Opinion
C.A. No. 97C-10-154.
Submitted: January 7, 2000.
Decided: July 11, 2000.
PLAINTIFF'S MOTION FOR NEW TRIAL AND TO ALTER OR AMEND JUDGMENT DENIED
Thomas I. Barrows, Esquire, Hudson, Jones, Jaywork Fisher, 225 South State Street, Dover, DE 19901. Attorney for Plaintiff, Ami Sebastian Hall.
Mason E. Turner Jr., Esquire, Prickett Jones Elliot, 1310 King Street, P.O. Box 1328, Wilmington, DE 19899. Defendant, Robert H. Radnich M.D. Attorney for Defendant, Robert H. Radnich M.D.
OPINION AND ORDER REGARDING
The Plaintiff has moved for a new alternative, to alter or amend the following the trial of this matter which 25, 1999. The parties having submitted record now having been completed, that the Court's resolution of the issues so trial, or in the judgment entered concluded on June memoranda and the which follows is presented.
FACTS
This medical malpractice litigation arose out of surgery the Defendant performed on the Plaintiff on October 17, 1995. The Plaintiff alleged that the Defendant, a medical doctor specializing in obstetrics and gynecology, negligently performed a hysterectomy and related procedures. Specifically, she alleged that the Defendant removed too much vaginal tissue and/or improperly positioned the "levator ani" muscles. That negligence, it was claimed, resulted in vaginal stenosis, or the constriction of the vaginal canal as well as pain and other related discomfort. Two surgeries were necessary to correct that condition. The Defendant denied all negligence and stated that the Plaintiff's problems resulted from an abnormal, unforseen growth of vaginal scar tissue.
Of those who appeared as witnesses at trial, each side presented two medical doctors as expert witnesses. The Defendant also testified. None of the experts nor the Defendant had ever seen a condition before like that which the Plaintiff exhibited. The principal dispute was in the area of causation.
Appearing on behalf of the Plaintiff were Dr. Mark Morgan, and Dr. John Levinson. Dr. Morgan performed the second surgery which did in fact correct the condition. Dr. Levinson, as did Dr. Morgan, reviewed the Plaintiff's medical history, but unlike Dr. Morgan, did not conduct a physical examination of the Plaintiff.
Testifying on behalf of the defense as expert witnesses were Dr. Robert Scacheri and Dr. Vincent Killeen. Both specialized in obstetrics and gynecology for twenty-three and fourteen years respectively. Both denied that the Defendant had been negligent in his treatment of the Plaintiff. In addition, Dr. Scacheri was the Defendant's partner in their practice of Obstetrician and Gynecology. Dr. Killeen was not affiliated professionally with either doctor, but did practice within the aforementioned specialty locally.
The Defendant testified that there were no significant problems following the first operation until some point in time in January 1996. It was at that time the constriction became evident. The Defendant denied removing anything other than the minimum amount of tissue needed to complete the operative process and affirmed that he had properly positioned the levator ani muscles.
After the problems arose, the Plaintiff was referred to Dr. Scacheri who made the first attempt at correcting the constriction on March 3, 1996. Also present was Dr. Asher Coy, a plastic surgeon. Dr. Scacheri released the scar tissue and the levator ani muscles. Again, there were no immediate problems postoperatively. However, approximately two months later, the constriction reappeared. At that point, the Plaintiff was referred to Dr. Morgan because of his experience in reconstructive surgery of patients with uterine cancer.
Dr. Cory was asked to attend to assist in the reconstructive effort if necessary in case excess tissue had been removed. Dr. Scacheri determined that no excess tissue had been removed and Dr. Cory's services were not needed as a result.
The trial of this matter began on June 21, 1999 and ended four days later on June 25 when the jury returned a verdict on behalf of the Defendant. At the conclusion of the testimony of Dr. Scacheri and Dr. Killeen, the Plaintiff moved to strike the testimony of each arguing that their testimony lacked a proper foundation and/or reliable scientific basis. it was therefore not admissible under the applicable rules of evidence. The Court denied each motion. Prior to those points in time, the pleadings gave no indication that there were any legal objections concerning the admissibility of the testimony of any of the trial witnesses listed as experts. Moreover, each expert had been deposed well in advance of trial.
The motion to strike the testimony of Dr. Scacheri was made orally and the court believes while he was either present or still available. The motion concerning Dr. Killeen was made in writing but was not filed until after his testimony was completed and he had left the courthouse.
Indeed, Sections Four and Six of the Pretrial Stipulation relating to legal contentions and witnesses to be called at trial are silent in this regard. Nor had any motions in limine been proposed or filed at any point prior to the presentation of the testimony of the defense experts.
