Brown v. Fisher-Price, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMEENA BROWN and EVAN )
BRAGGS, Individually and as Co- )
Administrators of the Estate of A.B., )
deceased, )
Plaintiffs, )
)
v. ) C.A. No. N20C-01-067 PAW
)
FISHER-PRICE, INC. and )
MATTEL, INC. )
)
Defendants. )

Submitted: November 8, 2024
Decided: December 20, 2024

MEMORANDUM OPINION AND ORDER

Upon Consideration of Defendants’ Motion to Exclude the Testimony of Plaintiffs’
Expert Wayne Ross, M.D. Pursuant to D.R.E. 702;

DENIED.

Robert J. Leoni, Esq., Shelsby & Leoni, PA, Attorney for Plaintiffs.

Jennifer C. Wasson, Esq., Carla M. Jones, Esq., and Ryan Kingshill, Esq., of Potter
Anderson & Corroon LLP, Attorneys for Defendants.

WINSTON, J.
I. INTRODUCTION1

Defendants move to exclude the expert testimony of Dr. Wayne Ross under

D.R.E. 702.2 Plaintiffs seek to introduce Ross’s testimony to show A.B. “died from

complications of asphyxia due to smothering while his face was wedged against the

soft goods of the side of the RnP ...”3 Ross additionally opined as to the pain and

suffering A.B. experienced before dying,4 and Ross’s report also touches on the topic

of rebreathing.5 Defendants contend: (1) Ross possesses no scientific basis to offer

a causation opinion; (2) Ross similarly lacks a scientific basis to opine the RnP

caused A.B.’s death; and (3) Ross’s conclusion that A.B. died of asphyxia due to

smothering lacks a reliable tether to any accepted science.6

1
This Memorandum Opinion and Order references the factual and procedural
background outlined in the Court’s Memorandum Opinion and Order upon
Consideration of Defendants’ Motion for Summary Judgment, which the Court
incorporates by reference. Unless otherwise noted, defined terms are ascribed the
same meaning as in the Court’s Summary Judgment Memorandum Opinion.
2
Defs.’ Mot. to Exclude Pls.’ Expert Wayne Ross, M.D., D.I. 174.
3
Pls.’ Opp’n to Defs.’ Mot. to Exclude Wayne Ross, M.D., D.I. 217 at 5.
4
D.I. 174 Defs.’ Ex. C at 7 (“Dr. Ross’s Report”); Ross’s testimony regarding
conscious pain and suffering is examined in a separate Memorandum Opinion and
Order.
5
Dr. Ross’s Report; Ross’s testimony regarding rebreathing is examined in a
separate Memorandum Opinion and Order.
6
D.I. 174 at 12.
2
II. STANDARD OF REVIEW

Delaware Rule of Evidence (“D.R.E.”) 702 governs the admission of expert

testimony. Under D.R.E. 702, expert opinion testimony is admissible provided that

the witness “is qualified as an expert by knowledge, skill, experience, training, or

education” if:

(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of the fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has applied the principles and methods to
the facts of the case.7

The burden falls on the party seeking to admit the expert testimony to show,

by a preponderance of the evidence, its admissibility under D.R.E. 702.8 “Once

expert testimony is challenged, the reviewing court must ensure that the proffered

testimony is both relevant and reliable.”9 To fulfill this duty, this Court acts as

gatekeeper, determining if “the reasoning or methodology underlying the testimony

is scientifically valid and … whether that reasoning or methodology properly can be

7
D.R.E. 702.
8
Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 2006).
9
Scottoline v. Women First, LLC, 2023 WL 2325701 at *3 (Del. Super. Mar. 1, 2023)
(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)).
3
applied to the facts in issue.”10 In making that determination, the Court applies a

five-step test that examines whether:

(1) the witness is qualified as an expert by knowledge,
skill, experience, training[,] or education; (2) the evidence
is relevant [and reliable]; (3) the expert’s opinion is based
upon information reasonably relied upon by experts in the
particular field; (4) the expert 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.11

For scientific evidence to be deemed reliable, the testimony must be rooted in

science and derived from the scientific method. 12 Expert testimony is relevant when

it assists the trier of fact to understand the evidence or determining a fact in issue.

