Wright v. Christiana Care Health Services, Inc.

[[COURTLISTENER_SUBOPINION {"id":"10849060","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

EBONY WRIGHT, Individually and )
as Parent and Next of Friend of )
JWR, a Minor,                   )         C.A. No.: N23C-02-206 FJJ
                                )
                                )
               Plaintiffs,      )         TRIAL BY A JURY OF
                                )         TWELVE DEMANDED
        v.                      )
                                )
CHRISTIANA CARE HEALTH          )
SERVICES, INC.,                 )
d/b/a CHRISTIANA CARE           )
CHRISTIANA HOSPITAL, et al.,    )
                                )
               Defendants.      )

                            Submitted: April 16, 2025
                             Decided: April 22, 2025


                            OPINION AND ORDER
            On the Parties’ Motions in Limine and Daubert Challenge


Donald L. Gouge, Jr., Esquire, Donald L. Gouge, Jr., LLC, Wilmington, Delaware,
and Brian M. Cathell, Esquire (Pro Hac Vice), Wais, Vogelstein, Forman, Koch &
Norman, LLC, Baltimore, Maryland Attorneys for Plaintiffs.




Collen D. Shields, Esquire, and Randall S. MacTough, Esquire, Eckert Seamans
Cherin & Mellott, LLC, Wilmington, Delaware, Attorneys for Defendants



Jones, J.
                                    INTRODUCTION

         This is a medical negligence case arising from the premature birth of J.W.R.

Trial is set to start on May 12, 2025. The parties have filed various motions. This

is the Court’s decision on these motions.


                                  PLAINTIFFS’ MOTIONS

                            PLAINTIFFS’ PROGESTERONE USE

         Plaintiffs seek exclusion of reference to Ms. Wright’s progesterone use,

specifically her brief cessation of use around December 7, 2017. 1 Plaintiffs argue

“any reference or suggestion that Ms. Wright’s alleged brief discontinuation of

progesterone contributed to or caused the premature birth of JWR lacks evidentiary

support from expert opinion and would mislead the jury and unfairly prejudice the

Plaintiffs.”2


         Defendants respond agreeing that “no expert will testify that Ms. Wright’s

discontinuance of progesterone contributed to or caused J.W.R’s premature birth.”3

Thus, Plaintiffs argument on that concern is now immaterial. Defendants further

argue Ms. Wright’s noncompliance with her doctor’s order concerning her

progesterone use is relevant to impeachment.         Defendants maintain that this

testimony undermines Plaintiffs’ testimony that Ms. Wright would have followed


1
  Docket Item (“D.I.”) 129 ¶ 2.
2
  Id. ¶ 7.
3
  D.I. 133 ¶ 3.

                                            2
her doctor’s advice if a cerclage had been recommended.


        Jurors must be allowed the opportunity to hear impeaching evidence that may

impact a witness’s credibility.4 Therefore, this Court agrees with Defendants and

finds Ms. Wright’s progesterone use is admissible impeachment evidence if Ms.

Wright testifies that she would have complied with doctor’s orders and

recommendations.


        For these reasons, Plaintiff’s Motion is DENIED.


                                 TOPS TRIAL CONSENT FORM

        Plaintiffs ask the Court to preclude use of Ms. Wright’s consent form for the

TOPS clinical trial.5 Dr. Ruhstaller was the supervising physician of this trial which

“investigat[ed] the use of a pessary for the prevention of preterm birth in women

with a shortened cervix.”6 Plaintiffs make this argument notwithstanding that in the

Pretrial Stipulation an issue of fact identified is “whether Ebony Wright was properly

enrolled in the TOPS clinical trial and whether her participation was informed and

voluntary.”7 Plaintiffs argue admittance of the consent form is far too prejudicial

and would confuse and mislead the jury into thinking that by signing the clinical trial




4
  Jackson v. State,
770 A.2d 506, 515
(Del. 2001).
5
  D.I. 127.
6
  Id. ¶ 2-3.
7
  See D.I. 144 Joint Pretrial Stipulations.

                                                     3
consent form, Ms. Wright had informed consent pertaining to cerclage placement.8

Defendants respond arguing that the consent form is relevant and not confusing nor

misleading to a jury because they can understand the plain language of the consent

form.9


         The Court finds that the consent form is relevant and will not lead to confusion

on the part of the jury nor does it impact the other factors under D.R.E. 403.

Plaintiffs’ Motion is DENIED.


