Opinion
C.A. No. N14C-03-039 FWW
01-29-2016
BARBARA COHEN-THOMAS and VAN THOMAS, Plaintiffs, v. GABRIEL E. LEWULLIS, M.D., and CAPITAL ORTHOPAEDIC SPECIALISTS, P.A., Defendants.
Timothy E. Lengkeek, Esquire, Young Conaway Stargatt & Taylor, LLP, 1000 North King Street, Wilmington, Delaware 19801, Attorney for Plaintiffs. Richard Galperin, Esquire, Joshua H. Meyeroff, Esquire and Courtney Hamilton, Esquire, Morris James LLP, 500 Delaware Avenue, Suite 1500, P.O. Box 2306, Wilmington, Delaware 18999-2306, Attorneys for Defendants.
Upon Plaintiffs' Amended Motion for a New Trial
DENIED. OPINION AND ORDER Timothy E. Lengkeek, Esquire, Young Conaway Stargatt & Taylor, LLP, 1000 North King Street, Wilmington, Delaware 19801, Attorney for Plaintiffs. Richard Galperin, Esquire, Joshua H. Meyeroff, Esquire and Courtney Hamilton, Esquire, Morris James LLP, 500 Delaware Avenue, Suite 1500, P.O. Box 2306, Wilmington, Delaware 18999-2306, Attorneys for Defendants. WHARTON, J.
I. INTRODUCTION
Following a four-day jury trial on allegations of medical malpractice, on September 18, 2015, a jury found that Defendant Dr. Gabriel E. Lewullis breached the standard of care in treating Barbara Cohen-Thomas but that Dr. Lewullis' negligence was not a proximate cause of Ms. Cohen-Thomas' injuries. On September 29, 2015, Plaintiffs filed an Amended Motion for a New Trial on the grounds that certain testimony from Defendants' medical expert Dr. Harry Hoyen was improperly admitted without objection from Plaintiffs at trial. Applying Super. Ct. Civ. R. 46, Super. Ct. Civ. R. 59(a) and Super. Ct. Civ. R. 61 to Plaintiffs' Amended Motion for a New Trial, the Court finds that 1) Plaintiffs failed to object to the trial testimony of Dr. Hoyen; 2) Dr. Hoyen's testimony was not admitted erroneously; 3) because Plaintiffs suffered no prejudice, error, if any, was harmless; and 4) the Court's refusal to grant a new trial is not inconsistent with substantial justice. Therefore, the Court must not disturb the jury's verdict. Plaintiffs' Motion for a New Trial is DENIED.
II. FACTUAL AND PROCEDURAL CONTEXT
Dr. Lewullis performed an open reduction-internal fixation ("ORIF") surgery on Ms. Cohen-Thomas' upper right arm on January 24, 2013. Plaintiffs alleged that subsequent to the ORIF surgery, Ms. Cohen-Thomas began to experience pain and other complications, including radial nerve palsy in her right arm. As a result of the complications, Ms. Cohen-Thomas began treating with Dr. David Sowa in May 2, 2013. On July 23, 2013, Dr. Sowa performed a procedure to assess the condition of the radial nerve in the upper right arm for repair or reconstruction. During that procedure, Dr. Sowa could not locate the end of the nerve and another surgery was required to address Ms. Cohen-Thomas' injuries. Despite the second surgery, Ms. Cohen-Thomas sustained permanent damage to her radial nerve.
Compl., D.I. 1, at ¶ 11.
Id. at ¶ 12.
Id. at ¶ 13.
Id. at ¶ 14.
Id. at ¶¶ 15-16.
Id. at ¶ 17.
Plaintiffs filed a motion in limine on July 31, 2015. In the motion, Plaintiffs argued, inter alia,
D.I. 48.
14. That defense counsel and defense witnesses be precluded from making comments, arguments, or suggestions about the standard of care and other medical issues, including causation, in the absence of supporting medical testimony stated in terms of reasonable medical probability. In other words, mere "possibilities" or that something is "medically unknown" should be precluded. Oxendine v. State, 528 A.2d 870 (Del. 1987) (holding that medical issues, including causation, that require expert medical testimony must be stated to a reasonable degree of medical probability.) DRE 402, 403.
15. Testimony from Defense Experts Harry Hoyen, M.D. and Steve Horowtiz, M.D. with regard to things that they
are "not certain of" or "have no opinion on" should be precluded as not stated to a reasonable degree of medical probability. Oxendine v. State, 528 A.2d 870 (Del. 1987).After hearing argument from both parties, the Court concluded that the parties had reached a mutual understanding as to what Defendants' expert could discuss. Specifically, both parties had agreed that Defendants' expert could testify that because there could be other causes of palsy to the radial nerve, Defendants' expert could not reach a conclusion as to what caused Plaintiffs' injuries. Further, Defendants' expert could testify that, for the same reasons, Plaintiffs' expert could not reach a conclusion as to causation.
