1
Exhibit 1 - CV of Dr. Hermansen
2
Exhibit 2 - Hermansen's Report
2 Attachments
49
12/22/2008
MOTION to Quash Portions of Notices to Take Depositions by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
1
Exhibit A (Dr. Boehm's Deposition Notice)
2
Exhibit B (Deposition Notice for Dr. Redline)
2 Attachments
50
12/22/2008
MEMORANDUM BRIEF in Support of 49 MOTION to Quash Portions of Notices to Take Depositions by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
51
12/23/2008
ORDER REFERRING 49 MOTION to Quash Portions of Notices to Take Depositions filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC. Signed by Honorable Robert T. Dawson on December 23, 2008. Motions referred to James R. Marschewski.
52
12/30/2008
MOTION for Extension of Time to Complete Discovery by Rozanna Csiszer, Charles Csiszer.
53
12/31/2008
ORDER granting 52 Motion for Extension of Time to Complete Discovery; Discovery deadline is extended through 1/30/2009. Signed by Honorable Robert T. Dawson on December 31, 2008.
54
01/05/2009
Emergency MOTION to Compel Depositions by Rozanna Csiszer, Charles Csiszer.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
6 Attachments
55
01/05/2009
ORDER REFERRING 54 Emergency MOTION to Compel Depositions filed by Rozanna Csiszer, Charles Csiszer. Signed by Honorable Robert T. Dawson on January 5, 2009. Motions referred to James R. Marschewski.
56
01/06/2009
RESPONSE to Motion re 54 Emergency MOTION to Compel Depositions filed by Continental Casualty Company.
57
01/07/2009
REPLY to Response to Motion re 54 Emergency MOTION to Compel Depositions filed by Rozanna Csiszer, Charles Csiszer.
1
Exhibit A - Manning Scheduling Order
2
Exhibit B - Motion to Continue
3
Exhibit C - Defendant's Response
4
Exhibit D - Plaintiffs' Reply to Response
4 Attachments
58
01/08/2009
Joint MOTION to Continue by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
59
01/08/2009
MEMORANDUM BRIEF in Opposition to 57 Reply to Response to Motion, Exhibit A supplement by Rozanna Csiszer, Charles Csiszer.
60
01/08/2009
ORDER granting nos. 5, 6, 9, 11, 15, 16, 17, denying nos. 19, 20, 21, 22 and finding as moot nos. 8, 14, 49 Motion to Quash; as set forth. Signed by Honorable James R. Marschewski on January 8, 2009.
01/09/2009
CLERK'S NOTICE re Multiple Attorneys Listed on Pleading directed to Defendants Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC. Motion to Continue 58 lists multiple attorneys appearing for the filer. The following attorney(s), who did not sign the pleading, must enter a separate Notice of Appearance in order to receive electronic notification of future activity in the case: James R. Estes. TEXT ONLY ENTRY, NO DOCUMENT ATTACHED. (Text entry; no document attached.)
61
01/09/2009
RESPONSE to Motion re 58 Joint MOTION to Continue filed by Rozanna Csiszer, Charles Csiszer.
62
01/09/2009
ORDER denying 58 Motion to Continue. This matter remains set for jury trial the week beginning 2/9/09 at 9:00 AM Signed by Honorable Robert T. Dawson on January 9, 2009.
63
01/09/2009
PRETRIAL DISCLOSURE SHEET by Rozanna Csiszer, Charles Csiszer.
1
Exhibit Witness List
2
Exhibit Exhibit List
2 Attachments
64
01/09/2009
NOTICE of Appearance by James R. Estes, Jr on behalf of Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC
65
01/09/2009
MOTION to Quash Notice of Deposition by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
66
01/11/2009
PRETRIAL DISCLOSURE SHEET by Continental Casualty Company.
67
01/11/2009
PRETRIAL DISCLOSURE SHEET by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
68
01/12/2009
RESPONSE to Motion re 65 MOTION to Quash Notice of Deposition filed by Rozanna Csiszer, Charles Csiszer.
1
Exhibit A -Dr. Ashkenasi's Report
2
Exhibit B - Dr. Rohrbaugh's Report
2 Attachments
69
01/13/2009
ORDER REFERRING MOTION: 65 MOTION to Quash Notice of Deposition filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC, for disposition or recommendation. Signed by Honorable Robert T. Dawson on January 13, 2009. Motions referred to James R. Marschewski.
01/13/2009
TEXT ONLY ORDER denying 65 Motion to Quash. Signed by Honorable James R. Marschewski on January 13, 2009. (Text entry; no document attached.)
70
01/14/2009
ORDER denying plaintiff's Emergency 54 Motion to Compel as moot. Signed by Honorable James R. Marschewski on January 14, 2009.
71
01/15/2009
MOTION of Jory D. Lange, Jr. to Withdraw as Attorney by Rozanna Csiszer, Charles Csiszer.
72
01/16/2009
ORDER granting 71 Motion to Withdraw as Attorney for Plaintiff. Jory D. Lange, Jr terminated. Signed by Honorable Robert T. Dawson on January 16, 2009.
73
01/16/2009
MOTION in Limine by Rozanna Csiszer, Charles Csiszer.
74
01/16/2009
MOTION for Consideration to Allow Complete Voir Dire and to Use Questionnaire by Rozanna Csiszer, Charles Csiszer.
1
Exhibit A - form questionnaire
2
Exhibit B - case specific questionnaire
2 Attachments
75
01/19/2009
MOTION in Limine Regarding Medical Expenses by Rozanna Csiszer, Charles Csiszer.