                                  REFERENCE TO NEWSOME

         Plaintiffs seek exclusion of reference to the Circuit Court for Baltimore City,

Maryland case, Newsome v. University of Maryland Medical Center.10 One of

Plaintiffs’ maternal-fetal medicine specialist experts, Dr. John Elliot, gave opinion

testimony in Newsome that “Defendants negligently breached a standard of care

requiring Defendant physicians to offer, recommend, and place a cerclage in

Plaintiff’s twin pregnancy in 2018.”11 The Newsome Court deemed Dr. Elliot’s

opinion testimony to this point inadmissible because an “insufficient factual basis

exists for the opinion,” and found that medical literature, guidelines, and studies

came to the opposite conclusion that a cerclage was not mandated in a twin



8
  Id. ¶ 10.
9
  D.I. 132.
10
   D.I. 130, Exhibit (“Ex.”) C, Case No. 24-C-23-003991.
11
   Id. Ex. C p. 9.

                                                           4
gestation.12 This opinion is currently on appeal.


         Plaintiffs argue Newsome is irrelevant and allowing reference to it is

prejudicial and confusing to the jury, especially if used to impeach Dr. Elliot because

the factual circumstances differ. Plaintiffs point out that a twin gestation is at issue

in Newsome, whereas, here, Ms. Wright had a singleton pregnancy when pregnant

with J.W.R. 13


         Defendants contend Newsome has a “highly probative value” to the instant

case to impeach the opinion testimony of Dr. Elliot.14 Defendants argue distinctions

between Newsome and this case are immaterial because Dr. Elliot is providing the

same ultimate conclusion “in contradiction to professional society guidelines and

scientific evidence.”15


         The issue in Newsome involved twins, while the instant case involves a

singleton birth. All agree that this is a critical distinction as to the standard of care.

The distinct factual differences between the cases, along with the fact that Newsome

has been appealed, leads this Court to conclude that no mention should be made of

the Newsome decision in this case. Its probative value is far outweighed by its

prejudice. Furthermore, its admission would confuse the jury.


12
   D.I. 131, Ex. F.
13
   D.I. 130 ¶ 12.
14
   D.I. 131 p. 4.
15
   Id. p. 6.

                                            5
         For these reasons, the Court GRANTS Plaintiff’s Motion to Exclude

reference to Newsome.


                       COLLATERAL SOURCE EVIDENCE


         Plaintiffs ask the Court to bar admission of all collateral source evidence

except for the exception of public collateral compensation or benefits carved out in

18 Del C. § 6862.16 Further, Plaintiffs contend they have a right to argue at trial

Plaintiffs’ future public compensation or benefits is uncertain because it is

contingent on Plaintiffs’ income, residency, and other benefits.17


         Defendants oppose Plaintiffs’ Motion to the extent it asks the Court to exclude

public collateral source evidence admissible under the Delaware Code and case

law.18 Defendants further argue, even though Plaintiffs withdrew their claim for past

medical expenses, J.W.R.’s prior Medicaid eligibility since birth is relevant to

J.W.R.’s continued eligibility in the future.19 Finally, Defendants direct the Court to

an email exchange between parties in which Defendants sought clarification on the

relief Plaintiffs sought in their Motion. Plaintiffs stated in their email response that

they “may move to exclude or limit the testimony of [Defendants’] damages experts

to the extent their opinions do not comply with the rules of evidence and 18 Del. C.


16
   D.I. 126 ¶ 9.
17
   Id.
18
   D.I. 141 ¶ 5.
19
   Id.

                                            6
§ 6862.”20 Defendants contend, in accordance with the Trial Scheduling Order, it is

too late for Plaintiffs to exclude or limit Defendants’ experts opinions or introduce

undisclosed rebuttal expert evidence.21


        Under Delaware’s collateral source rule, “a tortfeasor has no right to any

mitigation of damages because of payments or compensation received by the injured

person from an independent source.”22 Thus, “the rule ‘prohibits the admission of

evidence of an injured party receiving compensation or payment for tort-related

injuries from a source other than the tortfeasor.’”23 The Delaware Code provides an

exception to the collateral source rule in medical negligence cases. The rule allows

admission of “any and all facts available as to any public collateral source of

compensation or benefits payable to the person seeking such damage (including

sums which will probably be paid payable to such person in the future) . . .”24


        The Court finds that, pursuant to 18 Del. C. § 6862, Plaintiffs’ public collateral

sources are ADMISSIBLE, and, in accordance with the collateral source rule, any

other sources are INADMISSIBLE.




