The dispute in this matter stems from the prenatal care provided in January 2021 to Brittany S. Gobble by David P. Russell, M.D. at Bristol Gynecology and Obstetrics, P.C. (“BGO”) and Haley L. Akin, M.D. The Plaintiffs accused Haley Akin, M.D. of failing to make a diagnosis of severe pre-eclampsia during the hospitalization of January 16-17, 2021, insisting that Gobble should have been kept in the hospital. In other words, Defendants failed to properly diagnose and treat Gobble for severe preeclampsia which developed during her pregnancy and resulted in injuries to her minor child.
David Russell, M.D. saw Gobble in the office on January 18, 2021, the day following discharge from the hospital. Russell is accused of failing to send Gobble to the hospital that day.
Preeclampsia is described as “a disorder of pregnancy associated with new-onset hypertension” and “often accompanied by new-onset proteinuria.”
Both Plaintiffs and Defendants have now disclosed multiple expert witnesses who they intend to call at trial to address the claims that Plaintiffs have asserted against Defendants. One of these experts who has been disclosed by Plaintiffs is Jack Ayoub, M.D. (“Dr. Ayoub”), whose testimony Defendants sought prohibit.
Plaintiffs retained Ayoub to opine as to the standard of care for the diagnosis and treatment of patients with preeclampsia and preeclampsia with severe features.
Obstetrics and Gynecology Expert Witness
Jack Ayoub is board certified in obstetrics and gynecology, completed an obstetrics and gynecology residency training program at The George Washington University Medical Center in Washington, D.C., and has long been affiliated with both the American College of Obstetricians and Gynecologist and the American Board of Obstetrics and Gynecology. Ayoub founded Virginia Obstetrics & Gynecology, P.C. in July 2009 and currently serves as the CEO of that practice, while also having a surgery affiliation with Stone Springs Hospital Center in Dulles, Virginia.
Ayoub has delivered between 4,000 and 5,000 babies and in the process has routinely managed patients with and without prenatal issues, including diabetes, preeclampsia, and preeclampsia with severe features, among other conditions. While Ayoub presently delivers 5 to 8 babies a month, in the past he has delivered between 25 and 30 a month.
Discussion by the Court
Ayoub’s testimony should be excluded because he is not an expert on preeclampsia
Defendants specifically advised that Ayoub is a sole practitioner who practices in the areas of ‘minimally invasive gynecologic procedures, including laparoscopy, heavy menstrual bleeding, fibroids, myomectomy, pelvic pain and endometriosis.”
Defendants noted that Ayoub has not published, written an abstract, or conducted bench research on preeclampsia or preeclampsia with severe features nor on hypertension in pregnancy. They further claimed that Ayoub testified that every person who completes a residency in obstetrics and gynecology is an expert on these topics. Finally, they noted that Ayoub’s lack of qualifications are demonstrated by the fact that he did not know the definition of a term pregnancy.
Ayoub has a long history of serving as a board-certified physician practicing in the field of obstetrics and gynecology. He has delivered numerous children and has been responsible for the care of the mothers who bore those children and has testified that in providing prenatal care he has frequently treated patients with diabetes and preeclampsia both with and without severe features. While Defendants assert that Ayoub spends most of his time handling gynecological matters at this juncture rather than practicing in the field of obstetrics, the question is whether Ayoub was qualified under Rule 702 at the time Gobble was treated by Defendants to opine as to the standard of care for the diagnosis and treatment of preeclampsia and preeclampsia with severe features. Given Ayoub’s education, training and experience, the Court finds that he possesses the qualifications necessary to offer expert testimony on these issues.
Ayoub’s opinions are unreliable and unhelpful as an initial matter because Ayoub provided an incorrect definition of a “term” pregnancy under ACOG guidelines
Defendants contended that Ayoub was wrong regarding the definition of a term pregnancy in opining as to when the minor child should have been delivered in accordance with the applicable standard of care. However, in reviewing Ayoub’s testimony it appeared that he is familiar with the ACOG standards addressing when a child should be delivered. In the Court’s reading of Ayoub’s testimony, he appeared to agree that it is generally preferable for delivery to wait until thirty-seven weeks in cases where a patient is experiencing preeclampsia.
Defendants argued that Ayoub’s opinions are unreliable because he has opined that the headache Gobble was experiencing while hospitalized supported a diagnosis of preeclampsia with severe features. They claimed that the idea that a headache is supportive of this diagnosis has been “generally rejected.”
Defendants pointed out that Ayoub opined that the fetal heart monitor tracing from that date fell into Category I, the best category under the ACOG classification system.
The Court held that Ayoub’s opinions simply diverge from those of Defendants and their experts. Plaintiffs have demonstrated that Ayoub’s opinions regarding when Gobble should have been delivered have a factual basis and are supported by applicable ACOG guidelines, just like the opinions of Defendants and their expert witnesses have a factual basis and are supported by applicable ACOG guidelines. In short, it comes down to which version of the facts should be accepted, which is a decision solely for a jury and not the Court. Resolving factual disputes is beyond the role of the Court as a gatekeeper.
Ayoub’s opinions should be excluded because he failed to consider Gobble’s comparative fault and was unfamiliar with the impact of maternal smoking on an unborn child
Defendants further attacked the opinions offered by Ayoub because Gobble smoked during her pregnancy, and he is not familiar with the toxins contained in cigarette smoke or whether those toxins pass the placenta. They further claimed that Ayoub did not properly consider Gobble’s comparative fault in causing her minor child’s injuries, i.e., her smoking and her failure to report to the hospital sooner on January 20, 2021, despite not feeling her baby move for several hours.
Defendants asserted that Gobble was given verbal and written instructions regarding counting her baby kicks when discharged from the hospital. On the other hand, Gobble had testified that Russell advised her that the baby’s movement would slow significantly as she got closer to her due date. Plaintiffs note that Ayoub has opined that Gobble should have been delivered while initially hospitalized and if she had been, there would be no issue regarding whether she appropriately monitored fetal movement. The Court found that once again, the issue here is not one of whether Ayoub’s opinions have a proper basis but instead of significant factual disputes, which are the province of the jury.
Held
The Court denied the Defendant’s motion to exclude the testimony of Jack Ayoub, M.D.
Key Takeaways:
- Fed. R. Evid. 702 specifically provides that an expert may be qualified to testify by their “knowledge, skill, experience, training or education.” While it may certainly be a feather in an expert’s cap to have published or conducted research in the field in which they are offering expert opinions, nothing in Rule 702 requires it.
- Significant factual differences between what Plaintiffs state that Gobble was told about fetal monitoring and what Defendants contended that she had been told are the province of the jury. When it comes down to which version of the facts should be accepted, it is a decision solely for a jury and not the Court. Resolving factual disputes is beyond the role of the Court as a gatekeeper.
Case Details:
| Case Caption: | Gobble Et Al V. Bristol Gynecology And Obstetrics, P.C. Et Al |
| Docket Number: | 2:22cv51 |
| Court: | United States District Court, Tennessee Eastern |
| Order Date: | September 20, 2024 |
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