Popular Birth-Injury Expert Proved Unreliable by Sommers Schwartz.

SOUTHFIELD, Mich. -- A Michigan court has thrown out the testimony of a popular medical expert, ruling it did not meet the minimum requirements for reliable science after a two-day evidentiary hearing with a team of national medical experts assembled by Southfield law firm Sommers Schwartz.

Van Buren Circuit Court Judge William C. Buhl ruled in late January that expert testimony by Dr. Gerard Nuovo, an Ohio State University pathologist, was inadmissible because it is not scientifically reliable according to Michigan legal criteria.

Judge Buhl's decision to prohibit Nuovo from testifying is significant because the pathologist has been consulted as a defense witness in many birth-injury cases across the United States and at least a dozen in Michigan. Only a West Virginia court has stricken his controversial opinions, but this was reversed on appeal.

Nuovo claims to be able to test archived placental-tissue slides years after birth and detect infections no one else found at the time or since. He commonly testifies that the cause of a baby's brain injury is prenatal infection, not a lack of oxygen at birth, as in this Michigan case. During the last two years, prenatal infection has become one of the favorite causes cited when defending against birth-injury claims.

Nuovo admitted under oath that no other pathologist in the world uses his method to determine the cause of a child's brain damage. When pressed to defend his claim that pathologists used the test method worldwide, Nuovo cited one Brazilian laboratory.

The prestigious group of medical experts assembled by Sommers Schwartz submitted affidavits or testified through a teleconference link and included: Nobel Prize winner Dr. Kary Mullis, the editor of the journal Human Pathology, a former president of the Association of Molecular Pathology, the head of a neurovirology institute, a founder of the International Association of Placental Federations, the director of the national committee that reviews and certifies laboratories for the College of American Pathology, and some of the world's leading scholars on the Coxsackie virus Nuovo claimed to have found.

These experts testified that Nuovo's novel methodology was not accepted in the scientific community and was based upon an unproven theory. They rejected Nuovo's method of identifying the cause of a child's brain injury solely on what Nuovo claimed were remnants of viral RNA in archived tissue.

Judge Buhl based his decision on the criteria established by the Michigan Legislature according to the United States Supreme Court opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which has established the standards for an increasingly vigorous review of the admissibility of expert testimony. To accomplish this goal, greater emphasis has been placed on the role of the trial court as "gatekeeper," to assure that only reliable expert testimony be admitted into evidence. Buhl ruled that Nuovo's testimony failed to meet standards of Michigan law.

The Sommers Schwartz birth trauma medical malpractice team was led by Norman Tucker, who has more than 30 years' experience in medical malpractice and birth-injury litigation. Tucker co-authored the two definitive reference books on litigating birth-trauma cases. Anne Schoepfle is a registered nurse with 15 years of personal injury trial experience. Lee Tilson, with 22 years' experience, has researched Nuovo's methodology for four years and deposed him six times. Tilson founded the Birth Trauma Litigation Group of the Association of Trial Lawyers of America.

Southfield-based Sommers Schwartz is the largest plaintiff litigation law firm in Michigan and the Midwest. For more information visit www.s4online.com.

Editors: A legal background paper is available.