Thus, the core of a Daubert analysis is the “principles and methodology” used in

formulating an expert’s testimony, not on the expert’s resultant conclusions.13 This

Court possesses “broad latitude to determine whether any or all of the Daubert

Gen. Motors Corp. v. Grenier, 981 A.2d 531, 536 (Del. 2009) (internal quotations
10

omitted) (quoting Daubert, 509 U.S. at 592-93).
11
Norman v. All About Women, P.A., 193 A.3d 726, 729-30 (quoting Smith v. Grief,
2015 WL 128004 (Del. Jan. 8, 2015)).
12
Daubert, 509 U.S. at 590-94.
13
Bowen, 906 A.2d at 794 (citing Daubert, 509 U.S. at 595).
4
factors are reasonable measures of reliability in a particular case.”14 “A strong

preference exists for admitting evidence that may assist the trier of fact.”15

III. ANALYSIS

In his report, Ross focuses his opinion on A.B.’s cause of death.16 He explains

his methodology for determining A.B.’s face pressed against the side of the RnP,17

and opines that position obstructed A.B.’s breathing, eventually resulting in his death

by “complications of asphyxia due to smothering.”18 Neither Ross’s initial report,

nor his supplemental report,19 opine as to how A.B. turned onto his side.20 Ross did,

14
Grenier, 981 A.2d at 536 (internal quotations omitted) (quoting Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)).
15
Norman, 193 A.3d at 730.
16
See generally Dr. Ross’s Report at 5-7.
17
At oral argument, Defendants contended that all Plaintiffs’ expert opinions were
factually flawed because they failed to correctly account for the position of A.B.’s
face as described by his mother in her deposition. This assertion is incorrect. See
Dr. Calhoun’s Report at 6; Dr. Hoffman’s Report at 6; Dr. Mannen’s Report at 5; Dr.
Rosen’s Report at 6; Dr. Ross’ Report at 4. Further, challenges to the factual basis
of an expert opinion go to credibility, not admissibility. An expert’s testimony will
be excluded on the factual basis grounds only in the narrow circumstance where the
expert has completely neglected the core facts of the case. See Henlopen Hotels,
Inc. v. United National Insurance Co., 2020 WL 233333 (Del. Super. Jan. 15, 2020).
This is not the case here.
18
Dr. Ross’s Report at 6.
19
D.I. 175 Defs.’ Ex. F (the “Supplemental Report”).
20
Ross does opine “[t]he cause of death here was due to mechanical asphyxia caused
by the Rock ‘n Play.” Dr. Ross’s Report at 6. Defendants appear to misquote Ross
as using the term “defective.” D.I. 175 at 3-4 n.3. Had Ross referred to the RnP as
defective, the analysis regarding the admissibility of that statement would differ
5
however, offer an opinion during his deposition as to how the RnP’s design

contributed to A.B.’s ability to roll into a dangerous position.21

A. ROSS QUALIFIES AS AN EXPERT ON FORENSIC PATHOLOGY.

Defendants argue Ross cannot offer testimony in this case because “he has

never concluded that a Rock ‘n Play Sleeper has caused an infant’s death.”22

Defendants further points to Ross’s failure to cite to any publications in support of

his opinion as a basis for excluding his testimony.23 Defendants also note Ross

testified “fewer than ten percent of the autopsies he has conducted throughout his

career have been on infants.”24

From the outset, Defendants cannot establish Ross lacks experience in

conducting autopsies on infants. Ten percent of all the autopsies Ross conducted

still equates to at least 1,300 autopsies.25 Defendants’ assertions that Ross does not

qualify as “an epidemiologist, psychiatrist, [ ] psychologist[, or] engineer and does

from his opinion as to the cause of A.B.’s death. Factually, Ross concludes A.B.
died because his face pressed against the side of the RnP. That conclusion does not
require finding the RnP to be defective. Ross’s opinion that A.B. died from asphyxia
is (1) relevant because Defendants have disputed the cause of death; and (2) not
necessarily reliant on any defect present in the RnP.
21
D.I. 217 Pls.’ Ex. D at 418-422 (“Dr. Ross’s Deposition”).
22
D.I. 174 at 3.
23
Id. at 4.
24
Id. at 8.
25
Id. (Ten percent of the 13,000 autopsies Ross testified he conducted equates to
1,300 autopsies specifically conducted on infants).
6
not design products” are similarly unpersuasive, as Ross does not present himself as