Following the verdict, the Plaintiff timely filed the instant motion based on the contention that the testimony of the Defendant's medical experts was improper. The Plaintiff alleges that in light of the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), andKumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), their testimony was speculative, unreliable and without foundation. Moreover, the Plaintiff claims that the improper admission of this testimony was highly prejudicial and substantially affected the Plaintiff's rights thereby entitling her to the relief sought.
The Defendant makes two arguments in response. First, the Plaintiff made no attempt to object to the testimony in question earlier in the proceedings and should therefore be deemed to have waived it. Second, the testimony was properly admitted in evidence pursuant to Delaware Rules of Evidence 702 and 703 as well as the applicable case law, including, but not limited to,Cunningham v. McDonald, Del. Supr., 689 A.2d 1190 (1997).
DISCUSSION
Superior Court Civil Rule 59 provides that a new trial may be granted for "any of the reasons for which new trials have heretofore been granted in the Superior Court." When considering a motion for a new trial, the Jury's verdict is presumed to be correct. Lacey v. Beck, Del. Super., 161 A.2d 579, 580 (1960). The Court must determine whether it is against the great weight of the evidence. James v. Glazer, Del. Supr., 570 A.2d 1150, 1156 1990). In other words, barring exceptional circumstances, a trial judge should not set aside a jury verdict on such grounds unless, on a review of all the evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result. Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979). A jury's verdict should hot be disturbed unless it is manifest that it was the result of passion, prejudice, partiality or corruption, or that it was clearly in disregard of the evidence or applicable rules of law. Storey v. Castner, Del. Supr., 314 A.2d 187, 193 (1973).
Rule 59(d) states that a motion to alter or amend a judgment must be filed no later than ten days after the entry thereof. it does not provide any additional instruction. However, the Delaware Supreme Court in Tyndall v. Tyndall, Del. Supr., 214 A.2d 124, 125 (1965), opined that the courts have always had the inherent power to vacate, modify or set aside their judgments or orders during the term in which they were rendered. The reasoning for doing so must be such that it would justify the granting of a new trial if made by the complaining party. Id.
The admission of testimony by experts is provided for in Delaware Rule of Evidence 702 which reads, "[i]f 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." DRE 703 permits an expert to base his opinion upon facts or data perceived by or made known to him prior to or at the hearing in question. Those facts need not be admissible in evidence as long as they are of a type reasonably relied upon by experts in that field. Rule 702 is identical to Federal Rules of Evidence 702 and Delaware courts have relied on the United States Supreme Court's most authoritative interpretation of that rule. M.G. Bancorporation, Inc., v. Le Beau, Del. Supr., 737 A.2d 513, 521-522 (1998). Daubert, established an obligation upon a trial judge to "ensure that any and all scientific testimony . . . is not only relevant, but reliable." Daubert, 509 U.S. at 589. This obligation was expanded to all expert testimony based on "technical" and "other specialized" knowledge in Kumho. 526 U.S. at 146. The trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline. Id. at 149.
Daubert put forth certain factors that a trial judge should generally consider when determining the admissibility of an expert's testimony. The court should consider whether the particular theory or technique being proffered:
1. Can be or has been tested;
2. Has been subjected to peer review and publication;
3. In the case of a particular scientific technique, its known or potential rate of error;
4. Has been generally accepted within the appropriate scientific community.Daubert, 509 U.S. at 593-94. The factors mentioned inDaubert do not constitute a "definitive checklist or test" but must be "tied to the facts" of a particular "case."Kumho, 526 U.S. at 149-150; M.G. Bancorporation, 737 A.2d at 522; Daubert, 509 U.S. at 593. It is within the trial judges discretion to determine whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case. Kumho, 526 U.S. at 152. When the "factual basis, data, principles, methods, or their application" in an expert's opinion are challenged, the trial judge must decide if the expert's testimony" has a reliable basis in the knowledge and experience of [the relevant] discipline."Kumho, 526 U.S. at 151. The Delaware Supreme Court adopted the holding of Kumho in M. G. Bancorportation, Inc. v. Le Beau, Del. Supr., 737 A.2d 513 (1999).
Sandwiched between Daubert and Kumho, is the Delaware Supreme Court's opinion in Cunningham v. McDonald which focuses on the broader question of overall admissibility of expert testimony as opposed to the narrower question of whether that which is being proffered is reliable as a matter of science or technology. Our Supreme Court set out the following factors which the trial court must consider and/or weigh:
1. Whether the witness is qualified as an expert by knowledge, skill, experience training or education;
2. Whether the evidence is relevant and reliable;
3. Whether the expert's opinion is based upon information reasonably relied upon by experts in the particular field;
4. Whether the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and
5. Whether the expert testimony will create unfair prejudice or confuse or mislead the jury.689 A.2d at 1193. It is in light of these principles the Plaintiff's challenge to the admissibility expert witnesses proffered must be addressed.
