I,N THE SUPERIOR COURT OF THE STATE ()F DELAWARE

MGNICA BROUGHTON, individually, )
and as Parent and Natural Guardian of )
AMARI M. BROUGHTON-FLEMING, )

a Minor )
)

Plaintiffs, ) C.A. NO. Nl4C-Ol-185 VLM
)
v. )
)
PETER J. WONG, M.D., and )
DEDICATED TO WOMEN, OB~GY`N, )
P.A., )
)
Defendants. )

MEMORANDUM ()PINION

 

Submitted: November 30, 2017
Decided: February 15, 2017

Upon Consideration OfDefena’ants’ Renewed MOtl'on for Judgment as a Mczz‘ter 0f
Law or, in the alternative, Motz`onfor a New Trial, or in the alternative, Remittitur,
DENIED.

Ben T. Castle, Esquire, and Bruce L. HudSOn, Esquire, Of Hudson & Castle, LLC,
Of Wihnington, Delaware. Az‘lorneysfor Plaz'ntg`/YS.

Richard Galperin, Esquire, and JOShua H. Meyeroff, Esquire, Of MOI‘riS James LLP,
of Wilrnington, Delaware. Az‘tomeysfor the Defendants.

MEI)INILLA, J.

INTRODUCTI()N

On Septernber 26, 2017, after a seven-day medical negligence trial, a jury
returned a $3 million verdict in favor of l\/lonica Broughton (l\/Iother), individually
and as parent and natural guardian of nine-year~old Amari Broughton-Fleming
(Amari) (“Plaintiffs”). Defendants, Dr. Peter Wong and Dedicated to Women ()B-
GYN, P.A. (“Defendants”), seek judgment as a matter of laW, a new trial, or
remittitur After consideration of the parties’ briefings and oral arguments, for the
reasons stated beloW, Defendants’ Renewed Motion for Judgrnent as a l\/Iatter of

Law, or in the alternative, Motion for a NeW Trial, or Rernittitur is DENIED.

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs brought this medical negligence claim against Defendants, alleging
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. In response, Defendants maintained that, in the
presence of a shoulder dystocia, Dr. Wong 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.‘ To explain the cause of injury, Defendants relied heavily upon the
American Congress of ()bstetricians and Gynecologists (“ACOG”) Monograph as

scientific evidence that Amari’s injury Was the result of maternal endogenous forces

 

l Defs.’ l\/lot. at il 2.

during labor, not attributable to the physician’s actions. In other words, l\/Iother’s
pushing during the delivery caused the permanent injury.

During the seven days of trial, the undisputed facts included that during
delivery, the force that occurred during labor was sufficient to cause both transient
and permanent nerve damage to Amari’s right arm. As a result, both as an infant
and a young child, he underwent two major surgeries to repair the damaged nerves,
but his injury has left him permanently impaired When Amari took the stand, the
jury noted that his arm was visibly shorter than the other. Even at such a young age,
he was able to articulate how the injury has affected him throughout his life. He
explained why he has never been able to ride a bicycle, and described how his injury
prevents him from being able to play his favorite sports such as football, soccer, or
baseball. Through medical testimony, the jury also heard that these physical deficits
will carry into his adult life.

Both sides presented inconsistent 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. ln contradiction, Defendants’ medical witnesses, also present
during the delivery, testified that they did not make similar observations, and Dr.

Wong, of course, denied that he ever pulled on Amari’s head. Against this factually

inconsistent backdrop, the parties’ medical experts offered conflicting opinions on
the critical issues of standard of care and causation.

Prior to trial, Defendants filed motions in limine seeking to exclude the
testimony of Plaintiffs’ experts, Drs. Marc Engelbert and Scott Kozin, offered to
opine on standard of care and causation2 Defendants objected that both failed to
meet the requirements of D.R.E. 702 and under Daubert,3 arguing, in part, that they
were relying 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.4 The Court accepted Plaintiffs’ responses to the motions and
agreed that both experts satisfied the requirements under D.R.E. 702 and Daubert
sufficient to testify at trial.

