The opinion of the court was delivered by: Baylson, J.
MEMORANDUM ON DEFENDANT WILLIAM I. NORWOOD, M.D., PH. D.'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Michelle Madden ("Madden"), as parent, natural guardian, and administrator of the estate of the deceased Mykenzie Madden ("Mykenzie"), brings wrongful death and negligence (Counts III and IX), and lack of informed consent (Count VI) claims against Defendants William I. Norwood, M.D., Ph. D. ("Dr. Norwood") and Christian Pizarro, M.D. ("Dr. Pizarro").*fn1 Presently before the Court is Dr. Norwood's Motion for Summary Judgment (Docket No. 67) seeking to dismiss all remaining claims against him in Plaintiff's Complaint, pursuant to Federal Rule of Civil Procedure 56.*fn2 Oral argument was held on December 17, 2009. For the reasons that follow, Dr. Norwood's Motion for Summary Judgment will be granted.
II. Factual & Procedural Background
Taking Madden's allegations as true, the relevant facts are set forth as follows. Madden is the mother of Mykenzie, who was born on February 17, 2003, was diagnosed with serious heart conditions-Double Outlet Right Ventricle with hypoplastic left ventricle and intact atrial septum-and passed away on September 3, 2003, following two open-heart surgeries that were performed at the Dupont Hospital. (Compl. ¶¶ 3, 12.) Madden, a New Jersey resident, brought Mykenzie to Delaware to have her treated by Dr. Norwood and to undergo a three-stage surgical procedure. (Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J., Ex. H.) Dr. Pizarro and Dr. Norwood were two cardiac surgeons at Dupont Hospital who operated on Mykenzie. (Compl. ¶ 22.)
On February 21, 2003, four days after Mykenzie was born, Dr. Pizarro performed the first surgery. (Compl. ¶ 15.) On August 22, 2003, Dr. Pizarro and Dr. Norwood, who were listed on Mykenzie's medical charts as primary and assistant surgeons, respectively, performed the second surgery, a hemi-fontan procedure. (Def.'s Mot. for Summ. J., Ex. A, at 1.)*fn3 Madden alleges that Drs. Pizarro and Norwood's use of a "dangerous" and "risk[y]" "'cooling strategy' on cardiopulmonary bypass and for circulatory arrest" during the first two stages of Mykenzie's surgical procedure, and "failure to perform the appropriate surgeries" fell below the standard of care, resulting in Mykenzie's "preventable death." (Compl. ¶¶ 118-121.) Madden also alleges that she was never informed of the high risk, varying success rates, and experimental nature of the cooling strategy and circulatory arrest procedure used on Mykenzie, nor given a choice to refuse such a procedure, and that she "justifiably relied to her detriment" upon Drs. Norwood and Pizarro's expertise. (Compl. ¶¶ 140-42, 151.)
The parties have completed discovery. On September 15, 2009, Dr. Norwood filed this Rule 56 Motion for Summary Judgment, seeking to dismiss Counts III, VI, and IX against him.
III. Jurisdiction and Legal Standards
This Court has subject matter jurisdiction under 28 U.S.C. § 1332(a), since the parties are citizens of different states and the amount in controversy exceeds $75,000.Venue is appropriate under 28 U.S.C. § 1391(a).
When a federal district court presides over a case grounded in diversity jurisdiction, the court "must apply the choice-of-law rules of the forum state." LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir.1996) (citing Klaxon v. Stentor Elec. Mfg., 313 U.S. 487, 496 (1941)). Delaware law applies here and the parties do not dispute which forum state's law applies. (Compl. ¶¶ 114, 199; Def.'s Mot. for Summ J. 5-6.) Accordingly, this Court will apply Delaware law to Madden's claims against Dr. Norwood.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, the adverse party's response must, "by affidavits or as otherwise provided in this rule[ ] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
Madden brings two counts against Dr. Norwood for medical negligence (Counts III and IX) and one for lack of informed consent (Count VI). Dr. Norwood's motion for summary ...