20
   Id. ¶ 4; see Id. Exhibit (“Ex.”) A.
21
   Id. ¶ 6.
22
   Miller v. State Farm Mut. Auto. Ins. Co.,
993 A.2d 1049, 1052
(Del. 2010) (quoting Yarrington v. Thornburg,
205
A.2d 1, 2
(Del. 1964)).
23
   Miller,
993 A.2d at 1053
(quoting James v. Glazer,
570 A.2d 1150, 1155
(Del. 1990)).
24
   18 Del. C. § 6862.

                                                        7
         RESIDENCE OF PLAINTIFFS OR PLAINTIFFS’ ATTORNEYS


          Plaintiffs ask the Court to exclude reference to the residence of Plaintiffs or

Plaintiffs’ attorneys.25 Plaintiffs’ main concern is that Defendants will utilize this

information to paint the image to jurors that Plaintiffs and their attorneys are

“outsiders” and “not entitled to the same consideration as local parties.” Plaintiffs

argue this information is irrelevant and, even if found to be relevant, still prejudicial,

misleading, and confusing to the jury.26


          Defendants respond that they “generally do not oppose Plaintiffs’ request to

preclude references, arguments, or evidence” concerning the residency of Plaintiffs’

attorneys.27 However, Defendants argue Plaintiffs’ residency is a material fact as to

damages.28 First, Defendants contend it is relevant to their public collateral source

argument concerning past and future Medicaid benefits from Pennsylvania

Department of Human Services and to future care costs related to J.W.R.’s life care

plan in Pennsylvania.29 Second, Defendants argue they can use Plaintiffs’ residence

to impeach the credibility of Plaintiffs’ expert, Mr. McCord, to question why he did

not conduct a more particularized analysis and consider data specific to the




25
   D.I. 128.
26
   Id. ¶¶ 3, 5-8.
27
   D.I. 138 ¶ 2.
28
   Id. ¶ 3.
29
   Id. ¶ 5-7.

                                             8
Philadelphia area to calculate J.W.R.’s potential education attainment.30


        The residence of Plaintiffs’ attorneys is irrelevant and excluded. However,

Plaintiffs’ residence is relevant for the reasons advanced by Defendants. Therefore,

the Court GRANTS the Motion as to the residences of Plaintiffs’ counsel and

DENIES the Motion as to Plaintiffs’ residence.


                               DEFENDANTS’ MOTIONS

                      MINOR JWR’S LOST EARNING CAPACITY

           Plaintiffs have produced a vocational expert, J. Michael McCord, who

provided a report that projects a loss of earning claim for J.W.R. Defendants, citing

the Court to the seminal decision in Henne v. Balick31, move the Court to exclude

the future lost earning capacity claim. Defendants argue that any future loss of

earning capacity is based on pure speculation and is, therefore, not admissible.32


          In Henne, the Delaware Supreme Court held that it was reversible error to

permit a law student with no prior work history to recover future lost earnings

because there was no evidence of his earnings or as to the extent of the impairment

of his earnings in the future. The Henne Court concluded that the evidence was

simply too speculative to allow for the recovery of future lost earnings and the



30
   Id. ¶ 8.
31
146 A.2d 394
(Del. 1958).
32
   D.I. 124.

                                          9
damages associated with such a claim.


         Plaintiffs cite to Jardel Co., Inc. v. Hughes33 in support of its position that this

Court should allow the claim. Jardel involved a high school student recovering the

future earnings of a nurse because she expressed an interest in nursing and enrolled

in a college nursing program. In Kemp v. Christiana Care Health Services, Inc.34,

this Court allowed a forklift operator to pursue future earnings because there was

evidence that he was permanently foreclosed from returning to his chosen

profession. In both Jardel and Kemp, there was some evidence and history to

support the claim.


         This case involves a baby which means there is no work history. McCord

based his opinion on the PEEDS-RAPEL method which examines a number of facts

to predict educational attainment of a child. While other states appear to have

allowed such testimony35, this Court must follow the Delaware law clearly

articulated in the Henne decision. While Henne is dated, it is still the law. On the

basis of Henne, this Court concludes that Delaware law does not recognize a claim

for future lost earning capacity and related damages where the injured plaintiff is a

baby as the claim is inherently speculative.