76
01/19/2009
MEMORANDUM BRIEF in Support of 75 MOTION in Limine Regarding Medical Expenses by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1 - Act 649
2
Exhibit 2 - Transcript of Debate on HB 1038
2 Attachments
77
01/19/2009
***PLEASE DISREGARD. WRONG PDF ATTACHED. PLEASE SEE DOCUMENT 80. MOTION in Limine Regarding the Standard of Care by Rozanna Csiszer, Charles Csiszer. Modified on 1/20/2009 to add docket text
78
01/19/2009
***DOCUMENT REFILED TO PROPERLY LINK TO MOTION. Please see document 81. MEMORANDUM BRIEF in Support of 77 MOTION in Limine Regarding the Standard of Care by Rozanna Csiszer, Charles Csiszer. Modified on 1/20/2009 to add docket text
79
01/20/2009
NOTICE of Hearing: Pretrial Conference Hearing set for 2/4/2009 at 10:00 AM in Fort Smith -- 1st flr (Rm 1004) before Honorable Robert T. Dawson. (mop) Modified on 1/21/2009 to correct hearing date
80
01/20/2009
MOTION in Limine Regarding the Standard of Care by Rozanna Csiszer, Charles Csiszer.
81
01/20/2009
MEMORANDUM BRIEF in Support of 80 MOTION in Limine Regarding the Standard of Care by Rozanna Csiszer, Charles Csiszer.
82
01/20/2009
Emergency MOTION for Protective Order by Continental Casualty Company, Baxter County Regional Hospital, Inc.
83
01/20/2009
MEMORANDUM BRIEF in Support of 82 Emergency MOTION for Protective Order by Continental Casualty Company, Baxter County Regional Hospital, Inc.
84
01/20/2009
ORDER REFERRING 82 Emergency MOTION for Protective Order filed by Baxter County Regional Hospital, Inc., Continental Casualty Company. Signed by Honorable Robert T. Dawson on January 20, 2009. Motions referred to James R. Marschewski.
85
01/20/2009
RESPONSE to Motion re 82 Emergency MOTION for Protective Order filed by Rozanna Csiszer, Charles Csiszer.
86
01/21/2009
MOTION in Limine with Authorities in Support by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
1
Exhibit A
1 Attachment
87
01/21/2009
REPLY to Response to Motion re 82 Emergency MOTION for Protective Order filed by Continental Casualty Company.
88
01/22/2009
MEMORANDUM BRIEF in Support of 86 MOTION in Limine with Authorities in Support by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
89
01/22/2009
MOTION for Consideration of Jury Panel of at Least Ninety Venire Persons by Rozanna Csiszer, Charles Csiszer.
90
01/22/2009
ORDER denying as moot 82 Motion for Protective Order. Signed by Honorable James R. Marschewski on January 22, 2009.
91
01/23/2009
MOTION to Exclude Certain Opinions of Defense Experts by Rozanna Csiszer, Charles Csiszer.
92
01/23/2009
MEMORANDUM BRIEF in Support of 91 MOTION to Exclude Certain Opinions of Defense Experts by Rozanna Csiszer, Charles Csiszer.
93
01/23/2009
OBJECTION(S) by Rozanna Csiszer, Charles Csiszer re 66 Pretrial Disclosure Sheet, 67 Pretrial Disclosure Sheet.
94
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix 1 of 9 by Rozanna Csiszer, Charles Csiszer.
95
01/23/2009
MEMORANDUM BRIEF in Support Appendix Part 2 of 9 by Rozanna Csiszer, Charles Csiszer.
96
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 3a of 9 by Rozanna Csiszer, Charles Csiszer.
97
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 3b of 9 by Rozanna Csiszer, Charles Csiszer.
98
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 4 of 9 by Rozanna Csiszer, Charles Csiszer.
99
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 5 of 9 by Rozanna Csiszer, Charles Csiszer.
100
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 6 of 9 by Rozanna Csiszer, Charles Csiszer.
101
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 7a of 9 by Rozanna Csiszer, Charles Csiszer.
102
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 7b of 9 by Rozanna Csiszer, Charles Csiszer.
103
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 8 of 9 by Rozanna Csiszer, Charles Csiszer.
104
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 9a of 9 by Rozanna Csiszer, Charles Csiszer.
105
01/23/2009
MEMORANDUM BRIEF in Support of 92 Memorandum Brief in Support Appendix Part 9b of 9 by Rozanna Csiszer, Charles Csiszer.
106
01/23/2009
MOTION for Protective Order Regarding Having Two Videographers at the Deposition of Dr. Redline by Rozanna Csiszer, Charles Csiszer.
107
01/24/2009
MOTION in Limine Regarding Experts by Rozanna Csiszer, Charles Csiszer.
108
01/24/2009
Second MOTION in Limine Regarding Experts by Rozanna Csiszer, Charles Csiszer.
109
01/25/2009
RESPONSE in Opposition re 106 MOTION for Protective Order Regarding Having Two Videographers at the Deposition of Dr. Redline filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
110
01/26/2009
ORDER REFERRING MOTION: 106 for Protective Order Regarding Having Two Videographers at the Deposition of Dr. Redline filed by Rozanna Csiszer, Charles Csiszer, for disposition or recommendation. Signed by Honorable Robert T. Dawson on January 26, 2009. Motions referred to James R. Marschewski.
111
01/26/2009
ORDER denying 106 Motion for Protective Order Regarding Having Two Videographers at the Deposition of Dr. Redline. Signed by Honorable James R. Marschewski on January 26, 2009.
112
01/26/2009
MOTION in Limine Joining Motion in Limine With Authorities in Support filed by Co-Defendants Dr. Wren and Wren & Barrow by Continental Casualty Company.
113
01/26/2009
RESPONSE to Motion re 89 MOTION for Consideration of Jury Panel of at Least Ninety Venire Persons filed by Continental Casualty Company.