After both the close of Plaintiffs’ case and again when all the evidence was
in, Defendants made their application forjudgment as a matter of law under Superior
Court Civil Rule 50(a). Defendants reiterated their objections concerning Dr.
Engelbert’s “res ipsa” reasoning underlying his opinion and raised an additional

argument that excessive traction could be appropriate as a lifesaving alternative in a

 

2 Defendants do not ask this Court to revisit arguments regarding Dr. KoZin, and renew this motion
only with respect to the opinion of Dr. Engelbert.

3 Dauberl v. Merrell Dow Pharm. Inc., 509 U.S. 579 (l993).

4 ln addition to the arguments raised regarding the experts’ methodologies, Defendants’ motions
in limine also asserted that each expert’s opinion lacked an adequate factual basis.

4

medical emergency sufficient to warrant judgment in their favor. This Court
determined that there was a sufficient basis from which a reasonable jury could find
in favor of Plaintiffs and denied Defendants’ motions.

On October 9, 2017, Defendants renew their l\/Iotion for Judgment as a l\/latter
of Law under Superior Court Civil Rule 50(b), or alternatively seek a new trial under
Rule 59, or remittitur Plaintiffs responded in opposition on October 20, 2017. Oral
arguments were heard on November 21, 2017, wherein Defendants presented
additional authority to support their position. This Court granted leave so that the
parties could address the applicability of the newly presented case law. Plaintiffs
submitted their positions on November 22, 2017 and Defendants filed a response on
November 30, 2017. Having considered all submissions, the matter is now ripe for
review.

RENEWED JUDGMENT AS A MATTER OF LAW
Standard of Review
Superior Court Civil Rule 50(a) that reads as follows:

lf during a trial by jury a party has been fully heard on an issue and there is
no legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue, the Court may determine the issue against the party and
may grant a motion for judgment as a matter of law . . . . 5

 

5 DEL. SUPER. CT. Clv. R. 50(a).

As occurred in this case, if such a motion is denied or is not granted, the motion may
be renewed following trial pursuant to Superior Court Civil Rule 50(b)." Viewing
all the evidence in the light most favorable to the non-moving party, the Court must
determine whether the evidence and all reasonable inferences that can be drawn
therefrom could justify a jury verdict in favor of the plaintiff(s).7 “Thus, ‘the factual
findings of a jury will not be disturbed if there is any competent evidence upon which
the verdict could reasonably be based.”’8

Discussion

The Court agrees with Defendants that the jury cannot presume negligence
from the mere presence of an injury.9 The jury was instructed accordingly. ln their
renewed motion, Defendants maintain that Plaintiffs offered no legally sufficient
evidentiary basis for a reasonable jury to find in their favor because Dr. Engelbert’s
standard of care opinion advanced an impermissible res ipsa loquitur theory. In
support, Defendants extract select lines from Dr. Engelbert’s expert testimony to

reiterate that his opinion is fatally flawed because he testified during trial that had

 

6 DEL. SUPER. CT. Clv. R. 50(b).

7 Aiwell v. RHIS, Inc., 2007 WL 914648, at *l (Del. Super. Feb. 26, 2007) (citing Mu)n_/`ord v.
Paris, 2004 WL 231611, at *2 (Del. Super. Jan. 31, 2003)).

8 Muln]’ord, 2003 WL 231611, at *2 (quoting Delaware Elec. Co-Op, Inc. v. Pitls, 633 A.2d 369,
1993 WL 445474, at *l (Del. Oct. 22, 1993) (TABLE) (emphasis added)).

9 Cir)ci()la v. Del. COCa-Cola Br)llling Cr)., 172 A.2d 252, 257 (Del. 1961).

6

there been no permanent injury, then Dr. Wong would have met the standard of care.
For the following reasons, this Court finds that Defendants fail to establish why they

are entitled to relief as a matter of law under Rule 50(b).

