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Baird v. Owczarek

Superior Court of Delaware

August 29, 2013

Thomas Baird
Frank R. Owczarek, M.D., Eye Care of Delaware, LLC, and Cataract and Laser Center, LLC

Submitted: June 21, 2013

On Defendants' Motion for Sanctions.

On Defendants' Motion to Strike Plaintiff's Affidavit in Support of Plaintiff's Motion for a New Trial.

On Plaintiff's Motion for a New Trial.

On Defendants' Amended Motion for Costs.

Dear Counsel:

Ethical rules do not set forth best practices; instead, ethical rules set forth minimum standards, which can foster "minimal-ethicality":

Not only do many professional codes frame ethicality narrowly, leaving out what might be thought to be most important, they often function affirmatively to encourage a sort of minimal-ethicality, according to which actors are rewarded for being as "minimally ethical" as possible. . . . Whenever ethics is reduced to a system of rules, one need not make choices, but may merely mechanically follow the rules. Rules also benefit the savvy and opportunistic. They will operate as close as possible to the rules' border, while the inexperienced or morally motivated will remain well inside.[1]

This decision is about dubious—yet still ethical—conduct. No one broke the rules, although the parties and their counsel "pushed the envelope." But the conduct of Plaintiff's counsel is more troubling than the conduct of Defendants' counsel.

The facts raised now, as this medical negligence case ends, are not complex. After a jury did not find that Defendant Frank R. Owczarek, M.D. did not treat Plaintiff Thomas Baird negligently, Mr. Baird contacted Juror No. 6 because his lawyers could not. Mr. Baird asked the Court to grant a new trial based solely on the juror's claim that jurors misbehaved during the trial and while they deliberated. Defendants Dr. Owczarek, Eye Care of Delaware, LLC, and Cataract and Laser Center, LLC, aggrieved, asked the Court to sanction Mr. Baird and his lawyers, but Defendants did not comply completely with the rule that governs of their request. This Court does not condone "minimal-ethicality";[2] however, the Court will countenance "minimal-ethicality" when the law so requires.[3] And it does not here: Defendants' motion for costs is GRANTED IN PART and DENIED IN PART, and the other motions are DENIED or DENIED AS MOOT.


On January 16, 2004, Defendant Frank R. Owczarek, a board-certified ophthalmologist, concluded that he could fix Plaintiff Thomas Baird's eyesight. The doctor proposed laser-assisted in situ keratomileusis—also known as LASIK. On January 27, Dr. Owczarek operated; that is, he reshaped Mr. Baird's corneas. No complications arose during the surgery.

Matt J. Epstein, O.D., an optometrist, treated Mr. Baird after his surgery. Dr. Epstein maintained a relationship with Dr. Owczarek and his two firms, Defendants Eye Care of Delaware, LLC and Cataract and Laser Center, LLC. Defendants scheduled Mr. Baird's post-operative care with Dr. Epstein directly and shared twenty percent of the LASIK fee with him. In 2004, Dr. Epstein saw Mr. Baird twice, and his sight was better—at first.

In the fall of 2009, Dr. Epstein referred Mr. Baird back to Dr. Owczarek because Mr. Baird's sight had deteriorated. On October 14, 2009, Dr. Owczarek operated on Mr. Baird's left eye again; however, his sight continued to worsen. Then on April 20, 2011, Dr. Owczarek diagnosed Mr. Baird with corneal ectasia, which is a degenerative disorder in which the cornea weakens, thins, and bulges. Ectasia is also a contraindication of LASIK.

Five months later, on September 30, 2011, Mr. Baird sued Dr. Owczarek and Eye Care of Delaware;[5] Mr. Baird later joined another defendant: Cataract and Laser Center, LLC.[6] Mr. Baird claimed that

1. Dr. Owczarek should have diagnosed Mr. Baird with corneal ectasia before the first LASIK in 2004,
2. Dr. Owczarek should not have operated on Mr. Baird in 2004 or 2009 because corneal ectasia is a contraindication of LASIK, and
3. the first LASIK, the second LASIK, and the intervening treatment were one continuing tort.[7]

Defendants answered that Dr. Owczarek exercised reasonable care[8] and, in the alternative, that the statute of limitations barred part of the suit because

1. the first LASIK happened on January 27, 2004—more than two or even three years before Mr. Baird filed a complaint against Defendants—and
2. the first and second LASIKs were not one continuing tort because they were not "inexorably related" or "intertwined, " as the Supreme Court's holding in Ewing v. Beck[9] requires.[10]

Before the trial, Defendants asked the Court to enter partial summary judgment against Mr. Baird because the statute of limitations[11] allegedly barred his claim that Dr. Owczarek was negligent in 2004.[12] The Court denied the motion because Mr. Baird and Defendants disputed facts that were material to whether the first and second LASIKs were sufficiently related.[13]

The trial began on April 1, 2013 and ended nine trial days (11 days) later. The parties presented their cases well, and the attorneys exhibited professionalism, civility, and skill. The trial was intense: the jury faced complex questions, and experts from across the nation testified about ectasia, LASIK, and ophthalmology. Cross-examination was thorough. The Court did not instruct the jury until April 11.

The jury returned a verdict within a few hours. The jury found that

1. Mr. Owczarek did not "breach[] the standard of care in his treatment of [Mr.] Baird concerning LASIK surgeries performed on January 27, 2004, " and
2. Mr. Owczarek did not "breach[] the standard of care in connection with LASIK enhancement surgery performed on [Mr.] Baird on October 14, 2009."[14]

When taking the verdict, the Prothonotary, per usual procedure, asked the jurors whether they agreed with the verdict. After the jurors collectively stated that they agreed with the verdict, the undersigned Judge directed the Prothonotary to poll the jurors individually. The Prothonotary asked each juror whether he or she agreed with the verdict, and each juror told the Court that the verdict was also his or her verdict, although Juror No. 6 hesitated before she acknowledged the verdict as her verdict. The Court then discharged the jury.

