The Appellate Court of Maryland Holds That the Proper Application of Rule 5-702 and Daubert-Rochkind Allows Reliance on a Medical Expert’s Experience When Determining Admissibility of Said Expert’s Testimony

Fatou Jabbi, et al. v. Adventist Healthcare, Inc., et al., No. 2071, September Term 2023.  Opinion by Beachley, J.

        Appellants Fatou Jabbi and Lamin Kanteh (“Appellants”), Individually and as Parents and Next Friends of their child T.R., sued defendants/appellees Adventist Healthcare, Inc., Tamara Pottillo, and Lisa Godette (“Appellees”) for injuries suffered by T.R. related to Appellants care prior to T.R.’s birth.

        Ms. Jabbi, then 24 weeks and 5 days pregnant, presented to Washington Adventist Healthcare (“WAH”) complaining of back and abdominal pain.  Nurse Pottillo took Ms. Jabbi’s vitals, which were reviewed by Dr. Godette.  Dr. Godette determined that Ms. Jabbi’s vitals were within normal limits and sent her home with a prescription for Tylenol.  Defendants did not test Ms. Jabbi’s urine for signs of preeclampsia.  Fourteen hours later, Ms. Jabbi went to a different hospital, was diagnosed with preeclampsia, and received one dose of Betamethasone, a steroid that helps a fetus’s lungs mature quickly in preparation for early delivery.  Ms. Jabbi’s condition deteriorated, requiring a cesarean section before a second dose of Betamethasone (the full course of the medicine) could be administered.  T.R. was born with severe medical problems associated with prematurity. Appellants retained experts who opined that (1) had WAH complied with the standard of care, the pregnancy could have been extended long enough to administer the full course of Betamethasone, and (2) the full course of Betamethasone would have mitigated T.R.’s injuries. 

        Appellees moved to preclude testimony from Ms. Jabbi’s causation experts and for summary judgment.  The circuit court granted the motions, finding that the experts were relying on their “education and experience without specifying how that education and experience actually supports” their opinions, and that the opinions were not supported by scientific literature or the facts of the case.  The instant appeal followed.

        On appeal, The Appellate Court of Maryland focused on the application of Maryland Rule 5-702, specifically subsection three (3): sufficient factual basis, and the Daubert-Rochkind standard.  In setting the backdrop for this analysis, the court elucidated the “sufficient factual basis” requirement is actually a two-prong test, with the first part asking if the expert has available an adequate supply of data, and the second part asking if the expert is using a reliable methodology in analyzing the data.  Furthermore, the court concluded that, as applied by higher courts, the Daubert-Rochkind standard is a flexible one, boiling down to whether the expert testimony “both rests on a reliable foundation and is relevant to the task at hand”. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 579 (1993).

        With these requirements in mind, the Court completed a thorough examination of the expert testimony provided by both Appellants and Appellees, with a focus on the testimony of Appellants’ expert as its exclusion gave rise to the instant appeal.  Following said examination, the Court had “no difficulty concluding that the [circuit] court’s reasoning [was] factually and legally incorrect”.  Specifically, the circuit court made two incorrect conclusions, with the latter being of greater importance.

        The circuit court concluded that the “testimony relies on speculations and assumptions that are not supported by the literature or facts presented”, which was clearly erroneous in light of the records and the examination completed by the Court.  Without rehashing the entire record, the Court highlighted that it was clear that Appellants’ experts relied on: “a lot of literature”, “randomized and observation studies”, “ample precedent” and “a lot of publications”, demonstrating the incorrectness of the circuit court’s conclusion as well as its subsequent testimony exclusion.

        In closing, The Appellate Court of Maryland concluded that “Rule 5-702 and Daubert-Rochkind’s test of reliability are sufficiently flexible to allow courts, in their gatekeeping function, to recognize that the practice of medicine is complex and inherently experiential”.  Therefore, going forward, “courts may consider a medical expert’s experience because the human body is complex, double-blind studies needed for “statistical proof” may not be possible, and medical decision-making often requires reliance on experience and judgment”, giving courts ample flexibility to allow admission of expert testimony.

    - Ty Schumacher, Law Clerk