First, this Court notes that although Dr. Engelbert was offered as an expert on
the issue of whether Dr. Wong breached the standard of care, the Defendants elicited
testimony on cross-examination concerning issues of causation in order to further
develop their res ipsa loquitur argument10 Since the legal doctrine of res ipsa
loquitur relates to causation--versus standard of care_it stands to reason that
Defendants had to engage in a thorough cross-examination on the issue of causation
if they were to successfully argue that Dr. Engelbert employed a “res ipsa ” approach
in reaching his opinion. Therefore, the Court notes that references from Dr.
Engelbert’s testimony necessarily went beyond a “standard of care” opinion and

touched upon issues of causation when he was challenged to defend his opinion.

A dispute for the jury to decide was whether the permanent damage suffered
by Amari was caused by the excessive force applied by Dr. Wong or l\/Iother. To
refute Dr. Engelbert’s opinion that Dr. Wong was negligent, Defendants questioned

him extensively regarding conclusions from the ACOG l\/lonograph, which they

 

10 Res ipsa loquitur is a legal doctrine concerning causation; it is a “doctrine providing that, in
some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence
that establishes a prima facie case.” BLACK’S LAW DICTIONARY (10th ed. 2014).

7

maintained established scientific evidence that Amari’s injury was the result of
maternal endogenous forces during labor. Plaintiffs’ experts, including Dr.
Engelbert, criticized many of the conclusions reached in the ACOG l\/lonograph, in
large part because the study did not fully differentiate between a permanent versus

transient injury.

These medical_versus legal-references to the critical distinctions between
a permanent and transient brachial plexus injury were highlighted throughout the
trial and vital to Dr. Engelbert’s ability to both defend his opinion as more than
merely a “res ipsa ” conclusion, and to refute Defendants’ theory that it was l\/lother’s
force that caused the injury as challenged on cross-examination Equally as
important to Dr. Engelbert’s opinion was that the determination of whether the injury
was permanent or transient was not readily apparent at the time of delivery.
Therefore, while some nerves that suffered a transient injury were able to be
repaired, the diagnosis and cause of the permanent brachial plexus injury could not
be made until it was known that some nerves were permanently damaged To the
extent that the ACOG Monograph identified instances of injury caused by maternal
forces, Plaintiffs established that these injuries were transient, not permanent in
nature. Therefore, Plaintiffs argued that the conclusions from the ACOG

l\/lonograph could not be applied to Plaintiff Amari’s case.

Dr. Engelbert testified that there were no undisputed cases of permanent
brachial plexus injury that resulted from endogenous (or maternal) forces. His
testimony centered on the difference between a permanent or temporary nerve injury
and the known, undisputed causes of permanent brachial plexus inj uries. in fact, Dr.
Engelbert ruled out other causes, including l\/lother’s force. His opinion on standard

of care is perhaps best summed up in the following portion:

Understanding that to get that extent of an injury in the face of a shoulder
dystocia, in his situation there is no other possible cause other than excessive
traction. There are rare causes of permanent brachial plexus injury that don’t
apply to Amari. You rarely see this: Cancer in the brachial plexus, or an
infection in the brachial plexus. These are rare causes which didn’t apply to
Amari. Sometimes the mother -- the mother, l\/lonica, could have had
something wrong with her uterus, where Amari’s shoulder could have been
stuck in a bad position because of the uterus. ln those situations, the babies
that get affected that way, they have muscle atrophy, which Amari didn’t
have. So when you look at the other causes of permanent injury, none of them
applied to Amari. ll

Dr. Engelbert rejected the opinion of Defendants’ experts that a permanent injury
could be caused by Mother and he explained his rationale to the jury. These included
excessive downward lateral traction, as was alleged in this case, and ruling out a few
rare causes, such as cancer, infection, or the shape of the mother’s uterus, not present

here.

 

ll Trial Testimony ofl\/larc Engelbert, M.D., hereinafter referred to as “'I`EW,” 46:13-47:03.

