- Free Consultation: 800-604-0704
Betamethasone Daubert: Jabbi v. Adventist
The Baltimore Medical Malpractice Lawyer Blog discusses Maryland medical malpractice cases. In this post, I examine the recurring issue of Daubert challenges to plaintiff expert testimony. This case, which involves a Daubert challenge to testimony concerning the use of Betamethasone to prevent birth injuries, is of significant importance. The case is the March 5, 2025, Appellate Court of Maryland reported opinion in Jabbi v. Adventist Healthcare, Inc. et al., No. 2071.
Factual Background on Daubert Challenge to Betamethasone Testimony
The plaintiffs are parents, and also their child who was injured at birth. They then brought suit in the Circuit Court for Montgomery County. (Op. at 1). The mother was a high-risk pregnancy. She sought care from the defendants at 24 weeks for persistent abdominal and back pain. The defendants conducted certain assessments of the mother. However, they discharged her with a pain reliever. (Id. at 2-3).
The next morning, the mother went to another hospital, complaining of continued pain and vomiting. Her blood pressure was high, and she warranted medicine. She was then diagnosed with preeclampsia and acute hepatitis. (Id. at 3). The medical providers gave Betamethasone, a drug that can improve health outcomes for preterm babies, and transferred the mother to another hospital. When her liver continued to decline, the doctors decided to deliver the baby the next morning. The baby’s Apgar scores were poor, he was diagnosed with multiple medical conditions and spent five months in hospitals. The plaintiffs contend that he has cognitive impairments and delays attributed to prematurity and will require lifelong care. (Id. at 4-5).
The plaintiffs’ case hinges on the testimony of their expert witnesses, which asserts that the defendants failed to diagnose the mother with preeclampsia, treat the preeclampsia, and administer a full course of Betamethasone, which would have mitigated the injuries suffered.
The defendants filed motions in limine to preclude the testimony of the plaintiffs’ experts on causation, and specifically challenged the Betamethasone testimony under Daubert. The circuit court then granted the motions, finding that the experts did not explain how their education and experience supported their opinions and that the facts and literature did not support their opinions. The circuit court also entered summary judgment for the defendants, and the plaintiffs appealed. (Id. at 6).
Appellate Court of Maryland on Daubert Challenge to Betamethasone Expert Testimony
The plaintiffs argued that the circuit court erred by focusing on the failure of the plaintiffs to produce ACOG guidelines discussed in depositions and ignoring the 20 articles they did provide. (Id. at 10-11). The Appellate Court examined two aspects of the causation testimony: 1) Firstly, that medical care could have extended the pregnancy for an entire course of Betamethasone, and 2) secondly, that course would have mitigated the injuries. (Id. at 14).
The plaintiffs argued that had the defendants admitted the mother, she would have stabilized, and it then would have extended the pregnancy from two days to a week. The plaintiffs had three expert witnesses testify in support of these matters based on their experience and literature. However, the pregnancy only had to be extended by 12-14 hours for the mother to receive both needed doses of Betamethasone. The Appellate Court found that the plaintiffs’ experts had a sufficient factual basis for their opinions on extending the pregnancy. (Id. at 15-17).
Second Aspect
The second aspect of the challenged testimony under Daubert was whether the full Betamethasone would have mitigated the baby’s injuries. The plaintiffs’ experts testified that with the Betamethasone, the child would not have received the brain bleed and respiratory distress syndrome that relate to his disabilities. (Id. at 17). The plaintiffs’ experts specifically referenced medical literature to support their opinions. One expert provided a list of 17 studies and two textbooks. The Appellate Court reviewed the medical literature and found that it substantially supported the plaintiff’s expert opinions. (Id. at 18-21).
The Appellate Court noted that the circuit court did not hold an evidentiary hearing. It heard arguments from counsel only, based on deposition testimony. (Id. at 22).
The circuit court based its ruling on guidelines that the plaintiffs did not produce. Still, it was required to address the literature the plaintiffs did produce and “clearly” did not. Moreover, a review of the plaintiffs’ expert testimony shows that the circuit court’s conclusion that the literature and facts did not support the expert testimony was “demonstrably incorrect.” Viewing the evidence in the light most favorable to the plaintiffs, the Appellate Court concluded that the circuit court abused its discretion in ruling against the plaintiffs’ Betamethasone testimony under Daubert. (Id. at 23-24).
Guidance
The Appellate Court favorably cited the following from the 9th Circuit, and noted other Circuits agree:
We have some guidance in the cases for applying Daubert to physicians’ testimony. A trial court should admit medical expert testimony if physicians would accept it as useful and reliable. But it need not be conclusive because medical knowledge is often uncertain. The human body is complex, etiology is often uncertain, and ethical concerns often prevent double-blind studies calculated to establish statistical proof. Where the foundation is sufficient, the litigant is entitled to have the jury decide upon the experts’ credibility rather than the judge. (Id. at 25).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Daubert Challenge to Betamethasone Expert Testimony
The most disturbing aspect of the circuit court’s actions is that it “clearly” did not review the plaintiff’s literature on Betamethasone in deciding under Daubert to dismiss for all time the minor plaintiff’s claim for compensation needed for a lifetime of care. It is very telling that the Appellate Court did not simply say to the circuit court that it got the analysis wrong and to redo it. Instead, the Appellate Court analyzed the situation to fix the circuit court’s “demonstrably incorrect” conclusion.
This opinion and other recent ones reflect a more extensive problem. In the five years since the Maryland Supreme Court adopted the Daubert standard, the circuit courts still struggle significantly in applying it.
Uncertainty
There is a repeated pattern of uncertainty about what a Daubert hearing should involve. Circuit courts are holding Daubert hearings without taking evidence. Instead, the lawyers make their arguments based on depositions. However, in nearly all cases, the questioning in depositions is almost entirely conducted by the opposing party. The use of depositions does not allow a party to elicit testimony to address the specific arguments raised at the hearing. In addition, at these hearings, lawyers often make arguments based on their interpretations of medical literature, which they are not qualified to interpret. In many cases, a Daubert hearing should be an evidentiary hearing. There, the parties can put on expert medical testimony and discuss applicable medical literature through that testimony.
It is understandable why plaintiffs are not excited about this. Presenting expert testimony at a Daubert hearing is a costly proposition for plaintiffs. Most of the plaintiff’s experts are out of state. The cost of having experts travel to and participate in a Daubert hearing may be as much as having them attend the trial. However, as this case demonstrates, the alternative is also expensive and time-consuming – an appeal to correct matters that takes longer than a year.
More and more defendants are gravitating toward these Daubert challenges, like this one involving Betamethasone. The hearings will continue to increase the cost of bringing medical malpractice cases for plaintiffs. However, putting on the proper evidentiary case in the circuit court will be key to advancing the case and surviving any appeal.
Related Posts
For other Blog discussions on Maryland Daubert cases, see the posts in the Expert Testimony category, including R.B. v. Hinting, Kiebler v. Johns Hopkins 1, Monroe v. UMMC 3, and Asokere v. Waldrop.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.