Date: 02-01-2017

Case Style: Lydia Patricia Bergstrom v. Associates for Women's Health of Southern Oregon, LLC

Case Number: A158700

Judge: Shorr

Court: Oregon Court of Appeals on appeal from the Circuit Court, Jackson County

Plaintiff's Attorney: Helen Tompkins

Defendant's Attorney: Michael T. Stone

Description: Plaintiff appeals a general judgment in favor of
defendant. Plaintiff, Lydia Bergstrom, is the mother of a
minor son, Garin, and she filed this lawsuit as a conservator
on his behalf.1 Defendant Associates for Women’s Health of
Southern Oregon, LLC, is an obstetrics clinic that provided
plaintiff with prenatal care and assisted with the delivery of
Garin. Plaintiff sued defendant for the injuries that Garin
sustained during the birthing process.2 Among other things,
plaintiff alleged that defendant was negligent in performing
a vaginal delivery for Garin when defendant “knew or
should have known that [plaintiff] was at a significant risk
of having a macrosomic baby with associated risk of shoulder
dystocia.” At trial, the jury returned a verdict for defendant.
On appeal, plaintiff assigns error to the trial court’s decision
to exclude plaintiff’s expert testimony. The trial court
concluded that the testimony was outside the scope of the
pleadings and, therefore, irrelevant and unfair to defendant
because the pleadings failed to give defendant proper notice
of the proffered testimony. Plaintiff’s expert would have
testified that defendant’s ultrasounds of the fetus in utero
were of poor quality, that the ultrasounds were improperly
analyzed, and, as a result, that the fetus was incorrectly
measured, all of which fell below the appropriate standard
of care. Plaintiff asserts that the proffered expert testimony
was squarely within the pleadings and relevant, and accordingly,
we should reverse and remand for a new trial. For the
reasons that follow, we agree with plaintiff and reverse and
remand.
The pertinent facts are procedural and undisputed.
Plaintiff was a patient receiving prenatal care from
Dr. Carbonell, a member and agent of defendant. Carbonell
also delivered plaintiff’s son, Garin. At birth, Garin was
1 Plaintiff is “LYDIA PATRICIA BERGSTROM, as Conservator for GARIN
CONRAD BERGSTROM, a minor.” (Capitalization in original.) For ease of reference,
however, we use “plaintiff” to refer solely to the mother Lydia Bergstrom
and “Garin” to refer to her son Garin Bergstrom.
2 Plaintiff also sued Asante, dba Asante Health System, aka Rogue Valley
Medical Center—the business entity that operated the hospital where the delivery
occurred. However, plaintiff’s claims against Asante are not subject to this
appeal.
604 Bergstrom v. Assoc. for Women’s Health of So. Ore.
macrosomic—or very large. His size led to complications
during delivery, including shoulder dystocia—a condition
where, during delivery, his shoulder was caught on plaintiff’s
pelvis. Plaintiff alleged that the shoulder dystocia caused
Garin to have a brachial plexus injury and Erb’s Palsy in
his right arm. Plaintiff sued defendant for those injuries. In
paragraph 6 of the complaint, plaintiff alleged:
“[D]efendant Associates * * * was negligent in [plaintiff’s]
prenatal care and in her labor and delivery of Garin
Bergstrom in one or more of the following ways:
“a. In performing vaginal delivery for Garin Bergstrom
when defendants Carbonell and Associates knew or should
have known that [plaintiff] was at significant risk of having
a macrosomic baby with associated risk of shoulder
dystocia.
“b. In failing to give [plaintiff] any or adequate
informed consent that by her obstetrical history she was
at significant risk for a macrosomic baby and associated
shoulder dystocia.
“c. In failing to advise and recommend to [plaintiff]
that in light of her obstetric history she should have a
planned Caesarean Section for delivery of Garin Bergstrom.
“d. In delivering Garin Bergstrom with a vacuum
extractor in the face of apparent failure of the baby to
descend.”
(Emphasis added.) Before trial, defendant never filed an
ORCP 21 D motion to make plaintiff’s pleading more definite
and certain.
At trial, witnesses for both parties discussed the
importance of ultrasounds as one tool, among others, for
measuring fetal weight and predicting whether a baby will
be macrosomic. Plaintiff elicited that testimony from two
expert witnesses, while defendant elicited testimony regarding
the importance of ultrasounds from both of its expert
witnesses and Carbonell.
Plaintiff also proffered testimony from an expert
witness, Dr. Rice, who, during an offer of proof, testified that
Carbonell both failed to obtain the appropriate ultrasound
Cite as 283 Or App 601 (2017) 605
images to accurately measure abdominal circumference,
biparietal diameter and head circumference, and poorly
measured the ultrasound images that he did have. For
example, Rice testified that, when he used Carbonell’s ultrasounds
to measure the fetus’s biparietal diameter, he found
that the fetus was in the ninety-third percentile for his gestational
age when the ultrasound was taken, rather than
the sixty-fourth percentile relied upon by defendant. Rice