9

Yet Defendants maintain that Dr. _Engelbert’s testimony was speculative and
cite an unrelated District Court of Massachusetts case of McGovern v. Brigham &
Women’s Hospz`tal.'2 This Court finds that McGovern is distinguishable ln
McGovern, the District Court found that Dr. Engelbert’s opinions were “mere
speculation, not supported by reliable scientific knowledge,” unsupported by “even
one peer reviewed publication” then available13 That is not the record here.
Plaintiffs established that Dr. Engelbert’s opinion was supported by multiple,
reliable medical sources, including Williams Obstetrics (24th ed.),‘“`* Gabbe
Obstetrics.' Normal ana' Prol)lem Pregnancies (7th ed.),‘5 O’Leary Shouloler
Dystocia ana’ Birth Injurj/ (3d ed.),‘6 a peer-reviewed study by l\/lollberg
“Comparison in Obstetric Management on Infants with Transient and Persistent
Brachial Plexus Palsy,”17 and Creasy and Resnik, Maternal-Fetal Meclicine (7th

ed.).18 Dr. Engelbert went beyond merely asserting that a causal link was “well-

 

12 See McGovern v. Brigham & Women 's Hosp., 584 F. Supp. 2d 418, 425~26 (D. l\/Iass. 2008).
13 lar

|4 TE 24223~28223.

15 TE 29201-3l113.

16 TE 31214~36107.

17 TE 36:08 - 38:23.

18 TE 39: 03~40:19.

10

established,” as was problematic in McGovern. 19 Additionally, distinguishable from

McGovern, with respect to Dr. Engelbert’s overall methodology, here Dr. Engelbert

0 Furthermore,

did not “fail[] to eliminate other possible causes” of the injury.2
Defendants had an opportunity to cross-examine Dr. Engelbert when he ruled out

the mother’s endogenous forces as another possible cause when they questioned him

extensively regarding the ACOG l\/Ionograph.

Defendants’ further reliance on our court’s decision in Norman v. All About
Women2l is also unpersuasive There, the court granted a motion in limine to
exclude the plaintiff expert’s standard of care testimony because “no evidence has
been presented that [the expert]’s opinion [was] ‘based on information reasonably
relied upon by experts’ in his field.”22 Unlike the expert in Norman, for the reasons
previously stated, this Court finds that the jury had evidence before them to consider
and accept Dr. Engelbert’s opinion that the permanent injury could only be the result
of excessive lateral traction. ln doing so, there was evidence in this case that his

opinion was based upon medical records, eyewitnesses’ accounts of the delivery,

 

19 McGovern, 584 F. Supp. 2d at 425.
20 Id. at 426.
21 Norman v. AllAbout Women P.A., 2017 WL 5624303 (Del. Super. Ct. Nov. 16, 2017).

22 Ia’. at *2.

ll

and all other information an expert would ordinarily rely upon in his field, including
ruling out other causes-not an uncommon exercise used in the medical field, and
previously accepted as admissible in other cases in similar medical negligence

actions.23

While perhaps Dr. Engelbert could have stated his opinion differently, the line
between medical and legal language is often blurred and this Court is often asked
use its discretion regarding the admissibility of expert opinion. The Supreme Court
has previously recognized in Mammarella v. Evantash24 and Moses v. Drake25 that
there is not a set script medical experts must follow when they render opinions.26
Rather, this Court may “exercise some discretion to determine whether the opinion
offered by an expert, when considered in light of all the evidence, meets [the] legal

standard.”27

 

23 See Lewis v. McCracken, 2016 WL 6651417, at *4 (Del. Super. Ct. Nov. 7, 2016) (expert met
the requirements of D.R.E. 702 and Daul)ert where the expert reviewed medical records,
deposition transcripts and medical literature, and, in rendering a differential diagnosis, determined
the only possible cause of permanent brachial plexus injury was excessive traction during
childbirth).

24 93 A.zd 629 (Dei. 2014).
25 109 A.3d 562 (Del. 2015).
26 Moses, 109 A.Bd at 568; Mammarella, 93 A.3d at 636-37.