At the outset, it should be noted that the Plaintiff does not contest the qualifications of the defense medical witnesses as experts in the field in which they were proffered, i.e., obstetrics and gynecology. There was no challenge to their educational backgrounds or the fact that each was properly licensed to practice medicine in that specialty in the State of Delaware. Both had been involved in this type of practice for more than 10 years and had performed many operations of the type that the Plaintiff underwent. Both reviewed the Plaintiff's medical records and/or history and Dr. Scacheri had treated the Plaintiff for the condition about which she complained. This contact with the Plaintiff formed the basis of their opinions concerning the propriety of the Defendant's treatment of the Plaintiff and is clearly of the type reasonably relied upon by experts in this field.
This is the same information that the plaintiff's experts relied upon. Specifically, Dr. Morgan reviewed the Plaintiff's medical records and performed corrective surgery as did Dr. Scacheri. Dr. Levinson's contact with the plaintiff, like Dr. Killeen's, was limited to a review of her medical history and records.
Moreover, none of the participants has ever indicated that expert testimony was not necessary to assist the trier of fact in understanding the issue involved in this controversy. This is particularly true as to the issue of causation given the fact that none of the experts had previously encountered such a condition as exhibited by the Plaintiff. Nor did the testimony in question mislead the jury or unfairly confuse or prejudice the Plaintiff's case. As noted above, the evidence from each side was diametrically opposed to the other, but was straight forward in each side's attempt to address the central issue as to what was or was not the cause of the Plaintiff's vaginal constriction. Thus, that four of the five factors set out in Cunningham v. McDonald were met was never in serious dispute even from a generous reading of the Plaintiff's pleadings alone. The factor which remains and about which the Plaintiff has focused her principal concern, is whether the proffered evidence is relevant and reliable.
In this regard, it is beyond question that the expert testimony is relevant as defined in DRE 401. Again, the central issue involved determining whether any negligence by the Defendant resulted in the condition, the vaginal constriction, about which the Plaintiff complained. Testimony relative to a resolution of that issue must be deemed relevant. The remaining inquiry therefore becomes whether the testimony in question is reliable. The answer is in the affirmative.
The Plaintiff complains that because the experts proffered by the defense nominated as the cause of her problem abnormal or aberrant scar tissue, which they had not previously encountered in their respective practices or heard of in any literature or continuing medical education, their testimony was without foundation and not reliable. However, this argument ignores several facts and misinterprets other information as well.
First, the record reflects that none of the medical experts who testified, including those put forth by the Plaintiff, had ever encountered the type of complication which the Plaintiff experienced. Both sides relied upon the same records and only one of the two doctors for each side had actually treated/examined the Plaintiff. Given those facts, if the foundation upon which the defense experts rested their opinion as to causation was unreliable, the opinions proffered by the Plaintiff's experts were just as suspect and should have been excluded from presentation to the jury. Obviously, the Plaintiff would not accept such an argument with regard to her own experts and it is no more persuasive when used against the defense. At best, this only raises an issue of credibility for the jury to resolve.See Stern v. Kulina, D.P.M., Del. Super., C.A. No. 95C-12-113 (Feb. 26, 1998) (Mem. Op. at 5).
Second, it was the Plaintiff who had the burden of proof and her experts testified that the condition resulted from the negligence of the Defendant. The defense experts indicated that the complication was most likely an unusual, scarring response following the surgery. However, what is ignored is the fact that Dr. Scacheri and Dr. Killeen first gave testimony rebutting the Plaintiff's theory. They specifically indicated that the Defendant did not perform certain aspects of the surgery in a manner which the Plaintiff's experts opined would have lead to the results experienced by the Plaintiff. Then and only then did they share their views as to what did cause the Plaintiff's post-surgical condition if not the Defendant's alleged negligence. In short, there was no presentation of a novel theory. The defense experts simply responded to the charges of negligence by stating that the Defendant did not act negligently and why, before going on to share what they believed caused the problem.
Specifically, contrary to what the Plaintiff's experts thought, Dr. Scacheri, during the course of the first corrective surgery did not find that excess vaginal tissue had been removed. However, he did loosen the levator ani muscles, which should have resolved the problem if those muscles had been improperly positioned during his surgery. Dr. Killeen stated that if excess tissue had been removed, the constriction would have encompassed the entire length of the vagina and had the levator ani muscles been involved, the resulting shape of the vagina would have been different. He also indicated that if the Plaintiff's experts were correct as to the cause of the problem, the constriction would have been evident immediately following the surgery by the Defendant. Since it was not, there had to be another cause and he went on to identify the same.
Third, in terms of the Daubert/Kumho analysis the Plaintiff only argues that the conclusion as to causation was novel, but does not suggest that the methodology used to reach it was unreliable. Nor has it been suggested that either defense expert was unqualified as an expert in the field of obstetrics and gynecology, or was unfamiliar with the initial operative procedures as well as those which were attempted to rectify the resultant problem. Moreover, the same argument was presented, at least as to Dr. Killeen, in support of the motion to strike filed during the course of trial. It was rejected then for reasons stated on the record and on which the Court continues to rely. Then as now, the Court must conclude that there was a proper foundation and that the theories postulated by the Defendant's experts had a reliable basis in fact as well as science.
