This month, Judge William L Witham Jr of the Delaware Superior Court granted a request to block the testimony of a doctor appearing as an expert witness in a medical malpractice case.

The plaintiff, Amanda Norman, filed the lawsuit against Dr. Christine Maynard and the clinic All About Women.  She claimed that, while performing a diagnostic laparoscopy on Amanda Norman in October 2013, Dr. Maynard perforated the plaintiff’s bladder.  The mistake was not realized prior to completing the procedure – which led to further surgery and hospitalization for Amanda Norman.

The defendants 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 – the expert witness.

Resident Judge William L. Witham determined that there was no evidence that Amanda Norman’s expert witness - Dr. Soffer - had based his definition of the standard of care on information broadly accepted within the medical community. Therefore, the judge granted Dr. Christine Maynard - and her clinic All About Women - their request to exclude his testimony.

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

The decision states, “In this case, Amanda Norman has failed to meet her burden because no evidence has been presented that Dr. Soffer’s opinion is ‘based on information reasonably relied upon by experts’ in his field.  Therefore, the court must exclude Dr. Soffer’s testimony.”

Dr. Christine Maynard and the clinic had argued that Dr. Soffer’s testimony was only reliant on the fact that Amanda Norman’s bladder had been injured but did not elaborate on what would have been required of Dr. Maynard to abide by the standard of care. They added that he had failed to provide any explanation as to how he reached his standard of care opinions. 

Conversely, Amanda Norman argued that Dr. Soffer’s testimony indicates that a doctor exercising care and diligence would not injure a patient during a diagnostic laparoscopy.  She also stated that the evidence pinpointed specific deficiencies in Dr. Maynard’s surgical procedure.

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.

The order states that to be allowed –

• the witness must be qualified as an expert:
• the evidence must be relevant
• the opinion must be based upon information that other experts in the field rely upon
• the testimony must help the court understand the facts of an issue
• it must not create unfair prejudice

The court found that Dr. Soffer’s testimony was inadmissible because it failed on the third point of the test.

According to Judge Witham’s decision, Amanda Norman had not shown that Dr. Soffer’s opinion was based on information that experts rely upon. In fact, 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.

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

The Court issued the decision on November 16.