27 Moses, 109 A.3d at 568.

12

Accordingly, Dr. Engelbert’s opinion, when considered in light of all the
evidence, meets the requirements under D.R.E 702 and Daubert. Given the issues
in this case, it was proper for the jury to understand the distinctions about the severity
of the injury through his explanation, and to be given an opportunity to refute the
conclusions in the AC()G l\/lonograph. On cross-examination, it was appropriate for
him to defend his conclusions, rule out other causes, and explain why the
permanency of the injury was germane to his opinion that Dr. Wong’s unique
method of delivery breached the standard of care. The jury was free to accept or
reject Dr. Engelbert’s opinion as presented in the same manner as they were free to
accept the versions from Dr. Wong or Defendants’ experts. For these reasons, this
Court finds that Dr. Engelbert’s opinion went beyond a res ipsa loquitur conclusion
and the testimony challenged by Defendants goes to the weight of the evidence, not

its admissibility.

Defendants next argue that they are entitled to judgment as a matter of law
because Dr. Engelbert testified on cross-examination that excessive traction could,

in some cases, be an appropriate alternative medical treatment.28 Defendants

 

28 lt is unclear ifDefendants are arguing there was an alleged deficiency in Dr. Engelbert’s
testimony or that the Court failed to give an alternative medical treatment jury instruction,
particularly as they cite to Corbilt v. Tatagari, 804 A.2d 1057 (Del. 2002). The Court will
address both arguments, although not expressly raised.

13

maintain that judgment in their favor is mandated because his testimony suggested
a medical event could qualify as a “lifesaving situation,” such that the testimony
unequivocally locks Dr. Engelbert into a position where he could not properly opine
that Dr. Wong breached the standard of care. Defendants reliance on Corl)itt v.

Tata<g,'ari29 and Burgos v. Hickolrz0 is somewhat misplaced

Corbitt deals with the use of an “alternative medical treatment” jury
instruction, not, as Defendants suggest, that the expert’s testimony warrants
judgment as a matter of law. The alternative medical treatment jury instruction
states: “[wjhen a physician chooses between appropriate alternative medical
treatments, harm resulting from a physician’s good faith choice of one proper
alternative over the other is not medical malpractice.”3‘ The Court chose not to give

this instruction for two reasons.

First, the evidence did not establish there were viable alternative options of
treatment available to Dr. Wong in this case. ln fact, when confronted with a
shoulder dystocia, Dr. Wong testified that he had no choice but to use his unique

method of delivery in what he considered to be a life-threatening situation Second,

 

29 804 A.zd 1057 (D@i. 2002).
30 695 A.zd 1141 (Del. 1997).

31 Corbitt, 804 A.2d at 1063-64.

14

Dr. Engelbert’s limited testimony on this subject did not suggest that excessive
lateral traction could ever be considered “an appropriate alternative medical

treatment” at the moment it was allegedly used in this case.

Burgos stands for the proposition that “the entry of a verdict in favor of the
defendant is appropriate only when, under the evidence presented by the plaintiff,
reasonable minds could draw but one inference and that inference is that a verdict
favorable to the plaintiff is not justified.”32 Here, Dr. Wong said there was no
alternative available to him. In contrast, Dr. Engelbert testified that Dr. Wong’s
unique method of delivery was not appropriate, and he would have waited additional
time before employing any traction efforts as a lifesaving maneuver33 The jury was
free to weigh the differing medical opinions, and the timeframes that they offered.
They were also free to consider and draw inferences from the eyewitnesses who
testified about what they saw during the delivery and decide what version to accept
about how and when the traction, if any, was used. Dr. Engelbert did not accept
excessive traction as a lifesaving alternative within the same timeframe that Dr.

Wong did. Reasonable minds can draw more than just one inference from the

 

32 Burgos, 695 A.2d at 1144.

33 'l`E 52111453:04; 53:13-15; 54:01-03.

15

available testimony. As such the entry of a verdict in favor of Defendants is not

appropriate in these circumstances

Viewing all the evidence in the light most favorable to the non-moving party,
the Court determines that the evidence and all reasonable inferences that can be
drawn justified ajury verdict in favor of _Plaintiffs. Defendants have not shown that
there is no competent evidence upon which the verdict could reasonably be based.