114
01/26/2009
MOTION in Limine To Exclude "Day in the Life" Video Provided by Plaintiffs on January 22, 2009 by Continental Casualty Company. Modified on 1/30/2009 to create relationship to Memorandum Brief 149
115
01/26/2009
RESPONSE to Motion re 73 MOTION in Limine (Joint Response) filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
1
Exhibit A (Deposition of Dr. Mendoza)
1 Attachment
116
01/26/2009
MOTION in Limine to Prevent Plaintiffs From Calling Margie Swanson, Amy Myers, Caron Alexander, Margaret Fielding, Cindy Davenport, Dr. Kerr and Mr. Erickson to Testify at Trial by Continental Casualty Company.
117
01/26/2009
MEMORANDUM BRIEF in Support of 116 MOTION in Limine to Prevent Plaintiffs From Calling Margie Swanson, Amy Myers, Caron Alexander, Margaret Fielding, Cindy Davenport, Dr. Kerr and Mr. Erickson to Testify at Trial by Continental Casualty Company.
118
01/26/2009
MOTION in Limine To Exclude Medical Records and Radiological Films From St. Louis Children's Hospital or, in the Alternative, Motion to Redepose Plaintiffs and Other Pertinent Witnesses by Continental Casualty Company.
1
Exhibit A
1 Attachment
119
01/26/2009
MEMORANDUM BRIEF in Support of 118 MOTION in Limine To Exclude Medical Records and Radiological Films From St. Louis Children's Hospital or, in the Alternative, Motion to Redepose Plaintiffs and Other Pertinent Witnesses by Continental Casualty Company.
120
01/26/2009
RESPONSE in Opposition re 74 MOTION for Consideration to Allow Complete Voir Dire and to Use Questionnaire Joint Response of Defendants filed by Continental Casualty Company.
1
Exhibit A
1 Attachment
121
01/26/2009
MOTION in Limine To Prevent Plaintiffs From Calling Bethany Underwood, Ann Cisco, Amy Mueller and Tamora Elting To Testify at Trial by Continental Casualty Company.
1
Exhibit A
1 Attachment
122
01/26/2009
MEMORANDUM BRIEF in Support of 121 MOTION in Limine To Prevent Plaintiffs From Calling Bethany Underwood, Ann Cisco, Amy Mueller and Tamora Elting To Testify at Trial by Continental Casualty Company.
123
01/26/2009
MOTION in Limine To Exclude Video Footage From St. Louis Children's Hospital or, in the Alternative, Motion to Redepose Plaintiffs and Other Pertinent Witnesses by Continental Casualty Company.
1
Exhibit A
1 Attachment
124
01/26/2009
MEMORANDUM BRIEF in Support of 123 MOTION in Limine To Exclude Video Footage From St. Louis Children's Hospital or, in the Alternative, Motion to Redepose Plaintiffs and Other Pertinent Witnesses by Continental Casualty Company.
125
01/26/2009
MOTION in Limine To Prevent Plaintiffs From Calling Sheila Knuckles, Ann Jones and Barbara Bremer To Testify at Trial by Continental Casualty Company.
1
Exhibit A
2
Exhibit B
3
Exhibit C
3 Attachments
126
01/26/2009
MEMORANDUM BRIEF in Support of 125 MOTION in Limine To Prevent Plaintiffs From Calling Sheila Knuckles, Ann Jones and Barbara Bremer To Testify at Trial by Continental Casualty Company.
127
01/26/2009
MOTION in Limine To Exclude Photographs Provided by Plaintiffs or, in the alternative, Motion to Redepose Plaintiffs by Continental Casualty Company.
1
INDEX OF EXHIBIT A
2
Photos 1-6
3
Photos 7-12
4
Photos 13-18
5
Photos 19-24
6
Photos 25-27
6 Attachments
128
01/26/2009
MEMORANDUM BRIEF in Support of 127 MOTION in Limine To Exclude Photographs Provided by Plaintiffs or, in the alternative, Motion to Redepose Plaintiffs by Continental Casualty Company.
129
01/28/2009
MOTION in Limine - Vicarious Liability for Defendant Dr. Wren by Continental Casualty Company.
1
Exhibit A - Deposition of Dr. Wren
2
Exhibit B - Insurance Policy
2 Attachments
130
01/28/2009
MEMORANDUM BRIEF in Support of 129 MOTION in Limine - Vicarious Liability for Defendant Dr. Wren by Continental Casualty Company.
131
01/28/2009
MOTION in Limine - Punitive Damages and Alternative Motion for Bifurcation by Continental Casualty Company.
1
Exhibit A - Deposition of Dr. Harlass
2
Exhibit B - DEPOSITION OF DR. ASHKENASI
3
Exhibit C - DEPOSITION OF DR. NAIDICH
4
Exhibit D - DEPOSITION OF NURSE EAGON
5
Exhibit E - DEPOSITION OF DR. HERMANSEN
5 Attachments
132
01/28/2009
MEMORANDUM BRIEF in Support of 131 MOTION in Limine - Punitive Damages and Alternative Motion for Bifurcation by Continental Casualty Company.
133
01/28/2009
RESPONSE to Motion re 75 MOTION in Limine Regarding Medical Expenses filed by Rozanna Csiszer, Charles Csiszer.
1
Exhibit Attorney General's Response Letter
1 Attachment
134
01/28/2009
RESPONSE to Motion re 107 MOTION in Limine Regarding Experts filed by Continental Casualty Company.
135
01/28/2009
RESPONSE to Motion re 108 Second MOTION in Limine Regarding Experts filed by Continental Casualty Company.
136
01/29/2009
CERTIFICATE; that the constitutionality of section 15(b) of Act 649 of 2003, codified at section 16-114-208(a) (1) (B) of the Arkansas Code, is drawn in question in this case, to which neither the State of Arkansas, nor any agency of the State of Arkansas, nor any officer or employee of the State of Arkansas, is a party. (cc: Dustin McDaniel) Signed by Honorable Robert T. Dawson on January 29, 2009.
