MONICA BROUGHTON, individually, and as Parent and Natural Guardian of AMARI M. BROUGHTON-FLEMING, a Minor Plaintiffs,
PETER J. WONG, M.D., and DEDICATED TO WOMEN, OB-GYN, P.A., Defendants.
Submitted: November 30, 2017
Consideration of Defendants' Renewed Motion for Judgment
as a Matter of Law or, in the alternative, Motion for a New
Trial, or in the alternative, Remittitur, DENIED.
Castle, Esquire, and Bruce L. Hudson, Esquire, of Hudson
& Castle, LLC, of Wilmington, Delaware. Attorneys for
Richard Galperin, Esquire, and Joshua H. Meyeroff, Esquire,
of Morris James LLP, of Wilmington, Delaware. Attorneys for
L. MEDINILLA, JUDGE.
September 26, 2017, after a seven-day medical negligence
trial, a jury returned a $3 million verdict in favor of
Monica Broughton (Mother), individually and as parent and
natural guardian of nine-year-old Amari Broughton-Fleming
(Amari) ("Plaintiffs"). Defendants, Dr. Peter Wong
and Dedicated to Women OB-GYN, P.A. ("Defendants"),
seek judgment as a matter of law, a new trial, or remittitur.
After consideration of the parties' briefings and oral
arguments, for the reasons stated below, Defendants'
Renewed Motion for Judgment as a Matter of Law, or in the
alternative, Motion for a New Trial, or Remittitur is
AND PROCEDURAL HISTORY
brought this medical negligence claim against Defendants,
alleging 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. In response,
Defendants maintained that, in the presence of a shoulder
dystocia, Dr. Wong 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. To explain the cause of injury, Defendants
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, not attributable to the
physician's actions. In other words, Mother's pushing
during the delivery caused the permanent injury.
the seven days of trial, the undisputed facts included that
during delivery, the force that occurred during labor was
sufficient to cause both transient and permanent nerve damage
to Amari's right arm. As a result, both as an infant and
a young child, he underwent two major surgeries to repair the
damaged nerves, but his injury has left him permanently
impaired. When Amari took the stand, the jury noted that his
arm was visibly shorter than the other. Even at such a young
age, he was able to articulate how the injury has affected
him throughout his life. He explained why he has never been
able to ride a bicycle, and described how his injury prevents
him from being able to play his favorite sports such as
football, soccer, or baseball. Through medical testimony, the
jury also heard that these physical deficits will carry into
his adult life.
sides presented inconsistent 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. In contradiction, Defendants' medical
witnesses, also present during the delivery, testified that
they did not make similar observations, and Dr. Wong, of
course, denied that he ever pulled on Amari's head.
Against this factually inconsistent backdrop, the
parties' medical experts offered conflicting opinions on
the critical issues of standard of care and causation.
to trial, Defendants filed motions in limine seeking
to exclude the testimony of Plaintiffs' experts, Drs.
Marc Engelbert and Scott Kozin, offered to opine on standard
of care and causation. Defendants objected that both failed to
meet the requirements of D.R.E. 702 and under
Daubert,  arguing, in part, that they were relying
upon impermissible res ipsa loquitur or ipse
dixit-type reasoning-that the presence of the injury
alone meant that Dr. Wong breached the standard of care and
caused the injury. The Court accepted Plaintiffs'
responses to the motions and agreed that both experts
satisfied the requirements under D.R.E. 702 and
Daubert sufficient to testify at trial.
both the close of Plaintiffs' case and again when all the
evidence was in, Defendants made their application for
judgment as a matter of law under Superior Court Civil Rule
50(a). Defendants reiterated their objections concerning Dr.
Engelbert's "res ipsa" reasoning
underlying his opinion and raised an additional argument that
excessive traction could be appropriate as a lifesaving
alternative in a medical emergency sufficient to warrant
judgment in their favor. This Court determined that there was
a sufficient basis from which a reasonable jury could find in
favor of Plaintiffs and denied Defendants' motions.
October 9, 2017, Defendants renew their Motion for Judgment
as a Matter of Law under Superior Court Civil Rule 50(b), or
alternatively seek a new trial under Rule 59, or remittitur.
Plaintiffs responded in opposition on October 20, 2017. Oral
arguments were heard on November 21, 2017, wherein Defendants
presented additional authority to support their position.
This Court granted leave so that the parties could address
the applicability of the newly presented case law. Plaintiffs
submitted their positions on November 22, 2017 and Defendants
filed a response on November 30, 2017. Having considered all
submissions, the matter is now ripe for review.
JUDGMENT AS A MATTER OF LAW
Court Civil Rule 50(a) that reads as follows:
If during a trial by jury a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue,
the Court may determine the issue against the party and may
grant a motion for judgment as a matter of law . . .
occurred in this case, if such a motion is denied or is not
granted, the motion may be renewed following trial pursuant
to Superior Court Civil Rule 50(b). Viewing all the evidence in
the light most favorable to the non-moving party, the Court
must determine whether the evidence and all reasonable
inferences that can be drawn therefrom could justify a jury
verdict in favor of the plaintiff(s). "Thus, 'the factual
findings of a jury will not be disturbed if there is
any competent evidence upon which the verdict could
reasonably be based.'"
