           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NICOLE LISOWSKI,                        )
as Next Friend of BRANDON               )
RODRIGUEZ, JEREMIAH                     )
RODRIGUEZ, NICHOLAS                     )
O’BRIEN, minors, and JUAN               )
RODRIGUEZ, in his capacity as           )          C.A. No. N15C-04-228 ALR
Personal Representative of the          )
Estate of Alexis Rodriguez,             )
                                        )
      Plaintiffs,                       )
                                        )
      v.                                )
                                        )
BAYHEALTH MEDICAL CENTER,               )
INC., d/b/a KENT GENERAL                )
HOSPITAL,                               )
                                        )
      Defendant.                        )

                         Submitted: December 20, 2016
                          Decided: December 29, 2016

                                     ORDER

     Upon Bayhealth’s Application for Certification of Interlocutory Appeal
                                  DENIED

      This is a medical negligence action arising from the death of Alexis

Rodriguez. Prior to trial, the Court issued several legal rulings, including Orders

that resolved certain claims. Plaintiffs’ remaining claims were tried before a jury

from September 12 through September 20, 2016.

      After expressing confusion regarding the proximate cause instruction, the

jury found that Defendant Bayhealth Medical Center, Inc., d/b/a Kent General
Hospital (“Bayhealth”), had committed medical negligence in its care and

treatment of Alexis Rodriguez, but that the negligence did not proximately cause

Alexis Rodriguez’s death. By Order dated November 30, 2016, the Court granted

Plaintiffs’ Motion for New Trial (“Order Granting New Trial”).1 Bayhealth filed a

timely Application for Certification of Interlocutory Appeal of the Order Granting

New Trial (“Application”). Plaintiff opposes Bayhealth’s Application.

      Upon consideration of the facts, arguments, and legal authorities set forth by

the parties; decisional law; the Superior Court Rules of Civil Procedure; the Rules

of the Delaware Supreme Court; and the entire record in this case, the Court hereby

finds as follows:

      1.     Alexis Rodriguez died on April 25, 2013 at Kent General Hospital

shortly after having surgery. He was 34 years old.

      2.     On April 23, 2015, Plaintiffs filed a lawsuit alleging medical

negligence against Bayhealth. A survival claim was asserted on behalf of the

estate by Juan Rodriguez, the father of Alexis Rodriguez and the personal

representative of Alexis Rodriguez’s estate. A wrongful death claim was asserted

by Nicole Lisowski in her individual capacity and as the biological mother of

minors Brandon Rodriguez, Jeremiah Rodriguez, and Nicholas O’Brien, seeking



1
 Lisowski v. Bayhealth Med. Ctr., Inc., 2016 WL 6995365 (Del. Super. Nov. 30,
2016).
                                         2
damages pursuant to Delaware’s Wrongful Death Statute2 for mental anguish and

emotional distress arising from Alexis Rodriguez’s death.

         3.    Ms. Lisowski and Alexis Rodriguez were never lawfully married in

the State of Delaware or elsewhere and had not resided in a state that recognized

common law marriage. Nevertheless, Ms. Lisowski and Alexis Rodriguez lived as

a family with their children, owned a home together, and were in an exclusive

relationship for approximately thirteen years prior to the death of Alexis

Rodriguez. In addition, Ms. Lisowski was Alexis Rodriguez’s primary caregiver.

         4.    Brandon Rodriguez and Jeremiah Rodriguez are the biological

children of Ms. Lisowski and Alexis Rodriguez.

         5.    Nicholas O’Brien is the biological child of Ms. Lisowski. Alexis

Rodriguez is not Nicholas’ biological father and did not formally adopt Nicholas.

Ms. Lisowski shares legal custody of Nicholas with Nicholas’ biological father.

Prior to approximately 2011, Nicholas lived with Ms. Lisowski and Alexis

Rodriguez during the week and with his biological father during weekends and

holidays. During this arrangement, Nicholas’ biological father paid Ms. Lisowski

child support for Nicholas. After approximately 2011, at or about the time that he

started middle school, Nicholas lived with his biological father during the week

and with Ms. Lisowski and Alexis Rodriguez on the weekends, holidays, and


2
    10 Del. C. § 3721 et. seq.
                                        3
during summer vacation. This was the custody arrangement between Ms. Lisowski

and Nicholas’ biological father at the time of Alexis Rodriguez’s death.