33
523 A.2d 518
(Del. 1987).
34
2011 WL 2623940
, at *5 (Del. Super. June 27, 2011).
35
   Greer v. Bryant, et. al.,
621 A.2d 999
(Pa. Super. Ct. 1983); see also Lewin Realty III, Inc v. Brooks,
771 A.2d
446
(Md. Ct. Spec. App. 2001) and cases cited therein.

                                                          10
             Defendants’ motion to exclude evidence of JWR’s lost earning capacity

claim is GRANTED.


                               IRRELEVANT EVIDENCE


           Defendants have moved to exclude any evidence or arguments related to (1)

Plaintiff Ebony Wright’s race; and (2) post-treatment standards and developments

arguing that such testimony is irrelevant, and, even if relevant, its probative value is

substantially outweighed by the danger of unfair prejudice, confusing the issues,

misleading the jury, wasting time or needlessly presenting cumulative evidence.36


           Ebony Wright’s race is admissible. The record is clear that African American

women are at higher risk for cervical insufficiency. Race is a factor in explaining

how Ms. Wright’s personal risk factors differed from the broader population

addressed by general ACOG Practice Bulletins at the time of treatment. Providers

have to take into account risk factors to avoid preterm birth. Therefore, the fact that

Ms. Wright is African American is relevant. Defendants’ motion on this point is

DENIED.


             The issue in this case is whether the Defendants breached the standard of

care that was in effect in November and December of 2017. The record suggests



36
     D.I. 123.

                                            11
that the standard of care changed after 2017. Any evidence that the standard of care

changed after 2017 is not relevant to the issues in this case. Even if there was some

relevance to the change in the standard of care, the probative value of that evidence

is substantially outweighed by the danger of unfair prejudice to the

Defendants. Additionally, evidence of the standard of care after 2017 could mislead

and confuse the jury. Defendants’ motion on this point is GRANTED.


         THEORY THAT A CERCLAGE WOULD HAVE PREVENTED AN

                               ASCENDING INFECTION


            Defendants seek exclusion of Plaintiffs’ theory that Ms. Wright’s ascending

infection would not have occurred had a cerclage been recommended and placed.37

Defendants argue Plaintiffs’ theory is unreliable because Plaintiffs did not, and

cannot, rule out that the infection caused Ms. Wright’s preterm premature rupture of

the membrane (“PPROM”), despite medical literature and Plaintiffs’ experts

acknowledging a causal connection between the two.38 Defendants support this

contention with the argument that the timing of the infection’s initial occurrence is

unknown because Ms. Wright lacked clinical signs of an infection and the placental

pathology only provides the information that the infection “must have existed at least




37
     D.I. 122.
38
     Id. ¶¶ 4, 7.

                                             12
48 hours” prior to the time the pathology was taken.39 Defendants also contend

Plaintiffs failed to raise expert opinions “that a cerclage would have prevented

PPROM and/or the infection, or that the infection developed after PPROM” in the

Designation and did not bring them up until deposition. Thus, Defendants ask the

Court to exclude the opinions on that basis alone.40


         Plaintiffs respond by arguing their theory of causation is not that the “infection

itself directly caused J.W.R.’s injuries,” but that the infection “was a foreseeable and

preventable complication of cervical insufficiency and that the failure to place a

cerclage allowed that infection to occur.”41 Their theory does not rely on whether

the infection caused PPROM or occurred after the fact because Plaintiffs’ experts

conclude that the cerclage would have prevented the infection entirely.42 Plaintiffs

state that it is their experts’ opinion when it comes to the “limited issue of infection

. . . the failure to place a cerclage caused the infection.”43 Plaintiffs argue medical

literature and both parties’ experts support this opinion.44           Plaintiffs address

Defendants’ timely disclosure concern and represent all opinions were disclosed

during discovery.45 Finally, Plaintiffs argue their experts conducted thorough and



39
   Id. ¶ 7.
40
   Id.
41
   D.I. 140 ¶ 4.
42
   Id. ¶ 12.
43
   Id. ¶ 6.
44
   Id. ¶¶ 7-10.
45
   Id. ¶ 8.

                                             13
adequate differential diagnosis analyses sufficient to meet the admissibility

requirements by their extensive review of the record and systematic evaluation of

“all potential causes of preterm labor.”46

     Delaware Rule of Evidence 702 governs the admissibility of expert testimony.

