PETER J. WONG, M.D., and DEDICATED TO WOMEN, OB-GYN, P.A., Defendants Below, Appellants, v. MONICA BROUGHTON, individually, and as Parent and Natural Guardian of AMARI M. BROUGHTON-FLEMING, a Minor, Plaintiffs Below, Appellees.
No. 133, 2018
IN THE SUPREME COURT OF THE STATE OF DELAWARE
Decided: February 4, 2019
Submitted: November 28, 2018
Court Below: Superior Court of the State of Delaware C.A. No. N14C-01-185 VLM
Before VAUGHN, SEITZ, and TRAYNOR, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Joshua H. Meyeroff, Esquire, Morris James LLP, Wilmington, Delaware, for Appellants, Peter J. Wong, M.D., and Dedicated to Women OB-GYN, P.A.
Bruce L. Hudson, Esquire, and Ben T. Castle, Esquire (Argued), Hudson & Castle Law, LLC, Wilmington, Delaware, for Appellees, Monica Broughton and Amari M.
VAUGHN, Justice:
I. INTRODUCTION
This is a medical negligence case in which a jury returned a verdict in favor of the plaintiff, Monica Broughton, in the amount of $3 million. The case was brought by Ms. Broughton individually and as parent and natural guardian of her nine-year-old son, Amari Broughton-Fleming. The injury involved was a permanent injury to Amari‘s right brachial plexus that occurred during birth. The defendants are Dr. Peter J. Wong and his medical practice, Dedicated To Women, OB-GYN, P.A.
Dr. Wong and his medical practice make four arguments on appeal. First, they contend that the Superior Court erred when it denied their motion in limine to exclude the opinion of the plaintiff‘s standard of
Second, they contend that the Superior Court erred when it denied their motion in limine to exclude the plaintiff‘s causation expert, Dr. Scott Hal Kozin. They contend that Dr. Kozin‘s opinion lacked a proper factual foundation, failed to satisfy the criteria of Daubert and Bowen, and constituted an impermissible res ipsa loquitur opinion.
Third, they contend that the Superior Court erred when it permitted the plaintiff to elicit statistical evidence from Dr. Wong and his experts to establish the rarity of brachial plexus injuries. They argue that this evidence was improperly used to suggest that Dr. Wong must have been negligent based upon an unusual outcome. Appellants contend that such evidence must be excluded under Timblin v. Kent General Hospital (Inc.).3
Fourth and finally, they contend that the Superior Court erred when it refused to instruct the jury on “Actions Taken in Emergency.”
The first and third contentions were directly addressed by the Superior Court in a ruling on post-trial motions, and we affirm the Superior Court as to those issues for the reasons given in its opinion. The second and fourth contentions, which were initially raised and denied before trial, were not reargued in the post-trial motions. For the reasons that follow, we affirm the Superior Court as to these two contentions as well.
II. FACTS AND PROCEDURAL HISTORY4
The plaintiff claims that Dr. Wong negligently applied excessive lateral traction during childbirth with such force that the stretching of Amari‘s head during delivery caused a permanent right brachial plexus injury. During birth, Amari‘s right shoulder was lodged under the mother‘s pubic bone, a life-threatening condition known as shoulder dystocia. Dr. Wong‘s defense was that, because of the shoulder dystocia he used what he considered to be a “unique” method of delivery and noted in his records that he had “not applied any traction” to Amari.5
To explain the cause of injury, the defendants and their experts relied heavily upon the American Congress of Obstetricians and Gynecologists (“ACOG“) Monograph as scientific evidence that Amari‘s injury was the result of maternal endogenous forces during labor and not attributable to Dr. Wong‘s actions. Put simply, their contention was that the mother‘s pushing during delivery caused the injury.
At trial, the facts showed that, during delivery, the force that occurred was sufficient to cause both transient and permanent nerve damage to Amari‘s right arm.
Both sides presented conflicting accounts from eyewitnesses who were present in the delivery room. Amari‘s father and maternal grandmother both testified that they observed Dr. Wong pull on Amari‘s head when he was emerging during delivery. The defendants’ eyewitnesses (medical staff present during delivery), however, testified that they did not make similar observations, and Dr. Wong denied that he ever pulled on Amari‘s head. Against this factual inconsistency, the parties’ medical experts gave conflicting opinions on the critical issues of standard of care and causation.
Prior to trial, the defendants filed motions in limine to exclude the testimony of the plaintiff‘s experts, Drs. Engelbert and Kozin. The defendants argued that both experts failed to meet the requirements of
After the close of the plaintiff‘s case and again when all the evidence was in, the appellants moved for judgment as a matter of law under Superior Court Civil Rule 50(a). They reiterated their objections concerning Dr. Engelbert‘s res ipsa loquitur reasoning and raised an additional argument, not raised on appeal, that excessive traction could be appropriate as a lifesaving alternative in a medical emergency. The Superior Court denied their motions.
After trial, the Appellants renewed their motion for judgment as a matter of law under Superior Court Civil Rule 50(b) and, in the alternative, sought a new trial under Rule 59 or remittitur. The Superior Court denied the appellants’ post-trial motions.
