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Robinson v. Foulkstone Medical Pavilion Condominium Association

Superior Court of Delaware

September 19, 2018

MILLICENT ROBINSON and JOHN ROBINSON, Executor of the Estate of BARBARA McGHEE, Plaintiffs,

          Submitted: August 14, 2018

         On Defendant's Motion to Exclude Opinions and Testimony of Dr. Ross M. Ufberg DENIED.

         On Defendant's Motion for Summary Judgment DENIED.

          Kenneth M. Roseman, Esq. (Argued), Kenneth Roseman P.A., Attorney for Plaintiffs.

          Tracy A. Burleigh, Esq. (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, Attorney for Defendant Foulkstone Medical Pavilion Condominium Association.




         On February 12, 2016, decedent allegedly slipped and fell outside Defendant's facility. Decedent then was hospitalized for a fractured hip. Following the initial hip fracture, decedent experienced a number of complications until her death on July 15, 2016. Plaintiffs, on behalf of decedent, allege that decedent died as a result of the slip and fall and subsequent complications for which Defendants are liable. Plaintiffs commenced this action on March 22, 2017. Defendant Foulkstone Medical Pavilion Condominium Association has moved to exclude the testimony of Plaintiff s medical expert and for Summary Judgment. Plaintiffs responded and argument was heard on August 14, 2018.


         Daubert and Expert Testimony

         The Delaware Supreme Court has adopted the Daubert standard to determine the admissibility of expert testimony.[1] Under this standard, the Court asks whether: (i) the witness is "qualified as an expert by knowledge, skill, experience, training or education;" (ii) the evidence is relevant and reliable; (iii) the expert's opinion is based upon information "reasonably relied upon by experts in the particular field;" (iv) the expert testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue;" and (v) the expert testimony will not create unfair prejudice or confuse or mislead the jury.[2]

         When assessing the second factor of the Daubert standard-the reliability of the expert's opinion-trial courts consult a non-exclusive list of four more questions: (1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community.[3]

         Summary Judgment

         Summary judgment is granted only if the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law.[4] All facts are viewed in a light most favorable to the non-moving party.[5] Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if there is a need to clarify the application of law to the specific circumstances.[6] When the. facts permit a reasonable person to draw only one inference, the question becomes one for decision as a matter of law.[7] If the non-moving party bears the burden of proof at trial, yet "fails to make a showing sufficient to establish the existence of an element essential to that party's case," then summary judgment may be granted against that party.[8]


         Motion to Exclude Opinions and Testimony of Expert Witness

         Defendant argues that Plaintiffs physician-witness lacks the requisite knowledge to qualify as an expert witness. Defendant states that the physician never evaluated the decedent after her fall.[9] Defendant argues the physician is not a qualified expert on these grounds and therefore should not be permitted to testify i as an expert.

         The physician is a medical doctor and director at Wilmington Pain & Rehabilitation Center.[10] He received his medical degree at Medical College of Pennsylvania in 1982 and was certified by the National Board of Medical Examiners in 1983.[11] The physician testified during his deposition that he assisted in treating a wide variety of medical issues during his internship at Baylor College of Medicine from 1982-1983.[12] During his internship, he interned with a world-renowned heart surgeon.[13] He testified that he has extensive experience with treating hip fractures and subsequent rehabilitation as part of his practice.[14] Based on the physician's medical training and experiences, he was able to form an opinion on decedent's cause of death.

         In his report, the physician opined that decedent's "diagnoses that were directly caused by the fall of February 12, 2016 include: 1) Left femur fracture with bipolar hemiarthroplasty of the left hip, 2/14/16; 2) Wound infection left hip with methicillin resistant staphalococcyx aureus requiring removal of hardware with replacement with a spacer."[15] The physician further reported that decedent "had complications during her hospitalization for repair of her hip fracture including stress cardiomyopathy, anemia secondary to blood loss from gastrointestinal sources, as well as left hip complicated by her history of a factor VIII deficiency. Additional complications included development of a decubitus ulcer on her coccyx as well as a urinary tract infection."[16] He further reported that the diagnoses listed on decedent's death certificate "were caused by the injuries and complications from the fall of 2/12/16 and the subsequent hospitalization. -which were the proximate cause of [decedent's] death."[17]

         The Court finds that Defendant's arguments to exclude expert testimony go to weight to be given to the expert's report and the credibility of the witness. The Daubert standard for admissibility has been met. First, the physician received a medical degree and subsequent licensure and is qualified in the medical field. Second, the physician's report is relevant and reliable as defined by Daubert. The physician's opinions are based on his training and experience as an M.D. The physician reviewed the decedent's medical records and, based on his training, was able to offer an opinion as to what caused her death. Third, under Mumford v. Paris,[18] "an experienced practicing physician is an expert, and it is not required that he be a specialist in the particular malady at issue in order to make his testimony as an expert admissible."[19] Therefore, even though the physician is not a specialist, his training and experience are sufficient to deem him a qualified expert for the purposes of this matter. His ...

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