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

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.

Reversed and remanded.