III. DISCUSSION
The defendants’ first three contentions on appeal involve questions of the admissibility of evidence and expert testimony, which this Court reviews for an abuse of discretion.9 As mentioned, we affirm the Superior Court as to the defendants’ first and third contentions for the reasons given in its post-trial opinion and find that the court did not abuse its discretion
At the outset of its post-trial opinion, the Superior Court agreed that the jury may not presume negligence from the mere presence of an injury. The court found that Dr. Engelbert‘s expert opinion testimony was admissible, and not an impermissible res ipsa loquitur theory, because his opinion that the permanency of the injury established that Dr. Wong breached the standard of care was supported by “multiple, reliable medical sources.”10 Dr. Engelbert explained that he disagreed with the ACOG Monograph study upon which Appellants heavily relied because the study did not fully differentiate between a permanent versus transient injury. Moreover, the court explained, “there was evidence in this case that [Dr. Engelbert‘s] opinion was based upon medical records, eyewitnesses’ accounts of the delivery, and all other information an expert would ordinarily rely upon in his field, including ruling out other causes.”11
Ultimately, the court found that Dr. Engelbert‘s opinion, when considered in light of all the evidence, met the requirements under
Given the issues in this case, it was proper for the jury to understand the distinctions about the severity of the injury through his explanation, and to be given an opportunity to refute the conclusions in the ACOG Monograph. On cross-examination, it was appropriate for him to defend his conclusions, rule out other causes, and explain why the permanency of the injury was germane to his opinion that Dr. Wong‘s unique method of delivery breached the standard of care. . . . For these reasons, this Court finds that Dr. Engelbert‘s opinion went beyond a res ipsa loquitur conclusion and the testimony challenged by Defendants goes to the weight of the evidence, not its admissibility.12
We agree that Dr. Elbert‘s testimony was not an impermissible res ipsa loquitur theory and affirm the Superior Court‘s ruling for the reasons assigned by it.
Additionally, although not mentioned by the Superior Court in its post-trial opinion, Dr. Engelbert relied upon his nearly thirty years of experience as an obstetrician and gynecologist in forming his opinion that, absent other causes not relevant here, excessive lateral traction during delivery caused Amari‘s permanent brachial plexus injury. As we have previously held, an expert in a medical negligence case “must be familiar with the degree of skill ordinarily employed in the field of medicine on which he or she will testify in order to offer a standard of care opinion” and may be so qualified based on his or her experience and knowledge.13 Because Dr. Engelbert‘s testimony established that he was qualified as an expert and familiar with the degree of skill ordinarily employed in obstetrics from his years of experience in the field, the Superior Court did not err in allowing his opinion testimony into evidence.
As to the defendants’ third argument, regarding the statistical testimony elicited at trial, the court found that this
The Superior Court contrasted the statistical evidence here with the evidence in Timblin and explained that here the statistical testimony went to the experience of each of the experts, provided background information, and otherwise simply established that brachial plexus injuries are rare—something upon which all experts agreed. Furthermore, the Superior Court noted that the statistical testimony was “an appeal to the common sense of the jury and directly rebutt[ed] Defendants’ trial theory that mother‘s endogenous forces caused the injury.”20 The court thus found that the testimony did “not constitute statistical evidence of the kind deemed fatal in Timblin.”21 We agree with the Superior Court and affirm for the reasons assigned by it.
We now address the defendants’ remaining two arguments.
For many of the same reasons given in its post-trial opinion as to Dr. Engelbert, the Superior Court did not abuse its discretion in allowing Dr. Kozin to testify as an expert on the cause of Amari‘s injury. “If a witness is qualified as an expert by skill, experience, knowledge, training or education, he may offer an opinion and testify as to that opinion,” and “[a] strong preference exists for admitting evidence that may assist the trier of fact.”22 Accordingly, “expert opinions are appropriate when they will assist the trier of fact in understanding the relevant facts or the evidence.”23
The defendants make three arguments regarding the admissibility of Dr. Kozin‘s testimony. First, they contend that Dr. Kozin‘s opinion was not based on sufficient
Dr. Kozin testified based on twenty years of experience conducting surgeries to repair nerves damaged during birth and on his interactions with and observations of Amari before and during Amari‘s two surgeries. He first operated on Amari six months after Amari was born and, at that time, identified two nerves that had been torn and would never regenerate or recover. Because of the permanency of the injury, Dr. Kozin formed the opinion that the cause of Amari‘s torn nerves was excessive lateral traction applied during birth. We find that Dr. Kozin‘s opinion was sufficiently based upon the facts of this case to satisfy
The defendants’ final argument regarding Dr. Kozin‘s testimony is essentially that Dr. Kozin‘s opinion was not based on information reasonably relied upon by experts in his field because he failed to cite any literature for excluding maternal forces or other causes of Amari‘s injury and failed to distinguish effectively the ACOG Monograph, which conflicts with his opinions. As we explained in Norman, however, the requirement that the expert‘s opinion be based upon information reasonably relied upon by experts in the particular field is a guard against the use of inadmissible hearsay and “does not pertain to information which the expert has not relied on.”28 Dr. Kozin was not required to rebut the ACOG Monograph as a condition of admissibility of his testimony. The defendants’ argument on this point goes to the weight to be given Dr. Kozin‘s testimony, not its admissibility.
As to the defendant‘s fourth contention—that the trial court erred in refusing to instruct the jury on “Actions Taken in Emergency”29—we conclude that the court committed no legal error. Whether the “Actions Taken in
IV. CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is affirmed.
Notes
Appellants’ Opening Br. at 42.When a person is involved in an emergency situation not of his own making and not created by his own negligence, that person is entitled to act as a reasonably prudent person would under similar circumstances. Therefore, if you find that Dr. Wong was confronted by an emergency situation when Amari Broughton-Fleming presented with shoulder dystocia, you should review Dr. Wong‘s conduct in light of what a reasonably prudent person would have done under those circumstances.