Wong v. Broughton

IN THE SUPREME COURT OF THE STATE OF DELAWARE

PETER J. WONG, M.D., and §
DEDICATED TO WOMEN, OB- § No. 133, 2018
GYN, P.A., §
§ Court Below: Superior Court
Defendants Below, § of the State of Delaware
Appellants, §
§ C.A. No. N14C-01-185 VLM
v. §
§
MONICA BROUGHTON, §
individually, and as Parent and Natural §
Guardian of AMARI M. §
BROUGHTON-FLEMING, a Minor, §
§
Plaintiffs Below, §
Appellees. §

Submitted: November 28, 2018
Decided: February 4, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Joshua H. Meyeroff, Esquire, Morris James LLP, Wilmington, Delaware, for
Appellants, Peter J. Wong, M.D., and Dedicated to Women OB-GYN, P.A.

Bruce L. Hudson, Esquire, and Ben T. Castle, Esquire (Argued), Hudson & Castle
Law, LLC, Wilmington, Delaware, for Appellees, Monica Broughton and Amari M.
Broughton-Fleming.

VAUGHN, Justice:
 I. INTRODUCTION

This is a medical negligence case in which a jury returned a verdict in favor

of the plaintiff, Monica Broughton, in the amount of $3 million. The case was

brought by Ms. Broughton individually and as parent and natural guardian of her

nine-year-old son, Amari Broughton-Fleming. The injury involved was a

permanent injury to Amari’s right brachial plexus that occurred during birth. The

defendants are Dr. Peter J. Wong and his medical practice, Dedicated To Women,

OB-GYN, P.A.

Dr. Wong and his medical practice make four arguments on appeal. First,

they contend that the Superior Court erred when it denied their motion in limine to

exclude the opinion of the plaintiff’s standard of care expert, Dr. Marc Engelbert.

They characterize his opinion as being that Dr. Wong breached the standard of care

based solely on the fact that Amari sustained a permanent brachial plexus injury.

According to them, Dr. Engelbert’s opinion did not satisfy the requirements of

Daubert v. Merrell Dow Pharmaceuticals, Inc. 1 and Bowen v. E.I. DuPont de

Nemours & Co. 2 and constituted an impermissible res ipsa loquitur opinion that

allowed the jury to improperly presume negligence from the fact that an injury

occurred.

1
509 U.S. 579 (1993).
2
906 A.2d 787 (Del. 2006) (en banc).

1
 Second, they contend that the Superior Court erred when it denied their

motion in limine to exclude the plaintiff’s causation expert, Dr. Scott Hal Kozin.

They contend that Dr. Kozin’s opinion lacked a proper factual foundation, failed to

satisfy the criteria of Daubert and Bowen, and constituted an impermissible res ipsa

loquitur opinion.

Third, they contend that the Superior Court erred when it permitted the

plaintiff to elicit statistical evidence from Dr. Wong and his experts to establish the

rarity of brachial plexus injuries. They argue that this evidence was improperly

used to suggest that Dr. Wong must have been negligent based upon an unusual

outcome. Appellants contend that such evidence must be excluded under Timblin

v. Kent General Hospital (Inc.).3

Fourth and finally, they contend that the Superior Court erred when it refused

to instruct the jury on “Actions Taken in Emergency.”

The first and third contentions were directly addressed by the Superior Court

in a ruling on post-trial motions, and we affirm the Superior Court as to those issues

for the reasons given in its opinion. The second and fourth contentions, which were

initially raised and denied before trial, were not reargued in the post-trial motions.

For the reasons that follow, we affirm the Superior Court as to these two contentions

as well.

3
640 A.2d 1021 (Del. 1994).

2
 II. FACTS AND PROCEDURAL HISTORY 4

The plaintiff claims 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. During birth, Amari’s

right shoulder was lodged under the mother’s pubic bone, a life-threatening

condition known as shoulder dystocia. Dr. Wong’s defense was that, because of

the shoulder dystocia he 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.5

To explain the cause of injury, the defendants and their experts relied heavily upon

the American Congress of Obstetricians and Gynecologists (“ACOG”) Monograph

as scientific evidence that Amari’s injury was the result of maternal endogenous

forces during labor and not attributable to Dr. Wong’s actions. Put simply, their

contention was that the mother’s pushing during delivery caused the injury.