As such, Defendant’s motion under Rule 50 must be denied.
MOTION FOR NEW TRIAL
Standard ofReview

A motion for a new trial under Delaware Superior Court Civil Rule 59 may
be granted where the jury verdict “shocks the Court’s conscience and sense of
justice.”34 The jury’s verdict is entitled to “enormous deference.”35 The Court will
not upset the verdict “unless ‘the evidence preponderates so heavily against the jury

verdict that a reasonable jury could not have reached the result’ or the Court is

 

24 Young v. Frase, 702 A.2d 1234, 1237 (Del. 1997) (quoting Mills v. Telenczak, 345 A.2d 424,
426 (D€l. 1975)). S€e’ alS() DEL. SUPER. CT. Cl\/. R. 59.

35 See, e.g., Gallo v. Buccini/Pollin Group, 2008 WL 836020, at *6 (Del. Super. l\/Iar. 28, 2008)
(quoting Frase, 702 A.2d at 1236; Storey v. Castner, 314 A.2d 187, 193 (Del. 1973)).

16

convinced that the jury disregarded applicable rules of law, or where the jury’s
verdict is tainted by legal error committed by the Court during the trial.”%

Discussion

Defendants argue that the use of what they consider “improper statistical
evidence”37 entitles them to a new trial under Timl)lin v. Kent General Hospital
(Inc.,).38 Specifically, Defendants claim that portions of Dr. Engelbert’s trial
testimony and the repetitive questioning of all medical experts regarding
complications associated with a shoulder dystocia qualify as improper statistical
evidence under Timl)lin. This Court finds that the merits and the timeliness of this

argument do not fall under Timblin.

In Timl)lin, a hospital allegedly failed to properly ventilate a heart attack
patient after he went in to cardiac arrest, resulting in a neurological deficit. During
the direct examination of one of the emergency room physicians, the doctor testified
that “published studies cite a short-term hospital mortality without thrombolytic

therapy within the range of ten to fifteen percent.”39 Later, a defense expert opined

 

36 Mitchell v. Halalar, 2004 WL 1790121, at *3 (Del. Super. Ct. Mar. 20, 2008) (quoting Storey v.
Cumper, 401 A.2d 458, 465 (Del. 1977)).

37 Defs.’s l\/lot. at 11 5.
38 640 A.Zd 1021 (D€l. 1994).

39 Id.

17

that very few patients who suffer cardiopulmonary arrest survive. Defendant
attempted to tie these statistics with standard of care, asking the expert whether
anything about plaintiffs condition was properly performed The defense expert

responded:

The fact that he was resuscitated . . . . Statistically we know less than twenty-
five percent of patients whose heart [sic] goes into asystole [cessation of
electrical activity] can be resuscitated; l think it’s one out of twenty. l think it
was remarkable that they were able to bring his heart back under those
circumstances40

Our Supreme Court held that the admission of this “statistical evidence was
erroneous because its probative value was substantially outweighed by its prejudicial
effect.”‘" Such information was not germane to whether the hospital acted in
conformity with the applicable standard of care, which was the only issue before the
trial court. ln that case, there was no dispute that the damage to the plaintiff s brain
was caused by a long period of oxygen deprivation and that the long period was
because plaintiff was not intubated.42 Therefore, the causation issue was solely
whether the inability to intubate was caused by the hospital’s alleged negligence,

“not whether [plaintiff’s] brain damage was an inevitable result.”43 The Timblin

 

40 Ia’. at 1022-23 (alterations in original).
4'1¢1. ar1023_
42 Id. at 1024-25.

43 la'. at 1025.

18

Court found that the probative value of the statistical evidence was therefore
minimal, if not of no value. The statistical evidence that was presented in that case
was also deemed to be misleading since “[t]he statistics invited an inference that,
because the majority of patients who suffer a cardiac arrest die or suffer brain

damage, [plaintiff] was expected to suffer brain damage.”44

Here, Defendants do not specifically identify what language from Dr.
Engelbert is objectionable, only citing generally to two pages of his trial testimony.45
Page one includes the following testimony: “Everybody, millions of us, we all were
delivered, and millions of babies every day go through maternal forces, contractions,
pushing If that could cause permanent brachial plexus injuries, logically there
would be lots more babies, lots more people, affected with permanent brachial
plexus injuries.”46 This testimony makes no statistical references Also, there is no
particular study identified If anything, it is an appeal to the common sense of the
jury and directly rebutting Defendants’ trial theory that mother’s endogenous forces

caused the injury.