Delaware has adopted the holdings in Daubert v. Merrell Dow Pharmaceuticals

Inc.47 and Kumho Tire Co., Ltd. v. Carmichael48 to interpret the Delaware Rule.49 In

Daubert and Kumho, the United States Supreme Court interpreted and explained

Federal Rule of Evidence 702, which is “substantially similar” to the Delaware

Rule.50 Delaware Rule 702 states:

        A witness who is qualified as an expert by knowledge, skill, experience,
        training, or education may testify in the form of an opinion or
        otherwise, if: (a) the expert’s scientific, technical, or other specialized
        knowledge will help the trier of fact to understand the evidence or to
        determine a fact in issue; (b) the testimony is based upon sufficient facts
        or data; (c) the testimony is the product of reliable principles and
        methods; and (d) the witness has applied the principles and methods
        reliably to the facts of the case.51




46
   Id. ¶¶ 13-14.
47
509 U.S. 579
(1993).
48
526 U.S. 137
(1993).
49
   Bowen v. E.I. DuPont de Nemours & Co., Inc.,
906 A.2d 787, 794
(Del. 2006) (citing M.G. Bancorporation, Inc. v.
Le Beau,
737 A.2d 513, 522
(Del. 1999)).
50
   Smack-Dixon v. Walmart Inc.,
2021 WL 3012056
(Del. Super. Ct. Jul. 16, 2021) (citing Bowen,
906 A.2d at 794
).
51
   D.R.E. 702; see also Smack-Dixon,
2021 WL 3012056
(Del. Super. 2021).

                                                       14
        To be admissible, expert testimony must be “relevant and reliable.”52 To

make this determination, the trial judge engages in a five-step analysis.53 This

analysis provides that the trial judge finds that:

        (1) the witness is qualified as an expert by knowledge, skill,
            experience, training, or education;
        (2) the evidence is relevant;
        (3) the expert’s opinion is based on information reasonably relied upon
            by experts in the particular field;
        (4) the expert testimony will assist the trier of fact to understand the
            evidence or to determine a fact in issue; and
        (5) the expert testimony will not create unfair prejudice or confuse or
            mislead the jury.54

        The burden of establishing that the expert testimony is admissible lies with its

proponent by a preponderance of the evidence.55 “A strong preference exists” for

admitting expert opinions “when they will assist the trier of fact in understanding

the relevant facts or the evidence.”56

        Reliable expert testimony is premised on scientific or specialized knowledge

which requires the testimony to be grounded in scientific methods and procedures

and “supported by appropriate validation – i.e., ‘good grounds,’ based on what is

known.”57


52
   Daubert, 508 U.S. at 597.
53
   Smack-Dixon,
2021 WL 3012056
at *2 (citing Bowen,
906 A.2d at 795
)).
54
Id.
55
Id.
56
   Smack-Dixon,
2021 WL 3012056
at * 2 (quoting Delaware ex. Rel. French v. Card Compliant, LLC,
2018 WL
4151288
, *2 (Del. Super. Ct. Aug. 29, 2018) (quoting Norman v. All About Women, P.A.,
193 A.2d 726
, 730 (Del.
2018)).
57
   Daubert,
509 U.S. at 590
.

                                                     15
         Many scientific, technical, or specialized fields are not subject to peer review

and publication which is why the test of reliability is “flexible.” A rigid application

of the Daubert factors to determine testimonial reliability in every field of expertise

is not practical.58 Even with all the advances of medical science, the practice of

medicine remains an art, and a diagnosis in the practice of clinical medicine “is not

an exact science.”59

         Again, a gatekeeping judge has “broad latitude” to determine whether an

expert’s proffered opinion is based upon the “proper factual foundation and sound

methodology.”60 This “proper factual foundation” language has been distilled from

Delaware Rule 702.61 To meet the criterion for a “proper factual foundation,” an

expert’s opinion must be based on “facts” and not “suppositions.”62 When applied

to a medical expert, a causation opinion is admissible when it’s “based on his

analysis of the circumstances . . . not mere speculation over the cause.”63 And a