Mot. in Limine, at ¶¶ 14-15 (emphasis in original).
At trial, Dr. Sowa testified that when he performed the second surgery, he did not locate the end of the radial nerve that, if intact, would have been attached to the right bicep. Defendants' expert, Dr. Hoyen, testified, in part, about how a patient could develop radial nerve palsy after an ORIF procedure that was performed within the standard of care. During his testimony, Dr. Hoyen stated that "[t]he radial nerve can have minor trauma and still be rendered a palsy...So in the process of doing things appropriately, just the handling and the moving of the nerve itself can - can render a nerve a palsy." Dr. Hoyen also testified that radial nerve palsy can be permanent just from moving the nerve. Plaintiffs did not contemporaneously object to the testimony during the trial. Instead, Plaintiffs filed an Amended Motion for New Trial on September 29, 2015 after a jury found that Dr. Lewullis breached the standard of care but was not a proximate cause of the injuries to Ms. Cohen-Thomas.
Tr. of Dr. Hoyen Test., D.I. 82 at Ex. B, 35: 9-18.
See id. at 35: 22- 36:4. ("Q. And that radial nerve palsy can be permanent just from moving it? A. Yeah...it can be permanent").
See D.I. 82 (Am. Mot. for a New Trial) and D.I. 78 (Verdict Form).
III. THE PARTIES' CONTENTIONS
Plaintiffs argue that they are entitled to a new trial because the expert testimony of Dr. Hoyen was improperly admitted. Plaintiffs assert that the issue was first raised in a pre-trial motion in limine when Plaintiffs argued
Pls.' Am. Mot. for a New Trial, D.I. 82, at ¶ 1.
That defense counsel and defense witnesses be precluded from making comments, arguments, or suggestions about the standard of care and other medical issues, including causation , in the absence of supporting medical testimony stated in terms of reasonable medical probability.Plaintiffs contend that at trial, "[i]nstead of offering a medical opinion to a reasonable degree of medical probability, Dr. Hoyen speculated about what can happen to a nerve. That testimony is inadmissible and should have been precluded."
Id.
Id. at ¶ 4.
Additionally, Plaintiffs argue that Defense counsel failed to ask Dr. Hoyen if his opinions were stated to a reasonable degree of medical certainty and that the opinions, therefore, should not have been submitted to the jury. Plaintiffs acknowledge that "Defense counsel asked Dr. Hoyen if he reached 'all of [his] opinions to a reasonable medical probability' when he initially reviewed the medical records in this case...The problem, however, is that his later substantive testimony...about what ' can ' happen to a radial nerve during this procedure was simply speculation about possibilities." Plaintiffs contend that expert testimony is limited to the opinion that something is "probable" and not "possible" and that testifying that something "can" happen is the same as testifying that something is "possible." Plaintiffs assert that the testimony regarding what "can" happen "may have affected the jury's decision regarding proximate cause" such that Plaintiffs are entitled to a new trial on proximate cause and damages.
Id. at ¶ 5.
Id. at ¶ 6.
Id.
Id.
Defendants argue that the Court must give tremendous deference to a jury's decision and must only reverse a verdict in specific situations that do not apply to the case at bar. Defendants assert that the Court ruled upon Plaintiffs' pre-trial motion in limine that "Dr. Hoyen could rebut Plaintiff's causation theory by noting that other, plausible alternatives exist..." Defendants contend that Plaintiff had the opportunity to object to Dr. Hoyen's testimony at trial had Plaintiffs felt that the testimony exceeded the scope of the Court's ruling. Defendants argue that Plaintiff's failure to object at trial waived the issue in the context of a motion for a new trial.
Defs.' Resp. Br., D.I. 85, at ¶ 2.
Id. at ¶ 3.
Id.
Id.
Additionally, Defendants argue that Dr. Hoyen's testimony was appropriately before the jury. Defendants assert that Dr. Hoyen testified that his opinions were to a reasonable degree of medical probability, which is the standard required by Delaware law. Defendants also assert that, as a medical expert, Dr. Hoyen can provide alternative causation theories to the jury. Defendants argue that "[i]t is permissible for a defendant to have its experts 'chip[] away at the plaintiffs' argument...' that Defendants' negligence caused the claimed harm."
Id. at ¶ 4.
Id.
Id.
Id. at ¶ 5.