Later that day, Juror No. 6 called the Chappaqua, New York office of Todd J. Krouner, one of Mr. Baird's lawyers.[15] Mr. Krouner was unavailable because he was still returning from Delaware; thus, he did not talk with the juror.[16]According to Juror No. 6, she also called the Court, but she "was unable to reach" the undersigned Judge.[17] And on April 12, Bruce L. Hudson, another of Mr. Baird's lawyers, asked the Court to either contact Juror No. 6 directly or permit Mr. Baird's counsel to contact her:

I am writing to seek Your Honor's guidance concerning an issue that has arisen after the verdict in this matter was rendered yesterday. Yesterday afternoon around 5:00 P.M., my out-of-state co-counsel, Todd Krouner, received a call at his office in New York from juror number 6, [name omitted], who asked to speak with him. He was then returning to New York. Consequently, Mr. Krouner's receptionist indicated to [Juror No. 6] that Mr. Krouner was unavailable and not able to speak to her. At this time, no further communication has been made with that juror.
The Court may recall that when it polled the jury, [Juror No. 6] hesitated, and appeared to be in visible distress. After conferring with Mr. Krouner, and reviewing Rule 3.5(c) of the Delaware Lawyers' Rules of Professional Conduct, we respectfully seek leave of the Court to respond to [Juror No. 6's] unsolicited telephone call. In the alternative, as a courtesy to [Juror No. 6], we respectfully request that the Court communicate with her, and among other things, explain that Mr. Krouner is not permitted to respond.
We appreciate the Court's guidance on this issue. For the Court's convenience, the number that [Juror No. 6] left with Mr. Krouner's office is [telephone number omitted].[18]

Although Mr. Hudson identified Juror No. 6's telephone number "[f]or the Court's convenience, "[19] the Court did not call her. The Court informed Juror No. 6 only that Mr. Krouner could not contact her:

I write to you because I have been advised by the attorneys for Mr. Baird that you telephoned for Mr. Todd Krouner at his office in New York on April 11 in the late afternoon.
I write to advise you that Delaware law does not permit an attorney to communicate with a juror after discharge of the jury.[20]

And the Court did not permit Mr. Baird's counsel to contact Juror No. 6:

For your information, I enclose a copy of a letter written by me today to Juror No. 6, [name omitted]. Permission is not granted to Plaintiff's counsel to "respond to [Juror No. 6] unsolicited telephone call" as set forth in Plaintiff's letter to me of April 12.[21]

Most of the issues now before the Court arose from Mr. Baird's decision to call Juror No. 6.

On April 25, 2013, Mr. Baird moved the Court to grant a new trial under Superior Court Civil Rule 59 because jurors allegedly misbehaved when they deliberated and their misconduct harmed him.[22] Defendants have contended that the Court must set aside the jury's verdict if

1. "there is a reasonable possibility that allegedly extraneous information . . . affected the verdict" or
2. "the integrity of the deliberative process was compromised."[23]

To support his motion for a new trial, Mr. Baird has filed an affidavit, in which he averred that

1. he called Juror No. 6 and discussed the jury's deliberations with her,
2. his counsel did not suggest that he contact Juror No. 6, although he got her telephone number from Mr. Hudson's April 12 letter to the Court, and
3. he did not ask Juror No. 6 to write a letter to the Court or dictate what she wrote in her April 23 letter to the Court.[24]

The Court has also received a letter from Juror No. 6, in which she alleged that

1. Juror No. 8 said that Orenthal James "O.J." Simpson was innocent,
2. Juror No. 9 pushed the jury to decide the case quickly,
3. Juror No. 1 wanted to decide the case but not review the evidence,
4. Juror No. 1 repeatedly asked Juror No. 6 (among others) to explain her opinions,
5. a majority of the jurors wanted to ask the Court to clarify the standard of care, but Juror No. 1 (the foreperson) refused to pass along their questions, and
6. Juror No. 9 researched "something" online.[25]

In response to the actions of Mr. Baird and his counsel, Defendants have asked the Court to

1. sanction Mr. Baird because he contacted Juror No. 6, [26]
2. sanction Mr. Baird's counsel because they knowingly helped him contact Juror No. 6 or waited too long to tell the Court that he contacted her, [27] and
3. strike Mr. Baird's affidavit in support of his motion for a new trial because the affidavit recounts his conversation with Juror No. 6.[28]

Mr. Baird has not contested Defendants' claim that neither he nor his counsel told the Court that he contacted Juror No. 6 until he asked the Court for a new trial. He and Juror No. 6 spoke on April 21, [29] and he filed his motion on April 25;[30]Mr. Baird and his lawyers thus waited about four days before they told the Court that he and Juror No. 6 spoke.

In the motion for sanctions, Defendants asked the Court to

1. revoke the two New York attorneys' pro hac vice admissions,
2. award attorneys' fees and costs that Defendants incurred to litigate the motion for a new trial and related motions, and
3. refer Mr. Baird's counel to the Office of Disciplinary Counsel.[31]

Before filing the motion for sanctions, Defendants had asked the Court to order Mr. Baird to pay their costs under Superior Court Civil Rule 54 and Title 10, Sections 5101 and 8906 of the Delaware Code.[32]


Defendants have asked the Court to sanction Mr. Baird and his lawyers because Mr. Baird contacted Juror No. 6 after the Court discharged the jury and his lawyers helped him. The Court may sanction lawyers under

1. Superior Court Civil Rule 11 or
2. the Court's inherent power to police ...

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