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Norman v. All About Women, P.A.

Supreme Court of Delaware

August 21, 2018

AMANDA M. NORMAN, Plaintiff Below, Appellant,
ALL ABOUT WOMEN, P.A., a Delaware Corporation and CHRISTINE W. MAYNARD, M.D., Individually, Defendants Below, Appellees.

          Submitted: June 13, 2018

          Court Below: Superior Court of the State of Delaware C.A. No. K14C-12-003

         Upon appeal from the Superior Court. REVERSED AND REMANDED.

          William Fletcher, Esquire (Argued), and Dianna E. Louder, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware, for Appellant.

          Lauren C. McConnell, Esquire (Argued), and Gregory S. McKee, Esquire, Wharton Levin Ehrmantraut & Klein, P.A., Wilmington, Delaware, for Appellees.

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          VAUGHN, JUSTICE.

         This is an appeal from the Superior Court's grant of summary judgment in favor of defendants All About Women, P.A. and Christine W. Maynard, M.D. in a medical negligence case. The grant of summary judgment followed an earlier ruling that the testimony of plaintiff Amanda M. Norman's medical expert was inadmissible under the rules of evidence. In that ruling, the court excluded the expert's testimony because the plaintiff failed to show that his opinions were "'based on information reasonably relied upon by experts' in his field."[1] For the reasons which follow, we reverse the Superior Court's ruling which excluded the expert's testimony and its grant of summary judgment. The case is remanded to the Superior Court for further proceedings.


         We set forth the facts as alleged by the Appellant, Ms. Norman. On October 22, 2013, Ms. Norman underwent a diagnostic laparoscopy performed by Appellee Dr. Maynard. Dr. Maynard is a practitioner with Appellee All About Women, P.A. The operative reports do not indicate any complications occurred during the procedure. However, immediately following the procedure Ms. Norman had sharp, intense pains in the center of her lower abdomen. She reported these complaints to Dr. Maynard who suggested that pain from the procedure was to be expected. Symptoms persisted, however, and two days later Ms. Norman went to the Christiana Care emergency room. She felt dizzy, remained in pain, and was having a hard time holding herself up because of muscle weakness. She underwent a CT scan of her head to rule out a possible stroke and was discharged the same day with a diagnosis of dehydration.

         On October 25, Ms. Norman's boyfriend was unable to wake her up and called 911. She was transported to Union Hospital by ambulance, still in pain and unable to control her muscles enough to sit up. The doctors at Union Hospital performed surgery and found that her bladder had been ruptured. They attributed the rupture to the diagnostic laparoscopy.

         Ms. Norman filed an action in the Superior Court alleging medical negligence against Dr. Maynard and All About Women, P.A. She claimed Dr. Maynard was negligent by perforating her bladder and then failing to recognize and treat the injury before completing the procedure.

         Ms. Norman retained Dr. Jeffrey Soffer, M.D. as her medical expert to provide an opinion on how Dr. Maynard breached the standard of care. Dr. Soffer is board certified in obstetrics/gynecology and serves as an attending physician in the Department of Obstetrics and Gynecology at Overlook Hospital in Summit, New Jersey. He has done hundreds of diagnostic laparoscopies during the course of his career.

         Dr. Soffer gave an opinion that Dr. Maynard provided substandard care during the course of Ms. Norman's procedure. He stated "it is incumbent on the operating surgeon to be always aware of the exact anatomic position of adjacent structures in order to avoid inadvertent injury. The bladder . . . [would have been] in plain view."[2] According to Dr. Soffer, Ms. Norman's bladder injury occurred during Dr. Maynard's placement of a secondary trocar.[3] Such placement, he says, should be done under direct visualization so as to "certainly avoid injury" and any resulting injury "represents careless and sloppy surgical technique." He further opined that the standard of care dictates that careful inspection of the operative site and adjacent structures, including the bladder, take place before the procedure is completed.

         On February 7, 2017, Appellees filed a Motion in Limine to exclude Dr. Soffer's opinions on the grounds they lacked the requisite reliability under Daubert v. Merrell Dow Pharmaeutials, Inc.[4] and settled Delaware case law. They argued that Dr. Soffer's opinion that Dr. Maynard was negligent was based solely on the fact that an injury occurred. They further argued that Dr. Soffer did not articulate a standard of care or how Dr. Maynard deviated from a standard of care. In addition, they argued that Dr. Soffer's methodology in reaching his opinion failed under Daubert because he could not identify any medical literature or peer reviewed publications that he relied upon in formulating his opinion that Dr. Maynard had acted negligently.

         The Superior Court agreed, noting that Ms. Norman failed to meet her burden because no evidence was presented that Dr. Soffer's opinion was "based on information reasonably relied upon by experts in the field."[5] The heart of the court's ruling is this:

In this case, Ms. Norman has failed to meet her burden because no evidence has been presented that Dr. Soffer's opinion is 'based on information reasonably relied upon by experts' in his field. In fact, Dr. Soffer testified that he did not rely on any medical literature or peer reviewed publications in reaching his conclusion that Dr. Maynard violated the standard of care. Rather, Dr. Soffer's sole supporting contention is that, based on his own knowledge, the type of injury Ms. Norman suffered does not ordinarily occur in the absence of negligence. This contention in no way alludes to whether his analysis of the facts in this case is consistent with other experts in his field. Therefore, the Court must exclude Dr. Soffer's testimony, pursuant to the Court's five-part test set forth in Smith v. Grief.[6]


         This Court reviews de novo the Superior Court's grant or denial of summary judgment 'to determine whether, viewing the facts in the light most favorable to the nonmoving party, the moving party has demonstrated that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law.'[7]


         Ms. Norman contends the Superior Court erred by finding that Dr. Soffer's opinions were inadmissible. She believes he is qualified to give testimony on two separate issues of negligence: (1) whether Dr. Maynard's surgical technique during the diagnostic laparoscopy deviated from the standard of care; and (2) whether Dr. Maynard deviated from the standard of care by not identifying and treating the perforation of her bladder after it occurred. She contends Dr. Soffer is qualified to offer opinions on the standard of care based on his training, knowledge, and skill gained over twenty years of board certified practice in obstetrics and gynecology.

         The Appellees make the arguments they made to the trial court, summarized above.[8] They also draw our attention to the following ...

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