IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LAUREN SCOTTOLINE, individually )
and as Parent and Guardian of J.S.S., a )
Minor, and STEVEN SCOTTOLINE, )
Parent of J.S.S., a Minor, )
) C.A. No.: N19C-08-135 FWW
Plaintiffs, )
)
v. )
)
WOMEN FIRST, LLC, and )
CHRISTIANA CARE HEALTH )
SYSTEM, INC. )
)
Defendants. )
Submitted: January 26, 2024
Decided: January 31, 2024
Upon Defendants’ Motion for Summary Judgment
GRANTED.
ORDER
Bruce L. Hudson, Esquire, Joshua J. Inkell, Esquire, and Daniel P. Hagelberg,
Esquire, HUDSON, CASTLE & INKELL, LLC, 2 Mill Road, Suite 202,
Wilmington, Delaware 19806, and Gregg W. Luther, Esquire and Melinda Young,
Esquire, The Keenan Firm, 495 Grand Boulevard, Miramar Beach, FL 32550,
Attorneys for Plaintiffs.
Bradley J. Goewert, Esquire, and Thomas J. Marcoz, Jr., Esquire, MARSHALL
DENNEHEY WARNER COLEMAN & GOOGIN, 1007 N. Orange Street, Suite
600, P.O. Box 8888, Wilmington, Delaware 19899, and David Batten, Esquire,
BATTEN LEE, 4141 Parklake Avenue, Suite 350, Raleigh, North Carolina 27612,
Attorneys for Defendant Women First, LLC
John D. Balaguer, Esquire, BALAGUER MILEWSKI & IMBROGNO 2961
Centerville Road, Suite 300, Wilmington, Delaware 19808, Attorneys for Defendant
Christiana Care Health System, Inc.
WHARTON, J.
2
This 31st day of January 2024, upon consideration of the joint Motion for
Summary Judgment of Defendants Christiana Care Health System, Inc. (“CCHS”)
and Women First, LLC (“Women First”) (collectively “Defendants”),1 the Response
of Plaintiffs Lauren Scottoline, individually, and as Parent and Guardian of J.S.S., a
minor, and Steven Scottoline, Parent of J.S.S., a minor (“Scottolines” or
“Plaintiffs”),2 and the record in this case, it appears to the Court that:
1. The Scottolines brought this medical negligence action following the
birth of their child, J.S.S. The gravamen of their complaint is that J.S.S. was
deprived of oxygen during labor and delivery and sustained injuries, some of which
are permanent, as a result of negligent medical care. CCHS first moved in limine to
exclude Dr. Daniel Adler’s (“Dr. Adler”) opinion that a brain injury J.S.S suffered
during delivery caused his autism spectrum disorder.3 That effort was successful
when the Court, analyzing the motion under Delaware Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc.,4 concluded that Dr. Adler’s
causation opinion as to J.S.S.’s Autism Spectrum Disorder was not admissible
because it did not have a reliable scientific basis that it was not the product of a
1
Defs.’ Mot. Summ. J., D.I. 223.
2
Pls.’ Resp. D.I. 228.
3
Defs.’ First Mot. in Limine (Dr. Adler), D.I. 162.
4
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).
3
reliable methodology and amounted to “little more than the expert’s ipse dixit
conclusions.”5
2. A pretrial conference was held on March 10, 2023. The primary
discussion topic was what remained, if anything, of the Scottolines’ causation and
damages claims. As a result of that discussion, the Court granted CCHS’ oral motion
to continue the trial, then scheduled for April 3 rd, rescheduling the trial to January
29, 2024, with the expectation that further discovery would take place.6
3. On June 8, 2023, Dr. Adler completed another medical report on J.S.S.
(“Third Adler Report”).7 CCHS again moved to exclude from trial the opinions
stated in the Third Adler Report “for the same reasons it precluded the opinions in
his previous reports.”8 In their response, Plaintiffs, relying on Norman v. All About
Women, P.A.,9 argued that Dr. Adler’s opinion was admissible pursuant to D.R.E.
702.10 Alternatively, Plaintiffs requested an evidentiary hearing with Dr. Adler to
answer questions regarding his causation opinion.11
5
Scottoline v. Women First, LLC, 2023 WL 2325701 (Del. Super. Ct. Mar. 1,
2023)
6
D.I. 188.
7
See, Pls.’ Response to Defs.’ Second Mot. in Limine (Dr. Adler),Ex., C, (“Third
Adler Report”), D.I. 204.
