Full Opinion (html_with_citations)

      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LAUREN SCOTTOLINE, individually             )
and as Parent and Guardian of J.S.S., a     )
Minor, and STEVEN SCOTTOLINE,               )
Parent of J.S.S., a Minor,                  )
                                            )     C.A. No.: N19C-08-135 FWW
            Plaintiffs,                     )
                                            )
                   v.                       )
                                            )
WOMEN FIRST, LLC, and                       )
CHRISTIANA CARE HEALTH                      )
SYSTEM, INC.                                )
                                            )
            Defendants.                     )


                          Submitted: November 20, 2023
                           Decided: December 15, 2023

                                    ORDER

 Upon Defendant Christiana Care Health System Inc.’s Second Motion in Limine
 to Exclude the Unreliable Causation Opinion of Plaintiffs’ Expert Daniel Adler,
                 M.D., joined by Defendant Women First, LLC,
                                 GRANTED.

   Upon Defendant Christiana Care Health System Inc.’s Motion in Limine to
 Exclude Testimony and Opinions of Plaintiffs’ Expert Jody M. Masterson, R.N.,
                   joined by Defendant Women First, LLC,
                                GRANTED.
Bruce L. Hudson, Esquire, Joshua J. Inkell, Esquire, and Daniel P. Hagelberg,
Esquire, HUDSON, CASTLE & INKELL, LLC, 2 Mill Road, Suite 202,
Wilmington, Delaware 19806, and Gregg W. Luther, Esquire and Melinda Young,
Esquire, The Keenan Firm, 495 Grand Boulevard, Miramar Beach, FL 32550,
Attorneys for Plaintiffs.

Bradley J. Goewert, Esquire, and Thomas J. Marcoz, Jr., Esquire, MARSHALL
DENNEHEY WARNER COLEMAN & GOOGIN, 1007 N. Orange Street, Suite
600, P.O. Box 8888, Wilmington, Delaware 19899, and David Batten, Esquire,
BATTEN LEE, 4141 Parklake Avenue, Suite 350, Raleigh, North Carolina 27612,
Attorneys for Defendant Women First, LLC

John D. Balaguer, Esquire, BALAGUER MILEWSKI & IMBROGNO 2961
Centerville Road, Suite 300, Wilmington, Delaware 19808, Attorneys for
Defendant Christiana Care Health System, Inc.




WHARTON, J.




                                     2
      This 15th day of December 2023, upon consideration of Defendant

Christiana Care Health System, Inc.’s (“CCHS”) Second Motion in Limine to

Exclude the Unreliable Causation Opinion of Plaintiffs’ Expert Daniel Adler, M.D.

(“CCHS’s Second Motion in Limine (Dr. Adler)”),1 joined by Defendant Women

First, LLC (“Women First”),2 Defendant CCHS’ Motion in Limine to Exclude

Testimony and Opinions of Plaintiffs’ Expert Jody M. Masterson, R.N. (“CCHS’

Motion in Limine (Nurse Masterson)”,3 joined by Women First,4 the Response of

Plaintiffs Lauren Scottoline, individually, and as Parent and Guardian of J.S.S., a

minor, and Steven Scottoline, Parent of J.S.S., a minor (“Scottolines” or

“Plaintiffs”) to CCHS’ Second Motion in Limine (Dr. Adler),5           CCHS’ Reply in

Support of Second Motion in Limine (Dr. Adler),6 joined by Women First,7

argument, and the record in this case, it appears to the Court that:

      1.     The Scottolines brought this medical negligence action following the

birth of their child, J.S.S. The gravamen of their complaint is that J.S.S. was

deprived of oxygen during labor and delivery and sustained injuries, some of which

are permanent, as a result of negligent medical care. Before the Court is the


1
  Def. CCHS’ Second Mot. in Limine (Dr. Adler), D.I. 193.
2
  Def. Women First’s Joinder, D.I. 195
3
  Def. CCHS’ Mot. in Limine (Nurse Masterson), D.I. 198.
4
  Def. Women First’s Joinder, D.I. 202.
5
  Pls.’ Resp. to CCHS’ Second Mot. in Limine (Dr. Adler), D.I. 204.
6
  Def. CCHS’ Reply, D.I. 205.
7
  Def. Women First’s Joinder, D.I. 207.
                                        3
Defendants’ second set of motions in limine. CCHS first sought to exclude Dr.