137
01/29/2009
CERTIFICATE; that the constitutionality of section 16-114-207 of the Arkansas Code, is drawn in question in this case, to which neither the State of Arkansas, nor any agency of the State of Arkansas, nor any officer or employee of the State of Arkansas, is a party. (cc: Dustin McDaniel). Signed by Honorable Robert T. Dawson on January 29, 2009.
138
01/29/2009
MOTION in Limine -Opinion Testimony From This Defendant by Continental Casualty Company.
139
01/29/2009
MEMORANDUM BRIEF in Support of 138 Motion in Limine - Opinion Testimony From This Defendant by Continental Casualty Company. Modified on 1/30/2009 to add document number(lw). Modified on 1/30/2009 to create document relationship
140
01/29/2009
MOTION for Order For A Jury of Twelve Persons by Continental Casualty Company.
141
01/29/2009
MEMORANDUM BRIEF in Support of 140 MOTION for Order For A Jury of Twelve Persons by Continental Casualty Company.
142
01/29/2009
RESPONSE by Continental Casualty Company re 93 Objection(s) of Plaintiffs to Pretrial Disclosures of Defendants.
143
01/29/2009
RESPONSE to Motion re 75 MOTION in Limine Regarding Medical Expenses (Joint Response) filed by Continental Casualty Company, Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
144
01/29/2009
RESPONSE in Opposition re 80 MOTION in Limine Regarding the Standard of Care filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
145
01/30/2009
MOTION for Twelve Person Jury by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
146
01/30/2009
MEMORANDUM BRIEF in Support of 145 MOTION for Twelve Person Jury by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
147
01/30/2009
RESPONSE by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC re 93 Objection(s).
148
01/30/2009
AMENDED CERTIFICATE: re 136 Certificate, that the constitutionality of section 15(b)of Act 649 of 2003, codified at section 16-55-212 of the ArkansasCode, is drawn in question in this case, to whichneither the State of Arkansas, nor any agency of the State ofArkansas, nor any officer or employee of the State of Arkansas, is a party. (cc: Dustin McDaniel) Signed by Honorable Robert T. Dawson on January 30, 2009.
149
01/30/2009
MEMORANDUM BRIEF in Support of 114 Motion in Limine to Exclude "Day in the Life" Video Provided by Plaintiffs on January 22, 2009 by Continental Casualty Company. Modified on 1/30/2009 to create document relationship
150
01/30/2009
MOTION in Limine Re Records From Baxter Regional Medical Center to Be Used at Trial by Continental Casualty Company.
151
01/30/2009
MEMORANDUM BRIEF in Support of 150 MOTION in Limine Re Records From Baxter Regional Medical Center to Be Used at Trial by Continental Casualty Company.
152
01/30/2009
RESPONSE in Opposition re 107 MOTION in Limine Regarding Experts filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
153
01/30/2009
MOTION in Limine by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
154
01/30/2009
RESPONSE to Motion re 108 Second MOTION in Limine Regarding Experts filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
155
01/30/2009
OBJECTION(S) by Continental Casualty Company re 63 Pretrial Disclosure Sheet of Plaintiffs.
156
01/30/2009
MOTION to Appear Pro Hac Vice by Rozanna Csiszer, Charles Csiszer.
157
01/30/2009
MOTION in Limine (Joining Motion in Limine -Punitive Damages and Alternatively Motion for Bifurcation filed by Continental Casualty Company by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
158
01/30/2009
MOTION in Limine (Joining Motion in Limine to Exclude Medical Records and Radiological Films From St. Louis Children's Hospital and Motion in Limine to Exclude Video Footage from St. Louis Children's Hospital by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
159
01/30/2009
MOTION in Limine (Joining Motion in Limine to Exclude Photographs Provided by Plaintiffs by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
1
Exhibit B
1 Attachment
160
01/30/2009
MOTION in Limine (Joining Motion in Limine on Opinion Testimony of Defendant by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
161
01/30/2009
OBJECTION(S) by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC re 63 Pretrial Disclosure Sheet.
162
01/30/2009
ORDER granting permission for Louis S. Hakim to proceed pro hac vice in this case and further directing that he immediately register as as CM/ECF user if he has not already done so and to enter an apperance in this matter. Signed by Honorable Robert T. Dawson on January 30, 2009.
163
01/30/2009
MOTION in Limine - Same Specialty Limitation by Continental Casualty Company.
164
01/30/2009
MEMORANDUM BRIEF in Support of 163 MOTION in Limine - Same Specialty Limitation by Continental Casualty Company.
165
01/30/2009
MOTION in Limine - General Issues by Continental Casualty Company.
1
Exhibit A-Portions of Nurse Padgett's Deposition
2
Exhibit B-Portions of Dr. Boehm's Deposition
2 Attachments
166
01/30/2009
MEMORANDUM BRIEF in Support of 165 MOTION in Limine - General Issues by Continental Casualty Company.
167
01/30/2009
MOTION in Limine to Exclude Photographs of Birth Provided by Plaintiffs or, in the Alternative, Motion to Redepose Plaintiffs by Continental Casualty Company.
1
Exhibit A-Photographs
2
Exhibit B-Plaintiffs' Responses/Objections to Requests for Production
2 Attachments
168
01/30/2009
MEMORANDUM BRIEF in Support of 167 MOTION in Limine to Exclude Photographs of Birth Provided by Plaintiffs or, in the Alternative, Motion to Redepose Plaintiffs by Continental Casualty Company.
169
01/30/2009
MOTION in Limine to Prevent Plaintiffs from Calling Nicole Cousins to Testify at Trial by Continental Casualty Company.
1
Exhibit A-Portions of Nicole Cousins' Deposition
1 Attachment
170
01/30/2009
MEMORANDUM BRIEF in Support of 169 MOTION in Limine to Prevent Plaintiffs from Calling Nicole Cousins to Testify at Trial by Continental Casualty Company.
171
01/30/2009
MOTION in Limine (Joining Motion in Limine-General Issues) by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
172
01/30/2009
RESPONSE to Motion re 91 MOTION to Exclude Certain Opinions of Defense Experts filed by Continental Casualty Company.