8
CCHS’ Second Mot. in Limine (Dr. Adler), at ⁋ 9, D.I. 193.
9
193 A.3d 726 (Del. 2018).
10
Pls.’ Response to Defs.’ Second Mot. in Limine (Dr. Adler), passim, D.I. 204.
11
Id. at ⁋ 26.
4
4. The Court concluded that the Third Adler Report’s causation opinion
left the parties in the same position as they were at the pre-trial conference in that
the Third Adler Report expressed an opinion that was practically indistinguishable
from the one the Court had ruled inadmissible.12 The Court also addressed Plaintiffs’
request, made at oral argument, that the Court reconsider its Memorandum Opinion
under Superior Court Civil Rule 60.13 The Court contrasted Rule 60 with Superior
Court Civil Rule 59(a) and concluded that a fair reading of the Plaintiffs’ Response
showed it more properly to be a Rule 59(e) motion for reargument since it was based
almost exclusively on the contention that the Court either overlooked or
misapprehended controlling legal precedent, i.e., Norman.14 The Court held that
properly construed as a motion for reargument, it was untimely.15 The Court further
held that even if it were to treat Plaintiffs’ request as a Rule 60 motion for
reconsideration, they had not demonstrated “extraordinary circumstances”
warranting relief.16
12
Scottoline v. Women First, LLC, 2023 WL 8678617 at *4 (Del. Super. Ct. Dec.
15, 2023).
13
Id.
14
Id.
15
Id. Plaintiffs did explain why they failed to move for reargument after the Court’s
Memorandum Opinion of March 1, 2023 before the pretrial conference on March
10th.
16
Id.
5
5. On December 26, 2023, the Scottolines applied to this Court for
certification of an interlocutory appeal of the Court’s order granting the Defendants’
second motion in limine.17 After considering the application and applying the
criteria of Delaware Supreme Court Rule 42(b)(iii), the Court concluded that its
order granting the Defendant’s second motion in limine to exclude Dr. Adler’s
opinion testimony did not determine a substantial issue of material importance that
merits appellate review before a final judgment, and refused the application.18 In
refusing the application, the Court observed in response to the Scottolines’
contention that interlocutory review would conserve judicial resources:
It is difficult to understand how an interlocutory appeal
will result in substantial conservation of judicial resources.
The option of Plaintiffs proceeding to trial without a
causation expert does not seem realistic. If the
interlocutory appeal is refused, the Defendants intend to
move for summary judgment. The Defendants anticipate
that such a motion essentially would be unopposed. The
Plaintiffs seemed to concede as much at argument on the
Defendants’ second motion in limine. In the Court’s view,
there is no need for an interlocutory review when a direct
appeal likely will be available to them in very short
order.19
17
Pls.’ Application, D.I. 219.
18
Scottoline v. Women First, LLC, 2024 WL 65952 (Del. Super. Ct. Jan. 5, 2024).
19
Id. at *3.
6
6. On January 10, 2024 the Defendants jointly moved for summary
judgment.20 The Scottolines appealed the Court’s refusal of their application for
certification of an interlocutory appeal to the Delaware Supreme Court on January
16, 2024. The Scottolines responded in opposition to the Defendants’ summary
judgment motion on January 26th.21 The Delaware Supreme Court has neither
accepted nor refused the Scottolines’ interlocutory appeal as of the date of this order.
Because Delaware Supreme Court Rule 42(e) provides that “The pendency of an
appeal under this rule shall not operate as an automatic stay,” this Court decides the
motion for summary judgment.
7. The motion references this Court’s decisions excluding Dr. Adler’s
causation opinion testimony and asserts that, without that testimony, the Scottolines
will be unable to establish the cause of J.S.S.’s injuries.22 Thus, they are entitled to
summary judgment.23
8. It seems the Scottolines have developed a more optimistic view of their
chances of avoiding summary judgment then they held when they responded to
Defendants’ second motion in limine. There they expressed the view, confirmed at
20
Defs.’ Mot. Summ. J., D.I. 223.
21
Pls.’ Resp., D.I. 228.
22
Defs.’ Mot. Summ. J. at ⁋⁋ 3, 5, 8, D.I. 223.
23
Id. at ⁋ 8.