At trial, the facts showed that, during delivery, the force that occurred was

sufficient to cause both transient and permanent nerve damage to Amari’s right arm.

Although he subsequently underwent two major surgeries (performed by Dr. Kozin)

to repair the damaged nerves, his injury left him permanently impaired. His right

arm is visibly shorter than his left, and this prevents him from doing certain

4
Unless otherwise indicated all facts are taken from the Superior Court’s post-trial opinion. See
Broughton v. Wong, 2018 WL 1867185 (Del. Super. Feb. 15, 2018).
5
Id. at *1 (quoting Defs.’ Post-Trial Mot. ¶ 2).

3
activities, including riding a bicycle and playing his favorite sports. Medical

testimony established that his physical deficits will carry into his adult life.

Both sides presented conflicting 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. The defendants’ eyewitnesses (medical staff present during

delivery), however, testified that they did not make similar observations, and Dr.

Wong denied that he ever pulled on Amari’s head. Against this factual

inconsistency, the parties’ medical experts gave conflicting opinions on the critical

issues of standard of care and causation.

Prior to trial, the defendants filed motions in limine to exclude the testimony

of the plaintiff’s experts, Drs. Engelbert and Kozin. The defendants argued that

both experts failed to meet the requirements of Delaware Rule of Evidence 702,

Daubert,6 and its Delaware progeny, 7 contending that each expert’s opinion lacked

an adequate factual basis and relied “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.”8 In particular, the defendants

took issue with Dr. Engelbert’s opinion that, because Amari suffered a permanent

6
509 U.S. 579.
7
E.g., Bowen, 906 A.2d 787.
8
Broughton, 2018 WL 1867185, at *2 & n.4.

4
(as opposed to a transient) brachial plexus injury, Dr. Wong must have applied

excessive lateral traction and, therefore, breached the standard of care. In making

this argument, the defendants relied upon the ACOG Monograph, which they

contended established that Amari’s permanent injury could have been caused by

maternal forces. The Superior Court denied these motions, finding that both

experts satisfied the requirements of Rule 702 and the relevant case law.

After the close of the plaintiff’s case and again when all the evidence was in,

the appellants moved for judgment as a matter of law under Superior Court Civil

Rule 50(a). They reiterated their objections concerning Dr. Engelbert’s res ipsa

loquitur reasoning and raised an additional argument, not raised on appeal, that

excessive traction could be appropriate as a lifesaving alternative in a medical

emergency. The Superior Court denied their motions.

After trial, the Appellants renewed their motion for judgment as a matter of

law under Superior Court Civil Rule 50(b) and, in the alternative, sought a new trial

under Rule 59 or remittitur. The Superior Court denied the appellants’ post-trial

motions.

III. DISCUSSION

The defendants’ first three contentions on appeal involve questions of the

admissibility of evidence and expert testimony, which this Court reviews for an

5
abuse of discretion. 9 As mentioned, we affirm the Superior Court as to the

defendants’ first and third contentions for the reasons given in its post-trial opinion

and find that the court did not abuse its discretion in overruling the defendants’

objection to Dr. Engelbert’s expert opinion testimony or in allowing the plaintiff to

elicit statistical evidence from Dr. Wong and his experts.

At the outset of its post-trial opinion, the Superior Court agreed that the jury

may not presume negligence from the mere presence of an injury. The court found

that Dr. Engelbert’s expert opinion testimony was admissible, and not an

impermissible res ipsa loquitur theory, because his opinion that the permanency of

the injury established that Dr. Wong breached the standard of care was supported by

“multiple, reliable medical sources.”10 Dr. Engelbert explained that he disagreed

with the ACOG Monograph study upon which Appellants heavily relied because the

study did not fully differentiate between a permanent versus transient injury.

Moreover, the court explained, “there was evidence in this case that [Dr.

Engelbert’s] opinion was based upon medical records, eyewitnesses’ accounts of the

delivery, and all other information an expert would ordinarily rely upon in his field,

including ruling out other causes.”11

9
Green v. Alfred A.I. duPont Inst. Of the Nemours Found., 759 A.2d 1060, 1063 (Del. 2000);
M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999) (en banc).
10
Broughton, 2018 WL 1867185, at *4 (citing sources).
11
Id.

