TIFFANY R. LEWIS, Individually and as The Parent and Guardian of TYRA CURTIS, a minor, Plaintiffs,
DIANE McCRACKEN, M.D. and ALL ABOUT WOMEN OF CHRISTIANA CARE, INC. Defendants.
Submitted: February 19, 2018
Defendants' Motion in Limine to Limit the Testimony of
Scott Kozin, M.D. GRANTED.
Castle, Esquire and Bruce L. Hudson, Esquire, Hudson &
Castle Law, LLC, Wilmington, Delaware, Attorneys for
Gregory S. McKee, Esquire, Wharton Levin Ehrmantraut &
Klein, P.A., Wilmington, Delaware, Attorney for Defendants.
Batten, Esquire, Batten Lee PLLC, Raleigh, North Carolina,
Attorney pro hac vice for Defendants.
10th day of May 2018, upon consideration of Defendants'
Motion in Limine to Limit the Testimony of Scott Kozin, M.D.,
it appears to the Court that:
case involves Plaintiffs' medical negligence claim
against Defendants arising out of a vaginal delivery of minor
Plaintiff, Tyra Curtis, in which she suffered what Plaintiffs
allege was a permanent brachial plexus nerve injury.
Plaintiffs claim that the delivering physician, Defendant
Diane McCracken, M.D., applied excessive traction to deliver
Tyra, which caused the injury.
Defendants filed a motion in limine to limit the testimony of
Plaintiffs causation expert, Scott Kozin, M.D. ("Dr.
Kozin"), on January 10, 2018. Defendants seek to limit
Dr. Kozin's testimony in three ways. First, Defendants
request that Dr. Kozin's testimony be restricted to
certain opinions at his deposition and the first
trial. Second, Defendants "request [that Dr.
Kozin] be precluded from offering any opinions that
[Plaintiffs] brachial plexus injury is 'consistent
with' excessive downward lateral traction applied by the
clinician" as, Defendants claim, those types of comments
improperly infer opinions that Defendants breached the
standard of care. Third, Defendants ask that Dr. Kozin be
"precluded from discussing the Lerner article at
trial." Defendants' argument essentially is
that because Dr. Kozin "did not have a specific
causation opinion beyond what was outlined herein at the time
of his deposition . . . [h]e should therefore be precluded
from offering opinions beyond what was initially testified
response, Plaintiffs argue that Dr. Kozin indeed had a
causation opinion prior to the second trial on October 31,
2017 and that Dr. Kozin's deposition testimony shows that
he was not giving a standard of care opinion. Also, Plaintiffs
assert that Dr. Kozin's comments about the Lerner article
at the second trial were not new opinions because Dr. Kozin
"referred to it in his deposition . . .
third trial will be held in this case. The first trial
resulted in a mistrial due to a hung jury. The Court declared
a mistrial in the second trial due to Dr. Kozin's trial
testimony, which differed from his deposition and first trial
testimony and contained new opinions. Now Defendants seek to
define the scope for Dr. Kozin's testimony that is
consistent with both his May 26, 2016 deposition testimony
and his October 31, 2017 second trial testimony. As this
Court stated in granting Defendants' motion for a
mistrial during the second trial, Dr. Kozin offered a new
opinion in the second trial as to causation contrary to his
deposition testimony and to his testimony during the first
trial.His previous deposition and trial testimony
was that essentially that he could not offer an opinion
whether maternal forces alone were enough to cause permanent
brachial plexus injury. However, during the second trial, his
testimony was that he could now exclude endogenous or
maternal forces as a cause of permanent brachial plexus
injury. This Court agrees with the parameters offered by
Defendants at the November 6, 2017 office conference as to
the allowable scope of his testimony and grants the motion in
Kozin's testimony at the third trial will be limited to
testimony that he provided at his deposition and to the
testimony he gave at the first trial (and to which defense
counsel did not object).
"Under 18 Del. C. § 6853, a party alleging
medical malpractice must produce expert medical testimony
that specifies (1) the applicable standard of care, (2) the
alleged deviation from that standard, and (3) the causal link
between the deviation and the alleged
injury." In general, experts must qualify under
Daubert's five-step test to determine the
admissibility of the expert testimony. The Court must
(1) the witness is qualified as an expert by knowledge, skill
experience, training or education; (2) the evidence is
relevant; (3) the expert's opinion is based upon
information reasonably relied upon by experts in the
particular field; (4) the expert testimony will assist the
trier of fact to understand the evidence or to determine a
fact in issue; and (5) the expert testimony will not create
unfair prejudice or confuse or mislead the
Delaware Supreme Court has held "that the requirement of
a party to comply with discovery directed to identification
of expert witnesses and disclosure of the substance of their
expected opinion is a precondition to the admissibility of
expert testimony at trial." An expert's trial
testimony must be consistent with their expert
Kozin's expert disclosure, pursuant to Del. Super. Ct.
Civ. R. 26(b)(4), provided that "[b]ased upon his
expertise, knowledge, clinical experience and his best
medical judgment, Dr. Kozin will opine to the causation and
damages issues of this case." Plaintiffs did not
identify Dr. Kozin as an expert who would be giving a
standard of care opinion at trial. As Defendants argue, Dr.
Kozin is precluded from offering an opinion that the injury
in this case is "consistent with" excessive
physician-applied downward lateral traction because that type
of opinion carries the risk of improperly inferring to the
jury that this injury was caused by a breach in the standard
of care by the physician.Accordingly, any proffered
opinion by Dr. Kozin regarding standard of care at the third
trial will be prohibited.
his May 26, 2016 deposition, on the topic of
physician-applied force, Dr. Kozin stated
A: Yeah, I think the OB-GYNs will have to fight about that.
What I said before is I can't tell you, in Tyra's
case or any other child's case, whether the force applied
... was excessive to deliver Tyra. I can just tell you the
force was excessive to maintain the integrity of the nerves,
which led to the tearing of 5, 6, and 7.
Q: And forces are - can be multiple in nature, correct?
A: They can be endogenous or exogenous. Exogenous being the
deliverer, and endogenous meaning the propulsive
At a later point in Dr. Kozin's deposition testimony, Mr.
Batten again on cross-examination asked Dr. Kozin to address
the "force" issue.
Q: And excessive is a bit of a loaded word, and here's
why I'm going to suggest that to you. Excessive, in your
vernacular, is, it was more than that nerve could take, not
that there was a breach of a standard that caused excessive
A: Right. So it's my opinion, regardless of what the jury
decides was the ultimate cause, there was excessive force to
the nerve. I thought what Mr. Hudson was asking me was, if
excessive, meaning excessive -1 don't know what he was
asking me the more I think about it. But so I think - my
opinion is going to be, there was excessive force to the
nerves, period. That's a given. I'm not going to say
there wasn't, because there was tearing of 5, 6, and 7.
Q: And force does not imply solely the clinician's
applied traction, correct?
A: No, no. There are multiple forces.
However, during the second trial, Dr. Kozin testified,
"[i]t's my opinion that [the injury] occurred from
the traction applied to the head, which led to the stretching
of the nerves in her neck."This opinion was new and
different from the causation opinion he gave during his
deposition above, where he had equivocated to some extent on
the specific cause.
Furthermore, as to the Lerner article,  Dr. Kozin may
not provide an opinion on it, or the related video, at the
third trial. At the second trial, during direct examination,
Dr. Kozin relied on the Lerner article for his new opinion,
which essentially excluded endogenous forces as a possibility
in this case. Dr. Kozin's deposition testimony and his
second trial testimony differed from his trial testimony in
the first trial as it related ...