Pediatrics Expert Witness’ Opinion on Forceps-Assisted Vaginal Delivery Excluded

Posted on November 21, 2024 by Expert Witness Profiler

The present case involved a medical malpractice claim filed by Plaintiffs Tyler Grenier and Jenna Grenier, individually, and as the next friend of minor J.A.G., against the Defendant United States of America (“Defendant”). The Plaintiffs alleged medical negligence at Tripler Army Medical Center (“Tripler”) concerning prenatal care and labor provided to Plaintiff Jenna Grenier (“Jenna”) and the delivery of J.A.G. The claims included severe physical injuries sustained by Jenna and J.A.G., negligent infliction of emotional distress on Tyler and Jenna, loss of filial consortium, and Tyler’s loss of spousal consortium.

In the current motion, the Defendant sought to strike the expert testimony of Ofer Levy, a pediatrics expert witness presented by the Plaintiffs. Defendant argued that Levy’s expert report was filed after the expert report deadline, as a rebuttal report, and that he had not been previously disclosed as an expert.

The Plaintiffs filed their opposition on August 13, 2024, asserting that Levy’s report was timely because the rebuttal disclosure deadline had been extended to June 10, 2024, the same day his report was disclosed.

Defendant replied on August 20, 2024, contending that Ofer Levy’s expert report is not a rebuttal report because it did not respond to any new information and it is an entirely new expert witness with new opinions that should have been disclosed by the expert witness disclosure deadline of March 11, 2024.

Pediatrics Expert Witness

Ofer Levy is principal investigator, staff physician and the Director of the Precision Vaccines Program at Boston Children’s Hospital, Professor of Pediatrics at Harvard Medical School, and Associate Member of the Broad Institute of MIT and Harvard.

After graduating from the Bronx High School of Science and then Yale College (B.S., Molecular Biophysics & Biochemistry), Levy received his MD and PhD degrees from New York University.

Want to know more about the challenges Ofer Levy has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Dispute Over the Nature of Ofer Levy’s Report

The parties agreed that Ofer Levy’s report was filed within the deadline for rebuttal expert reports. However, they disagreed on whether the report qualified as a rebuttal or an initial expert report. The Court determined that the report was an initial expert report, not a proper rebuttal.

Ofer Levy’s opinion stated that the forceps-assisted vaginal delivery caused the minor Plaintiff’s injuries and that a cesarean section should have been performed instead. He further opined that the perinatal injuries would have been avoided with a cesarean section. This opinion mirrored that of Plaintiffs’ obstetrics and gynecology expert witness, Adam V. Levy, who had similarly concluded that a cesarean delivery would have prevented the injuries.

The Court found that Ofer Levy’s report went beyond providing a rebuttal. Instead, it sought to reinforce the opinions already expressed by Adam V. Levy. This was impermissible, as it did not respond to new evidence but rather bolstered the original expert report. The Court referenced Parenti v. Cnty. of Monterey, where a purported rebuttal was excluded because it merely reinforced the original expert’s opinions.

Violation of Federal Rule of Civil Procedure 37(c)(1)

Under Federal Rule of Civil Procedure 37(c)(1), if a party fails to disclose expert testimony as required, the Court may exclude the testimony unless the failure is substantially justified or harmless. The Court ruled that Ofer Levy’s failure to disclose his expert status and report by the deadline was neither justified nor harmless. Consequently, the Court determined that the appropriate sanction was to strike Levy’s expert testimony and report.

Factors for Exclusion Sanction

To decide whether exclusion was appropriate, the Court considered several factors:

The public’s interest in the swift resolution of litigation.
The Court’s need to manage its docket efficiently.
The risk of prejudice to the Defendant.
The public policy favoring the resolution of cases on their merits.
The availability of less severe sanctions.

The Court found that the first three factors supported exclusion. The untimely disclosure would cause delays, which weighed against the Plaintiffs. The fourth factor was neutral, as striking Levy’s report would not dispose of the case. Finally, the fifth factor supported exclusion because the Plaintiffs could still proceed with their claims and trial without Levy’s testimony. Therefore, the Court decided to strike Levy’s expert report and testimony.

Held:

The Court, in light of the aforementioned discussion, granted Defendant’s motion to strike Plaintiff’s pediatrics expert witness Ofer Levy’s expert report and testimony.

Key Takeaway:

The Court struck the expert testimony of Ofer Levy because his report, filed after the expert deadline, was deemed an initial expert report rather than a rebuttal. The Court found that Levy’s testimony merely reinforced the opinions of another expert, Adam V. Levy, instead of responding to new evidence. Since Levy’s untimely disclosure was neither substantially justified nor harmless, the Court ruled that his report and testimony should be excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1).

Please refer to the blogs previously published about this case:

Case Details:

Case caption:	Grenier Et Al V. United States Of America
Docket Number:	1:22cv396
Court:	United States District Court for the District of Hawaii
Dated:	November 17, 2024