6
 Ultimately, the court found that Dr. Engelbert’s opinion, when considered in

light of all the evidence, met the requirements under Delaware Rule of Evidence 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 ACOG Monograph. 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. . . . 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. 12

We agree that Dr. Elbert’s testimony was not an impermissible res ipsa loquitur

theory and affirm the Superior Court’s ruling for the reasons assigned by it.

Additionally, although not mentioned by the Superior Court in its post-trial

opinion, Dr. Engelbert relied upon his nearly thirty years of experience as an

obstetrician and gynecologist in forming his opinion that, absent other causes not

relevant here, excessive lateral traction during delivery caused Amari’s permanent

brachial plexus injury. As we have previously held, an expert in a medical

negligence case “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

12
Id. at *5.

7
opinion” and may be so qualified based on his or her experience and knowledge.13

Because Dr. Engelbert’s testimony established that he was qualified as an expert and

familiar with the degree of skill ordinarily employed in obstetrics from his years of

experience in the field, the Superior Court did not err in allowing his opinion

testimony into evidence.

As to the defendants’ third argument, regarding the statistical testimony

elicited at trial, the court found that this evidence was not of the same quality as the

evidence disallowed in Timblin. 14 In Timblin, the defense attempted to tie

statistical evidence of mortality rates of those who suffer cardiopulmonary arrest to

the standard of care, in effect arguing that the patient was likely to die or suffer brain

damage no matter what the hospital did.15 This Court held that this evidence was

highly prejudicial with little probative effect, and thus inadmissible under Delaware

Rule of Evidence 403, because “[t]he statistical probability of death or brain damage

following a cardiac arrest cannot be used to show that [the hospital] acted in

conformity with the applicable standard of care.” 16 It was undisputed that

Timblin’s brain damage was caused by a long period of oxygen deprivation because

13
Norman v. All About Women, P.A., 193 A.3d 726, 730 (Del. 2018) (internal quotation marks
omitted).
14
640 A.2d 1021.
15
Id. at 1022-24
16
Id. at 1024, 1023-26.

8
he was not intubated.17 “[T]he causation issue was solely whether the inability to

intubate was caused by the hospital’s alleged negligence, ‘not whether [Timblin]’s

brain damage was an inevitable result.’”18 Accordingly, this Court held that the

statistical evidence was misleading: “the statistics invited an inference that, because

the majority of patients who suffer a cardiac arrest die or suffer brain damage,

[Timblin] was expected to suffer brain damage.”19

The Superior Court contrasted the statistical evidence here with the evidence

in Timblin and explained that here the statistical testimony went to the experience of

each of the experts, provided background information, and otherwise simply

established that brachial plexus injuries are rare—something upon which all experts

agreed. Furthermore, the Superior Court noted that the statistical testimony was

“an appeal to the common sense of the jury and directly rebutt[ed] Defendants’ trial

theory that mother’s endogenous forces caused the injury.” 20 The court thus found

that the testimony did “not constitute statistical evidence of the kind deemed fatal in

Timblin.”21 We agree with the Superior Court and affirm for the reasons assigned

by it.

We now address the defendants’ remaining two arguments.

17
Id. at 1024-25.
18
Broughton, 2018 WL 1867185, at *7 (quoting Timblin, 640 A.2d at 1025).
19
Id. (first alteration omitted) (quoting Timblin, 640 A.2d at 1026).
20
Id.
21
Id.

9
 For many of the same reasons given in its post-trial opinion as to Dr.

Engelbert, the Superior Court did not abuse its discretion in allowing Dr. Kozin to

testify as an expert on the cause of Amari’s injury. “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,” and “[a] strong preference exists for admitting

evidence that may assist the trier of fact.” 22 Accordingly, “expert opinions are

appropriate when they will assist the trier of fact in understanding the relevant facts

or the evidence.”23

The defendants make three arguments regarding the admissibility of Dr.

Kozin’s testimony. First, they contend that Dr. Kozin’s opinion was not based on

sufficient facts because it “was not based on any facts of this case.”24 Second, they

argue that his opinion, like Dr. Engelbert’s, was an impermissible res ipsa loquitur

opinion—that because Amari’s injury was permanent, the injury must have been

caused by excessive lateral traction applied by Dr. Wong. Finally, they contend

that Dr. Kozin failed to base his opinion on information reasonably relied upon by

22
Norman, 193 A.3d at 730 (first citing D.R.E. 702; and then citing Pavey v. Kalish, 3 A.3d 1098,
2010 WL 3294304, at *3 (Del. Aug. 23, 2010) (Table)).
23
Id.
24
Appellants’ Opening Br. at 34 (emphasis omitted).

