      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PAIGE E. CARTLIDGE and                 )
RONALD T. HOLISKEY, II,                )
Individually and as Next Friends and   )
Guardians Ad Litem for RONALD          )
T. HOLISKEY, III, a minor,             )
                                       )
                   Plaintiffs,         )      C.A. NO. N15C-12-162 ALR
                                       )
      v.                               )
                                       )
CHRISTIANA CARE HEALTH                 )
SERVICES, INC.,                        )
                                       )
                   Defendant.          )

                                       ORDER

   Upon Defendant’s Motion in Limine to Preclude Plaintiffs’ Non-OB/GYN
             Experts from Offering Standard of Care Opinions
                                DENIED

 Upon Defendant’s Motion in Limine to Preclude Standard of Care Opinions of
                  Plaintiffs’ Expert Harlan R. Giles, M.D.
                                  DENIED

      Defendants filed two motions in limine to exclude the standard of care

opinions rendered by Plaintiffs’ Expert Harlan R. Giles, M.D. and Plaintiffs’ non-

OB/GYN experts, Scott H. Kozin, M.D. and Joshua M. Abzug, M.D. Plaintiffs

oppose Defendant’s motions. The Court has considered the parties’ submissions,

Rule 702 of the Delaware Rules of Evidence, the facts, arguments, and legal

authorities presented by the parties, and decisional law.
      At the trial level, it is the role of the Court to perform a gatekeeping function

with expert testimony.1 The admissibility of expert testimony is governed by

Delaware Rule of Evidence 702, which provides:

      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 (1) 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.2

      Delaware has adopted the Daubert standard to determine whether an expert

has a reliable basis in the knowledge and experience of the relevant discipline.

Under this standard, the trial judge may consider the following factors: 1) whether

the theory or technique has been tested; 2) whether it has been subjected to peer

review and publication; 3) whether a technique has a high known or potential rate of

error and whether there are standards controlling its operation; and 4) whether the

theory or technique enjoys acceptance within a relevant scientific community. 3




1
  Sturgis v. Bayside Health Ass’n, 942 A.2d 579, 583 (Del. 2007).
2
  D.R.E. 702.
3
  Sturgis, 942 A.2d at 584 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993)).
                                         2
          In addition to the Daubert factors, Delaware requires the trial judge to

consider an additional five-step test to determine admissibility of expert testimony.4

The trial judge must determine that:

          (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 that particular field;
          (4) the expert testimony will assist the trier of fact to understand the
              evidence or determine a material fact in issue; and
          (5) the expert testimony will not create unfair prejudice or confuse or
              mislead the jury.5

          The Court is satisfied that Dr. Giles is an expert qualified by knowledge, skill,

experience, training, and education. Dr. Giles’ opinion is based on information

reasonably relied on by experts in the field of obstetrics. Dr. Giles’ proposed

testimony is relevant and will assist the jury in understanding the evidence and

determining a fact in issue. Dr. Giles’ testimony will not create unfair prejudice or

confuse or mislead the jury. Defendant’s concerns regarding Dr. Giles’ testimony

go to weight and not admissibility, and Defendant can effectively cross-examine Dr.

Giles at trial.

          With respect to Dr. Kozin and Dr. Azbug, Defendant argues that their

expertise is outside the field of obstetrics. However, while not obstetricians, Dr.



4
    Id.
5
    Id.
                                              3
Kozin and Dr. Azbug are pediatric orthopaedists familiar with the diagnosis and

treatment of injuries like that at issue in this case. Thus, the Court is similarly

satisfied that Dr. Kozin and Dr. Azbug are experts qualified by knowledge, skill,

experience, training, and education. The opinions of Dr. Kozin and Dr. Azbug are

based on information reasonably relied on by experts in the field of pediatric

orthopaedics. Their testimony is relevant and will assist the jury in understanding

the evidence and determining a fact in issue. Neither Dr. Kozin’s nor Dr. Azbug’s

testimony will create unfair prejudice or confuse or mislead the jury. Defendant’s

challenges against Dr. Kozin and Dr. Azbug go to the weight and credibility of their

proposed testimony and not to the admissibility. Defendants can effectively cross-

examine Dr. Kozin and Dr. Azbug at trial.

      NOW, THEREFORE, this 20th day of September 2017, Defendant’s

Motion In Limine to Preclude Plaintiffs’ Non-OB/GYN Experts from Offering

Standard of Care Opinions is hereby DENIED; and Defendant’s Motion in

Limine to Preclude Standard of Care Opinions of Plaintiffs’ Expert Harlan R.

Giles, M.D. is hereby DENIED.

      IT IS SO ORDERED.

                                      Andrea L. Rocanelli
                                      ______________________________
                                      The Honorable Andrea L. Rocanelli



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