Broughton v. Peter J. Wong, M.D., & Dedicated to Women, Ob-Gyn, P.A.
| Decision Date | 15 February 2017 |
| Docket Number | C.A. No. N14C-01-185 VLM |
| Parties | MONICA BROUGHTON, individually, and as Parent and Natural Guardian of AMARI M. BROUGHTON-FLEMING, a Minor Plaintiffs, v. PETER J. WONG, M.D., and DEDICATED TO WOMEN, OB-GYN, P.A., Defendants. |
| Court | Delaware Superior Court |
Upon Consideration of Defendants' Renewed Motion for Judgment as a Matter of Law or, in the alternative, Motion for a New Trial, or in the alternative, Remittitur, DENIED.
Ben T. Castle, Esquire, and Bruce L. Hudson, Esquire, of Hudson & Castle, LLC, of Wilmington, Delaware. Attorneys for Plaintiffs.
Richard Galperin, Esquire, and Joshua H. Meyeroff, Esquire, of Morris James LLP, of Wilmington, Delaware. Attorneys for the Defendants.
On September 26, 2017, after a seven-day medical negligence trial, a jury returned a $3 million verdict in favor of Monica Broughton (Mother), individually and as parent and natural guardian of nine-year-old Amari Broughton-Fleming (Amari) ("Plaintiffs"). Defendants, Dr. Peter Wong and Dedicated to Women OB-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 Judgment as a Matter of Law, or in the alternative, Motion for a New Trial, or Remittitur is DENIED.
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.1 To explain the cause of injury, Defendants 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 forcesduring labor, not attributable to the physician's actions. In other words, Mother'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. In 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 factuallyinconsistent 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 causation.2 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 for judgment 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 amedical 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 Motion for Judgment as a Matter 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.
Superior Court Civil Rule 50(a) that reads as follows:
If 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
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).6 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
The Court agrees with Defendants that the jury cannot presume negligence from the mere presence of an injury.9 The jury was instructed accordingly. In 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 hadthere 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 argument.10 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 Mother. To refute Dr. Engelbert's opinion that Dr. Wong was negligent, Defendants questioned him extensively regarding conclusions from the ACOG Monograph, which theymaintained 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 Monograph, 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 Mother'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...
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