Day on Torts
Kenneth Levine of Kenneth Levine and Associates of Brookline, Massachusetts has filed a fascinating lawsuit against the authors of an article on brachial plexus injuries and the publication that printed the article.
Levine alleges that the article, "Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia ", was published in 2008 in the American Journal of Obstetrics and Gynecology, and is being used by defense experts to defeat brachial plexus injury claims. The article claims to report the "first unambiguous case of a baby born vaginally without physician traction, and even without the occurrence of shoulder dystocia, that resulted in a permanent brachial plexus injury."
He further alleges that the case report of the delivery contains false information and the individual defendants knew the data was false when it was published. The Complaint states that the corporate defendants were later made aware of the falsities and have refused to retract the article.
On what basis does Mr. Levine allege that the data was false? A medical malpractice claim arose out of the original delivery and the defendant doctor (a co-author) is said to have admitted in her deposition in that case that she had in fact used downward traction in delivering the trial. In addition, the labor and delivery notes indicate the presence of shoulder dsytocia.
The other co-author of the case report was Dr. Henry Lerner. He is alleged to have later admitted (during expert testimony in a different case in Illinois) to not reading the labor and delivery notes in the case before co-authoring the case report.
Mr. Levine has indicated that Dr. Lerner has filed an Answer to the Complaint and that a motion to dismiss is being filed by the magazine publisher.
As I said above, this is a fascinating case and an aggressive strategy to defeat what has the risk of being labeled as "science." The problem, of course, is that one case report will, sooner or later, get picked up by some other author and over time walls against liability are built that are difficult to overcome. Even legitimate experts – on either side – who are unaware of the truth behind an article will be forced to admit (or rely upon) this type of literature to support their position. Mr. Levine, who has a nationwide practice in such cases, is bound and determined to stop what he believes to be junk science from interfering with the quest to find truth in the courtrooms in brachial plexus cases.
The case is Gorbey v. American Journal of Obstetrics & Gynecology, No. 1:11-CV- 11259-NMG. It is pending in the U. S. District Court for the District of Massachusetts.
If the remedy is available, I suggest that Mr. Levine explore the possibility of getting an injunction against the authors from using this case report to support their testimony. Such a court order then could also be used in cross-examination of other experts who attempt to rely on the article. ("Were you aware, Doctor, that a federal court has ordered that the authors of that article cannot use the article as a basis for expert testimony because it was determined to have been false?")
The case against the publishers reminds me of the case based on the Good Housekeeping Seal of Approval, where the plaintiff claimed that she relied on the Seal of Approval in buying a product she claimed to be defective. The California Court of Appeals ruled that while a publisher or advertiser of a product cannot usually be held liable for its defects, if it gives a consumer guaranty which induces members of the public to buy its products, it will generally be held to the terms of that guaranty, because it has extended a duty to the public by making said guaranty." The case is Hanberry v. Hearst Corp., 276 Cal. App. 680 ( Cal. App. 1969). My memory is that similar claims have been made against Underwriter’s Laboratory (the "UL" seal).
What is the similarity? The Ob-GYN Journal is a very respected publication – one that is readily accepted as a leader in its field. While arguably it cannot be expected to delve into the facts behind every case report, should it have a responsibility to correct the record when sworn testimony indicates, as alleged here, that a case report is wrong? Doesn’t the failure to do so induce doctors serving as expert witnesses to rely on the case report, thus impacting the result in what might otherwise be meritorious cases? True, Hanberry is not directly on point, but I have seen worse arguments for the extension of existing law.
I will keep you advised as this case develops.