7
argument, that exclusion of Dr. Adler’s opinion “would effectively end Plaintiff’s
[sic] case.”24 Now, they oppose Defendants’ motion for summary judgment.25 They
contend that “there exists a material issue of fact about the origins of J.S.S.’s
behaviors and challenges - whether they are from ASD alone or related significantly
to the HIE injury as well.”26 The Scottolines argue that in neither opinion did the
Court wholly exclude Dr. Adler’s opinion, but only his opinion that HIE caused
J.S.S.’s behavior within the autism spectrum.27 They ask the Court to:
exercise its authority under Del. Super. Civ. R. 60 to
amend the March 10, 2023 Order limiting Dr. Adler’s
proposed trial testimony and the subsequent December 15,
2023 Order excluding the trial testimony of both Dr. Adler
and plaintiff’s [sic] life care planner, Jody Masterson, by
allowing both Dr. Adler and Ms. Masterson to testify at
trial as Plaintiffs’ designated expert witnesses.28
9. Superior Court Civil Rule 56(c) provides that summary judgment is
appropriate if “there is no genuine issue as to any material fact and that the moving
24
Pls.’ Resp. to Defs.’ Second Mot. in Limine (Dr. Adler) at ⁋ 25, D.I. 204.
25
Pls.’ Resp, D.I. 228.
26
Id. at ⁋ 12.
27
Id. at ⁋ 15.
28
Id. at ⁋ 16.
8
party is entitled to a judgment as a matter of law.”29 The moving party initially bears
the burden of demonstrating that the undisputed facts support its claims or
defenses.30 If the moving party meets its burden, the burden shifts to the non-moving
party to show that there are material issues of fact to be resolved by the ultimate fact-
finder.31 When considering a motion for summary judgment, the Court’s function is
to examine the record, including “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” in the
light most favorable to the non-moving party to determine whether genuine issues
of material fact exist “but not to decide such issues.”32 Summary judgment will
only be appropriate if the Court finds there is no genuine issue of material fact.
When material facts are in dispute, or “it seems desirable to inquire more thoroughly
into the facts, to clarify the application of the law to the circumstances,” summary
judgment will not be appropriate.”33 However, when the facts permit a reasonable
29
Super. Ct. Civ. R. 56(c); Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845,
847 (Del. Super. Ct. 2015), aff'd, 140 A.3d 431 (Del. 2016) (quoting Moore v.
Sizemore, 405 A.2d 679, 680 (Del.1979).
30
Sizemore, 405 A.2d at 681.
31
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
32
Super. Ct. Civ. R. 56(c); Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del.
1992).
33
Ebersole v. Lowengrub, 180 A.2d 467, 468-60, (Del. 1962) (citing Knapp v.
Kinsey, 249 F.2d 797 (6th Cir. 1957)).
9
person to draw but one inference, the question becomes one for decision as a matter
of law.34
10. The Defendants have met their initial burden of demonstrating that the
undisputed facts support their contention that the Scottolines are unable to establish
the necessary element of causation for their medical negligence claim with expert
testimony, due to the exclusion of the expert testimony of their only causation expert,
Dr. Adler. The Scottolines acknowledge that Dr. Adler is their sole expert witness
on the issue of causation. Yet, they contend that a genuine issue of material fact
exists as to causation because only Dr. Adler’s opinion that HIE caused J.S.S.’s
autism spectrum behavioral syndrome was excluded. Although the Scottolines state
that causation issues of fact remain, they do not identify any other opinion from Dr.
Adler, or any other expert, that raises such an issue to be resolved by the fact finder.
They insist that the Defendants’ claim that Plaintiffs have no expert testimony to
establish causation is “entirely erroneous.”35 If they are correct, the motion for
summary judgment presents them with the opportunity, indeed, the obligation, to
identify that testimony for the Court. They identify no such testimony. When the
burden shifts back to them, they fail to meet it.
34
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
35
Pls.’ Resp. at ⁋ 14, D.I. 228.
10
11. Finally, the Court notes that the Scottolines again ask the Court to
“amend” it previous orders under Superior Court Rule 60 to allow for its experts’
testimony. “Amend,” as used here, plainly means “reconsider.” As the Court
explained when it granted the Defendants’ second motion in limine, there were no
extraordinary circumstances warranting reconsideration under Rule 60, and, further,
a fair reading of the Scottolines’ argument revealed it to be an untimely “Rule 59(e)
motion [for reargument] in disguise.”36 Nothing in the Scottolines’ Response alters
the Court’s view.
THEREFORE, Defendants’ Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
36
Scottoline, 2023 WL 8678617 at *4.
11