IN THE SUPERIOR COURT OF THE S'.IATE O..E ,D.ELAWARE

MILLICENT ROBINSON and JOHN
ROBINSON, Executor of the Estate
of BARBARA MCGHEE,

Plaintiffs,
C.A. No. N17C-03-265 (MMJ)

FOULKSTONE MEDICAL
PAVILION CONDOMINIUM
ASSOCIATION and JOSEPH

GUIES,
Defendants.

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Submitted: August 14, 2018
Decided: September 19, 2018

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

On Defendant’s Motion for Summary Judgment
DENIED.

OPINION

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.

JOHNSTON, J.

PROCEDURAL AND FACTUAL CONTEXT

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.

STANDARD OF REVIEW
Daubert and I£xpel't Testimony
The Delaware Supreme Court has adopted the Daubert standard to determine
the admissibility of expert testimony.l 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;”

 

l See Eskl`n v. Cara'en, 842 A.2d 1222, 1231 (Del. 2004) (citing Daubert v. Merrell Dow, 509
U.S. 579 (1993)).

(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

 

2 Id. at 1227 (quoting Cunningham v. McDonala', 689 A.2d 1190, 1193 (Del.1997)).
3 Sturgis v. Bayside Health Ass 'n Chartered, 942 A.2d 579, 584 (Del. 2007).

4 Super. Ct. Civ. R. 56(0).
5Burkhart v. Davies, 602 A.2d 56, 58-59 (Del. 1991).

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circumstances6 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

ANALYSIS
Motion to Exclude Opinions and Testimony of Expert Witness

Defendant argues that Plaintist 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
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.ll The physician testified during his deposition that he assisted

 

6 Super. Ct. Civ. R. 56(0).

7 Wooten v. Kiger, 226 A.2d 23 8, 239 (Del. 1967).

8 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
9 Def`. Mot. To Exclude 11 ll.

10 Ross M. Uf`berg, Curriculum Vl'tae at l.

ll Id. at 1.

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: l) 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

 

12 Ufberg Deposition at 13.
13 Ufberg Deposition at l4.
14 Ufberg Deposition at 26.
15 Ross M. Ufberg, Report on Barbara McGhee at l.

16 Id. at 1.

and complications from the fall of 2/ 12/ 16 and the subsequent hospitalization g
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 Mumfora’ 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 opinion is based upon information reasonably
relied upon by comparable physicians Fourth, the physician’s opinions and
testimony will assist the trier of fact. Finally, the physician’s testimony will not

create prejudice or confusion or mislead the jury.

 

17 Id. at 2.
18 2002 wL 126402 (Del. Super.).
19 Ia’. at 3 (citing Bell Sports, Inc. v Yarusso, 759 A.2d 582, 590 (Del. 2000)).

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Summarv Judgment

Plaintiffs produced several pieces of evidence to prove that Defendant’s
negligence caused decedent’s fall. First, Plaintiffs presented evidence that the
decedent did not cause her fall. Plaintiffs stated that the decedent was not in any
particular hurry, she was not wearing clothing or shoes that would cause the fall,
and she was not experiencing any medical issues that would have caused the fall.20

Plaintiffs proffer expert testimony to show that there was a dangerous

condition present at the site of the fall. A liability expert inspected the site of the

decedent’s fall and reported:

lt is my professional opinion, to a reasonable degree of certainty based
on my knowledge of construction and safety and subject to
modification as additional information is made available, that the
difference in elevation between the patched area of the parking lot and
the original parking lot. . .constitutes a hazard to normal, foreseeable
pedestrian traffic. As such, this walkway/parking lot is in violation of
one or more of the above-cited Sections. Further, this hazard, which
is the result of improper maintenance and/or construction, should have

been apparent to those responsible21

Plaintiffs also presented testimony of Anthony Tomczyk. Tomczyk is
employed by Asset Management, the company in charge of maintaining

Defendant’s parking lot. Tomczyk was aware of the parking lot’s condition.22

 

20 Pl.’s Resp., E-File 62269400, at 8.
21 W. David Goldstein, Barbara McGhee Report, at 6.
22 Tomczyk Deposition at 30.

Tomczyk testified that the condition could pose a danger to elderly people.23
Plaintiffs’ evidence tends to show the fall occurred in the vicinity of the alleged
dangerous condition.