Court agrees with Defendants that the jury cannot presume
negligence from the mere presence of an injury. The jury was
instructed accordingly. In their renewed motion, Defendants
maintain that Plaintiffs offered no legally sufficient
evidentiary basis for a reasonable jury to find in their
favor because Dr. Engelbert's standard of care opinion
advanced an impermissible res ipsa loquitur theory.
In support, Defendants extract select lines from Dr.
Engelbert's expert testimony to reiterate that his
opinion is fatally flawed because he testified during trial
that had there been no permanent injury, then Dr.
Wong would have met the standard of care. For the following
reasons, this Court finds that Defendants fail to establish
why they are entitled to relief as a matter of law under Rule
this Court notes that although Dr. Engelbert was offered as
an expert on the issue of whether Dr. Wong breached the
standard of care, the Defendants elicited testimony on
cross-examination concerning issues of causation in order to
further develop their res ipsa loquitur
argument. Since the legal doctrine of res ipsa
loquitur relates to causation-versus standard
of care-it stands to reason that Defendants had to engage in
a thorough cross-examination on the issue of causation if
they were to successfully argue that Dr. Engelbert employed a
"res ipsa " approach in reaching his
opinion. Therefore, the Court notes that references from Dr.
Engelbert's testimony necessarily went beyond a
"standard of care" opinion and touched upon issues
of causation when he was challenged to defend his opinion.
dispute for the jury to decide was whether the permanent
damage suffered by Amari was caused by the excessive force
applied by Dr. Wong or Mother. To refute Dr. Engelbert's
opinion that Dr. Wong was negligent, Defendants questioned
him extensively regarding conclusions from the ACOG
Monograph, which they maintained established scientific
evidence that Amari's injury was the result of maternal
endogenous forces during labor. Plaintiffs' experts,
including Dr. Engelbert, criticized many of the conclusions
reached in the ACOG Monograph, in large part because the
study did not fully differentiate between a permanent versus
medical-versus legal-references to the critical distinctions
between a permanent and transient brachial plexus injury were
highlighted throughout the trial and vital to Dr.
Engelbert's ability to both defend his opinion as more
than merely a "res ipsa " conclusion, and
to refute Defendants' theory that it was Mother's
force that caused the injury as challenged on
cross-examination. Equally as important to Dr.
Engelbert's opinion was that the determination of whether
the injury was permanent or transient was not readily
apparent at the time of delivery. Therefore, while some
nerves that suffered a transient injury were able to be
repaired, the diagnosis and cause of the permanent brachial
plexus injury could not be made until it was known that some
nerves were permanently damaged. To the extent that the ACOG
Monograph identified instances of injury caused by maternal
forces, Plaintiffs established that these injuries were
transient, not permanent in nature. Therefore, Plaintiffs
argued that the conclusions from the ACOG Monograph could not
be applied to Plaintiff Amari's case.
Engelbert testified that there were no undisputed cases of
permanent brachial plexus injury that resulted from
endogenous (or maternal) forces. His testimony centered on
the difference between a permanent or temporary nerve injury
and the known, undisputed causes of permanent brachial plexus
injuries. In fact, Dr. Engelbert ruled out other causes,
including Mother's force. His opinion on standard of care
is perhaps best summed up in the following portion:
Understanding that to get that extent of an injury in the
face of a shoulder dystocia, in his situation there is no
other possible cause other than excessive traction. There are
rare causes of permanent brachial plexus injury that
don't apply to Amari. You rarely see this: Cancer in the
brachial plexus, or an infection in the brachial plexus.
These are rare causes which didn't apply to Amari.
Sometimes the mother -- the mother, Monica, could have had
something wrong with her uterus, where Amari's shoulder
could have been stuck in a bad position because of the
uterus. In those situations, the babies that get affected
that way, they have muscle atrophy, which Amari didn't
have. So when you look at the other causes of permanent
injury, none of them applied to Amari.
Engelbert rejected the opinion of Defendants' experts
that a permanent injury could be caused by Mother and he
explained his rationale to the jury. These included excessive
downward lateral traction, as was alleged in this case, and
ruling out a few rare causes, such as cancer, infection, or
the shape of the mother's uterus, not present here.
Defendants maintain that Dr. Engelbert's testimony was
speculative and cite an unrelated District Court of
Massachusetts case of McGovern v. Brigham &
Women's Hospital This Court finds that
McGovern is distinguishable. In McGovern,
the District Court found that Dr. Engelbert's opinions
were "mere speculation, not supported by reliable
scientific knowledge, " unsupported by "even one
peer reviewed publication" then available. That is not
the record here. Plaintiffs established that Dr.
