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Woodstock v. Wolf Creek Surgeons, P.A.

Superior Court of Delaware, Kent

August 30, 2017

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 & Landon

          Lorenza A. Wolhar, Esq., Bradley J. Goewert, Esq., Murphy & Landon Marshall, Dennehey, Warner, Coleman & Goggin

          Jeffrey J Clark, Judge.


         This 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.

         First, 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 requests.

         For 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.

         In this case, evidence or questioning regarding prior medical negligence claims against Dr. Newell is inadmissible as either substantive evidence or for impeachment purposes.

         Ms. 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.[1] She sought to offer this evidence pursuant to Delaware Rule of Evidence 404(b) (hereinafter "Rule 404(b)") as both substantive evidence and for impeachment purposes.

         At oral 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.[2] 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 403").

         While Rule 404(b) most often arises in criminal cases, it applies equally in the civil context.[3] 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).[4] 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.[5] Here, the Court's analysis must focus on Delaware Rules of Evidence 401 and 403.

         In support of her position, Dr. Newell cites In re Servino v. Medical Center of Delaware, Inc. [6], 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.[7] In the Servino case, the court based its decision, in large part, on the fact that there was "minimal evidence available regarding the [prior] case."[8]

         Ms. 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 case.

         The burden is on the proponent of the evidence to structure an offer of proof demonstrating the relevance of the evidence.[9] 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, [10] 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.[11]

         For 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.[12]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.[13] As a result, this unfair prejudice substantially outweighs its minimal probative value, making it inadmissible for impeachment purposes pursuant to Rule 403.

         Dr. 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.

         Finally, 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.

         In 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.

         Evidence that plaintiffs counsel consulted with a defense expert on a prior unrelated matter is inadmissible.

         Ms. 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.

         In 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.

         Dr. 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.[14] 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 ...

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