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Norman v. All About Women, P.A.

Superior Court of Delaware, Kent

December 19, 2017

AMANDA M. NORMAN, Plaintiff,
v.
ALL ABOUT WOMEN, P.A., a Delaware corporation and CHRISTINE W. MAYNARD, M.D., individually, Defendant.

          Submitted: December 15, 2017

         Upon The Parties' Competing Motions to Strike Denied.

         Upon Defendants' Motion for Summary Judgment Granted.

          William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Plaintiff.

          Lauren C. McConnell, Esquire of Wharton Levin Ehrmantraut & Klein, P.A., Wilmington, Delaware; attorney for Defendants.

          ORDER

          WILLIAM L. WITHAM. JR. RESIDENT JUDGE.

         Before the Court are the Defendants', All About Women, P.A., and Christine W. Maynard, M.D. (hereinafter, the "Defendants"), Motion for Summary Judgment and the Plaintiffs, Amanda M. Norman ("Ms. Norman"), Response in Opposition. In addition, the parties have filed numerous letters relating to the Defendants' Motion, as well as competing motions to strike. This constitutes the Court's decision regarding these matters. The parties' motions to strike are hereby DENIED. The Defendants' Motion for Summary Judgment is hereby GRANTED.

         FACTUAL AND PROCEDURAL HISTORY

         This is an action for alleged medical negligence involving a diagnostic laparoscopy, that Dr. Maynard performed on October 22, 2013, at Christiana Hospital. Ms. Norman claims that Dr. Maynard perforated her bladder and then failed to recognize the injury before completing the procedure, necessitating a second exploratory surgery, unnecessary hospitalization and other damages.

         On January 16, 2017, the Defendants filed the aforementioned Motion for Summary Judgment. The Defendants contend that Ms. Norman is not capable of establishing that Dr. Maynard breached the standard of care owed to Ms. Norman because the testimony of Ms. Norman's sole expert, Jeffrey Soffer, M.D., is inadmissible pursuant to the Delaware Rules of Evidence.[1] Even if the Court admits Dr. Soffer's testimony, the Defendants contend that Dr. Soffer's opinions would not establish a breach as a matter of law because, in the Defendants' view, Dr. Soffer's conclusions are grounded in res ipsa loquitur. As res ipsa loquitur is generally impermissible in a claim for medical negligence, save narrowly defined exceptions not applicable in this case, the Defendants contend that they are entitled to judgment as a matter of law.

         On January 30, 2017, Ms. Norman filed the aforementioned Response in Opposition to the Defendants' Motion for Summary Judgment. Ms. Norman suggests that Dr. Soffer's testimony sufficiently set forth two distinct standards of care owed by Dr. Maynard during the course of Ms. Norman's surgery, as well as Dr. Maynard's breach of those two separate standards. Ms. Norman contends that summary judgment should be denied because, in her view, a question of fact remains and the Defendants' Motion for Summary Judgment does not address Dr. Maynard's alleged breach of one of the standards of care set forth by Dr. Soffer. Ms. Norman, however, does not respond directly to the reliability of Dr. Soffer's testimony.

         On February 7, 2017, the Defendants filed five motions in limine seeking to: (1) exclude evidence, argument, and testimony of Defendants' write-off and payment of medical expenses; (2) limit the testimony of Kenneth Woo, M.D.; (3) exclude postoperative statements of apology; (4) exclude evidence related to pregnancy and unsupported injuries; and (5) exclude testimony of Jeffery Soffer, M.D. on the standard of care.

         On June 20, 2017, recognizing that the Defendants' Motion for Summary Judgment raised arguments that duplicated those in the Defendants' Motion in Limine to Exclude Testimony by Jeffrey Soffer, M.D. on the Standard of Care, the Court deferred its decision regarding summary judgment until after the Court issued its decision on the motions in limine.

         On September 22, 2017, the Court held oral argument on the five motions in limine. The Court issued a bench decision regarding the first four motions but reserved decision regarding the exclusion of Dr. Soffer's testimony.

         On November 16, 2017, the Court issued a decision (hereinafter, the "Court's Order") regarding Dr. Soffer's testimony.[2] The Court, relying upon Delaware Rule of Evidence 702 and the five-step test set forth in Smith v. Grief, excluded Dr. Soffer's testimony because Ms. Norman was unable to demonstrate that Dr. Soffer's opinion was "based on information reasonably relied upon by experts" in his field.[3]The Court determined that Dr. Soffer was required to rely on more than his own personal knowledge when opining as to the alleged negligence of Dr. Maynard. The Court, therefore, granted the Defendants' Motion in Limine to exclude Dr. Soffer's testimony. In addition, the Court requested that the Defendants inform the Court if the Defendants intended to withdraw their Motion for Summary Judgment, or if the Court should resolve that motion as well.[4]

         On November 17, 2017, the Defendants filed their response to the Court's Order. The Defendants contend that their Motion for Summary Judgment is now ripe for the Court's consideration as a result of the Court's exclusion of Dr. Soffer's testimony. The Defendants re-emphasize their argument that, without Dr. Soffer's testimony, Ms. Norman cannot, as a matter of law, establish a. prima facie case of negligence. Therefore, the Defendants request that the Court rule upon the Defendants' Motion for Summary Judgment.