Daniel Adler’s (“Dr. Adler”) opinion that a brain injury J.S.S suffered during

delivery caused his autism spectrum disorder. That effort was successful when the

Court, exercising its gatekeeper function under Daubert,8 held that Dr. Adler’s

proffered opinion was “not borne out by the evidence he cites in support of his

causation conclusion, and because he did not use a reliable methodology to rule out

the other potential causes for this condition [.]”9

      1.     The following facts and procedural history are taken from the Court’s

earlier Memorandum Opinion:10

             The minor child, J.S.S., was born at Christiana Hospital on
             July 28, 2015. Four years later, J.S.S.’s parents filed this
             action against Christiana Care Health Services, Inc.
             (“CCHS”) and Women First, LLC (“Women First” and
             collectively with CCHS, “Defendants”), the practice that
             delivered J.S.S. Plaintiffs allege Defendants’ negligence
             caused J.S.S. to be deprived of oxygen during the birth,
             resulting in tissue and organ damage, including a
             permanent Hypoxic          Ischemic        Encephalopathy
             (“HIE”) injury to the brain. The complaint alleges J.S.S.
             also suffered injuries to other organs, including his

8
  Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579
 (1993).
9
  Scottoline v. Women First, LLC,
2023 WL 2325701
 (Del. Super. Ct. Mar. 1,
2023).
10
   The Memorandum Opinion was issued by the originally assigned Trail Judge,
who, after issuing the Opinion, conducting a pretrial conference, and setting a new
trial date, was elevated to the Delaware Supreme Court. On July 12, 2023 the
matter was reassigned to another judge of this Court, and reassigned again to a
third judge on September 15, 2023. Finally, it was reassigned to this Judge on
September 21, 2023.
                                          4
kidneys, liver, and muscle systems as a result of oxygen
deprivation.
J.S.S. was born with “no respiratory effort” and falling
blood oxygenation levels. He was intubated within five
minutes of his birth and experienced seizures
approximately 20 minutes after his birth. The treating
neurologist's and neonatologist's records indicate he was
“extremely sick” and initial testing was “consistent with
severe encephalopathy.” J.S.S. was diagnosed with HIE
six days after he was born.
J.S.S. spoke before his first birthday and walked at
approximately 16 months. At 18 months, he stopped
speaking. He slowly developed three-word sentences, but
those sentences rarely were purposeful. He began reading
at age three but has significant attention issues at
school. J.S.S. receives Special Education services along
with occupational and speech therapy.
In 2017 and 2018, J.S.S.’s treating clinicians noted
developmental delays and behaviors “consistent with”
an Autism Spectrum Disorder (“ASD”) diagnosis. In May
2018, J.S.S. was diagnosed with ASD by his school
district. He was reevaluated in February 2021, and that
evaluation confirmed the previous ASD diagnosis.
Further testing showed significant developmental delays,
including in speech and language, social responsiveness,
auditory comprehension, and expressive language.
Plaintiffs filed this action on August 15, 2019 on behalf of
J.S.S. and Lauren Scottoline, J.S.S.’s mother. The
Amended Complaint, filed March 2, 2021, alleges
Defendants provided negligent medical care while
Lauren Scottoline was hospitalized and during her labor
and delivery with J.S.S., and Defendants’ alleged
negligence proximately caused J.S.S.’s injuries, including
“physical injuries, emotional pain and suffering past and
future, increased risk of harm, loss of chance, loss of

                            5
               enjoyment of life past and future, extensive medical bills
               past and future, extensive lifetime care bills, [and] loss of
               earnings.”
               One of Plaintiffs’ experts, Dr. Daniel Adler, is a pediatric
               neurologist whose opinion Plaintiffs offer to prove
               causation and damages. Dr. Adler examined J.S.S.,
               reviewed his medical history, and issued two reports in
               this matter: one report dated June 4, 2019 (the “First Adler
               Report”) and the other dated July 14, 2021 (the “Second
               Adler Report”). In the First Adler Report, after
               summarizing J.S.S.’s relevant medical and social history,
               Dr. Adler opined that “all of J.S.S.’s neurological and
               neurodevelopmental disabilities are the result of
               the hypoxic ischemic brain injury [he] suffered during the
               labor and delivery process.” More specifically, Dr. Adler
               opined that his examination of J.S.S. “confirms that [his]
               behavior falls within the autism spectrum,” and “while the
               causes of autism are diverse, in this case, the cause of
               J.S.S.’s qualitative disturbance in social interaction and
               play is [HIE].” Dr. Adler further opined that
               J.S.S.’s neurological injuries and disabilities are
               permanent in nature, he will not be able to live
               independently or be employed in the competitive job
               market, and he will “continue to require extraordinary
               medical care.” The Second Adler Report confirmed that
               Dr. Adler's previous findings and opinions remained
               unchanged after his July 2021 examination of J.S.S.11
         2.    The Court analyzed CCHS’ motion to exclude Dr. Adler’s causation

opinion under Delaware Rule of Evidence 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc.12 First, the Court concluded that Dr. Adler’s causation