 

44 1a 311026.
45 Defs.’ l\/lot. at 11 5.

46 TE 48:17-23.

19

The second page cited by the Defendants includes the following question by

Plaintiffs’ counsel and the response by Dr. Engelbert:

Q: Permanent neurological injuries rarely occurred in one or two of every

10,000 births. Does that conform with that [sic] understanding is in terms of

frequency‘?
A: lt’s an approximation, yes.47

Here, without objection, Plaintiffs’ counsel is questioning Dr. Engelbert about a
particular study, Creasy and Resnik, Maternal-Fetal Mea’icine (7th ed.). While
including a statistic_one or two out of every 10,000 births_this testimony only
generally speaks to how rare brachial plexus injuries are. Such testimony is
distinguished from the statistical evidence in Timblin because such testimony does
not “invade[] the province of the trier of fact.”48 lt was agreed to by all experts that
these injuries are rare. The background information was relevant to the Plaintiff’s

particular injury and did nothing to confuse the jury or obscure issues of fact.

Finally, Defendants object to the recurring questioning of all experts and
Defendant Dr. Wong with the following questions: ln their professional career (1)

How many births had the physician perfonned?; (2) How many shoulder dystocias

 

47 TE 39:12~16.

45 Timblin, 640 A.2d at 1025 (citing Wheat v. Slate, 527 A.2d 269, 275 (Del. 1987)).
20

had the physician encountered‘?; and (3) How many permanent brachial plexus
injuries had the physician encountered‘? Plaintiffs respond that these questions go to
the experience of each physician, to the relative rarity of these types of injuries, and
generally provide background information Plaintiffs further argue that the
probative value of the information is not substantially outweighed by its potential

for prejudice The Court agrees.

Plaintiffs asked the same laundry list of questions to all medical witnesses
about their own individual and professional experiences The responses do not
constitute statistical evidence of the kind deemed fatal in Timblin. Here, the jury
heard from the medical witnesses about their individual experiences when faced with
these medical events during their professional careers. lt was abundantly clear from
the testimony of all experts that a shoulder dystocia is a rare obstetrical complication
and that brachial plexus injuries are extremely uncommon Such testimony was even
elicited by Defendants in their discussion of the ACOG l\/Ionograph with all of the
experts, especially in their questioning of the experts as to whether a shoulder
dystocia could constitute an emergency situation Unlike Timl)lin, the responses

from the experts were not based on studies.

Even assuming, arguendo, that any of this testimony was statistical evidence
under Timl)lin, a new trial is not appropriate where Defendants failed to object.

Parties must make contemporaneous objections at trial. Our Court has recently
21

opined concerning the perverse incentives that arise from granting a new trial under

such circumstances:

Despite their failure to object at trial, [the party] now comes[s] before the
Court urging that a legal error occurred . . . . Were the Court to grant this
l\/Iotion, the practical effect of [the party’s] conduct is that [the party] could
make a strategic decision not to object at trial with the hope of receiving a
favorable verdict, but if [the party] received an unfavorable jury verdict, they
would be assured of a new trial before a new jury with the possibility of a
different outcome The Court will not retroactively cure any perceived
mistake created by trial counsel’s failure to object at trial.49

Defendants made a strategic decision and the Court is reluctant to provide a
retroactive cure that could encourage gamesmanship. Unlike Timblin, Defendants
did not preserve their objection.50 The Court was also unable to undertake a Rule
403 analysis Even if it had been asked to do so, the responses to the questions

simply reiterated what the jury knew about the rarity of these injuries.