Engelbert's opinion was supported by multiple, reliable
medical sources, including Williams Obstetrics (24th
ed.),  Gabbe Obstetrics: Normal and Problem
Pregnancies (7th ed.),  O'Leary Shoulder
Dystocia and Birth Injury (3d ed.),  a
peer-reviewed study by Mollberg "Comparison in Obstetric
Management on Infants with Transient and Persistent Brachial
Plexus Palsy, " and Creasy and Resnik,
Maternal-Fetal Medicine (7th ed.). Dr. Engelbert
went beyond merely asserting that a causal link was
"well- established, " as was problematic in
McGovern. Additionally, distinguishable from
McGovern, with respect to Dr. Engelbert's
overall methodology, here Dr. Engelbert did not "fail
to eliminate other possible causes" of the
injury. Furthermore, Defendants had an
opportunity to cross-examine Dr. Engelbert when he ruled out
the mother's endogenous forces as another possible cause
when they questioned him extensively regarding the ACOG
further reliance on our court's decision in Norman v.
All About Women is also unpersuasive. There, the court
granted a motion in limine to exclude the plaintiff
expert's standard of care testimony because "no
evidence has been presented that [the expert]'s opinion
[was] 'based on information reasonably relied upon by
experts' in his field." Unlike the expert in
Norman, for the reasons previously stated, this
Court finds that the jury had evidence before them to
consider and accept Dr. Engelbert's opinion that the
permanent injury could only be the result of excessive
lateral traction. In doing so, there was evidence in this
case that his 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-not an uncommon
exercise used in the medical field, and previously accepted
as admissible in other cases in similar medical negligence
perhaps Dr. Engelbert could have stated his opinion
differently, the line between medical and legal language is
often blurred and this Court is often asked use its
discretion regarding the admissibility of expert opinion. The
Supreme Court has previously recognized in Mammarella v.
Evantash and Moses v.
Drake that there is not a set script medical
experts must follow when they render opinions.Rather, this
Court may "exercise some discretion to determine whether
the opinion offered by an expert, when considered in light of
all the evidence, meets [the] legal
Dr. Engelbert's opinion, when considered in light of all
the evidence, meets the requirements under D.R.E 702 and
Daubert. 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. The jury was free to accept or reject Dr.
Engelbert's opinion as presented in the same manner as
they were free to accept the versions from Dr. Wong or
Defendants' experts. 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
next argue that they are entitled to judgment as a matter of
law because Dr. Engelbert testified on cross-examination that
excessive traction could, in some cases, be an appropriate
alternative medical treatment. Defendants maintain that
judgment in their favor is mandated because his testimony
suggested a medical event could qualify as a "lifesaving
situation, " such that the testimony unequivocally locks
Dr. Engelbert into a position where he could not properly
opine that Dr. Wong breached the standard of care. Defendants
reliance on Corbitt v. Tatagari and
Burgos v. Hickok is somewhat misplaced.
deals with the use of an "alternative medical
treatment" jury instruction, not, as Defendants
suggest, that the expert's testimony warrants judgment as
a matter of law. The alternative medical treatment jury
instruction states: "[w]hen a physician chooses between
appropriate alternative medical treatments, harm resulting
from a physician's good faith choice of one proper
alternative over the other is not medical
malpractice." The Court chose not to give this
instruction for two reasons.
the evidence did not establish there were viable alternative
options of treatment available to Dr. Wong in this case. In
fact, when confronted with a shoulder dystocia, Dr. Wong
testified that he had no choice but to use his unique method
of delivery in what he considered to be a life-threatening
situation. Second, Dr. Engelbert's limited testimony on
this subject did not suggest that excessive lateral traction
could ever be considered "an appropriate alternative
medical treatment" at the moment it was allegedly used
in this case.
stands for the proposition that "the entry of a verdict
in favor of the defendant is appropriate only when, under the
evidence presented by the plaintiff, reasonable minds could
draw but one inference and that inference is that a verdict
favorable to the plaintiff is not
justified." Here, Dr. Wong said there was no
alternative available to him. In contrast, Dr. Engelbert
testified that Dr. Wong's unique method of delivery was
not appropriate, and he would have waited additional time
before employing any traction efforts as a lifesaving
maneuver. The jury was free to weigh the differing
medical opinions, and the timeframes that they offered. They
were also free to consider and draw inferences from the
eyewitnesses who testified about what they saw during the
delivery and decide what version to accept about how and when
the traction, if any, was used. Dr. Engelbert did not accept
excessive traction as a lifesaving alternative within the
same timeframe that Dr. Wong did. Reasonable minds can draw
more than just one inference from the available testimony. As
such the entry of a verdict in favor of Defendants is not
appropriate in these circumstances.
all the evidence in the light most favorable to the
non-moving party, the Court determines that the evidence and
all reasonable inferences that can be drawn justified a jury
verdict in favor of Plaintiffs. Defendants have not shown
that there is no competent evidence upon which the
verdict could reasonably be based. As such, Defendant's
motion under Rule 50 must be denied.
FOR NEW TRIAL