         On November 29, 2017, Ms. Norman filed a letter with the Court in response to the Defendants' letter filed on November 17, 2017. Ms. Norman opposes the Defendants' Motion for Summary Judgment because, according to Ms. Norman, "the record does not support it, and it is plainly in error."[5] Ms. Norman contends that the Court's Order only precluded Dr. Soffer's testimony as it related to Dr. Maynard's alleged breach of a standard of care by injuring Ms. Norman's bladder during the surgical procedure. Ms. Norman argues that the Court's Order does not preclude Dr. Soffer's testimony as it related to Dr. Maynard's alleged breach of the standard of care by her failure to carefully inspect and detect the injured bladder caused by her surgical procedure. Ms. Norman urges the Court to accept her understanding of the Court's Order when considering the Defendants' Motion for Summary Judgment. If the Court accepts Ms. Norman's interpretation, she contends that the Defendants' Motion should be denied because, according to Ms. Norman, the record is insufficient for the Court to rule upon the Motion.

         On November 30, 2017, the Defendants filed a letter application to strike Ms. Norman's letter of November 29, 2017. According to the Defendants, Ms. Norman's letter constitutes an impermissible pleading as well as impermissible reargument of the issues adjudicated and disposed of by the Court's Order.

         On December 5, 2017, Ms. Norman filed her Motion to Strike Defendants' Unauthorized and Inappropriate Letter of November 30, 2017. Ms. Norman contends that the Court specifically authorized her to respond to the Defendants' letter of November 17, 2017. As Ms. Norman believes the response was appropriate, she contends that the Defendants' request to strike is without merit. Moreover, Ms. Norman complains that the Defendants' letter of November 30, 2017, was improper because the Court did not request further correspondence from the Defendants, nor was it appropriate for the Defendants to file a letter under the circumstances. Rather, according to Ms. Norman, the Defendants should have filed a motion to strike, in the same manner as she did.

         On December 6, 2017, the Court held a previously scheduled Pretrial Conference for this matter. At the Pretrial Conference, the Court acknowledged that the Court's previous order may have created some confusion between the parties. As a result of the confusion, the Court found that it was inappropriate to strike either Ms. Norman's or the Defendants' letter to the Court. The Court stipulated that a written decision would follow. Furthermore, the Court requested that the parties file supplementary argument in regards to the Defendants' Motion for Summary Judgment. The Court clarified that the purpose of the supplementary argument was not to raise new issues. Instead, the parties were merely permitted to clarify arguments already raised in their original pleadings.

         On December 7, 2017, the Defendants filed their supplement requested by the Court. The Defendants describe where, in the Defendants' Motion for Summary Judgment, the Defendants identified the two separate standard of care violations allegedly committed by Dr. Maynard. The Defendants also describe where, in the Court's Order, the Court identified the two separate standards of care that Dr. Maynard allegedly breached. The Defendants reserved further argument on the Defendants' Motion for Summary Judgment for oral argument, scheduled for December 15, 2017.

         On December 12, 2017, Ms. Norman filed her supplement requested by the Court. Ms. Norman, again, strongly disputes the Defendants' contention that the Court's Order resolves the Defendants' Motion for Summary Judgment in favor of the Defendants. According to Ms. Norman, nowhere in the Court's Order does the Court address Dr. Maynard's alleged failure to inspect and discover Ms. Norman's bladder injury before concluding the surgical procedure. Ms. Norman contends that the Court's Order "is totally devoid of any reference to the second area of medical negligence, analysis of that claim of medical negligence, and whether or not it is appropriate for Dr. Soffer to testify about this alleged breach of the standard of care by Dr. Maynard."[6] Therefore, Ms. Norman believes that "the only issue actually decided by the Court's opinion of November 16, 2017 concerns the medical negligence allegation of causing injury to the urinary bladder during the surgical procedure."[7] As a result, Ms. Norman strongly urges the Court to deny the Defendants' Motion because she believes that Dr. Soffer's testimony, regarding the second claim of medical negligence, is sufficient to satisfy her burden at trial.

         On December 15, 2017, the Court held oral argument on the Defendants' Motion for Summary Judgment. First, the Defendants addressed the Court's Order. The Defendants contend that the Court's Order necessarily includes both of Dr. Soffer's standard of care opinions because: (1) the parties presented argument to the Court, in numerous pleadings and at oral argument for the Defendants' Motions in Limine, regarding the exclusion of both of Dr. Soffer's standard of care opinions; (2) the Court considered the parties arguments, as evidenced by numerous references in the Court's Order; and (3) the Court's Order did not specify that Dr. Soffer's testimony was precluded only in part. In response, Ms. Norman again contends that the Court's Order failed to address the second allegation of Dr. Maynard's negligence; i.e., her alleged failure to recognize Ms. Norman's bladder injury before concluding the operation. Ms. Norman believes, therefore, that Dr. Soffer is still permitted to testify in regards to the second issue of negligence. Second, the Defendants addressed the insufficiency of Dr. Soffer's testimony. According to the Defendants, even if Dr. Soffer is permitted to testify, his opinions are insufficient to satisfy the pleading standards for medical negligence because Dr. Soffer's sole supporting basis for contending that Dr. Maynard was negligent is that an injury occurred. The Defendants believe that such a contention is, in essence, relying upon the impermissible doctrine of res ipsa loquitur. In response, Ms. Norman clarifies that she is not intending to rely upon the doctrine of res ipsa loquitur. Instead, she alleges that Dr. Soffer's testimony sufficiently sets forth a detailed explanation of how Dr. Maynard likely caused the injury to Ms. Norman's bladder and why it was negligent. Ms. Norman urges the Court to consider Dr. Soffer's testimony as a whole rather than to focus on the small snippets of testimony that the Defendants rely upon.

         STANDARD ...


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