11
     Scottoline, 2023 WL2325701 at *1-2 (internal citations omitted).
12
     Id. at *3-6.
                                         6
opinion as to J.S.S.’s Autism Spectrum Disorder was not admissible because it did

not have a reliable scientific basis.13 Dr. Adler had opined that “all of J.S.S.’s

neurological and neurodevelopmental disabilities are the result of the HIE injury he

suffered during labor and delivery.”14 Further, he “confirmed that J.S.S.’s behavior

‘falls within the autism spectrum’”.15 As a second basis to exclude Dr. Adler’s

opinion, the Court held that it was not the product of a reliable methodology and

amounted to “little more than the expert’s ipse dixit conclusions.”16

      3.     A pretrial conference was held on March 10, 2023. The primary

discussion topic was what remained, if anything, of the Scottolines’ causation and

damages claims. As a result of that discussion, the Court granted CCHS’ oral

motion to continue the trial, then scheduled for April 3rd, and rescheduled the trial

to January 29, 2023, with the expectation that further discovery would take place.17

      4.     On June 8, 2023, Dr. Adler completed another medical report on J.S.S.

(“Third Adler Report”).18 Under “Clinical Impression” the Third Adler Report lists

the same diagnoses contained in his first two reports,19 but adds, “ 5. Fine & gross



13
   Id. at 3.
14
   Id. at 4.
15
   Id.
16
   Id. at 6.
17
   D.I. 188.
18
   See Pls.’ Response to Defs.’ Second Mot. in Limine (Dr. Adler),Ex., C, (“Third
Adler Report”), D.I. 204.
19
   Scottoline,
2023 WL 2325701
, at *2.
                                        7
motor incoordination. 6. Language impairment. 7. Cognitive impairment.”20 Dr.

Adler states his opinion in the Third Adler Report:

             It is my medical opinion within a reasonable degree of
             medical probability as a board certified pediatric
             neurologist that the hypoxic-ischemic brain injury
             suffered by [J.S.S.] was significant and caused permanent
             brain damage. It is my medical opinion within a
             reasonable degree of medical probability as a board-
             certified pediatric neurologist that this hypoxic-ischemic-
             brain injury has caused permanent brain injury consisting
             of motor impairment along with language, behavioral,
             cognitive and memory problems. This statement is
             supported by the medical literature.21

Dr. Adler concludes that “It remains my medical opinion within a reasonable degree

of medical probability that all of the neurological and neurodevelopmental

disabilities of [J.S.S.] are the result of a hypoxic-ischemic brain injury.”22

       5.    CCHS again moves to exclude from trial the opinions stated in the

Third Adler Report “for the same reasons it precluded the opinions in his previous

reports.23   CCHS argues that in the Third Adler Report, Dr. Adler again

acknowledges that J.S.S. has ‘“a severe behavioral disorder that has been diagnosed

as autism,”’ and ‘“a mixed receptive-expressive language disorder and cognitive

communication deficits within the context of autism spectrum disorder.’”24 Dr.


20
   Third Adler Report at 2.
21
   Id. at 3.
22
   Id. at 6.
23
   CCHS’ Second Mot. in Limine (Dr. Adler), at ⁋ 9, D.I. 193.
24
   Id. at ⁋ 6
                                     8
Adler again asserts that J.S.S.’ behavior meets the DSM-5 criteria for autism and

that HIE ‘“caused the behavioral syndrome seen in [the child] referred to as

autism… .”’25 CCHS contends that although Dr. Adler’s Third Report included

references to medical literature in addition to what he had previously offered, that

additional literature fails to provide a basis for his opinion.26 In sum, it is CCHS’

position that Dr. Adler’s “general opinion that HIE causes autism still lacks a

reliable scientific basis, and his specific opinion that [J.S.S.’] autism was caused by

HIE is still not the product of a reliable methodology, but rather ‘little more than

the expert’s ipse dixit conclusions.’”27

      6.     In their response, Plaintiffs, relying on Norman v. All About Women,

P.A.,28 argue that Dr. Adler’s opinion is admissible pursuant to D.R.E. 702.29

Alternatively, Plaintiffs request an evidentiary hearing with Dr. Adler to answer

questions regarding his causation opinion.30 In particular, they argue that Dr.