further testified that Carbonell’s failure to obtain accurate
ultrasounds and accurately interpret the ultrasounds that
he did obtain fell below the standard of care. The trial court
excluded Rice’s testimony as irrelevant, reasoning, “I do
think [Rice’s testimony] is outside the scope of the pleadings.”
Following plaintiff’s case-in-chief, plaintiff once
again attempted to admit Rice’s testimony, noting that the
complaint alleged that defendant was negligent “in performing
vaginal delivery for Garin Bergstrom when * * *
Defendant Associates should have known that [plaintiff]
was at significant risk of having a macrosomic baby and
associated risk of shoulder dystocia.” Plaintiff argued that
“[t]he ultrasounds that were performed [were] diagnostic in
nature, and although they have multiple diagnostic goals,
one of them is to identify estimated fetal weight which is
a major risk factor [at] play in the facts of this case.” As
a result, plaintiff contended that Rice’s testimony was relevant
to prove subparagraph 6(a) of the complaint.
In response, the court noted that its “decision process
was based upon the fact [that] although the specification
of negligence is broad with the ‘knew or should have
known’ ” element, the allegation in subparagraph 6(a) was
tied to the allegations in subparagraphs 6(b) and 6(c) that
discuss obstetrical history. Thus, the court reasoned that
any allegations that the ultrasounds were negligently performed
were irrelevant. The court further explained, “The
reason why I made that decision about the ultrasounds is
I do believe that would impair [defendant’s] right to a fair
trial, because [defendant] just simply [did] not have notice
of that issue and there’s no opportunity to have an expert to
come in and testify on the other side of that about what the
ultrasounds mean.”
606 Bergstrom v. Assoc. for Women’s Health of So. Ore.
At the conclusion of the trial, the jury returned a
verdict for defendant. The trial court entered judgment for
defendant, and plaintiff appealed. On appeal, plaintiff, reasserting
the arguments made in the trial court, assigns error
to the trial court’s decision to exclude Rice’s proffered testimony
as outside the pleadings and, thus, according to the
trial court, irrelevant and unfair to defendant because the
pleadings failed to provide defendant with proper notice of
that evidence.3 In response, defendant argues that the trial
court’s decision was correct because the complaint did not
contain a specific allegation “that any ultrasounds were negligently
performed or interpreted by defendant,” and that
the allegation in subparagraph 6(a), though broad, must be
read with subparagraphs 6(b) and 6(c), effectively narrowing
subparagraph 6(a)’s allegation of negligence to exclude
Rice’s testimony. Defendant argues further that, even if
Rice’s testimony was relevant, the trial court correctly
excluded it as unduly prejudicial under OEC 403. For the
reasons stated below, we agree with plaintiff. Further, we
find that the trial court’s error substantially affected plaintiff’s
rights. Accordingly, we reverse and remand.
We review determinations of relevance for legal
error. Warren v. Imperia, 252 Or App 272, 279, 287 P3d 1128
(2012). “[I]f evidence logically is relevant, a trial court has
no discretion to label it as irrelevant.” State v. Titus, 328
Or 475, 481, 982 P2d 1133 (1999). Evidence is relevant if
it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
OEC 401. Relevant evidence is admissible absent an
exception “provided by the Oregon Evidence Code, by the
Constitutions of the United States and Oregon, or by Oregon
statutory and decisional law.” OEC 402. Relevance “depends
upon the allegations at issue in a particular case.” Warren,
252 Or App at 279. Thus, “there must be some rational relationship
between the item of evidence offered by a litigant
3 Plaintiff also asserts the new argument that Rice’s testimony was admissible
because defendant “opened the door” for the testimony in both its opening
statement and through Carbonell’s testimony. Because we conclude that Rice’s
testimony was within the scope of the pleadings and relevant, we need not reach
that argument.
Cite as 283 Or App 601 (2017) 607
and the substantive issues properly provable in the case.” Id.
(quoting State v. Curtiss, 193 Or App 348, 351, 89 P3d 1262,
rev den, 337 Or 282 (2004) (internal quotation marks and
brackets omitted)). Within that boundary, OEC 401 establishes
a “very low” threshold. Masood v. Safeco Ins. Co. of
Oregon, 275 Or App 315, 352, 365 P3d 540 (2015), rev den,
359 Or 525 (2016). “[I]f evidence even slightly increases or
decreases the probability of the existence of a fact of consequence,
then it is relevant.” Wingett v. Silbernagel, 279 Or
App 245, 253, 379 P3d 570 (2016).
Here, Rice’s proffered expert testimony is relevant
to allegations at issue in this case. As was noted above, in
her complaint, plaintiff alleged:
“[D]efendant * * * was negligent in [plaintiff’s] prenatal
care and in her labor and delivery of Garin Bergstrom in
one or more of the following ways:
“a. In performing vaginal delivery for Garin Bergstrom
when defendants Carbonell and Associates knew or should
