Justices affirm judgment in ‘Baby Olivia’ lawsuit, find trial court did not err in deeming expert as qualified

By David Yates | Nov 29, 2018

BEAUMONT – The Ninth Court of Appeals has affirmed a ruling deeming a medical expert as qualified in the highly publicized “Baby Olivia” case.

"After a long fight, we are very happy for our client and all who have supported seeking justice for Baby Olivia,” said Malachi Daws, the plaintiff’s attorney. “Although no amount of money can compensate for the loss of a child, it is great to see all responsible parties being held accountable. There may be no greater pain than that of losing a young child.

The Ninth Court’s ruling comes more than two years after a Jefferson County jury awarded the mother of Baby Olivia, Rachel Ann Melancon, $10 million for her mental anguish and past and future loss of companionship.

“People often talk about lawsuit abuse as a Plaintiff problem,” Daws said. “The truth is that lawsuit abuse goes both ways, and prolonging the resolution of a case for an injured person, or in this case a grieving parent, is lawsuit abuse to me.”


The litigation was first brought by Trent Coats, the baby’s father, against Dr. George Backardjiev, the delivering physician, on Aug. 6, 2014.

A second amended petition was brought by Melancon, naming Backardjiev and the Medical Center of Southeast Texas as defendants.

The case was called up for trial on Aug. 1, 2016 and ended two weeks later.

Jurors were asked to decide whether Backardjiev and medical center were negligent in the delivery of Baby Olivia Coats, whose skull was allegedly crushed by forceps.

The jury found both parties negligent, but assigned the vast majority of the blame (95 percent) to Backardjiev, according to the charge of the court.

Jurors awarded Melancon $3 million for her past loss of companionship, $3 million for her future loss and $4 million for her past mental anguish.

Following the trial, the Medical Center moved for a judgment notwithstanding verdict, arguing there was no competent evidence that any employee proximately caused Olivia’s death.

According to the motion, Melancon’s only expert witness was Dr. Mark Akin, and as an obstetrician and gynecologist, he was not qualified to express an opinion on neurologic causation.

The trial court denied the motion, finding that Dr. Akin is in fact qualified to express causation opinions and that there is competent evidence of causation.

The trial court then entered a first amended order of judgment that explained that Dr. Backardjiev had settled with Melancon and awarded $250,000 in damages against the Medical Center, plus interest and costs.

The Medical Center appealed and two years later, on Nov. 29, the Ninth Court affirmed the trial court’s judgment.

“Appellant argues that Dr. Akin, as an ob-gyn with no special training or experience on neurologic causation, is not qualified to render an expert opinion as to neurologic damage...,” the opinion states. “The Texas Supreme Court has rejected the notion ‘that only a neurosurgeon can testify about the cause in fact of death from an injury to the brain.’”

The record reflects that Dr. Akin is a board-certified ob-gyn who has delivered approximately 11,000 babies, with experience, knowledge, and training about labor and delivery, the use of Pitocin and of forceps, and fetal heart monitoring.

“On this record, we cannot say that the trial court erred in exercising its gatekeeper function and determining that the reasoning or methodology underlying Dr. Akin’s opinions was scientifically valid and relevant, grounded in methods and procedures of science, and that his opinions were more than a subjective belief or unsupported speculation,” the opinion states.

“Moreover, based on his experience practicing as an ob-gyn, the trial court could have reasonably determined that Dr. Akin had sufficient skill, experience, and training to render expert opinions related to this case.”

Daws says he hopes that The Medical Center of Southeast Texas will take measures to prevent this type of negligence in the future.  

“We commend the Court of Appeals for their thoughtful analysis of the very complex issues this case presented," he added.

Case background

According to the lawsuit, Melancon was admitted for delivery on Dec. 26, 2013. Baby Olivia was born two days later. During the delivery, Backardjiev repeatedly kept applying forceps, refusing to consent to a cesarean delivery until after his fourth attempt failed.

“After birth, it was determined that baby Olivia suffered intracranial ischemic injuries,” the suit states. “She was transferred to Houston to Memorial Hermann Children’s Hospital.”

Radiologic studies revealed a partial skull fracture and other severe injuries. She died Jan. 1, 2014 after being taken off life support.

The suit further accused Backardjiev of using Pitocin during labor despite Olivia having an abnormal fetal heart rate.

The Medical Center is represented by Casey Marcin, Curry L. Cooksey, and Jennifer Grillo, attorneys for the Woodlands law firm Cooksey & Marcin.

Trial case No. B-195944

Appeals case No. 09-16-00449-CV

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