1
Appendix Index
2
Exhibit A part 1
3
Exhibit A part 2
4
Exhibit A part 3
4 Attachments
173
01/30/2009
MOTION in Limine to Exclude Allegations Against Baxter Regional Medical Center Other than for Negligence Under a Theory of Respondeat Superior by Continental Casualty Company.
1
Exhibit A-Portions of Janine Eagon Deposition
2
Exhibit B-Portions of Dr. Harlass Deposition
3
Exhibit C-Portions of Angela Padgett Deposition
3 Attachments
174
01/30/2009
MEMORANDUM BRIEF in Support of 173 MOTION in Limine to Exclude Allegations Against Baxter Regional Medical Center Other than for Negligence Under a Theory of Respondeat Superior by Continental Casualty Company.
175
01/31/2009
RESPONSE to Motion Regarding Punitive Damages filed by Rozanna Csiszer, Charles Csiszer.
176
02/02/2009
MEMORANDUM BRIEF in Support of Plaintiffs' 73 Motion in Limine, Item 11.02 by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1 - Wren deposition
2
Exhibit 2 - Wilbur deposition
3
Exhibit 3 - Redline deposition
4
Exhibit 4 - Mendoza deposition) Modified on <a href="javascript:void(0);" class="future-datetime" date="02/03/2020" time="">2/3/20</a>09 to add document number(lw
4 Attachments
177
02/02/2009
RESPONSE in Opposition re 169 MOTION in Limine to Prevent Plaintiffs from Calling Nicole Cousins to Testify at Trial filed by Rozanna Csiszer, Charles Csiszer.
178
02/02/2009
RESPONSE in Opposition re 121 MOTION in Limine To Prevent Plaintiffs From Calling Bethany Underwood, Ann Cisco, Amy Mueller and Tamora Elting To Testify at Trial filed by Rozanna Csiszer, Charles Csiszer.
179
02/02/2009
REPLY to Response to Motion re 74 MOTION for Consideration to Allow Complete Voir Dire and to Use Questionnaire filed by Rozanna Csiszer, Charles Csiszer.
180
02/02/2009
REPLY to Response to Motion re 108 Second MOTION in Limine Regarding Experts filed by Rozanna Csiszer, Charles Csiszer.
181
02/02/2009
REPLY to Response to Motion re 107 MOTION in Limine Regarding Experts filed by Rozanna Csiszer, Charles Csiszer.
182
02/02/2009
RESPONSE to Motion re 112 MOTION in Limine Joining Motion in Limine With Authorities in Support filed by Co-Defendants Dr. Wren and Wren & Barrow filed by Rozanna Csiszer, Charles Csiszer.
183
02/02/2009
RESPONSE in Opposition re 125 MOTION in Limine To Prevent Plaintiffs From Calling Sheila Knuckles, Ann Jones and Barbara Bremer To Testify at Trial filed by Rozanna Csiszer, Charles Csiszer.
184
02/02/2009
RESPONSE in Opposition re 116 MOTION in Limine to Prevent Plaintiffs From Calling Margie Swanson, Amy Myers, Caron Alexander, Margaret Fielding, Cindy Davenport, Dr. Kerr and Mr. Erickson to Testify at Trial filed by Rozanna Csiszer, Charles Csiszer.
185
02/02/2009
RESPONSE to Motion re 118 MOTION in Limine To Exclude Medical Records and Radiological Films From St. Louis Children's Hospital or, in the Alternative, Motion to Redepose Plaintiffs and Other Pertinent Witnesses filed by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1 - Medical Records from St. Louis Children's Hospital
1 Attachment
186
02/02/2009
RESPONSE to Motion regarding Video Footage from St. Louis Children's Hospital filed by Rozanna Csiszer, Charles Csiszer.
187
02/02/2009
NOTICE of Appearance by Louis Hakim on behalf of Rozanna Csiszer, Charles Csiszer
188
02/02/2009
*** PLEASE DISREGARD SEE 190 *** MOTION in Limine Regarding Expert Raymond Redline, M.D. by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1 - deposition of Dr. Redline) Modified on <a href="javascript:void(0);" class="future-datetime" date="02/03/2020" time="">2/3/20</a>09 to add text (lw
1 Attachment
189
02/02/2009
MOTION in Limine Regarding Expert Janine Eagon by Rozanna Csiszer, Charles Csiszer.
190
02/02/2009
Amended MOTION in Limine regarding Raymond Redline by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1 - Redline's Deposition
1 Attachment
191
02/02/2009
RESPONSE to Motion re 129 MOTION in Limine - Vicarious Liability for Defendant Dr. Wren filed by Rozanna Csiszer, Charles Csiszer.
192
02/02/2009
RESPONSE to Motion re 167 MOTION in Limine to Exclude Photographs of Birth Provided by Plaintiffs or, in the Alternative, Motion to Redepose Plaintiffs filed by Rozanna Csiszer, Charles Csiszer.
193
02/02/2009
MOTION to Appear Pro Hac Vice for William A. Newman by Rozanna Csiszer, Charles Csiszer.
194
02/02/2009
REPLY to Response to Motion re 89 MOTION for Consideration of Jury Panel of at Least Ninety Venire Persons filed by Rozanna Csiszer, Charles Csiszer.
195
02/02/2009
RESPONSE to Motion re 114 MOTION in Limine To Exclude "Day in the Life" Video Provided by Plaintiffs on January 22, 2009 filed by Rozanna Csiszer, Charles Csiszer.
196
02/02/2009
REPLY to Response to Motion re 125 MOTION in Limine To Prevent Plaintiffs From Calling Sheila Knuckles, Ann Jones and Barbara Bremer To Testify at Trial filed by Continental Casualty Company.
