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Kennedy v. Zavala11/25/2002
Plaintiffs appeal from adverse jury verdict and resulting judgment in medical malpractice case. AFFIRMED.
I. Background Facts and Proceedings.
Keane Kennedy's birth on April 27, 1997, was complicated by shoulder dystocia, a condition where the top of the baby's shoulder becomes lodged behind the mother's pubic bone as the baby descends the vaginal canal. Catherine Zavala, M.D., the attending physician, of OB- BYN Associates, P.C., delivered Keane after pulling or applying traction to Keane's head.
The Kennedys sued Dr. Zavala for medical malpractice alleging Zavala breached the applicable standard of medical care by applying excessive force or traction to Keane's head during delivery causing a brachial plexus injury affecting Keane's arm. Zavala denied the Kennedys' allegations, and the matter proceeded to trial on the merits of Kennedys' malpractice theory.
The Kennedys unsuccessfully challenged two jurors for cause citing their patient-physician relationship with OB-GYN Associates. The trial judge determined that neither were Zavala's patients and both could be fair and impartial.
At trial the Kennedys called Dr. Robert Allen, a biomechanical engineer, to testify on a number of issues relating to the force required to cause the injury Keane sustained during his delivery. On direct examination, Allen was asked:
Q: Do you have an opinion from an engineering perspective to a reasonable degree of engineering certainty as to whether you believe the expulsive forces of Kathleen Kennedy's labor played any role in the brachial plexus injury that Keane Kennedy sustained?
A: Yes, I do.
Q: What is your opinion in that regard?
MR. GERK: Your Honor, I object. Lack of foundation, lack of qualification, Rule 403. This is improper causation testimony from a witness who's not qualified by reason of his background and training.
THE COURT: The objection is sustained. He's not qualified to give medical opinions. The objection is sustained.
Although counsel continued to pursue this inquiry by expanding its foundation and repeating the question, the court sustained Zavala's subsequent objections on the same grounds. Counsel concluded this line of questioning without objection by inquiring as to the amount of force required to cause Keane's injury and reserved the right to make an offer of proof at a later time.
Allen also testified concerning the actual measure of force the Kennedys claimed Zavala applied to Keane's head during the delivery. Over Zavala's objection, Allen was allowed to demonstrate the measure of force by using a force-measuring device called a Dynamometer. The court, however, denied the Kennedys' request to include the jurors in this demonstration. The relevant record provides:
Q: Now, Dr. Allen, with the Court's permission, I would like you to at least allow the jury to get some feel for those levels of force by going through the same exercise with members of the jury if the Court will allow.
THE COURT: Will you approach the bench?
(A discussion was held off the record.)
THE COURT: Your request is denied. This is a demonstration, demonstrative evidence, and those exhibits will not go to the jury in this case, and they usually don't go to the jury in any case. Go ahead.
MR. HUMPHREY: Thank you, Your Honor.
Q: Dr. Allen, why don't you go ahead and take your seat again?
THE COURT: The objection - you did object.
MR. GERK: Yes, Your Honor.
THE COURT: The objection is sustained. Go ahead.
The Kennedys also of
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