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Baird v. Owczarek

Supreme Court of Delaware

May 28, 2014

THOMAS BAIRD, Plaintiff Below, Appellant,
v.
FRANK R. OWCZAREK, M.D., EYE CARE OF DELAWARE LLC, and CATARACT AND LASER CENTER, LLC, Defendants Below, Appellees

Submitted May 14, 2014

Case Closed June 13, 2014.

Page 1223

[Copyrighted Material Omitted]

Page 1224

Court Below - Superior Court, of the State of Delaware, in and for New Castle County. Case No. N11C-09-241.

Bruce L. Hudson, Esquire, Hudson & Castle Law, Wilmington, Delaware, and Todd J. Krouner, Esquire (argued), Chappaqua, New York, for appellant.

Gregory S. McKee, Esquire (argued), Joshua H. Meyeroff, Esquire, Wharton Levin Ehrmantraut & Klein, P.A., Wilmington, Delaware, for appellees.

Before HOLLAND, BERGER and RIDGELY, Justices.

OPINION

Page 1225

HOLLAND, Justice:

This is an appeal from a final judgment of the Superior Court that was entered after a jury verdict in favor of defendants-appellees, Frank R. Owczarek, M.D. (" Dr. Owczarek" ), Eye Care of Delaware, LLC, and Cataract and Laser Center, LLC (collectively, the " Appellees" ). The plaintiff-appellant, Thomas Baird (" Baird" ), appeals on a number of grounds. We have concluded that the Superior Court's failure to conduct any investigation into alleged egregious juror misconduct (internet research), which violated the Superior Court's direct instruction to refrain from consulting outside sources of information, constituted reversible error. In addition, the Superior Court's failure to exclude evidence of informed consent in this medical negligence action also constituted reversible error. Accordingly, the judgments of the Superior Court are reversed and this matter is remanded for a new trial.[1]

Facts

On January 27, 2004, Baird underwent a LASIK[2] procedure on both eyes performed by Dr. Owczarek. On October 14, 2009, Baird underwent a second LASIK surgery on his left eye--a LASIK " enhancement." Baird alleged that as a result of the surgeries, he developed post-LASIK ectasia, a vision-threatening corneal disease that required a DALK[3] procedure.

On September 30, 2011, Baird filed a medical negligence action, alleging that the Dr. Owczarek was negligent, not during his performance of the surgeries themselves, but in his decision to perform the surgeries in the first place. Baird also brought a claim based on a lack of informed consent, which he later withdrew.

Having withdrawn his informed consent claim, Baird moved to exclude the defense of assumption of risk and evidence of informed consent. In the same motion, Baird requested that the trial judge exclude the expert testimony of Dr. Steven Siepser, the defendant's standard of care expert. The trial judge denied the motions, but agreed to give a limiting instruction on the issue of informed consent.

An eight-day trial began on April 1, 2013. The jury returned a verdict in favor of the defendants. Over a two-week period following the trial, Juror No. 6 left a telephone message with Baird's counsel and repeatedly attempted to contact the trial judge to inform him of juror misconduct. Eventually, Juror No. 6 wrote a letter to the trial judge alleging that Juror No. 9 had done internet research during the jury's deliberations. Baird moved for

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a new trial based upon the allegations of misconduct by Juror No. 6. After hearing oral argument, the trial judge summarily denied the motion for a new trial without conducting any investigation.

Delaware Constitution

The historical origins of the right to trial by jury which is provided for in the Delaware Constitution was reviewed by this Court in Claudio v. State .[4] When the Delaware Constitution of 1792 was adopted, the right to trial by jury set forth in the federal Bill of Rights as the Sixth[5] and Seventh[6] Amendments to the United States Constitution was only a protection against action by the federal government.[7] In Claudio, this Court noted that when Delaware adopted its Constitution in 1792, notwithstanding the ratification of the first ten amendments or federal Bill of Rights in 1791, it did not create " a mirror image of the United States Constitution" with regard to trial by jury.[8]

Following the adoption of the Fourteenth Amendment to the United States Constitution, the Sixth Amendment right to trial by jury in criminal proceedings has been deemed to have been incorporated by the Due Process clause and now also provides protection against state action.[9] Nevertheless, the United States Supreme Court has not held that the Seventh Amendment's guarantee of jury trials in civil proceedings was made applicable to the states by the incorporation doctrine[10] with the adoption of the Fourteenth Amendment to the United States Constitution.[11] ...


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