an expert in those fields or intend to offer an opinion reliant on expertise in those

fields.26 Defendants’ contention that Ross has never concluded an RnP caused an

infant’s death has no bearing on the Court’s analysis of Ross’s qualifications as an

expert witness. Thus, the Court finds Ross qualified as an expert in forensic

pathology.

B. ROSS’S REPORT IS GROUNDED IN RELIABLE SCIENCE AND ADMISSIBLE.

Ross’s opinion provides seven conclusions “given to a reasonable degree of

medical probability.”27 Those conclusions can be summarized as A.B. died of

asphyxia caused by having his face pressed against the side of the RnP.28 Ross based

his conclusions on: (1) A.B.’s medical records, including the EMS report; (2) witness

statements provided by A.B.’s mother and grandmother; and (3) Ross’s training and

experience as a forensic pathologist.29

Defendants posit Ross’s opinion does not have a reliable scientific basis.30

Defendants center their argument on a list of sources Ross did not rely on in forming

26
Id.
27
Dr. Ross’s Report at 7.
28
Id. at 6-7.
29
See generally Dr. Ross’s Report.
30
D.I. 174 at 19.
7
his opinion.31 Pointing to the third Daubert factor, Defendants argue Ross did not

base his opinion on information “reasonably relied upon by experts in the particular

field.”32 This argument appears to misinterpret the analysis Daubert requires.

The third Daubert factor serves as a guardrail against unreliable hearsay

evidence forming the basis of an expert’s opinion.33 “The [third] factor does not

pertain to information which the expert has not relied on.”34 In Norman, the

challenged expert witness “arrive[d] at his opinions by applying his training and

experience to the facts of [that] case.”35 Aside from the patient’s medical records

and witness statements, the doctor in Norman relied solely on his training and

experience to formulate his opinion.36 The Delaware Supreme Court ruled the

doctor’s training and experience formed a sufficient basis to admit his opinion,

noting that “[m]edical literature or peer reviewed publications may be useful factors

in an appropriate case, and may be relevant to the defense in this case, but they have

no bearing on the admissibility of [the doctor’s] opinions.”37

31
Id. at 19-21.
32
Daubert, 509 U.S. at 595.
33
Norman, 193 A.3d at 731.
34
Id. (emphasis added).
35
Id.
36
Id.
37
Id.
8
Ross similarly applied his training and experience to the facts of this case.

Defendants point to all of the sources Ross did not use, but Delaware law makes

clear the Court’s analysis must focus solely on the sources Ross did use.38 Ross’s

failure to cite to a peer reviewed publication, or conduct his own independent

research on “pediatric movement or breathing,”39 does not factor into the analysis

required by Daubert. Ross based his opinion on his own expertise, and that expertise

forms a sufficiently reliable scientific basis to justify the admission of his opinion.

C. ROSS’S OPINION ON THE CHAIN OF EVENTS LEADING TO A.B.’S DEATH
FOLLOWS LOGICALLY FROM ROSS’S CONCLUSIONS AND DOES NOT
RENDER HIS OPINION INADMISSIBLE.

During Ross’s deposition, counsel for Defendants asked Ross if he “assumed

A.B. rolled in the Rock ‘n Play between the time he was placed and the time he was

found.”40 Defendants assert “Dr. Ross only speculates as to how the infant may have

moved in the hours between when the mother last checked on the infant and when

the infant was found deceased.”41 Defendant further describes Ross’s opinion as

“complete guesswork as to what happened on the night of the infant’s death.” 42

Defendants contend that, as Ross cannot definitively prove A.B. rolled onto his side