197
02/02/2009
REPLY to Response to Motion re 121 MOTION in Limine To Prevent Plaintiffs From Calling Bethany Underwood, Ann Cisco, Amy Mueller and Tamora Elting To Testify at Trial filed by Continental Casualty Company.
198
02/02/2009
REPLY to Response to Motion re 116 MOTION in Limine to Prevent Plaintiffs From Calling Margie Swanson, Amy Myers, Caron Alexander, Margaret Fielding, Cindy Davenport, Dr. Kerr and Mr. Erickson to Testify at Trial filed by Continental Casualty Company.
199
02/02/2009
RESPONSE in Opposition re 91 MOTION to Exclude Certain Opinions of Defense Experts filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
1
Exhibit B
2
Exhibit C
2 Attachments
200
02/02/2009
RESPONSE to Motion re 169 MOTION in Limine to Prevent Plaintiffs from Calling Nicole Cousins to Testify at Trial filed by Rozanna Csiszer, Charles Csiszer.
201
02/03/2009
RESPONSE in Opposition re 190 Amended MOTION in Limine regarding Raymond Redline filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
202
02/03/2009
REPLY to Response to Motion re 131 MOTION in Limine - Punitive Damages and Alternative Motion for Bifurcation filed by Continental Casualty Company.
1
Exhibit A-H
1 Attachment
203
02/03/2009
REPLY to Response to Motion re 129 MOTION in Limine - Vicarious Liability for Defendant Dr. Wren filed by Continental Casualty Company.
204
02/03/2009
MOTION to Continue by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
4 Attachments
205
02/03/2009
MEMORANDUM BRIEF in Support of 204 MOTION to Continue by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
206
02/03/2009
REPLY to Response to Motion re 91 MOTION to Exclude Certain Opinions of Defense Experts filed by Rozanna Csiszer, Charles Csiszer.
207
02/03/2009
NOTICE of Appearance by Adam Wells on behalf of Continental Casualty Company
208
02/03/2009
REPLY to Response to Motion re 165 MOTION in Limine - General Issues filed by Rozanna Csiszer, Charles Csiszer.
209
02/03/2009
RESPONSE to Motion re 138 MOTION in Limine -Opinion Testimony From This Defendant filed by Rozanna Csiszer, Charles Csiszer.
210
02/03/2009
REPLY to Response to Motion re 138 MOTION in Limine -Opinion Testimony From This Defendant Supplemental filed by Rozanna Csiszer, Charles Csiszer.
1
Affidavit Aff of Susan Shott, Ph.D.
1 Attachment
211
02/03/2009
RESPONSE to Motion re 150 MOTION in Limine Re Records From Baxter Regional Medical Center to Be Used at Trial filed by Rozanna Csiszer, Charles Csiszer.
212
02/03/2009
RESPONSE to Motion re 163 MOTION in Limine - Same Specialty Limitation Supplemental filed by Rozanna Csiszer, Charles Csiszer.
213
02/03/2009
RESPONSE in Opposition re 163 MOTION in Limine - Same Specialty Limitation filed by Rozanna Csiszer, Charles Csiszer.
214
02/03/2009
REPLY to Response to Motion re 86 MOTION in Limine with Authorities in Support filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
215
02/03/2009
RESPONSE to Motion re 204 MOTION to Continue filed by Rozanna Csiszer, Charles Csiszer.
216
02/03/2009
MOTION to Strike 210 Reply to Response to Motion (Supplement to Plaintiffs' Reply) by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
217
02/03/2009
MEMORANDUM BRIEF in Support of 216 MOTION to Strike 210 Reply to Response to Motion (Supplement to Plaintiffs' Reply) by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
218
02/03/2009
RESPONSE to Motion re 216 MOTION to Strike 210 Reply to Response to Motion (Supplement to Plaintiffs' Reply) filed by Rozanna Csiszer, Charles Csiszer.
219
02/03/2009
MOTION in Limine to Exclude Items Appearing on Plaintiffs Pre-Trial Exhibit List by Continental Casualty Company.
220
02/03/2009
MEMORANDUM BRIEF in Support of 219 MOTION in Limine to Exclude Items Appearing on Plaintiffs Pre-Trial Exhibit List by Continental Casualty Company.
221
02/04/2009
RESPONSE to Motion re 169 MOTION in Limine to Prevent Plaintiffs from Calling Nicole Cousins to Testify at Trial filed by Rozanna Csiszer, Charles Csiszer.
222
02/04/2009
APPENDIX by Plaintiffs Rozanna Csiszer, Charles Csiszer Part A.
223
02/04/2009
APPENDIX by Plaintiffs Rozanna Csiszer, Charles Csiszer Part B.
224
02/04/2009
APPENDIX by Plaintiffs Rozanna Csiszer, Charles Csiszer Part C.
225
02/04/2009
APPENDIX by Defendant Continental Casualty Company re 173 MOTION in Limine to Exclude Allegations Against Baxter Regional Medical Center Other than for Negligence Under a Theory of Respondeat Superior, 174 Memorandum Brief in Support.
1
Exhibit -Deposition of Nurse Eagon
1 Attachment
226
02/04/2009
RESPONSE to Motion re 173 MOTION in Limine to Exclude Allegations Against Baxter Regional Medical Center Other than for Negligence Under a Theory of Respondeat Superior filed by Rozanna Csiszer, Charles Csiszer.