IV. STANDARD OF REVIEW
Super. Ct. Civ. R. 59(a) provides that "[a] new trial may be granted as to all or any of the parties and on all or part of the issues in an action in which there has been a trial for any of the reasons for which new trials have heretofore been granted in the Superior Court." "Every analysis of a motion for a new trial must begin with the presumption that the jury verdict is correct." A new trial should not be granted "unless 'the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result' or the Court is 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." Where the allegation is that the Court committed legal error, there must be a finding that the alleged legal error, if substantiated, also prejudiced the movant in some way. Additionally, where legal error occurs, the Court may not grant a new trial unless the Court finds that refusing to do so would be "inconsistent with substantial justice."
Smith v. Lawson, 2006 WL 258310, at *6 (Del. Super. Jan. 23, 2006) (citing Mills v. Telenczak, 345 A.2d 424, 426 (Del. Super. 1975).
Mitchell v. Haldar, 2004 WL 1790121, at *3 (Del. Super. Aug. 4, 2004) (quoting Storey v. Camper, 401 A.2d 458, 465 (Del.1977)).
See, e.g., Riegel v. Aastad, 272 A.2d 715, 718 (Del. 1970)(holding that it was error to permit speculation into medical possibilities but that the error was not prejudicial and, therefore, not reversible error.).
See Super. Ct. Civ. 61 ("No error in either the admission or the exclusion of evidence... is ground for granting a new trial...unless refusal to take such action appears to the Court inconsistent with substantial justice.").
V. DISCUSSION
Plaintiffs have offered no support for the proposition that heretofore the Court has granted new trials where expert testimony was admitted at trial without a contemporaneous objection made by counsel. Moreover, the Court is not persuaded that it committed legal error in allowing the testimony at issue. D.R.E. 702 governs the admission of expert testimony. It provides that
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The trial judge is the "gatekeeper" of expert testimony. Specifically, "[t]he trial judge acts as the 'gatekeeper' in deciding whether an expert's testimony 'has a reliable basis in the knowledge and experience of [the relevant] discipline.' After the trial judge determines that the proffered witness may testify as an expert, "during trial, a judge must not 'desert the high position to which the judge is elevated, and assume the role of the advocate.'"
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del. 2006).
Bowen, 906 A.2d at 794 (quoting M.G. Bancorporation v. Le Beau, 737 A.2d 513, 521 (Del. 1999)).
Price v. Blood Bank of Delaware, Inc., 790 A.2d 1203, 1211 (Del. 2002)(quoting Block v. Target Stores, Inc., 458 N.W.2d 705, 713 (Ct.App.Minn.1990)).
Delaware law requires a medical expert to testify that the opinions promulgated are to a reasonable degree of medical probability. Where a party believes that a medical expert's trial testimony exceeds the permissible scope, D.R.E. 703 specifies the proper mechanism by which to raise the issue. D.R.E. 703 provides, in part, that "[u]pon objection, facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." (emphasis added). Additionally, "Rule 46 of the Superior Court Civil Rules requires counsel to state his objection to anything taking place during the trial..."
Oxendine v. State, 528 A.2d 870, 873 (Del. 1987).
Hamilton v. Wrang, 221 A.2d 605, 606 (Del. 1966). --------
Plaintiffs did not contemporaneously object to Dr. Hoyen's testimony at trial. Despite their failure to object at trial, Plaintiffs now come before the Court urging that a legal error occurred when the jury weighed Dr. Hoyen's testimony in reaching its verdict. Were the Court to grant this Motion, the practical effect of Plaintiffs' conduct is that Plaintiffs could make a strategic decision not to object at trial with the hope of receiving a favorable verdict, but if Plaintiffs 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.
Moreover, despite Plaintiffs' failure to object timely, even if the Court found that Dr. Hoyen's testimony was improperly before the jury, that error was harmless under Super. Ct. Civ. R. 61. The Court finds that Plaintiffs suffered no prejudice. The portion of Dr. Hoyen's testimony to which Plaintiffs now object concerns how an intact radial nerve can be damaged. However, Dr. Sowa's uncontroverted testimony was that Ms. Cohen-Thomas' radial nerve was not intact when he performed his procedure because Dr. Sowa did not locate the end of the radial nerve that should have been attached to the bicep. The Court finds that testimony concerning damage to an intact radial nerve would not have affected the jury's outcome. The Court further finds that refusal to grant a new trial is not inconsistent with substantial justice. Therefore, Plaintiffs' Amended Motion for a New Trial is DENIED.
VI. CONCLUSION
The Court finds that 1) Plaintiffs failed to object to the trial testimony of Dr. Hoyen; 2) Dr. Hoyen's testimony was not admitted erroneously; 3) because Plaintiffs suffered no prejudice, error, if any, was harmless; and 4) the Court's refusal to grant a new trial is not inconsistent with substantial justice. Therefore, the Court must not disturb the jury's verdict. Plaintiffs' Motion for a New Trial is DENIED.
IT IS SO ORDERED.
/s/_________
Ferris W. Wharton, Judge