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
Below: Superior Court of the State of Delaware C.A. No.
appeal from the Superior Court. REVERSED AND REMANDED.
William Fletcher, Esquire (Argued), and Dianna E. Louder,
Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware,
C. McConnell, Esquire (Argued), and Gregory S. McKee,
Esquire, Wharton Levin Ehrmantraut & Klein, P.A.,
Wilmington, Delaware, for Appellees.
VALIHURA, VAUGHN, and SEITZ, Justices.
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." 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
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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." According to Dr.
Soffer, Ms. Norman's bladder injury occurred during Dr.
Maynard's placement of a secondary trocar. 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.
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. 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
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." The heart of the court's ruling is
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.
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
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
Appellees make the arguments they made to the trial court,
summarized above. They also draw our attention to the