1
Exhibit A - Janine Eagon's Report
1 Attachment
227
02/04/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Initial Pretrial Conference held on 2/4/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
228
02/05/2009
ORDER as set forth granting in part and denying in part 73 Motion in Limine; denying 74 Motion for Consideration.; denying 75 Motion in Limine; denying 80 Motion in Limine; granting in part and denying in part 86 Motion in Limine; denying 89 Motion for Consideration.; denying 91 Motion to Exclude; granting in part and denying in part 107 Motion in Limine; denying 108 Motion in Limine; granting 114 Motion in Limine; granting in part and denying in part 116 Motion in Limine; granting 118 Motion in Limine; denying 121 Motion in Limine; granting 123 Motion in Limine; denying 125 Motion in Limine; denying 127 Motion in Limine; granting 129 Motion in Limine; granting in part and denying in part 131 Motion in Limine; granting 138 Motion in Limine; granting 140 Motion for Order; granting 145 Motion for Twelve Person Jury; denying 150 Motion in Limine; granting 163 Motion in Limine; denying 165 Motion in Limine; granting 167 Motion in Limine; denying 169 Motion in Limine; granting 173 Motion in Limine; denying 189 Motion in Limine; denying 190 Motion in Limine; denying 204 Motion to Continue; denying 216 Motion to Strike ; denying 219 Motion in Limine. Signed by Honorable Robert T. Dawson on February 5, 2009.
229
02/05/2009
MOTION to Strike Wren's Supplemental Answers to Plaintiffs' First Set of Interrogatories by Rozanna Csiszer, Charles Csiszer.
1
Exhibit 1, Wren Supplemental Answers to Plf's First Set of Interrogatories
1 Attachment
230
02/06/2009
SUPPLEMENT by Plaintiffs Rozanna Csiszer, Charles Csiszer Briefing for Attorney Participation in Voir Dire 74.
1
Exhibit A - Andreano article
2
Exhibit B - Jones' article) Modified on <a href="javascript:void(0);" class="future-datetime" date="02/09/2020" time="">2/9/20</a>09 to add document number (lw
2 Attachments
231
02/09/2009
MOTION for Reconsideration re 164 Memorandum Brief in Support of Motion in Limine -- Same Specialty Limitations by Rozanna Csiszer, Charles Csiszer.
232
02/09/2009
MEMORANDUM BRIEF in Support of 231 MOTION for Reconsideration re 164 Memorandum Brief in Support of Motion in Limine -- Same Specialty Limitations by Rozanna Csiszer, Charles Csiszer.
233
02/09/2009
MOTION to Declare Same Specialty Limitation Contained in Ark. Code Ann. 16-114-206 (ACT 649) Unconstitutional by Rozanna Csiszer, Charles Csiszer.
234
02/09/2009
MEMORANDUM BRIEF in Support of 233 MOTION to Declare Same Specialty Limitation Contained in Ark. Code Ann. 16-114-206 (ACT 649) Unconstitutional by Rozanna Csiszer, Charles Csiszer.
235
02/09/2009
MOTION to Equalize Peremptory Challenges by Rozanna Csiszer, Charles Csiszer.
236
02/09/2009
MEMORANDUM BRIEF in Support of 235 MOTION to Equalize Peremptory Challenges by Rozanna Csiszer, Charles Csiszer.
237
02/09/2009
CERTIFICATE; that the constitutionality of section 16-114-206 of the Arkansas Code, is drawn in question in the above captioned case, to which neither the State of Arkansas, nor any agency of the State of Arkansas, nor any officer or employee of the State of Arkansas, is a party. (cc: Dustin McDaniel) Signed by Honorable Robert T. Dawson on February 9, 2009. (lw) Modified on 2/9/2009 to correct text
238
02/09/2009
ORDER denying 229 Motion to Strike, denying 231 MOTION for Reconsideration of separate defendant Continental Casualty Company for Baxter Regional Medical Center's Motion in Limine, Same Specialty Limitation, and denying, 233 MOTION to Declare Same Specialty Limitation Contained in Ark. Code Ann. 16-114-206 (ACT 649) Unconstitutional, and granting 235 Motion to Equalize Peremptory Challenges. Signed by Honorable Robert T. Dawson on February 9, 2009.
239
02/09/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Interim Pretrial Conference held on 2/9/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
240
02/10/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Selection held on 2/10/2009. Jury Trial (Day One) held on 2/10/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
241
02/11/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial (Day Two) held on 2/11/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
242
02/12/2009
Minute Entry for Proceedings held before Judge Honorable Robert T. Dawson: Jury Trial Day (3) held on 2/12/2009. (Court Reporter Rick Congdon.) (sh) Modified on 2/19/2009 to edit file date
243
02/13/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial day (4) held on 2/13/2009. (Court Reporter Rick Congdon) (sh) Modified on 2/19/2009 to edit file date
244
02/16/2009
***PLEASE DISREGARD. INCORRECT PDF ATTACHED. Please see document 245. ***Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial (Day Five) held on 2/16/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith) (mop) Modified on 2/18/2009 to add docket text
245
02/16/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial (Day Five) held on 2/16/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
246
02/17/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial (Day Six) held on 2/17/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
247
02/18/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial Day Seven held on 2/18/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
248
02/19/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial (Day Eight) held on 2/19/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
249
02/20/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Jury Trial (Day Nine) and completed on 2/20/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith)
250
02/20/2009
JURY VERDICT for Defendants and against Plaintiffs.
251
02/23/2009
JUDGMENT on interrogatories finding for the Defendant's. That the Plaintiff's take nothing on their complaint filed herein and the matter is DISMISSED WITH PREJUDICE. All parties are to bear their respective costs and attorney's fees. Signed by Honorable Robert T. Dawson on February 23, 2009.
252
02/25/2009
MOTION for Permission to Interview Jurors by Charles Csiszer, Rozanna Csiszer.
253
02/26/2009
MOTION for Hearing re 252 MOTION for Permission to Interview Jurors by Charles Csiszer, Rozanna Csiszer.
254
03/02/2009
NOTICE by Continental Casualty Company, Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC re 252 MOTION for Permission to Interview Jurors Joint Response to Plaintiffs' Motion for Permission to Interview Jurors
255
03/03/2009
NOTICE of Hearing on Motion 252 MOTION for Permission to Interview Jurors: Motion Hearing set for 3/9/2009 at 3:00 PM in Fort Smith -- 1st flr (Rm 1004) before Honorable Robert T. Dawson.
