Regina Woodstock, Individually, and as Administratrix of the Estate of Ethelynn E. Woodstock, Deceased
Wolf Creek Surgeons, P.A. and Wendy S. Newell, M.D.
Submitted: August 23, 2017
Francis J. Murphy, Esq., Kelley M. Huff, Esq. Murphy &
Lorenza A. Wolhar, Esq., Bradley J. Goewert, Esq., Murphy
& Landon Marshall, Dennehey, Warner, Coleman & Goggin
Jeffrey J Clark, Judge.
case involves wrongful death and survivorship claims based on
alleged medical negligence surrounding the death of Ethelynn
Woodstock. Trial is set for September 18, 2017. This letter
sets forth the Court's decision regarding two motions
in limine and one outstanding discovery issue.
Plaintiff Regina Woodstock (hereinafter "Ms.
Woodstock"), both individually and as the administratix
of her mother's estate, seeks an order permitting her to
use evidence of (1) an alleged prior medical negligence claim
against Dr. Wendy Newell, and (2) Dr. Newell's prior
testimony in a medical negligence case. Ms. Woodstock argues
that these matters are relevant to show Dr. Newell's bias
because she is identified as a potential expert witness.
Second, Ms. Woodstock requests an order precluding references
at trial to her counsel's prior consultation with a
defense expert regarding a wholly separate matter. Third,
after argument at the pretrial conference, Ms. Woodstock
seeks a discovery sanction precluding Defendants Dr. Newell
and Wolf Creek Surgeons, P.A. (hereinafter collectively
"Dr. Newell") from using written materials not
produced during discovery to impeach Ms. Woodstock's
witnesses. Ms. Woodstock specifically requested such
information in discovery. Dr. Newell objected to the
reasons set forth below, Ms. Woodstock is barred from both
offering substantive evidence regarding Dr. Newell's
alleged prior medical negligence and from using such evidence
for impeachment. Ms. Woodstock, however, is not barred from
introducing or using Dr. Newell's prior testimony or
statements, provided they are otherwise admissible.
Furthermore, Dr. Newell is barred from referencing Ms.
Woodstock's counsel's prior consultation with one of
Dr. Newell's expert witnesses. Finally, with regard to
the discovery issue, both parties shall exchange any
documents, transcripts, or writings that they will rely upon
for purposes of impeachment that are not otherwise
privileged, by no later than September 11, 2017. Thereafter,
use of any documents not produced shall be barred from use at
trial absent good cause shown, and first addressed outside
the presence of the jury.
this case, evidence or questioning regarding prior medical
negligence claims against Dr. Newell is inadmissible as
either substantive evidence or for
Woodstock seeks leave to use certain evidence if Dr. Newell
testifies as an expert at trial. Namely, Dr. Newell was
allegedly named as a defendant in a prior medical negligence
suit and may have provided expert testimony in at least one
medical negligence case. In her written motion, Ms. Woodstock
first argued that if Dr. Newell offers testimony as an
expert, this evidence should be admissible to show bias,
motive, and competency. She sought to offer this evidence
pursuant to Delaware Rule of Evidence 404(b) (hereinafter
"Rule 404(b)") as both substantive evidence and for
argument, Ms. Woodstock clarified that she will not offer
alleged prior conduct as substantive evidence. Rather, she
argues that if Dr. Newell offers expert testimony and was
subject to a prior malpractice claim, she may be biased to an
even greater degree than the typical defendant. In response,
Dr. Newell argues that this evidence is not relevant.
Moreover, she argued in her written motion that the evidence
does not satisfy the Getz factors the Delaware
Supreme Court established as guidelines for a Rule 404(b)
analysis. Finally, Dr. Newell argues that even if
this evidence was relevant, it would unfairly prejudice her
and such prejudice would substantially outweigh any probative
value. Therefore, she argues that this evidence is
inadmissible under Delaware Rule of Evidence 403 (hereinafter
Rule 404(b) most often arises in criminal cases, it applies
equally in the civil context. However, since bias related
impeachment is at issue, Rule 404(b) is not the appropriate
yardstick. Impeachment evidence of prior conduct to show bias
does not implicate the separate relevance analysis of Rule
404(b). Instead, Rule 404(b) deals with
substantive evidence offered for a purpose other
than to prove the character of a person to show action in
conformity therewith. Here, the Court's analysis must focus
on Delaware Rules of Evidence 401 and 403.
support of her position, Dr. Newell cites In re Servino
v. Medical Center of Delaware, Inc. , where the court
analyzed a similar argument under Rules 401 and 403. There,
the court found that evidence of a hospital's prior
negligence was not relevant and even if it was relevant, that
relevancy would be substantially outweighed by its unfair
prejudicial value. In the Servino case, the court
based its decision, in large part, on the fact that there was
"minimal evidence available regarding the [prior]
Woodstock seeks to distinguish that case because it does not
address the issue of whether a defendant doctor who provides
expert medical opinion testimony, as opposed to factual
testimony, is open to the same scope of cross-examination as
the other medical experts in the case. She is correct, in
part. Servino, however, is still supportive of Dr.