       6.   Prior to trial, the Court resolved several issues that are subject to

appellate review upon entry of a final judgment. By Memorandum Opinion dated

May 11, 2016, the Court partially granted Bayhealth’s motion to dismiss.3

Specifically, with respect to two of the Plaintiffs’ claims under the Wrongful Death

Statute, the Court dismissed Ms. Lisowski’s individual claim on the grounds that

Ms. Lisowski was not a “spouse” under the statute’s explicit language and ruled

that it was a question for the jury whether Alexis Rodriguez stood in loco parentis

to Nicholas.4 By Order dated August 26, 2016, the Court ruled upon various pre-

trial motions and objections, including numerous motions in limine, as well as

Bayhealth’s motions for summary judgment which were denied on the issues of

pre-surgical and post-surgical care.5 By Order dated September 7, 2016, the Court

denied Bayhealth’s motion in limine to exclude the testimony of Plaintiffs’

economic expert for lack of underlying medical support.6 On September 14, 2016,




3
  Lisowski v. Bayhealth Med. Ctr., Inc., 142 A.3d 518 (Del. Super. 2016).
4
  Id. at 524.
5
  Lisowski v. Bayhealth Med. Ctr., Inc., C.A. No. N15C-04-228 ALR (Del. Super.
Aug. 26, 2016) at 2–3.
6
  Lisowski v. Bayhealth Med. Ctr., Inc., 2016 WL 4923053 (Del. Super. Sept. 7,
2016).
                                         4
upon the conclusion of Plaintiffs’ case-in-chief, the Court denied Bayhealth’s

motion for judgment as a matter of law.7

      7.     The parties submitted joint proposed jury instructions as part of pre-

trial proceedings. The parties agreed to include the following language in the

proximate cause jury instruction:

            A party’s negligence, by itself, is not enough to impose legal
      responsibility on that party. Something more is needed: the party’s
      negligence must be shown by a preponderance of the evidence to be
      a proximate cause of the injury.
            Proximate cause is a cause that directly produces the harm,
      and but for which the harm would not have occurred. A proximate
      cause brings about, or helps to bring about, the injury, and it must
      have been necessary to the result.

      8.     Bayhealth proposed to add the following sentence to the proximate

cause instruction:

             An action is not the proximate cause of an event or condition if
      that event or condition would have resulted without the negligence.

(Bayhealth’s proposed addition to the proximate cause instruction is referenced

hereinafter as “Bayhealth’s Proposed Additional Sentence.”) Plaintiffs objected to

the inclusion of Bayhealth’s Proposed Additional Sentence.

      9.     A pre-trial conference was held during which Plaintiffs renewed their

objection to Bayhealth’s Proposed Additional Sentence on the grounds that

Bayhealth’s Proposed Additional Sentence was not a correct statement of law. In

7
 See Lisowski v. Bayhealth Med. Ctr., Inc., C.A. No. N15C-04-228 ALR (Del.
Super. Sept. 14, 2016) (TRANSCRIPT).
                                           5
response to Plaintiffs’ objection, Bayhealth represented that Bayhealth’s Proposed

Additional Sentence was included in the Superior Court’s Civil Pattern Jury

Instructions. Bayhealth also argued that the evidence presented at trial would

make the instruction appropriate. Upon consideration of the parties’ arguments

and with heavy reliance on Bayhealth’s representations, the Court overruled

Plaintiffs’ objection and Bayhealth’s Proposed Additional Sentence was included

in the charge read to the jury.

      10.     During deliberations the jury submitted a note expressing confusion

regarding the proximate cause instruction. Specifically, the jury asked whether the

Court could “specify or expand” on Bayhealth’s Proposed Additional Sentence.8

In response to the note and with the agreement of counsel, the Court explained to

the jury that the Court was unable to expand on or provide further explanation for

the proximate cause instruction. The Court re-read the instruction as written,

including Bayhealth’s Proposed Additional Sentence. Shortly thereafter, the jury

returned a verdict finding that Bayhealth had committed medical negligence, but

that the negligence did not proximately cause the death of Alexis Rodriguez.

