Appellants Fatou Jabbi and Lamin Kanteh, Individually and as Parents and Next Friends of their child T.R., sued defendants/appellees Adventist Healthcare, Inc., Tamara Pottillo, and Lisa Godette for injuries suffered by T.R. related to Ms. Jabbi’s 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. The experts based their opinions on scientific literature that supported their conclusions.
The defendants/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. Appellants appealed.
Maryland Rule 5-702
The Appellate Court of Maryland stated in its Opinion filed on March 5, 2025 that under Maryland Rule 5-702, “[e]xpert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” To admit such evidence, the trial court must determine three things: 1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, 2) the appropriateness of the expert testimony on the particular subject, and 3) whether a sufficient factual basis exists to support the expert testimony.
The third ‘sufficient factual basis’ prong includes two sub-factors. First, the expert must have available an adequate supply of data. Second, the expert must use a reliable methodology in analyzing that data. Where these factors are not satisfied, an expert opinion is “mere speculation or conjecture.”
Daubert
In conjunction with the application of Md. Rule 5-702, expert testimony must also be analyzed through the lens of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Rochkind v. Stevenson, 471 Md. 1 (2020). In Daubert, the United States Supreme Court set forth five factors to determine the admissibility of expert witness testimony: 1) whether the theory or technique employed by the expert is generally accepted in the scientific community; 2) whether it has been subjected to peer review and publication; 3) whether it can be and has been tested; 4) whether it has a known error rate; and 5) whether the research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony. The Daubert standard is a flexible one, focused on the scientific validity and, therefore, evidentiary relevance and reliability of the proposed testimony. The United States Supreme Court stated that the Daubert factors should not be treated as “a definitive checklist or test.”
In Rochland, the Maryland Supreme Court endorsed five additional factors identified in the Advisory Committee Note to Federal Rule of Evidence 702. Those factors are: 1) whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have
developed their opinions expressly for the purposes of testifying; 2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; 3) whether the expert has adequately accounted for obvious alternative explanations; 4) whether the expert is being as careful as he [or she] would be in his [or her] regular
professional work outside his [or her] paid litigation consulting; and 5) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. The Maryland Supreme Court clarified that while all factors are relevant to determining the reliability of expert testimony, no single factor is dispositive in the analysis: “A trial court may apply some, all, or none of the factors depending on the particular expert testimony at issue.” The Maryland Supreme Court explained that nothing in either Daubert or the Federal Rules of Evidence requires a trial court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert: a court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. In sum, Daubert requires that the expert testimony “both rests on a reliable foundation and is relevant to the task at hand.”
In the Maryland birth injury medical malpractice case it was deciding, the Appellate Court of Maryland stated: “Appellants maintain that if Ms. Jabbi had been given the first dose of the steroid on the evening of January 16, 2018, and her pregnancy safely managed for at least forty-eight hours, she would have been able to receive the second dose of Betamethasone twenty-four hours later, on the evening of January 17, 2018, and that T.R. could then be delivered on the evening of January 18 with a full course of the steroid. Because T.R. was born on January 18 at 5:52 a.m., appellants claim that delivery only needed to be extended approximately twelve to fourteen hours to allow for a full course of Betamethasone. As noted, appellants’ experts agree that achieving this “steroid window” was possible and we see nothing in the record to contradict their opinions that the pregnancy could have been extended a minimum of an additional two days. We therefore conclude that appellants’ experts articulated a sufficient factual basis for their opinions regarding the probability of extending Ms. Jabbi’s pregnancy.”
“Based on the evidence in this record, and viewing all inferences from the evidence in a light most favorable to appellants, the court’s conclusion that the experts’ testimony relied “on speculations and assumptions that are not supported by the literature or the facts presented” is demonstrably incorrect … Dr. Zinkhan, relying in part on “the Briceno-Perez paper,” unequivocally opined that a complete steroid course would have reduced T.R.’s complications, including a decreased risk of IVH and improved lung function. Dr. Zinkhan further provided a bibliography of seventeen studies and two textbooks to support her opinions. Our review of Dr. Zinkhan’s resource materials, viewed in a light most favorable to appellants, confirms the sufficiency of the basis for her opinions. In addition, Dr. Cardwell cited a 1994 National Institutes of Health study to support his opinion on the effectiveness of a full course of the steroid, and Dr. McDowell stated that medical literature indicated a significant reduction in the “incidence and severity of respiratory distress” as well as “intraventricular hemorrhage.” Again, viewing this evidence in a light most favorable to appellants, the court abused its discretion in perfunctorily concluding that the appellants’ experts’ testimony was speculative and “not supported by the literature or the facts presented.””
The Appellate Court of Maryland concluded: “In our view, 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. We conclude that the appellants’ experts provided a sufficient factual basis to opine that Ms. Jabbi’s pregnancy could have been extended to allow for the administration of a complete course of Betamethasone, which in turn would have likely mitigated T.R.’s injuries. We therefore conclude that the circuit court abused its discretion in precluding appellants’ causation experts and erred in granting summary judgment in favor of appellees. Accordingly, we reverse the judgment and remand this case to the circuit court for further proceedings.”
Source Fatou Jabbi, et al. v. Adventist Healthcare, Inc., et al., No. 2071, September Term 2023.
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