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Lewis v. McCracken

Superior Court of Delaware

May 10, 2018

TIFFANY R. LEWIS, Individually and as The Parent and Guardian of TYRA CURTIS, a minor, Plaintiffs,

          Submitted: February 19, 2018

         On Defendants' Motion in Limine to Limit the Testimony of Scott Kozin, M.D. GRANTED.

          Ben T. Castle, Esquire and Bruce L. Hudson, Esquire, Hudson & Castle Law, LLC, Wilmington, Delaware, Attorneys for Plaintiffs.

          Gregory S. McKee, Esquire, Wharton Levin Ehrmantraut & Klein, P.A., Wilmington, Delaware, Attorney for Defendants.

          David Batten, Esquire, Batten Lee PLLC, Raleigh, North Carolina, Attorney pro hac vice for Defendants.


          COOCH, R.J.

         This 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:

         1. This 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.

         2. 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.[1] 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.[2] Third, Defendants ask that Dr. Kozin be "precluded from discussing the Lerner article at trial."[3] 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 to."[4]

         3. In 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.[5] 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 . . . ."[6]

         4. A 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.[7]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 limine.

         5. Dr. 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).

         6. "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."[8] In general, experts must qualify under Daubert's five-step test to determine the admissibility of the expert testimony.[9] The Court must determine whether:

(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 jury.[10]

         7. 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."[11] An expert's trial testimony must be consistent with their expert disclosure.[12]

         8. Dr. 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."[13] 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.[14]Accordingly, any proffered opinion by Dr. Kozin regarding standard of care at the third trial will be prohibited.

         9. At 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 forces.[15]
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 force, correct?
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.[16]
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."[17]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.

         10. Furthermore, as to the Lerner article, [18] 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 ...

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