Defendant argues that negligence is never presumed.24 Defendant also
asserts that Plaintiffs have failed to offer any evidence of causation.25 Defendant
relies on Brown v. Gartside26 to support this argument. In Brown, this Court
granted the Defendant’s motion for summary judgment because the Plaintiff did
not offer any evidence to prove causation.27 Defendant argues that according to
Brown, summary judgment should be granted because Plaintiffs have not presented
sufficient evidence to establish causation.

The Court finds Brown distinguishable ln this case, Plaintiffs have offered
more evidence than presented in Brown. In Brown, this Court granted summary
judgment for the Defendant because the Plaintiff did not offer any witness

testimony or expert testimony proving a dangerous condition.28 In contrast,

 

23 Id. at 30.
24 Wilson v. Derrl`c/cson, 175 A.2d 400, 401 (Del. 1961)(stating that “[w]hen an action is filed

based upon the negligence of the defendant, such negligence is never presumed from the mere
fact that the plaintiff has suffered an injury and, in all cases, the burden is upon the plaintiff to
affirmatively prove negligence on the part of the defendant and that such negligence was the
proximate cause of the injury.”).

25 Def. Mot. Summ. J., E-File 62238746, at 11 13.

26 2004 WL 2828061 (Del. Super.).
27 Ia'. at 3 (“[P]laintiffs case fails because there is nothing in the record from which a jury could

decide what caused Plaintiff to fall. Further, Plaintiff has failed to show a dangerous or defective
condition existed either by way of the lighting or the pavement.”).
28 Id. at 3.

Plaintiffs in the instant case have offered both types of evidence to sho.w that a
dangerous condition existed where decedent fell.

Once a dangerous condition is proved, direct evidence is not necessary to
prove proximate cause.29 In Wilmington Housing Authorily v. Williamson, the
Delaware Supreme Court held that physical evidence of a dangerous condition,
combined with witness testimony, may establish causation.30

Defendant argues that Plaintiffs cannot prove the parking lot’s condition
proximately caused decedent’s fall. The Court concludes that, for purposes of
summary judgment, Plaintiffs have presented evidence from which a jury could
infer proximate cause. Defendant argues that because there was no one witnessed
decedent’s fall, Plaintiffs have not proffered prima facie evidence. However,
proximate cause can be demonstrated by circumstantial evidence. Plaintiffs’
evidence is in the form of expert testimony.31

Circumstantial evidence may lead to more than one possible inference.
After considering all possible inferences, the factfinder must consider whether
there is only one reasonable inference under the circumstances The Court finds

that Plaintiffs’ evidence may permit a jury to find that the only reasonable

 

29 Wilmington HousingAuthorz`ty v. Williamson, 228 A.2d 782, 785 (Del. 1967).

30 Id. at 785.
31 Suburban Propane Gas Corp. v. Papen, 245 A.2d 795, 798 (Del. 1968)(“In order to prove

proximate causation by circumstantial evidence, it is necessary that such conclusion be the only
reasonable inference possible from the proven circumstances . .”).

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inference under the circumstances is that Defendant’s negligence caused

decedent’s injuries and subsequent death.

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CONCLUSION

The Court finds that the physician is a medical expert under Daubert. The
offered expert testimony is admissible under the Daubert factors Therefore,
Defendant’s Motion to Exclude Opinions and Testimony of Dr. Ross M. Ufberg is
hereby DENIED.

The Court finds that drawing all inferences in favor of the non-moving party,
Plaintiff has established prima facie evidence of a dangerous condition. Plaintiff
has provided circumstantial evidence sufficient to create a genuine issue of
material fact regarding a dangerous condition, causation, and damages Therefore,
Defendant’s Motion for Summary Judgment is hereby DENIED.

IT IS SO ORDERED.

  

 

e ary M. Johnston

   

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