Submitted: October 22, 2018
Defendant's Motion in Limine To Exclude Testimony of Dr.
Giordano. Granted in Part; Denied in Part.
N. Najemy, Esquire of the Department of Justice, Wilmington,
Delaware; attorney for the State.
J. Maurer, Jr., Esquire and Elise K. Wolpert, Esquire of
Eugene J. Maurer, Jr., P.A., Wilmington, Delaware; attorneys
for the Defendant.
WILLIAM L. WITHAM JR. RESIDENT JUDGE
consideration of the Motion in Limine filed by the Defendant,
Dr. Grace I. Yu,  the opposition of State, oral argument,
and the record of the case, it appears that:
Defendant is a licensed dentist in Delaware and is licensed
to administer Nitrous Oxide (N2O) to patients.
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.
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.
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.
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" 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.
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 and the
Defendant's motion in limine in regard to Giordano's
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. Despite the fact that the Defendant had
nearly four months to complete her motion, she untimely filed
on July 19, 2018. 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.
Court has broad discretion to enforce its rules of procedures
and pretrial orders. 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
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. Here, Giordano is the State's
witness. Thus, the State carries that burden.
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