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Wong v. Broughton

Supreme Court of Delaware

February 4, 2019

PETER J. WONG, M.D., and DEDICATED TO WOMEN, OB-GYN, P.A., Defendants Below, Appellants,
v.
MONICA BROUGHTON, individually, and as Parent and Natural Guardian of AMARI M. BROUGHTON-FLEMING, a Minor, Plaintiffs Below, Appellees.

          Submitted: November 28, 2018

          Court Below: Superior Court of the State of Delaware C.A. No. N14C-01-185 VLM

         Upon appeal from the Superior Court. AFFIRMED.

          Joshua H. Meyeroff, Esquire, Morris James LLP, Wilmington, Delaware, for Appellants, Peter J. Wong, M.D., and Dedicated to Women OB-GYN, P.A.

          Bruce L. Hudson, Esquire, and Ben T. Castle, Esquire (Argued), Hudson & Castle Law, LLC, Wilmington, Delaware, for Appellees, Monica Broughton and Amari M. Broughton-Fleming.

          Before VAUGHN, SEITZ, and TRAYNOR, Justices.

          VAUGHN, JUSTICE.

         I. INTRODUCTION

         This is 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, OB-GYN, P.A.

         Dr. 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.[1] and Bowen v. E.I. DuPont de Nemours & Co.[2] and constituted an impermissible res ipsa loquitur opinion that allowed the jury to improperly presume negligence from the fact that an injury occurred.

         Second, 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.

         Third, 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 (Inc.).[3]

         Fourth and finally, they contend that the Superior Court erred when it refused to instruct the jury on "Actions Taken in Emergency."

         The 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.

         II. FACTS AND PROCEDURAL HISTORY[4]

         The 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.[5]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.

         At 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.

         Both 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.

         Prior 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, [6] and its Delaware progeny, [7] 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."[8] 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.

         After 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.

         After 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 ...


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