Newell's position. Namely, in Servino, the lack
of detailed information regarding the prior claim made the
prior conduct irrelevant. Here, the parties provided even
less detail regarding the prior case or cases involving Dr.
Newell. The Court is unaware of the nature or outcomes of Dr.
Newell's prior suit or any accompanying claims.
Accordingly, the same evidentiary problems that arose in the
Servino case are present to a greater extent in this
burden is on the proponent of the evidence to structure an
offer of proof demonstrating the relevance of the
evidence. Here, the Court cannot fully weigh the
probative value of this evidence for purposes of impeachment.
Nevertheless, the threshold for relevance is not high. The
Court acknowledges that, as a general rule, bias is always
relevant,  and even without more information
regarding the prior matter, use of this evidence for
impeachment purposes would, to a minimal extent, assist the
jury in determining Dr. Newell's bias if she testifies as
an expert witness.
purposes of a Rule 403 balancing test, however, minimal
probative value is all that can be assigned to such evidence.
Here, the substantial risk of unfair prejudice significantly
outweighs it. Namely, any reference to the fact that Dr.
Newell was a named defendant in a prior health care
negligence case would be highly prejudicial.Since the
proponent did not provide the Court with details surrounding
Dr. Newell's prior medical negligence claims or their
propensity to generate bias under the particular
circumstances of this case, the Court is left to speculate
regarding the significance of the evidentiary connection.
Instead of assisting the jury, this evidence will likely
excite the jury's prejudice and mislead it. As a result,
this unfair prejudice substantially outweighs its minimal
probative value, making it inadmissible for impeachment
purposes pursuant to Rule 403.
Newell's testimony or statements made in previous cases
are a different matter, however. While evidence that Dr.
Newell may have been the subject of prior medical negligence
suits or claims is not admissible, her prior testimony in
previous matters may be. That will depend on whether the
prior statements are relevant as substantive evidence or for
impeachment purposes, and are otherwise admissible under the
Rules of Evidence. In furtherance of this Order, the parties
must refrain, however, from referencing the source of any
such testimony or statement before the jury.
Ms. Woodstock argues, in the alternative, that fairness
dictates that Dr. Newell not be permitted to impeach Ms.
Woodstock's expert witnesses by referencing their alleged
prior medical negligence. Here, Ms. Woodstock is correct in
that, for purposes of impeachment of experts, the same
relevance analysis applies. It has, at a minimum, some
relevance to bias. A defendant-expert and a non-party expert
require a different Rule 403 analysis, however. On one hand,
the propensity for unfair prejudice would be higher regarding
a doctor-defendant than regarding a typical expert witness.
On the other hand, given the Court's ruling applicable to
the doctor-defendant in this case, the Court recognizes that
there would be a heightened level of unfair prejudice to Ms.
Woodstock as well.
recognition of the later, if Dr. Newell seeks to impeach Ms.
Woodstock's experts in a similar manner, she must first
raise the issue outside the presence of the jury. Since this
was Ms. Woodstock's motion, Dr. Newell has not had the
opportunity to establish the relevance of any such
impeachment evidence for purposes of weighing it against Rule
403 concerns. The Court's decision on that issue must
await further evidentiary context.
that plaintiffs counsel consulted with a defense expert on a
prior unrelated matter is
Woodstock's second motion in limine seeks to
exclude evidence that one of her attorneys consulted with one
of Dr. Newell's expert witnesses on a prior, unrelated
matter. She argues that such evidence is not relevant because
it does not make any fact of consequence to this case more or
less probable. She also argues that this would require
impermissible vouching by an attorney regarding a
witness's credibility. Finally, she argues that any
possible probative value would be substantially outweighed by
its unfair prejudicial effect.
response, Dr. Newell argues that this evidence is relevant
and should be admissible. She argues that when Ms. Woodstock
challenges the credibility of her expert, as certainly will
be the case, such evidence will be admissible to rehabilitate
her expert. She argues that this evidence will assist the
jury in assessing the witness' credibility.
Newell correctly argues that the independence of an expert
witness in a medical negligence lawsuit, including his or her
willingness to review a case regardless of the referring
party, is relevant and probative to the credibility of that
witness, if attacked. However, the Court finds that showing
that Ms. Woodstock's attorney consulted with Dr.
Newell's experts on a prior unrelated case offers nothing
to make the existence of any fact of consequence more or less
probable. Namely, the Court finds that this evidence
addresses witness credibility in an inadmissible manner. In
the Court's judgment, Dr. Newell seeks to generate an
inference by the jury that because plaintiffs counsel
finds the defense expert to be credible,the
jury should also find that expert to be
credible. Although this may not constitute direct
vouching, the real purpose for offering such evidence would
be to persuade the jury to infer that Ms. Woodstock's
counsel found the defense expert witness credible ...