IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMANDA M. NORMAN,
C.A. No. Kl4C-12-003 WLW
Plaintiff, : Kent County

V.

ALL ABOUT WOMEN, P.A., a

Delaware corporation and :
CHRISTINE W. MAYNARD, M.D., :
individually, :

Defendant.

Submitted: September 22, 2017
Decided: November 16, 2017
ORDER
Upon Defendants’ Motion in Limine to Exclude

the Expert Testirnony of Jeffrey Soffer, M.D.
Granted.

William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover,
Delaware; attorney for Plaintiff.

Lauren C. McConnell, Esquire of Wharton Levin Ehrmantraut & Klein, P.A.,
Wilmington, Delaware; attorney for Defendants.

WITHAM, R.J.

Amanda M Norman v. All About Women, et al.
C.A. No. Kl4C-12-003 WLW
November 16, 2017

Before the Court is the Defendants’ , All About Women, P.A., and Christine W.
Maynard, M.D., Motion in Limine to exclude the expert testimony of J effrey Soffer,
M.D. The Defendants’ Motion is hereby GRANTED.

FACTS AND PROCEDURAL HISTORY

This is an action for alleged medical negligence involving a diagnostic
laparoscopy, that Dr. Maynard performed on October 22, 2013, at Christiana
Hospital. Plaintiff claims that Dr. Maynard perforated her bladder and then failed to
recognize the injury before completing the procedure, necessitating a second
exploratory surgery, unnecessary hospitalization and other damages.

On February 7, 2017, the Defendants filed five motions in limine seeking to:
(l) exclude evidence, argument, and testimony of Defendants’ Write-off and payment
of medical expenses; (2) limit the testimony of Kenneth Woo, M.D.; (3) exclude
postoperative statements of apology; (4) exclude evidence related to pregnancy and
unsupported injuries; and (5) exclude testimony of Jeffrey Soffer, M.D. on the
standard of care.

On September 22, 2017, the Court held oral argument on the five motions. The
Court issued a bench decision regarding the first four motions, but reserved decision
regarding the exclusion of Dr. Soffer’s testimony. This constitutes the Court’s
decision on that matter.

DISCUSSION
The Defendants seek to exclude expert testimony by Dr. Jeffrey Soffer as

lacking foundation because it is based “solely on the fact that an injury to Mrs.

Amana'a M Norman v. All About Women, et al.
C.A. No. Kl4C-12-003 WLW
November 16, 2017

Norman’ s bladder occurred.” The Defendants argue that Dr. Soffer did not articulate
what was required to comply with the standard of care or how Dr. Maynard’s actions
failed to comply with the standard of care. The Defendants contend that, under
Daubert, Dr. Soffer was unable to “provide any explanation as to how he reached his
standard of care opinions.” In addition, the Defendants argue, “[a]ccepting Dr.
Soffer’s opinion would render every trocar or thermal injury in a diagnostic
laparoscopy per se negligence, a conclusion unsupported by logic or statute.”

Ms. Norman points to the liberal standard created in D.R.E. 702 and contends
that the Defendants’ motion in limine is duplicative of their summary-judgment
motion.l Ms. Norman interprets Dr. Soffer’s testimony as opining that “when a
medical professional exercising [the] reasonable care and diligence” required under
18 Del. C. § 6801(7), “injury should not occur.” Ms. Norman further argues that Dr.
Soffer’s testimony highlighted several specific deficiencies in Dr. Maynard’ s surgical
procedure.

The admissibility of expert testimony is governed by D.R.E. 702, which
provides:

Ifscientific, technical or other specialized knowledge will assist the trier
of fact to understand the evidence 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

 

l The Court’s decision on summary judgment is pending its resolution of` the motions in
limine.

Amanda M Norman v. All About Women, et al.
C.A. No. Kl4C-l2-003 WLW
November l6, 2017

applied the principles and methods reliably to the facts of the case.

Delaware courts apply the analytical framework set forth by the United States
Suprcme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.2 Consistent with
Daubert, the Court considers a five-step test to determine whether expert testimony
is admissible at trial.3 The Court must determine whether:

(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 mislead the jury.4

The party seeking to introduce expert testimony bears the burden of

establishing admissibility by a preponderance of the evidence.5

 

2 MG. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521-22 (Del. 1999) (citing Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)).

3 Bowen v. E.I. DuPom‘ de Nemours & Co., 906 A.2d 787, 795 (Del. 2006).

4 Smith v. Grief, 2015 WL 128004, at *2 (Del. Jan. 8, 2015) (citing Bowen, 906 A.2d at 794);
Pallano v. T he AES Corporation, 2016 WL 750432, at *3 (Del. Super. Feb. 26, 2016).

5 Pavey v. Kalish, 2010 WL 32943 04, at *3 (Del. Aug. 23, 2010)(TABLE); Sturgis v. Baysia'e
Health Ass ’n, 942 A.2d 579, 584 (Del. 2007).

Amana'a M Norman v. All About Women, et al.
C.A. No. Kl4C-l2-003 WLW
November 16, 2017

The decision to admit expert testimony is not a conclusion that the expert’s
opinion is correct. Rather, the trial judge’s role as gatekeeper6 is limited to
determining “whether the proponent of the evidence has demonstrated that scientific

”7 Morever,

conclusions have been generated using sound and reliable approaches
D.R.E. 704 provides that “[t]estimony in the form of an opinion or inference
otherwise admissible is not objectionable merely because it embraces an ultimate
issue to be decided by the trier of fact.”

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 faot, 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. Grief8

 

6 Pavey, 2010 WL 3294304, at *3; Sturgis, 942 A.2d at 583.

7 State v. McMullen, 900 A.2d 103, l 14 (Del. Super. 2006) (citing In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 744 (3d Cir. 1994)).

8 Smith v. Grief, 2015 WL 128004 at *2 (citations omitted).

5

Amanda M Norman v. All About Women, et al.
C.A. No. Kl4C-12-003 WLW
November 16, 2017

CONCLUSION
In sum, the Defendants’ Motion In Limine to exclude Dr. Soffer’s testimony
is GRANTED. In addition, the Court acknowledges that the Defendants’ arguments
in their Motion In Limine overlap with the arguments in the Defendants’ Motion for
Summary Judgment. Therefore, the Court requests that the Defendants inform the
Court if the Defendants now intend to withdraw their Motion for Summary Judgment,
or if the Court should resolve that motion as well.

IT IS SO ORDERED.

/s/ William L. Witham. Jr.
Resident Judge

WLW/dmh

