PETER J. WONG, M.D., and DEDICATED TO WOMEN, OB-GYN, P.A., Defendants Below, Appellants,
MONICA BROUGHTON, individually, and as Parent and Natural Guardian of AMARI M. BROUGHTON-FLEMING, a Minor, Plaintiffs Below, Appellees.
Submitted: November 28, 2018
Below: Superior Court of the State of Delaware C.A. No.
appeal from the Superior Court. AFFIRMED.
H. Meyeroff, Esquire, Morris James LLP, Wilmington, Delaware,
for Appellants, Peter J. Wong, M.D., and Dedicated to Women
L. Hudson, Esquire, and Ben T. Castle, Esquire (Argued),
Hudson & Castle Law, LLC, Wilmington, Delaware, for
Appellees, Monica Broughton and Amari M. Broughton-Fleming.
VAUGHN, SEITZ, and TRAYNOR, Justices.
a medical negligence case in which a jury returned a verdict
in favor of the plaintiff, Monica Broughton, in the amount of
$3 million. The case was brought by Ms. Broughton
individually and as parent and natural guardian of her
nine-year-old son, Amari Broughton-Fleming. The injury
involved was a permanent injury to Amari's right brachial
plexus that occurred during birth. The defendants are Dr.
Peter J. Wong and his medical practice, Dedicated To Women,
Wong and his medical practice make four arguments on appeal.
First, they contend that the Superior Court erred when it
denied their motion in limine to exclude the opinion
of the plaintiff's standard of care expert, Dr. Marc
Engelbert. They characterize his opinion as being that Dr.
Wong breached the standard of care based solely on the fact
that Amari sustained a permanent brachial plexus injury.
According to them, Dr. Engelbert's opinion did not
satisfy the requirements of Daubert v. Merrell Dow
Pharmaceuticals, Inc. and Bowen v. E.I. DuPont de Nemours
& Co. and constituted an impermissible res
ipsa loquitur opinion that allowed the jury to
improperly presume negligence from the fact that an injury
they contend that the Superior Court erred when it denied
their motion in limine to exclude the
plaintiff's causation expert, Dr. Scott Hal Kozin. They
contend that Dr. Kozin's opinion lacked a proper factual
foundation, failed to satisfy the criteria of
Daubert and Bowen, and constituted an
impermissible res ipsa loquitur opinion.
they contend that the Superior Court erred when it permitted
the plaintiff to elicit statistical evidence from Dr. Wong
and his experts to establish the rarity of brachial plexus
injuries. They argue that this evidence was improperly used
to suggest that Dr. Wong must have been negligent based upon
an unusual outcome. Appellants contend that such evidence
must be excluded under Timblin v. Kent General Hospital
and finally, they contend that the Superior Court erred when
it refused to instruct the jury on "Actions Taken in
first and third contentions were directly addressed by the
Superior Court in a ruling on post-trial motions, and we
affirm the Superior Court as to those issues for the reasons
given in its opinion. The second and fourth contentions,
which were initially raised and denied before trial, were not
reargued in the post-trial motions. For the reasons that
follow, we affirm the Superior Court as to these two
contentions as well.
FACTS AND PROCEDURAL HISTORY
plaintiff claims that Dr. Wong negligently applied excessive
lateral traction during childbirth with such force that the
stretching of Amari's head during delivery caused a
permanent right brachial plexus injury. During birth,
Amari's right shoulder was lodged under the mother's
pubic bone, a life-threatening condition known as shoulder
dystocia. Dr. Wong's defense was that, because of the
shoulder dystocia he used what he considered to be a
"unique" method of delivery and noted in his
records that he had "not applied any traction" to
Amari.To explain the cause of injury, the
defendants and their experts relied heavily upon the American
Congress of Obstetricians and Gynecologists
("ACOG") Monograph as scientific evidence that
Amari's injury was the result of maternal endogenous
forces during labor and not attributable to Dr. Wong's
actions. Put simply, their contention was that the
mother's pushing during delivery caused the injury.
trial, the facts showed that, during delivery, the force that
occurred was sufficient to cause both transient and permanent
nerve damage to Amari's right arm. Although he
subsequently underwent two major surgeries (performed by Dr.
Kozin) to repair the damaged nerves, his injury left him
permanently impaired. His right arm is visibly shorter than
his left, and this prevents him from doing certain
activities, including riding a bicycle and playing his
favorite sports. Medical testimony established that his
physical deficits will carry into his adult life.
sides presented conflicting accounts from eyewitnesses who
were present in the delivery room. Amari's father and
maternal grandmother both testified that they observed Dr.
Wong pull on Amari's head when he was emerging during
delivery. The defendants' eyewitnesses (medical staff
present during delivery), however, testified that they did
not make similar observations, and Dr. Wong denied that he
ever pulled on Amari's head. Against this factual
inconsistency, the parties' medical experts gave
conflicting opinions on the critical issues of standard of
care and causation.
to trial, the defendants filed motions in limine to
exclude the testimony of the plaintiff's experts, Drs.
Engelbert and Kozin. The defendants argued that both experts
failed to meet the requirements of Delaware Rule of Evidence
702, Daubert,  and its Delaware progeny,
contending that each expert's opinion lacked an adequate
factual basis and relied "upon impermissible res
ipsa loquitur or ipse dixit-type reasoning-that
the presence of the injury alone meant that Dr. Wong breached
the standard of care and caused the
injury." In particular, the defendants took issue
with Dr. Engelbert's opinion that, because Amari suffered
a permanent (as opposed to a transient) brachial plexus
injury, Dr. Wong must have applied excessive lateral traction
and, therefore, breached the standard of care. In making this
argument, the defendants relied upon the ACOG Monograph,
which they contended established that Amari's permanent
injury could have been caused by maternal forces. The
Superior Court denied these motions, finding that both
experts satisfied the requirements of Rule 702 and the
relevant case law.
the close of the plaintiff's case and again when all the
evidence was in, the appellants moved for judgment as a
matter of law under Superior Court Civil Rule 50(a). They
reiterated their objections concerning Dr. Engelbert's
res ipsa loquitur reasoning and raised an additional
argument, not raised on appeal, that excessive traction could
be appropriate as a lifesaving alternative in a medical
emergency. The Superior Court denied their motions.
trial, the Appellants renewed their motion for judgment as a
matter of law under Superior Court Civil Rule 50(b) and, in
the alternative, sought a new trial under Rule 59 or
remittitur. The ...