proponent need only show by a preponderance of the evidence that her expert’s


58
   Henlopen Hotel v. United Nat’l Ins. Co.,
2020 WL 233333
, at *3 (Del. Super. May 11, 2022).
59
   State v. McMullen,
900 A.2d 105
, 114 (Del. Super. Ct. 2006). See also Moore v. Ashland Chem.,
126 F.3d 679
, 688-
690 (5th Cir. 1997), vacated on reh’g en banc,
151 F.3d 269
(5th Cir. 1998) (“First, the goals of the disciplines of
clinical medicine and hard Newtonian science are different. . . .Second, the subject matter and conditions of study are
different. . . .Finally, clinical medicine and hard science have marked different methodologies. . . .In sum, hard
Newtonian scientific knowledge. . .is knowledge of a particular and limited kind. . . . Although clinical medicine
utilizes parts of some hard sciences, clinical medicine and many of its subsidiary fields are not hard sciences. . . .
Consequently, the Daubert factors, which are hard scientific methods selected from the body of hard scientific
knowledge and methodology generally are not appropriate for use in assessing the relevance and reliability of clinical
medical testimony”). The Fifth Circuit’s discussion of the significant differences between disciplines in “hard science”
and clinical medicine still holds true even though the decision in that case was ultimately vacated.
Id.
60
   Russum v. IPM Dev. P’ship LLC,
2015 WL 2438599
, at *2 (Del. Super. May 21, 2015).
61
Id.
62
   Id. at 3.
63
   Norman, 193 A.2d at 732.

                                                          16
opinions are reliable, not that they are correct.64 So, this Court’s Rule 702 reliability

examination must focus on principles and methodology not on the resultant

conclusions.65

         Delaware courts generally recognize that challenges to the “factual basis of

an expert opinion go to the credibility of the testimony, not the admissibility, and it

is for the opposing party to challenge. . . the expert opinion on cross-examination.”66

“The different depth with which [an expert] pursued particular lines of investigation

and the different assumptions they made are readily subject to cross-examination

and to evaluation by the fact finder for credibility and weight.”67 An expert’s

testimony will only be excluded in the narrow circumstance where he is shown to

have completely neglected the core facts of the case.68 And, under Delaware Rule

702, a medical doctor’s opinion “based on his own knowledge” and informed by his

review of a patient’s records may certainly be sufficient to clear the Daubert/Bowen

reliability threshold.69




64
   McMullen, 900 A.2d at 114 (citing In Re: Paoli R.R. Yard PCB Litig.,
35 F.3d 717, 744
(3d Cir. 1994)).
65
   Henlopen Hotel,
2020 WL 233333
, at *2 (“At bottom, the Court’s examination of an expert’s opinion must be solely
focused on principles and methodology, not on the conclusions they generate.”) (quoting Tumlinson v. Advanced
Micro Devices,
81 A.3d 1264, 1269
(Del. 2013)).
66
   Perry v. Berkley,
996 A.2d 1262, 1271
(Del. 2010). See also Hodel v. Ikeda,
2013 WL 226937
, at *4 (Del. Super.
Ct. Jan. 18, 2013); Daubert,
509 U.S. 579, 596
(1993) (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.” (internal citations omitted)); Russum,
2015 WL 2438599
, at *3.
67
   Henlopen Hotel,
2020 WL 233333
, at *4; Perry v. Berkley,
996 A.2d at 1271
(noting cross-examination rather than
exclusion can be the proper method of exploring the bases of an expert’s opinion and the weight to be ascribed thereto).
68
   Russum,
2015 WL 2438599
, at *3.
69
   See e.g., Norman, 193 A.3d at 731-32.

                                                          17
           It is the Court’s function to deem an expert’s differential diagnosis method as

a reliable means to form their ultimate opinion.70 The courts have flexibility under

Delaware law in making this decision.71 It appears to the Court that Plaintiffs’

experts utilize their personal knowledge and experience as well as medical literature

to testify to their ultimate opinions concerning the placement of a cerclage

preventing infection.               The Court also finds that the experts have conducted

differential diagnoses satisfactory to meet the needs of D.R.E. 702 and Daubert.

Therefore, the Court finds no basis to exclude Plaintiffs’ theory that a cerclage would

have prevented Ms. Wright’s ascending infection and leaves it to the jury to decide

the issue.

           For these reasons, the Court DENIES Defendants’ Motion.

IT IS SO ORDERED.

                                                                /s/ Francis J. Jones, Jr.
                                                                Francis J. Jones, Jr., Judge
cc:        File&ServeXpress
           Donald L. Gouge, Esq.
           Brian M. Cathell, Esq.
           Colleen D. Shields, Esq.
           Randall S. MacTough, Esq.




70
     State v. McMullen,
900 A.2d 103, 117
(Del. Super. Ct. 2006).
71
Id. at 118
.

                                                          18