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State v. Yu

Superior Court of Delaware, Kent

November 7, 2018

STATE OF DELAWARE,
v.
GRACE I. YU a/k/a I-YIN LIU a/k/a GRACE LIU, Defendant.

          Submitted: October 22, 2018

         Upon Defendant's Motion in Limine To Exclude Testimony of Dr. Giordano. Granted in Part; Denied in Part.

          Laura N. Najemy, Esquire of the Department of Justice, Wilmington, Delaware; attorney for the State.

          Eugene J. Maurer, Jr., Esquire and Elise K. Wolpert, Esquire of Eugene J. Maurer, Jr., P.A., Wilmington, Delaware; attorneys for the Defendant.

          ORDER

          HON. WILLIAM L. WITHAM JR. RESIDENT JUDGE

         Upon consideration of the Motion in Limine filed by the Defendant, Dr. Grace I. Yu, [1] the opposition of State, oral argument, and the record of the case, it appears that:

         1. The Defendant is a licensed dentist in Delaware and is licensed to administer Nitrous Oxide (N2O) to patients.

         2. The Defendant is also enrolled as a dentist with the Delaware Medical Assistance Program ("DMAP"). According to DMAP's policy manual:

[o]nly providers who hold a State permit (restricted permit I, restricted permit II, or unrestricted) are permitted to administer and bill for anesthesia services allowed under their specific permit.[2]

         3. On September 29, 2017, the Defendant, facing charges of Health Care Fraud and Child Endangerment, surrendered to law enforcement. The charges alleged unlicensed dental assistants to administer N2O to patients.

         4. The State disclosed that it intended to call Dr. Lawrence Giordano, a board certified dentist in the field of oral and maxillofacial surgery, as an expert witness for the State.

         5. In addition to the proposed testimony, the State provided a report prepared by Giordano entitled "Summary of Evaluation of the Administration of Nitrous Oxide Sedation by Dr. Liu"[3] that appears to be the basis of his testimony. The report offered the following conclusions:

[A]. [Defendant] allows many (most?) of her assistants to begin the administration of N2O[;]
[B]. [Defendant] does not personally explain the process to the parents or the patients, including possible effects and complications, nor does she take preoperative vital signs, or explain to [ ] patient what to expect, both in the normal circumstances, or if some adverse effect is occurring. One needs to ask questions during the procedure to assess this.
[C]. [Defendant] does not (and cannot) correctly titrate each patient, and this therefore, constitutes [an] improper and unprofessional practice in the administration of N2O inhalation sedation to her patients.[4]

         6. At this time, the Court is addressing only the portion of the Defendant's case concerning Health Care Fraud, a felony, in violation of 11 Del. C. § 913A[5] and the Defendant's motion in limine in regard to Giordano's proposed testimony.

         7. As a preliminary matter, the State argues that the Court should dismiss the Defendant's motion in limine because it was untimely. The deadline for filing motions of limine was May 11, 2018.[6] Despite the fact that the Defendant had nearly four months to complete her motion, she untimely filed on July 19, 2018.[7] The Court granted the State time to respond, setting the response deadline for August 13, 2018, and then granted an enlargement until August 20, 2018. Despite that enlargement, the State's response was filed untimely on August 22, 2018.[8]

         8.The Court has broad discretion to enforce its rules of procedures and pretrial orders.[9] Because the Defendant's motion was untimely, the Court is within its authority to deny the motion on those grounds alone. However, if the Court did that, it would sanction the Defendant for untimeliness while condoning the same by the State. Here, in the interests of justice, and in light of the fact that both parties were untimely, the Court will hear the Defendant's motion on the merits.

         9.The proponent of the expert testimony bears the burden of establishing by a preponderance of the evidence the relevance, reliability, and admissibility of the expert testimony.[10] Here, Giordano is the State's witness. Thus, the State carries that burden.

         10.Expert opinion evidence under Delaware law is governed by Delaware Rule of Evidence 702 (D.R.E. 702). D.R.E. 702 provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may ...

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