Finally, at least in this regard, the Court remains satisfied that the opinions provided by Dr. Scacheri were based upon a reasonable medical probability. They were not speculative. While there was some initial uncertainty as to the definition of the applicable standard, once it was defined and made clear to the witness, he answered appropriately. Doctors are generally not lawyers and should not be held to the same linguistic standards. As long as a testifying physician is able to evince a basic understanding of the standard and indicate that it applies to the opinions being offered, that is sufficient for purposes of DRE 702 703. Daubert, 509 U.S. at 590, Kumho, 526 U.S. at 149-150, M.G. Bancorporation, 737 A.2d at 523.
This case, reduced to its essence, constituted a battle of medical experts. The Plaintiff's experts opined that the Defendant was negligent; their counterparts said that he was not. Both sides explained their respective theories of the case to the jury based upon their review of the Plaintiff's medical records and/or their treatment of the Plaintiff. The jury was free to and apparently chose to accord more weight to the testimony of Dr. Scacheri and Dr. Killeen. Disabatino v. Doubet, Del. Supr., 354 A.2d 426, 430 (1976). The fact that the jury did so does not make the admission of the expert testimony in question, although substantially prejudicial to the Plaintiff's case, improper.
Notwithstanding this resolution of the Plaintiff's challenge to the expert testimony offered by Dr. Scacheri and Dr. Killeen, the Court feels compelled to address the Defendant's argument that the Plaintiff waived any right to challenge that testimony by failing to raise the issues in question prior to the completion of their testimony. More specifically, the Plaintiff did so by not identifying the issue of whether those physicians were competent to testify as experts in the relevant portion of the pretrial stipulation, file a motion in limine or otherwise put the Court and opposing counsel on notice prior to trial or prior to the completion of their testimony. That conduct is particularly egregious in light of the fact that both doctors were deposed well in advance of trial and their opinions were well known to the Plaintiff. The Plaintiff responded by stating that there is no rule of law or other authority which required that she challenge the admissibility at any point in time before the issue was in fact raised. Moreover, the competency of expert opinions are not determined proffers prior to trial, but at trial.
It is clear that the purpose of those sections of the pretrial stipulation requiring that objections to witnesses and evidence be listed is to put the Court and counsel on notice of any upcoming controversy and allow all concerned the opportunity to resolve the same prior to trial. Similarly situated are motions in limine, including motions to strike objectionable material before it is presented to the trier of fact. If a party relies upon the lack of any objection to evidence after having given notice of its intent to introduce the evidence to the opposing party and objection is subsequently raised at a point in time when the offering party is not in a position to respond when it might have had prior notice of the challenge been given, a finding of waiver or estoppel might be the proper response by the Court. Where it was not possible to object prior to trial or the completion of the witnesses' testimony for other good cause, such as a change in the nature of the evidence actually introduced versus that proffered, it is not likely that there will be such a finding. However, it is not necessary for the Court to decide this issue in the instant situation for two reasons.
One must curiously view the fact that the Plaintiff, at least where Dr. Killeen was concerned, waited until his testimony was complete and he had apparently left the courthouse before moving to strike his testimony. The evidence was already before the jury at that point and it could be argued that directing the jury to ignore the testimony might not resolve any impermissible taint that attached to the case as a result. The far better course to pursue would have been to raise the issue during the initial stages of the examination of the witness by means of voir dire outside the presence of the jury, before he or she begins to provide opinion testimony.
First, the Defendant did establish the requisite foundation to allow Dr. Scacheri and Dr. Killeen to testify as experts pursuant to DRE 702 and 703, albeit in a somewhat abbreviated form given the time constraints involved in the scheduling of those witnesses to testify at trial and the lack of prior objection to their testimony in this regard. In addition, the Court previously addressed the issue on the merits during the course of trial and ruled in the Defendant's favor. Second, there has been no showing concerning whether the deposition testimony of those witnesses on the subject did or did not vary from that elicited from them at trial, or whether some other justification did or did not exist which would excuse the lack of notice. In short, while there is some sympathy for the Defendant's complaints, the record does not reflect enough information upon which one could conclude that the Defendant relied to his detriment on the failure to challenge the expert testimony proffered prior to trial.
CONCLUSION
Based upon the foregoing, the Court must conclude that the jury's decision was not against the great weight of the evidence and there is no other valid basis to vacate, modify, alter, amend or set aside the jury's verdict. The Plaintiff's motion for new trial and/or motion to alter or amend must therefore be, and hereby is, denied.
IT IS SO ORDERED.