Utah SC validates expert in bead-in-the-ear lawsuit

Jessica M. Karmasek Oct. 29, 2010, 2:15pm


SALT LAKE CITY (Legal Newsline) - The Utah Supreme Court earlier this month reversed the decision of a district court that excluded expert testimony in the case of a doctor who tried to remove a bead from a 4-year-old's ear.

Lonnie Eskelson sued Dr. Jonathan Apfelbaum on behalf of his 4-year-old son, Jacob, alleging that Apfelbaum perforated Jacob's eardrum during an attempt to extract a bead lodged in his son's ear.

Eskelson appealed the district court's decision excluding his expert testimony and granting summary judgment in favor of the doctor.

The Court, in its Oct. 15 opinion, said the district court "erred" in excluding testimony from a physician, Dr. Kim Bateman.

On May 24, 2004, Jacob stuck a bead in his ear. His mother, Lavon Eskelson, first took Jacob to Wee Care Pediatrics, where a nurse practitioner attempted to remove the bead with a saline flush and soft curette.

When this failed, Jacob's mother took him to the emergency room at Davis Hospital and Medical Center where Apfelbaum unsuccessfully attempted to remove the bead with bayonet forceps and then with a soft curette.

Because Jacob was becoming agitated during the procedures, Apfelbaum requested that Lavon restrain him.

She testified in her deposition that Jacob suffered intense pain during the procedure and that there was blood on the soft curette, both of which are signs of a perforated eardrum.

The next day, an ear, nose and throat specialist examined Jacob and discovered blood in his ear, but could not observe the tympanic membrane.

Days later, the specialist put Jacob under general anesthesia and removed the bead. At that time, he observed that Jacob's eardrum had been perforated.

Jacob's father, Lonnie, who brought the suit, sought to introduce expert testimony from Bateman to establish that Apfelbaum departed from the standard of care in three ways:

-First, before Apfelbaum's final attempt to remove the bead -- at which time he allegedly perforated Jacob's eardrum -- he should have informed Jacob's mother of the potential consequences of attempted extraction;

-Second, Apfelbaum should have stopped the procedure when Jacob became agitated and difficult to control; and

-Third, by continuing to attempt to extract the bead, Apfelbaum caused Jacob unnecessary pain.

In response, Apfelbaum moved to strike Bateman's testimony on the grounds that it was purely speculative and it failed to meet the requirements of Utah Rule of Evidence 702.

Apfelbaum also moved for summary judgment arguing that if the court struck Bateman's testimony, the Eskelsons would be without the expert testimony necessary to establish medical malpractice.

After a two-and-a-half-hour hearing, the district court granted the motion to strike, finding that Bateman's testimony did not comply with the rule of evidence.

Specifically, the district court found that Bateman's testimony was not based on any scientific, technical or other scientific knowledge, that his testimony would not assist the trier of fact, and that his methods were not generally accepted by the relevant scientific community.

The district court then granted summary judgment in favor of Apfelbaum.

Justice Jill N. Parrish, who authored the Court's 11-page opinion, wrote that the lower court erred in concluding that Bateman "needed to identify a scientific methodology beyond his experience as a physician."

The Court said Bateman's testimony regarding his experience as a physician, in dealing with similar situations as Jacob's, constitutes "a threshold showing of reliability."

"Bateman's specialized knowledge was reliable, his testimony was based on facts in evidence, and he reliably applied his specialized knowledge to those facts," Parrish wrote for the Court.

The Court ruled because the lower court erred in excluding Bateman's testimony, it also erred in granting summary judgment in favor of Apfelbaum based on the lack of expert testimony

Accordingly, the Court remanded the case for proceedings consistent with its opinion.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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