Adler’s own professional education and experience, together with his personal

examinations of J.S.S., are sufficient to overcome any Daubert barriers to the

admission of his causation opinion.31 While disputing the necessity for support for


25
   Id.
26
   Id. ⁋ 7.
27
   Id.
28
193 A.3d 726
 (Del. 2018).
29
   Pls.’ Response to Defs.’ Second Mot. in Limine (Dr. Adler), passim, D.I. 204.
30
   Id. at ⁋ 26.
31
   Id. at ⁋⁋ 13-15.
                                         9
Dr. Adler’s opinion in the medical literature, they also contend that at least one of

Dr. Adler’s references cites birth asphyxia as an “environmental factor[] implicated

in the pathogenesis of ASD.”32

      7.     The Third Adler Report’s causation opinion leaves the parties in the

same position as they were at the pre-trial conference. The causation opinion in the

Third Adler Report is practically indistinguishable from the same causation opinion

that the Court ruled inadmissible. Plaintiffs implicitly admit as much by their

emphasis on Norman. At argument, Plaintiffs made explicit what they only implied

in their Response – the Court should reconsider its Memorandum Opinion under

Superior Court Civil Rule 60.

      8.      Reconsideration under Superior Court Civil Rule 60(b)(6) allows the

Court to relieve a party or a party’s representative from a final order for: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3)

fraud; (4) a void judgment; (5) a satisfied, released, or discharged judgment or

reversed judgment upon which the challenged judgment was based; and (6) any

other reason justifying relief.33 Delaware has adopted an “extraordinary

circumstances” test for granting relief under Rule 60(b)(6).34




32
   Id. at ⁋ 19.
33
   Super. Court Civil R. 60(b)(6).
34
   Jewell v. Div. of Soc. Servs.
401 A.2d 88, 90
 (Del.1979).
                                          10
      9.    Superior Court Civil Rule 59(e) sits in contrast. Pursuant to Rule 59(e),

a motion for reargument “shall be served and filed within 5 days after the filing of

the Court’s opinion or decision.35 A motion for reargument will be granted only if

the Court has “overlooked a controlling precedent or legal principles, or the Court

has misapprehended the law or facts such as would have changed the outcome of

the underlying decision.”36 A motion for reargument is not an opportunity for a

party to either rehash arguments already decided by the Court or present new

arguments not previously raised.37 Therefore, to succeed on such a motion, the

moving party has the burden of demonstrating the existence of newly discovered

evidence, a change in the law, or manifest injustice.38

      10.    A fair reading of the Plaintiffs’ Response shows it to be a Rule 59(e)

motion for reargument in disguise. It is based almost exclusively on the contention

that the Court either overlooked or misapprehended controlling legal precedent, i.e.,

Norman. Properly construed as a motion for reargument, it is untimely. Further,

even if the Court were to treat it as a Rule 60 motion for reconsideration, the

Plaintiffs have not demonstrated “extraordinary circumstances” warranting relief.


35
   Super. Court Civ. R. 59(e).
36
   Janeve Co., Inc. v. City of Wilmington,
2009 WL 2386152
, at *1 (Del. Super. July
24, 2009) (quoting Reid v. Hindt,
2008 WL 2943373
, at *1 (Del. Super. July 31,
2008)).
37
   See Reid,
2008 WL 2943373
, at *1 (citations omitted).
38
Id.
                                          11
      11.   In sum, the Court finds that the Third Adler Report offers opinions that

are not materially different from or better supported than Dr. Adler’s previously

excluded opinions. They are excluded for the same reasons set out in the Court’s

Memorandum Opinion. Further, Plaintiffs’ efforts to convince the Court to revisit

its earlier Memorandum Opinion either are untimely under Rule 59(e), or lacking

in extraordinary circumstances under Rule 60.       The Court also declines the

Plaintiffs’ invitation to hold a Daubert evidentiary hearing. Dr. Adler has issued

three reports and he has been deposed. The Plaintiffs have had ample opportunity

to develop a record that passes Daubert muster. Finally, because Nurse Masterson’s

testimony and opinions are derivative of Dr. Adler’s, they are excluded as well.

      THEREFORE, for the reasons stated above, Defendant Christiana Care

Health System Inc.’s Second Motion in Limine to Exclude the Unreliable Causation

Opinion of Plaintiffs’ Expert Daniel Adler, M.D., joined by Defendant Women

First, LLC, is GRANTED. Defendant Christiana Care Health System, Inc.’s

Motion in Limine to Exclude Testimony and Opinions of Jody M. Masterson, R.N.,

joined by Defendant Women First, LLC, is GRANTED.

IT IS SO ORDERED.



                                                   /s/ Ferris W. Wharton
                                                    Ferris W. Wharton, J.


                                        12