        IN THE SUPREME COURT OF THE STATE OF DELAWARE

AMANDA M. NORMAN,                      §
                                       §     No. 26, 2018
      Plaintiff Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     C.A. No. K14C-12-003
ALL ABOUT WOMEN, P.A., a               §
Delaware Corporation and               §
CHRISTINE W. MAYNARD, M.D.,            §
Individually,                          §
                                       §
      Defendants Below,                §
      Appellees.


                          Submitted: June 13, 2018
                          Decided: August 21, 2018


Before VALIHURA, VAUGHN, and SEITZ, Justices.


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.
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.

                       FACTS AND PROCEDURAL HISTORY

         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




1
    Norman v. All About Women, P.A., 2017 WL 5624303, at *2 (Del. Super. Ct. Nov. 16, 2017).


                                                2
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




                                           3
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



2
  App. to Appellant’s Opening Br. at A66.
3
  “[A] sharp-pointed instrument . . . used to puncture the wall of a body cavity and withdraw fluid
or to introduce an endoscope.” Miller-Kean Encyclopedia and Dictionary of Medicine, Nursing,
and Allied Health, https://medical-dictionary.thefreedictionary.com/trocar (last visited July 30,
2018).
4
  509 U.S. 579, 595 (1993).


                                                 4
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

                                     STANDARD OF REVIEW

         This Court reviews de novo the Superior Court=s grant or denial of summary

5
    Norman, 2017 WL 5624303, at *2.
6
    Id. (citing to Smith v. Grief, 2015 WL 128004 (Del. Jan. 8, 2015)).


                                                   5
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

                                        DISCUSSION

       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 passage from Dr. Soffer’s

deposition testimony:


7
  Brown v. United Water Del., Inc., 3 A.3d 272, 275 (Del. 2010) (quoting Estate of Rae v. Murphy,
956 A.2d 1266, 1269-70 (Del. 2008)).
8
  The Appellees also argue that the Appellant has failed to comply with Supreme Court Rule 14(e)
which requires that the Appellant’s appendix include “the complete docket entries in the trial court
arranged chronologically.” However, it appears that the Appellant has included a complete list
of docket entries at pages A1 to A19. To the extent the Appellees argue that the Appellant has
not included copies of some parts of the record in her appendix, the argument is rejected. We are


                                                  6
       Q: The sole basis for your opinion that Dr. Maynard used sloppy, to use
       your words, surgical technique, is the fact that an injury occurred,
       correct?
       A: Yes.
       Q: And the sole basis for your opinion that she missed that bladder
       injury during the operation is the fact that she had a bladder injury?
       A: Yes.9

       In another portion of the deposition, the Appellee’s submit, Dr. Soffer “went

so far as to assert that the fact that the injury was missed means there was inadequate

inspection ‘[s]o that speaks for itself.’”10          Answers such as these, the Appellees

contend, show that Dr. Soffer’s opinions are based on the fact that injury occurred

and do not meet the test for admissibility. They contend that Dr. Soffer is required

to provide a rationale for how Dr. Maynard deviated from the standard of care and

he failed to do so.

       If a witness is qualified as an expert by skill, experience, knowledge, training

or education, he may offer an opinion and testify as to that opinion.11 In a medical

negligence case, an expert must be “familiar with the degree of skill ordinarily

employed in the field of medicine on which he or she will testify” in order to offer a

standard of care opinion.12 A strong preference exists for admitting evidence that




satisfied that the Appellant’s appendix is sufficient to give us a “fair and accurate account of the
context in which the claim of error occurred.” Supr. Ct. R. 14(e).
9
   App. to Appellee’s Answering Br. at B183–85.
10
   Appellee’s Answering Br. at 8.
11
   D.R.E. 702.
12
   18 Del. C. § 6854.


                                                  7
may assist the trier of fact.13 As such, expert opinions are appropriate when they

will assist the trier of fact in understanding the relevant facts or the evidence.14

         In his ruling, the Superior Court judge relied upon our order in Smith v.

Grief.15 The expert in that case was a biomechanical engineer. The question was

whether the expert’s testimony “should be excluded because her opinions were

unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc. and D.R.E. 702.”16

Delaware Rule of Evidence 702 reads as follows:

         If scientific, technical or other specialized knowledge will assist the
         trier of fact to understand the evidence or to determine a fact in issue, a
         witness qualified as an expert by knowledge, skill, experience, training
         or education may testify thereto in the form of an opinion or otherwise,
         if (a) the testimony is based upon sufficient facts or data, (2) the
         testimony is the product of reliable principles and methods, and (3) the
         witness has applied the principles and methods reliably to the facts of
         the case.

We stated that the question presented in Smith should be determined using the

following five factors:

         (1) the witness is qualified as an expert by knowledge, skill, experience,
         training or education; (2) the evidence is relevant; (3) the expert’s
         opinion is based upon information reasonably relied upon by experts in
         the particular field; (4) the expert will assist the trier of fact to
         understand the evidence or to determine a fact in issue; and (5) the
         expert testimony will not create unfair prejudice or confuse or mislead
         the jury.17

13
     Pavey v. Kalish, 3 A.3d 1098 (Del. 2010) (citations omitted).
14
     Id.
15
     2015 WL 128004 (Del. Jan. 8, 2015).
16
     Id. at *2.
17
     Id. (citing to Bowen v. E.I. DuPont de Nemours & Co., 906 A.2d 787, 794 (Del. 2006)).