      11.    Plaintiffs filed a timely motion for new trial on the grounds that

Bayhealth’s Proposed Additional Sentence undermined the jury’s ability to

intelligently fulfill its duty to render a verdict.   Bayhealth opposed Plaintiffs’

8
 Court’s Exhibit #3, Jury’s Note, Lisowski v. Bayhealth Med. Ctr., Inc., N15C-04-
228 ALR (Del. Super. Sept. 20, 2016).
                                         6
motion for new trial on the grounds that (1) Plaintiffs waived their objection to

Bayhealth’s Proposed Additional Sentence by failing to satisfy the procedural

requirements of Superior Court Civil Rule 51;9 and (2) Bayhealth’s Proposed

Additional Sentence was not misleading or confusing when considered in context.

      12.    In its Order Granting New Trial, the Court found that (1) Plaintiffs

had preserved their objection and (2) Plaintiffs were entitled to a new trial because

Bayhealth’s Proposed Additional Sentence undermined the jury’s ability to

intelligently fulfill its duty to render a verdict.10 It is undisputed that the Court’s

Order Granting New Trial constitutes an interlocutory order.11

      13.    On December 12, 2016, Bayhealth filed its Application, and proposes

to limit its interlocutory appeal to this Court’s determination that Plaintiffs’

objection to Bayhealth’s Proposed Additional Sentence was preserved.12




9
  Super. Ct. Civ. R. 51 provides that “[n]o party may assign as error the giving or
failing to give an instruction unless a party objects thereto before or at the time set
by the Court immediately after the jury retires to consider its verdict, stating
distinctly the matter to which the party objects and the grounds of the party’s
objection.”
10
   Lisowski v. Bayhealth Med. Ctr., Inc., 2016 WL 6995365, at *2–3 (Del. Super.
Nov. 30, 2016).
11
    Chilson v. Allstate Ins. Co., 979 A.2d 1078, 1083 (Del. 2009); Miller v.
Suburban Propane Gas Corp., 565 A.2d 913, 914 (Del. 1989).
12
    Bayhealth does not seem to seek interlocutory review of the Court’s
determination that Bayhealth’s Proposed Additional Sentence was confusing or
misleading. In addition, Bayhealth does not seek interlocutory review of the
Court’s pre-trial rulings.
                                          7
      14.    Supreme Court Rule 42 (“Rule 42”) governs the certification of

interlocutory appeals.   Rule 42 states that “[n]o interlocutory appeal will be

certified by the trial court or accepted by this Court unless the order of the trial

court decides a substantial issue of material importance that merits appellate

review before a final judgment.”13 Rule 42 also provides that “[i]nterlocutory

appeals should be exceptional, not routine, because they disrupt the normal

procession of litigation, cause delay, and can threaten to exhaust scarce party and

judicial resources.”14 Furthermore, “[t]he decision to grant interlocutory review is

discretionary and highly case-specific.”15

      15.    Rule 42(b)(iii) requires consideration of several factors, as follows:

      (A) The interlocutory order involves a question of law resolved for the first
      time in this State;

      (B) The decisions of the trial courts are conflicting upon the question of law;

      (C) The question of law relates to the constitutionality, construction, or
      application of a statute of this State, which has not been, but should be,
      settled by this Court in advance of an appeal from a final order;

      (D) The interlocutory order has sustained the controverted jurisdiction of the
      trial court;

      (E) The interlocutory order has reversed or set aside a prior decision of the
      trial court, a jury, or an administrative agency from which an appeal was
      taken to the trial court which had decided a significant issue and a review

13
   Supr. Ct. R. 42(b)(i).
14
   Supr. Ct. R. 42(b)(ii).
15
   E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 686 A.2d 1015, 1016 (Del.
1997).
                                             8
      of the interlocutory order may terminate the litigation, substantially reduce
      further litigation, or otherwise serve considerations of justice;

      (F) The interlocutory order has vacated or opened a judgment of the trial
      court;