have known that [plaintiff] was at significant risk of having
a macrosomic baby with associated risk of shoulder
dystocia.”
(Emphasis added.) Both plaintiff and defendant presented
witnesses, including Carbonell, who testified that ultrasounds
are an important tool for doctors when determining
if a baby is at risk of being macrosomic. Testimony regarding
defendant’s failure to obtain the correct ultrasound
images necessary to accurately measure the size of the fetus
or properly measure the images taken supports the proposition
that defendant “should have known that [plaintiff]
was at significant risk of having a macrosomic baby.” Thus,
Rice’s excluded testimony is relevant, and the trial court
erred in excluding it.
Defendant asserts that the trial court’s ruling was
correct because “there is no allegation in the complaint that
any ultrasounds were negligently performed or interpreted
by defendant.” That argument is unconvincing. As we discussed
above, plaintiff’s allegation of negligence in subparagraph
6(a) is sufficiently broad to make Rice’s testimony
regarding the allegedly negligently performed and interpreted
ultrasounds relevant. Though plaintiff’s allegation
608 Bergstrom v. Assoc. for Women’s Health of So. Ore.
may have been susceptible to a motion under ORCP 21 D
to make the allegation more definite and certain, defendant
did not file such a motion in this case and, thus, that issue
is not before us. See Dundas v. Lincoln County, 48 Or App
1025, 1031, 618 P2d 978 (1980) (“We conclude that plaintiff’s
allegation that defendant ‘failed to take reasonable measures
to provide adequate fire fighting equipment’ is broad
enough, in the absence of a motion to make more definite
and certain, to include the nondiscretionary failure to maintain
existing fire extinguishers.”).
Defendant’s argument that the trial court correctly
ruled that subparagraph 6(a) is connected with subparagraphs
6(b) and 6(c) is similarly unconvincing. Defendant’s
argument is contradicted by the text of the complaint.
Plaintiff’s complaint states that “defendant * * * was negligent
in [plaintiff’s] prenatal care and in her labor and delivery
of Garin Bergstrom in one or more of the following ways.”
(Emphasis added.) The phrase “one or more of the following
ways” implies that each of the allegations in the subparagraphs
that follow can be independent of one another.
Additionally, each allegation is separately stated, and none
expresses dependence on another. If we were to conclude
that subparagraph 6(a) was dependent on subparagraphs
6(b) and 6(c), we would be imputing meaning into subparagraph
6(a) that does not exist.
Defendant argues further that the trial court also
excluded Rice’s testimony as unfairly prejudicial under OEC
403 because, in explaining its relevancy ruling, the court
stated, “The reason why I made that decision about the
ultrasounds is * * * because [defendant] just simply [did]
not have notice of that issue * * *.” The Supreme Court has
recognized that trial courts may consider “unfair surprise”
as a factor when balancing probative value versus prejudice
under OEC 403. Carter v. Moberly, 263 Or 193, 200, 501 P2d
1276 (1972). However, here, the trial court did not consider
“unfair surprise” or “unfair prejudice” as part of a balancing
exercise under OEC 403 that weighed the probative
value of the relevant evidence against the unfair prejudice
of that evidence. On this record, the trial court’s statement
regarding whether defendant had notice of the ultrasound
issue was just another way of saying that the evidence was
Cite as 283 Or App 601 (2017) 609
irrelevant because it was “outside the scope of the pleadings.”
Consequently, we reject defendant’s OEC 403 argument
because it does not address the trial court’s reasoning
in excluding plaintiff’s proffered testimony.
Having concluded that the trial court erred in
excluding Rice’s testimony, we must next consider whether
that error requires reversal. An evidentiary error is reversible
only if it “substantially affects a party’s rights.” Dew v.
Bay Area Health District, 248 Or App 244, 256, 278 P3d 20
(2012). An evidentiary error “substantially affect[s] a party’s
rights” where it “has some likelihood of affecting the jury’s
verdict.” Id. at 258. Rice’s testimony presents such a likelihood.
As previously discussed, experts from both parties
opined at trial that ultrasounds are important in estimating
fetal weight and predicting whether a baby will be macrosomic.
Whether or not defendant, through Carbonell, was
negligent in performing or interpreting the ultrasounds in
question speaks directly to plaintiff’s theory that defendant
“should have known that [plaintiff] was at significant risk of
having a macrosomic baby with associated risk of shoulder
dystocia.” Thus, Rice’s testimony “ha[d] some likelihood of
affecting the jury’s verdict,” and, as a result, the trial court’s
error in excluding the testimony “substantially affect[ed]”
plaintiff’s rights. Consequently, we reverse and remand for
further proceedings.

Outcome: Reversed and remanded.

Plaintiff's Experts:

Defendant's Experts:

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