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Delaware Superior Court excludes expert testimony in medical negligence case

By Sara McCleary | Nov 24, 2017

WILMINGTON, Del. (Legal Newsline) – A Delaware court has granted the defendants’ motion to exclude an expert’s testimony in a case for alleged medical negligence.

Plaintiff Amanda Norman filed the lawsuit against Dr. Christine Maynard and the clinic All About Women, claiming that while performing a diagnostic laparoscopy on Norman on Oct. 22, 2013, Maynard perforated the plaintiff’s bladder but didn’t realize the mistake had been made prior to completing the procedure. This led to another surgery and further hospitalization for Norman, her complaint states.

This decision from Judge William L. Witham Jr. of the Delaware Superior Court comes as a result of five motions filed by the defendants Feb. 7. They sought to exclude evidence and testimony concerning their write-off and payment of medical expenses, limit the testimony of Dr. Kenneth Woo, exclude apologies, exclude evidence of other injuries, and exclude the evidence of Dr. Jeffrey Soffer.

Oral arguments were held on all five motions on Sept. 22, and the court issued a decision on the first four at that time, but reserved its decision on the fifth motion. That decision came Nov. 16.

The order states that Soffer had been tapped to offer expert testimony for the plaintiff to support the argument that Maynard had violated the standard of care while performing the surgery on Norman. The defendants argued that Soffer’s testimony lacked foundation, being based only on the fact that the bladder injury occurred, and that he had failed to explain in what way Maynard’s actions did not comply with the standard of care.

In considering the argument, the court used a five-step test set out in the U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals to determine the admissibility of the expert testimony. To be allowed, the witness but be qualified as an expert, the evidence must be relevant, the opinion must be based upon information other experts in the field rely upon, the testimony must help the court understand the facts of an issue, and it must not create unfair prejudice, the order stated.

The court found that Soffer’s testimony was inadmissible because it failed the third prong of the test. According to Witham’s decision, Norman had not shown that Soffer’s opinion was based on information that experts rely upon. Rather, he had stated himself that he did not rely on any publications in reaching his conclusion and that it was based on his own knowledge.

“This contention in no way alludes to whether his analysis of the facts in this case is consistent with other experts in his field,” wrote Witham. “Therefore, the court must exclude Dr. Soffer’s testimony.”

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