      (G) Review of the interlocutory order may terminate the litigation; or

      (H) Review of the interlocutory order may serve considerations of justice.16

Additionally, the Court is to consider the most efficient and just schedule to

resolve the case, and whether and why the likely benefits of interlocutory review

outweigh the probable costs such that interlocutory review is in the interest of

justice.17 If the balance of the Court’s analysis is uncertain, the Court should

refuse to certify the interlocutory appeal.18

      16.    First and foremost, a successful interlocutory appeal of the Order

Granting New Trial would not terminate the litigation.19 There are several pre-trial

decisions subject to appeal upon entry of a final order.20 Fragmented litigation is

disfavored under Delaware law,21 and certification in this case does not support the


16
   Supr. Ct. R. 42(b)(iii)(A–H).
17
   Supr. Ct. R. 42(b)(iii).
18
   Id.
19
   Supr. Ct. R. 42(b)(iii)(G).
20
   See supra ¶ 4. Bayhealth incorrectly asserts that appellate review of the Order
Granting New Trial would terminate this litigation.
21
   See, e.g., Thompson v. Thompson, 2004 WL 2297396, at *1 (Del. Oct. 5, 2004)
(recognizing the Delaware Supreme Court’s strong policy against accepting
piecemeal appeals from a single proceeding in a trial court); E.I. du Pont de
Nemours & Co. v. Allstate Ins. Co., 686 A.2d at 1016 (“The goal [of interlocutory
review], in all events, is to facilitate the orderly disposition of claims without
                                           9
“strong public policy that piecemeal appeals should not be presented to the

Delaware Supreme Court.”22 Interlocutory review at this stage of the litigation

would be an inefficient use of appellate resources.

      17.    Moreover, while “[i]nterlocutory appeals always carry the potential of

allowing the judicial process to work more effectively and efficiently,”23 that

potential is outweighed here by balancing all considerations. Although the Court

acknowledges that Rule 42(b)(iii)(E) favors certification because the Order

Granting New Trial set aside the prior decision of a jury, certification is strongly

disfavored when all other factors are considered. The Order Granting New Trial

does not resolve a question of Delaware law for the first time 24 or raise a legal

issue upon which the trial courts are conflicted.25 The Order Granting New Trial

does not sustain the controverted jurisdiction of the trial court26 or vacate all of the




inadvertently promoting a piecemeal approach to litigation.”); Castaldo v.
Pittsburgh-Des Moines Steel Co., 301 A.2d 87, 87–88 (Del. 1973) (holding that
avoiding fragmented litigation is necessary to the efficient operation of the judicial
system); Showell Poultry, Inc. v. Delmarva Poultry Corp., 146 A.2d 794, 795 (Del.
1958) (“The purpose of not permitting appeals except in such cases [of a final
judgment] is to prevent piecemeal litigation and to eliminate delays which might
be occasioned by so many interlocutory or interim appeals.”).
22
   In re Explorer Pipeline Co., 2001 WL 1009302, at *2 (Del. Ch. Aug. 29, 2001).
23
   Capella Holdings, Inc. v. Anderson, 201 WL 4722710, at *1 (Del. Ch. Aug. 4,
2015).
24
   Supr. Ct. R. 42(b)(iii)(A).
25
   Supr. Ct. R. 42(b)(iii)(B).
26
   Supr. Ct. R. 42(b)(iii)(D).
                                          10
trial court’s previous judgments.27 Finally, the Order Granting New Trial does not

raise a question of law relating to the constitutionality, construction, or application

of a statute which has not been, but should be, settled by the Delaware Supreme

Court.28

      18.    Additionally, this Court does not find that the likely benefits of

interlocutory review of the Order Granting New Trial outweigh the probable costs;

accordingly, interlocutory review is not in the interest of justice.29 The fact that

Bayhealth “has created the very predicament it now finds itself in”30 militates

against certification of the Order Granting New Trial in the interest of justice.

Contrary to Bayhealth’s representations during the pre-trial conference,

Bayhealth’s Proposed Additional Sentence is not contained in the Superior Court’s

Civil Pattern Jury Instructions and Bayhealth has not relied upon any decisional

law as support for the inclusion of this sentence.         Plaintiffs are correct that

Bayhealth, not Plaintiffs, are responsible for the language that rendered the

proximate cause instruction misleading under common standards of verbal

communication.