256
03/04/2009
NOTICE by Charles Csiszer, Rozanna Csiszer Reply to Response to Plaintiffs' Motion for Permission to Interview Jurors
257
03/09/2009
ORDER denying 252 Plaintiff's Motion for Permission to Interview Jurors. Signed by Honorable Robert T. Dawson on March 9, 2009.
258
03/09/2009
Minute Entry for proceedings held before Honorable Robert T. Dawson: Motion Hearing re: Plaintiff's Motion for Permission to Interview Jurors held on 3/9/2009. (Court Reporter Rick Congdon)(Tape No. Fort Smith).
259
03/09/2009
MOTION for New Trial by Charles Csiszer, Rozanna Csiszer.
1
Brief in Support
2
Exhibit A - deposition of Padgett
3
Exhibit B - Debate transcript
3 Attachments
260
03/19/2009
RESPONSE in Opposition re 259 MOTION for New Trial filed by Mary R. Wren, MD, Wren & Barrow Obstetrics & Gynecology, PLLC.
261
03/20/2009
RESPONSE to Motion re 259 MOTION for New Trial filed by Continental Casualty Company.
262
03/30/2009
ORDER denying 259 Motion for New Trial. Signed by Honorable Robert T. Dawson on March 30, 2009.
263
04/28/2009
NOTICE OF APPEAL by Charles Csiszer, Rozanna Csiszer re 251 Judgment and 262 Order denying Motion for New Trial. (Copy via ECF to: Walter Cox, James Estes, Max Freeman, Louis Hakim, Jory Lange, Lamar Porter, Laaura Smith, Les Weisbrod, Adam Wells, George Wise; via e-mail to Rick Congdon, Court Reporter) Modified on 4/29/2009 to add copy information and links
264
04/29/2009
APPEAL NOTICE to Counsel and Pro Se Parties re 263 Notice of Appeal (atty), Notice of Appeal (atty) filed by Rozanna Csiszer, Charles Csiszer
1
Appeal forms A and B
2
Transcript Order Form
3
Prehearing Conference Program
4
Notice regarding exhibits)(jn
4 Attachments
04/29/2009
USCA Appeal Fees received $ 455 receipt number 5001154 re 263 Notice of Appeal (atty) filed by Rozanna Csiszer, Charles Csiszer. (Text entry; no document attached.)
265
04/29/2009
NOA SUPPLEMENT FORM re 263 Notice of Appeal (atty) filed by Rozanna Csiszer, Charles Csiszer.
266
04/29/2009
TRANSCRIPT REQUEST by Charles Csiszer, Rozanna Csiszer for proceedings held on 02/09/2009 - 04/29/2009 before Judge Robert T. Dawson, re 263 Notice of Appeal (atty), Notice of Appeal (atty) filed by Rozanna Csiszer, Charles Csiszer. Copy furnished to Court Reporter/ECRO.
267
05/04/2009
USCA Scheduling Order as to 263 Notice of Appeal (atty) filed by Rozanna Csiszer, Charles Csiszer. Case Appealed to 8th Circuit Court of Appeals Case Number 09-2010.
1
USCA Letter)(jn
1 Attachment
268
05/12/2009
TRANSMITTAL SHEET re 263 Notice of Appeal filed by Rozanna Csiszer and Charles Csiszer. Exhibits: P1-P3, P3B-P13 and P16 - P18; P29A; P38; P54;78A; 78D; P80-P86; P88-P89; P9; CD of Demonstrative Exhibits; and Exhibits: 14, 15, 19,20-28, 29,69,91,93,93A, 99, 100, and 101.
269
06/08/2009
ORDER of USCA as to 263 Notice of Appeal (atty) filed by Rozanna Csiszer, Charles Csiszer extending Court Reporter transcript deadline to 7/20/09.
270
07/17/2009
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Pre-Trial Conferences on February 4 & 9, 2009, and Jury Trial for dates of February 10-13 and 16-20, 2009, and Hearing on March 9, 2009, before Judge Robert T. Dawson, re 263 Notice of Appeal (atty). Court Reporter/Transcriber: Rick L. Congdon, Telephone number 479-709-5470. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before or after the deadline for Release of Transcript Restriction. After that date it, or a redacted transcript, may be obtained through PACER. A Notice of Intent to Request Redaction of the Transcript MUST be filed within 7 calendar days of the filing of the transcript and served manually on the court reporter/transcriber. Redaction Request due 8/7/2009. Redacted Transcript Deadline set for 8/17/2009. Release of Transcript Restriction set for 10/15/2009.
1
Volume II
2
Volume III
3
Volume IV
4
Volume V
5
Volume VI
6
Volume VII
7
Volume VIII
8
Volume IX
9
Volume X) (jrs) Modified on to edit docket text <a href="javascript:void(0);" class="future-datetime" date="07/17/2020" time="">7/17/20</a>09 (jrs
9 Attachments
271
07/17/2009
NOTICE by Charles Csiszer, Rozanna Csiszer Of Intent to Request Redaction
272
08/06/2009
Printed copy of trial transcript with original exhibits sent to U.S. Court of Appeals: re 263 Notice of Appeal (atty).
1
Exhibits to Transcript)(jn
1 Attachment
273
08/07/2009
MOTION to Modify re Redaction of Transcript by Charles Csiszer, Rozanna Csiszer.
274
08/27/2010
MANDATE of USCA affirming district court decision as to 263 Notice of Appeal (atty), filed by Rozanna Csiszer, Charles Csiszer
1
USCA Opinion
2
USCA Judgment
3
USCA Letter)(jn
3 Attachments
09/17/2010
1 expanding file of exhibits (for transcript) returned from U.S. Court of Appeals. (Text entry; no document attached.)
11/04/2010
TRIAL EXHIBITS returned to attorney Freeman per Mandate on appeal. (Text entry; no document attached.)
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