Finally, this Court briefly addresses Defendants’ argument that the verdict is
against the “great weight of the evidence.”5] F or the reasons stated, the Court does

not agree. The seven-day trial allowed both sides to present their respective

 

452 Cohen-Thomas v. Lewullis, 2016 WL 721009, at *4 (Del. Super. Ct. Jan. 29, 2016).
50 Timbltn, 640 A.2d ar 1022

51 Defs.’ l\/lot. at 11 6 (citing Slorey v. Camper, 401 A.2d 458, 465 (Del. 1979)).

22

positions through lay and expert witnesses The evidence does not weigh so heavily

against the jury verdict that a reasonable jury could not have reached the result.52
REMITTITUR
Stana'ard of Review

On Defendants’ l\/lotion for Remittitur, the Court must evaluate the evidence
and decide whether the jury award falls within a range supportable by the evidence.53
An award will not be set aside unless it is so excessive as to shock the court’s
conscience and sense of justice or the jury manifestly disregarded the applicable
rules of law.54 The Court should defer to the jury and reduce the jury award to the
absolute maximum amount that the record can support.55 “lt is well-settled that jury
verdicts be given great weight. lf a trial has been conducted properly, a jury is the

best way to determine an injured plaintiffs damages.”56

 

52 Camper, 401 A.2d at 465.
55 Reia' v. Hina’l, 976 A.2d 125, 131 (Del. 2009).

54 Storey v. Castner, 314 A,2d 187, 193 (Del. 1973); Riegel v. Aastaa’, 272 A.2d 715, 718 (Del.
1970).

55 Reial, 976 A.2d at 131.

56 West v. Maxwell, 2001 WL 789654, at *6 (Del. Super Ct. .lune 29, 2001) (citing Mea’ical Ctr. of
Del., Inc. v. Lougheea’, 661 A.2d 1055, 1061 (Del. 1995).

23

Discussion

Defendants argue that the $3 million verdict is excessive and only the result
of the impermissible motive of “passion.”57 The Court finds that the 333 million

verdict is supported by the evidence.

In reaching its award, the jury heard testimony from experts, Amari’s family
and Amari himself about the painful medical treatment that Amari underwent, and
the physical and mental impact that the injury has had, and will continue to have on
his life. This included, but was not limited to, considerations that Amari cannot
engage in activities that other children take for granted, such as playing sports or
riding a bicycle. The jury heard testimony that the physical deficits and mental

consequences will remain with him throughout his adult life.

The jury was instructed that their verdict must be based solely on the evidence
in this case and that they could not be influenced by sympathy, prejudice, or public
opinion There is no evidence that the jury “manifestly disregarded the applicable

rules oflaw.”58

 

57 Defs.’ l\/Iot. atjl 6 (citing Mea'. Clr. ofDel., Inc. v. Lougheea’_, 661 A.2d 1055. 1061 (Del. 1995);
Rieg€l, 272 A.2Cl 715, 717-18 (D€l. 1970)).

58 See Storey v. Castner, 314 A.2d 187, 193 (Del. 1973); Riegel v. Aastacl, 272 A.2d 715, 718 (Del.
1970).

24

Jury verdicts should receive great weight. lt has been cautioned that “[i]t is
difficult, if not potentially dangerous, to refer to other kinds of cases to argue a
particular verdict is too high or too low. There are too many variables . . . .”59 The
Court will therefore not engage in such comparison This Court’s conscience is not

shocked by the verdict.
CONCLUSION

Viewing all the evidence in the light most favorable to the non-moving party,
the Court determines that the evidence and all reasonable inferences that can be
drawn justified a jury verdict in favor of Plaintiffs Under Rule 50, Defendants have
not shown that there is no competent evidence upon which the verdict could
reasonably be based Defendants further fail to establish why a new trial is warranted
under Rule 59. Remittitur is inappropriate because the jury verdict is supported by
the evidence Therefore, Defendants’ Renewed l\/lotion for Judgment as a l\/latter of
Law, or in the alternative, Motion for a New Trial, or in the alternative, Remittitur

is DENIED.

rr ls so oRDERED. y

 

 

 

59 Bissel v. Taylor, 1994 WL 555340, at *7 (Del. Super. Ct. Sept. 14, 1994).
25

oc: Prothonotary
cc: All Counsel on Record (via e-fling)

26