                                                 8
       These factors were developed in response to Daubert and have appeared in a

line of our cases. 18    The factor involved in this case is the third: “the expert’s

opinion is based upon information reasonably relied upon by experts in the particular

field.” The Superior Court appears to have interpreted this factor to require that

the expert’s opinion be based upon medical literature or peer reviewed publications

or some other source which corroborates the expert’s analysis. An opinion by a

doctor “based on his own knowledge” was deemed insufficient.

       We think that the Superior Court misinterpreted this third factor. The

origin of the factor can be found in the following passage from Daubert:

       Throughout, a judge assessing a proffer of expert scientific testimony
       under Rule 702 should also be mindful of other applicable rules. Rule
       703 provides that expert opinions based on otherwise inadmissible
       hearsay are to be admitted only if the facts or data are ‘of a type
       reasonably relied upon by experts in the particular field in forming
       opinions or inferences upon the subject.’19

        This makes clear that the third factor is derived from D.R.E. 703’s provision

that “[i]f of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or data need not be admissible in

evidence in order for the opinion or inference to be admitted.”         The third factor was

thought of by the author of Daubert as a guard against the use of unreliable hearsay.


18
   Smith, 2015 WL 128004; Bowen, 906 A.2d 787; Tolson v. State, 900 A.2d 639, 645 (Del. 2006);
Eskin v. Carden, 842 A.2d 1222, 1227 (Del. 2004); Nelson v. State, 628 A.2d 69, 74 (Del. 1993).
19
   Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993).


                                               9
The factor does not pertain to information which the expert has not relied on. In

this case, the information relied on by Dr. Soffer are Ms. Norman’s medical records

and the depositions of Ms. Norman and Dr. Maynard.              He arrives at his opinions

by applying his training and experience to the facts of this case. The information

relied on by Dr. Soffer is clearly sufficient under D.R.E. 703 to justify admission of

his opinions under D.R.E. 702.          Medical literature or peer reviewed publications

may be useful factors in an appropriate case, and may be relevant to the defense in

this case, but they have no bearing on the admissibility of Dr. Soffer’s opinions.

         The Appellees correctly state that no presumption or inference of medical

negligence arises from the fact that an undesirable result occurred.             We think,

however, that when Dr. Soffer’s deposition testimony is read as a whole, it is clear

that he provided two opinions on the standard of care and Dr. Maynard’s deviation

from those standards.         First, he attributes the cause of the perforation of Ms.

Norman’s bladder to the placement of a secondary trocar. He bases this opinion on

the medical records provided by Union Hospital from the corrective surgery:

         I think what reinforces. . . this being a trocar injury, as opposed to a
         laser or cautery injury, is that [the Union Hospital Doctor] does not
         describe any cautery like effects in the perforations or rent. He says
         the fact he closed it directly without excising tissue. . . . [T]hey directly
         sowed [the perforation] without excising any tissue. That, to me,
         reinforces that this was a trocar injury.20


20
     App. to Appellant’s Opening Br. at A35.


                                               10
His deposition testimony includes his opinion that Dr. Maynard breached the

standard of care by “push[ing] the trocars in too far” and being “a little too forceful,”

causing the trocar to go directly into the dome of the bladder.21 The placement of

this secondary trocar, he says, should be done under direct visualization and any

injury to a nearby organ is a deviation from the standard of care:

         Dr. Maynard, and anyone doing laparoscopy surgery knows that the
         secondary trocars are put in under direct visualization. It is the job of
         the surgeon to watch every centimeter of that entry of that secondary
         trocar into the abdomen with care not to injure the bladder. That’s
         what you are looking for. That’s why you are doing it under what we
         call direct visualization. . . .These secondary trocars are not blind
         entries. You can see very clearly, and if you can’t see very clearly,
         then you don’t put them in.22

         Second, Dr. Soffer says that Dr. Maynard breached the standard of care by not

thoroughly inspecting the surgical area and discovering the perforation.             He

believes that had an adequate inspection been done, bleeding or a leakage of urine

would have been seen.

         The facts in this case have some similarity to the facts in Balan v. Horner.23

The plaintiff there underwent a laparoscopic appendectomy.            A second trocar,

inserted under direct vision, lacerated the plaintiff’s iliac artery.    The plaintiff’s

medical expert testified that “[I do] not know exactly where Balan put [the second



21
     Id.
22
     Id. at A39.
23
     706 A.2d 518 (Del. 1998).


                                             11
trocar]. But I can say that he put it in the wrong place.”24 He further explained

that “I know it was done incorrectly or we would not be here . . . .”25 After a jury

verdict in favor of the plaintiff, the defendant appealed, arguing that the plaintiff’s

expert opined that the doctor was negligent simply because of an unfavorable

outcome.           We rejected the defendant’s argument, explaining that the opinion of the

plaintiff’s expert “was based on his analysis of the circumstances of this case, not

mere speculation over the cause of a bad result.”26 The same can be said of Dr.

Soffer’s analysis in this case.

          Dr. Soffer’s deposition testimony, considered as a whole, is sufficient to

establish the applicable standards of care, Dr. Maynard’s deviations from those

standards, and injury to Ms. Norman caused by those deviations.           His testimony is

admissible.

                                        CONCLUSION

          The Superior Court’s ruling which excluded Dr. Soffer’s testimony and its

grant of summary judgment are reversed and the matter is remanded for further

proceedings consistent with this opinion. Jurisdiction is not retained.




24
     Id. at 521.
25
     Id.
26
     Id.


                                                12