38
Id.
39
D.I. 174 at 19.
40
Dr. Ross’s Deposition at 430.
41
D.I. 174 at 19-17.
42
Id. at 17.
9
or A.B.’s exact position at his time of death, “Dr. Ross’s opinions are the epitome of

ipse dixit reasoning.”43

For an expert’s opinion to clear the reliability threshold under Daubert, the

expert must ground their opinion in the scientific method.44 Accordingly, the Court

must ensure that the expert’s conclusions are based on “valid reasoning and reliable

methodology” and that the expert provides local support for any analytical leap.45

Here, Ross concluded A.B. died from asphyxiation after his face became

pressed against the side of the RnP.46 Ross based that conclusion on: (1) pressure

marks around A.B.’s face and forehead; (2) the position of A.B.’s arms and legs being

consistent with lying on his side at the time of death; and (3) the lack of medical or

toxicological explanations for A.B.’s death.47 That conclusion, based on Ross’s

training and experience applied to the facts of this case, appears reasonable.

The parties do not dispute A.B.’s mother placed him in the RnP in a supine

position. Thus, it follows logically from Ross’s conclusions that A.B. must have

43
Id.
44
In re Asbestos Litig., 911 A.2d 1176, 1199 (Del. Super. 2006).
45
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Minner v. American
Mortg. & Guar. Co., 791 A.2d 826, 866 (Del. Super. 2000) (“It is not necessary that
an expert report have an undisputed foundation, it need only be based on valid
reasoning and reliable methodology”).
46
Dr. Ross’s Report at 6-7.
47
Id. at 4-6.
10
rolled onto his side at some point before he died. As A.B.’s medical records indicate

he could not roll over on his own, the environment of the RnP must have contributed

to A.B.’s ability to roll onto his side for Ross’s conclusion to be true. To explain that

logical chain, Ross must rely, at least partially, on biomechanics. The use of

biomechanics in his description of how it would be possible for A.B. to have rolled

onto his side does not transform Ross’s opinion into one only a biomechanics expert

could submit.48

“Daubert requires only that the trial court determine whether the proponent of

the evidence has demonstrated that scientific conclusions have been generated using

sound and reliable approaches.”49 Ross’s approach to determining A.B.’s cause of

death relied upon the facts present in this case, Ross’s training and experience, and

logical deductions that follow reasonably from Ross’s conclusions. Thus, the Court

finds that Rosen’s opinion provides enough logical support for that analytical leap.

48
The parties argue over whether Ross is qualified to opine on biomechanics. See
D.I. 174 at 14-16; see also D.I. 217 at 14-17. This argument appears to miss the
mark, as Ross’s opinion is that of a forensic pathologist and not a biomechanical
engineer. An expert can testify based on their training and experience, and a forensic
pathologist would necessarily have some familiarity with biomechanics to determine
cause of death. Ross’s opinion, as currently presented, does not require an extensive
understanding of biomechanics. Should Plaintiffs seek to have Ross testify as a
biomechanical expert, the Court would have to analyze Ross’s qualifications in that
new light. See Lee v. Holbrook, 2021 WL 5492666 at *3 (Del. Super. Nov. 22, 2021).
49
In re Asbestos Litig., 911 A.2d at 1201.
11
Because the Court finds Ross’s use of the scientific method qualifies as a

sound and reliable approach, the Court shall admit Ross’s opinion. The Court does

not need to determine if Ross’s conclusion stands as the only reasonable conclusion,

or even that his conclusion is more probable than not.50

IV. CONCLUSION

Defendants focus their challenge to the admissibility of Ross’s opinion on

what Ross did not rely upon. Such a challenge misapplies the framework created by

Daubert. Defendants do not challenge Ross’s credentials or the relevance of his

opinion. The Court’s analysis does not focus on what Ross did not rely on, but

instead examines whether the sources Ross did rely on are reliable. As Ross relied

primarily on his own training and experience as applied to the facts of this case, his

opinion rests on a reliable scientific basis. Cross examination is the way to challenge

the credibility of Ross’s conclusions. Accordingly, the Court finds that Ross may

testify as to A.B.’s cause of death, and the logical chain of events that would have

led to A.B.’s death.

IT IS SO ORDERED.

/s/ Patricia A. Winston
Patricia A. Winston, Judge

50
Id.
12