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Solway v. Kent Diagnostic Radiology Associates, P.A.

Superior Court of Delaware, Sussex

February 20, 2014

Angeline M. Solway
Kent Diagnostic Radiology Associates, P.A., Michael Polise, D.O., Martin G. Begley, M.D., Thomas Vaughan, M.D., Raphael Caccese, Jr., M.D., Bayhealth Medical Center, Inc. d/b/a Kent General Hospital, Carlos A. Villalba, M.D. and Inpatient Services of Delaware, P.A.

Bradley J. Goewert, Esq. Thomas J. Marcos, Jr., Esq. Marshall Dennehey Warner Coleman & Goggin 1220 Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899

Francis J. Murphy, Esq. Lauren A. Cirrinicione, Esq. Murphy & Landon 1011 Centre Road, Suite 210 Wilmington, DE 19805

Dear Counsel:

Before the Court is the Motion in Limine of Defendants Kent Diagnostic Radiology Associates, P.A. ("KDRA"), Thomas Vaughan, M.D. ("Dr. Vaughan"), Martin Begley, M.D. ("Dr. Begley"), and Raphael Caccese, M.D. ("Dr. Caccese")[1](collectively "the Radiology Defendants") to Preclude Cumulative Expert Testimony of Plaintiff Angeline M. Solway ("Solway"). This Motion is DENIED.


This is a medical malpractice case in which Solway alleges that she received negligent care rising to the level of punitive conduct from a host of physicians at Bayhealth Medical Center's ("Bayhealth's") Kent General Hospital ("Kent General") in Kent County, Delaware from Monday, January 26, 2009 to Monday, February 2, 2009. Despite subsequent care she received at Christiana Hospital's ("Christiana") Christiana Care Health Services from February 2, 2009 to Tuesday, February 17, 2009, Solway was rendered a functioning paraplegic.

In its memorandum opinion denying the Motion for Partial Summary Judgment of the Radiology Defendants[2] on the claims of Solway, the Court extensively laid out the facts of this case.[3] As this litigation deals with one set of factual circumstances, the Court will not repeat those facts.

In support of her case, Solway has disclosed multiple experts. Those subject to this Motion are four radiologists and four neurosurgeons, including her treating neurosurgeon at Christiana. The Radiology Defendants have identified experts in radiology and neurosurgery as well, including Dr. Begley and Dr. Vaughan themselves.


Parties' Contentions

The Radiology Defendants assert that Solway's radiological experts all proffer the same opinion; e.g., that the Radiology Defendants misread diagnostic imaging studies. They also assert that her neurological experts all proffer the same opinion as well; e.g., that the failure to diagnose and treat Solway earlier caused her to lose the functioning of her legs. The Radiology Defendants argue that because Solway advances the opinions of multiple experts with identical expertise, who hold identical opinions, the Court should exclude any cumulative testimony under Delaware Rule of Evidence 403 ("Rule 403"). Also, they claim that these redundant opinions do not assist the trier of fact, as required by Delaware Rule of Evidence 702. Furthermore, to the extent that Solway accuses the Radiology Defendants of trying to obfuscate the truth by limiting the amount of her experts, the Radiology Defendants counter that Solway herself, through the use of her string of repetitive experts, is trying to unfairly sway the trier of fact and prejudice them.

Solway repels any tactic that would limit her to one radiological expert and one neurological expert. She notes that from the beginning, she was obligated to put forth her experts first. In a case against four defendant-radiologists, Solway argues that she appropriately put forth four radiological experts.

Solway reminds the Court that exclusion of relevant evidence under Rule 403, particularly exclusion in limine, is an extraordinary remedy. She suggests the better approach for the Court is to determine at trial whether a particular expert's testimony should be excluded as needlessly cumulative.[4] Solway also chastises this Motion as an attempt to deter the truth-seeking function of a trial, thereby denying her the right to fairly prove her case.[5] She claims that it would be unfair to limit the number of her experts while allowing all of the Radiology Defendants' experts to proffer opinions.[6]Furthermore, Solway argues that her experts' testimonies are not needlessly cumulative. Rather, all of her experts, radiological and neurological alike, [7] have unique qualifications and contribute independently to her quest to present the truth.


Under Rule 403, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."[8] Regarding cumulative evidence specifically, the Court does not take excluding evidence on such grounds lightly. As the Delaware Supreme Court has stated, "[w]hile a trial judge may limit a party's presentation of evidence on the ground that it is cumulative, such authority should be exercised sparingly so as not to deprive a litigant of the right to manage the presentation of her evidence."[9]

The Court denies the present Motion as a cautionary measure. At this pre-trial stage, the Court cannot conclude, on balance, that the testimonies of Solway's multiple experts justify exclusion. Rather, the Court will wait until trial. If, at that point, it determines that any of her experts are so similar in credentials and approach to the issues as to labeled cumulative, the Court will make the appropriate ruling.[10]Based on the foregoing, this Motion is DENIED. IT IS SO ORDERED.

Very truly yours,


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