      19.    Even if the Court’s 42(b)(iii) analysis favored certification of the

Order Granting New Trial for interlocutory appeal, the Court finds that

27
   Supr. Ct. R. 42(b)(iii)(F).
28
   Supr. Ct. R. 42(b)(iii)(C).
29
   Supr. Ct. R. 42(b)(iii).
30
   Rich v. Fuqi Intern., Inc., 2012 WL 5392162, at *6 (Del. Ch. Nov. 5, 2012).
                                          11
Bayhealth’s proposed interlocutory appeal does not involve a substantial issue of

material importance that warrants appellate review before final judgment.31 A

“substantial issue” under Rule 42 involves a main question of law and relates to the

merits of the case, not to collateral matters.32 Bayhealth seeks appellate review on

the limited procedural basis of whether Plaintiffs properly preserved their objection

to Bayhealth’s Proposed Additional Sentence.        However, the preservation of

Plaintiffs objection does not relate to the merits of Plaintiffs’ medical negligence

claim.33   Restoration of the jury’s verdict through interlocutory review of a

procedural issue is contrary to the strong policy in favor of deciding cases on the

merits as opposed to technical grounds.34         Moreover, even if Bayhealth’s

Application extended to the substantive issue of the Order Granting New Trial, i.e.

whether Bayhealth’s Proposed Additional Sentence rendered the proximate cause

instruction misleading or erroneous, interlocutory review would be inappropriate.

31
   Supr. Ct. R. 42(b)(i).
32
   Almah LLC v. Lexington Ins. Co., 2016 WL 3521880, at *2 (Del. Super. June 20,
2016); Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2861717, at *1 (Del. Ch. July
22, 2008).
33
   See In re Asbestos Litig., 2015 WL 5692811, at *3 (Del. Super. Sept. 24, 2015)
(refusing certification of an interlocutory appeal, in part, because the ruling
appealed from had no impact on the merits of Plaintiff’s personal injury claim);
Lawson v. State Dep’t of Transp., 2014 WL 3530835, at *1 (Del. Super. July 14,
2014) (refusing certification of an interlocutory appeal, in part, because the order
appealed from determined a procedural issue and had no impact on the substantive
merits of the case); MICH II Holdings LLC v. Schron, 2012 WL 3224351, at *6
(Del. Ch. Aug. 7, 2012) (holding that the substantive merits of the parties’
underlying claims is the central focus of the Rule 42 analysis).
34
   Keener v. Isken, 58 A.3d 407, 409 (Del. 2013).
                                         12
The Order Granting New Trial does not raise a substantial issue worthy of

certification for interlocutory review prior to final judgment.

      20.    Upon consideration of the criteria set forth under Rule 42, 35 this Court

does not find exceptional circumstances that warrant interlocutory review.36

Appellate review of the Order Granting New Trial, even if successful, would not

terminate the litigation. Moreover, the likely benefits of interlocutory review of

the Order Granting New Trial do not outweigh the probable costs such that

interlocutory review is in the interest of justice. Finally, Bayhealth does not appeal

from a substantial issue of material importance that warrants appellate review

before final judgment. Accordingly, the exercise of this Court’s sound discretion

leads to the conclusion that certification of Bayhealth’s Application should be, and

hereby is, refused.

      NOW, THEREFORE, this 29th day of December, 2016, Bayhealth’s

Application for Certification of Interlocutory Appeal is hereby DENIED.

      IT IS SO ORDERED.

                                               Andrea L. Rocanelli
                                               _____________________________
                                               The Honorable Andrea L. Rocanelli

35
  Supr. Ct. R. 42(b)(iii).
36
  Supr. Ct. R. 42(b)(ii). See also Harrison v. Div. of Youth & Family Servs., 2003
WL 22669344, at *1 (Del. Nov. 10, 2003) (“Application for interlocutory review
are addressed to the sound discretion of this Court and are granted only in
extraordinary cases.”).
                                          13