10
experts in his field, thus not meeting the requirements of Daubert,25 Bowen,26 and

Delaware Rule of Evidence 702.27

Dr. Kozin testified based on twenty years of experience conducting surgeries

to repair nerves damaged during birth and on his interactions with and observations

of Amari before and during Amari’s two surgeries. He first operated on Amari six

months after Amari was born and, at that time, identified two nerves that had been

torn and would never regenerate or recover. Because of the permanency of the

injury, Dr. Kozin formed the opinion that the cause of Amari’s torn nerves was

excessive lateral traction applied during birth. We find that Dr. Kozin’s opinion

was sufficiently based upon the facts of this case to satisfy Rule 702. We also find

that his testimony was admissible (and not a res ipsa loquitur opinion) for the same

reasons we find Dr. Engelbert’s opinion admissible.

The defendants’ final argument regarding Dr. Kozin’s testimony is essentially

that Dr. Kozin’s opinion was not based on information reasonably relied upon by

experts in his field because he failed to cite any literature for excluding maternal

forces or other causes of Amari’s injury and failed to distinguish effectively the

ACOG Monograph, which conflicts with his opinions. As we explained in

25
509 U.S. 579.
26
906 A.2d 787.
27
Appellants cite Delaware Rule of Evidence 702, but this specific notion—that an expert may
base his or her opinion on information reasonably relied upon by experts in the field even if such
information is not admissible into evidence—comes from Rule 703.

11
Norman, however, the requirement that the expert’s opinion be based upon

information reasonably relied upon by experts in the particular field is a guard

against the use of inadmissible hearsay and “does not pertain to information which

the expert has not relied on.” 28 Dr. Kozin was not required to rebut the ACOG

Monograph as a condition of admissibility of his testimony. The defendants’

argument on this point goes to the weight to be given Dr. Kozin’s testimony, not its

admissibility.

As to the defendant’s fourth contention—that the trial court erred in refusing

to instruct the jury on “Actions Taken in Emergency” 29—we conclude that the court

committed no legal error. Whether the “Actions Taken in Emergency” instruction

applies to medical negligence cases is a question of law, which this Court reviews

de novo.30 The “Actions Taken in Emergency” instruction has traditionally been

28
193 A.3d at 731.
29
The proposed instruction reads as follows:

When a person is involved in an emergency situation not of his own
making and not created by his own negligence, that person is entitled
to act as a reasonably prudent person would under similar
circumstances. Therefore, if you find that Dr. Wong was
confronted by an emergency situation when Amari Broughton-
Fleming presented with shoulder dystocia, you should review Dr.
Wong’s conduct in light of what a reasonably prudent person would
have done under those circumstances.

Appellants’ Opening Br. at 42.
30
See Hankins v. State, 976 A.2d 839, 840 (Del. 2009) (“[T]his Court will review de novo a refusal
to instruct on a defense theory (in any form) . . . .” (quoting Wright v. State, 953 A.2d 144, 148
(Del. 2008) (en banc))); North v. Owens-Corning Fiberglas Corp., 704 A.2d 835, 837-38 (Del.
1997) (“The trial court . . . must not ignore a requested jury instruction applicable to the facts and

12
given only in automobile accident cases. The standard instruction for medical

negligence cases, which is supplied by statute, 31 inherently incorporates the concept

that medical doctors and professionals routinely encounter what many would

consider to be an “emergency.” The statutory standard captures this by defining

the standard of care as “that degree of skill and care ordinarily employed in the same

or similar field of medicine as defendant.” 32 As pointed out by Dr. Engelbert,

doctors in the field of obstetrics are well aware of shoulder dystocia and have

specific methods for dealing with it. Dr. Wong simply needed to exercise “that

degree of skill and care ordinarily employed” by obstetricians, and that degree of

skill and care did not include applying excessive lateral traction. The Superior

Court correctly refused to instruct the jury on “Actions Taken in Emergency.”

IV. CONCLUSION

For the foregoing reasons, the judgment of the Superior Court is affirmed.

law of the case.”).
31
See 18 Del. C. § 6801(7) (defining medical negligence).
32
18 Del. C. § 6801(7).

13