AMANDA M. NORMAN, Plaintiff,
ALL ABOUT WOMEN, P.A., a Delaware corporation and CHRISTINE W. MAYNARD, M.D., individually, Defendant.
Submitted: December 15, 2017
The Parties' Competing Motions to Strike Denied.
Defendants' Motion for Summary Judgment Granted.
William D. Fletcher, Jr., Esquire of Schmittinger &
Rodriguez, P.A., Dover, Delaware; attorney for Plaintiff.
C. McConnell, Esquire of Wharton Levin Ehrmantraut &
Klein, P.A., Wilmington, Delaware; attorney for Defendants.
WILLIAM L. WITHAM. JR. RESIDENT JUDGE.
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.
AND PROCEDURAL HISTORY
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
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. 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
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.
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
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
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.
November 16, 2017, the Court issued a decision (hereinafter,
the "Court's Order") regarding Dr. Soffer's
testimony. 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.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.
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
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." 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.
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.
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.
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.
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.
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." 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." 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.
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.