            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


 VICTORIA PAGE AS                               )
 ADMINSTRATRIX OF THE                           )
 ESTATE OF MARK PAGE, and                       )
 VICTORIA PAGE AS WIFE OF                       )   C.A. No. N15C-04-087 CLS
 MARK PAGE, DECEASED, and                       )
 VICTORIA PAGE IN HER OWN                       )
 RIGHT,                                         )
                                                )
              Plaintiffs,                       )
                                                )
              v.                                )
                                                )
 PASQUALE FUCCI, M.D. and                       )
 BRANDYWINE MEDICAL                             )
 ASSOCIATES,                                    )
                                                )
             Defendants.                        )


                            Date Submitted: September 20, 2018
                            Date Decided: September 27, 2018

   On Plaintiff’s Motion Compel Production of Physician’s notes of Preet Joshi,
    M.D., Pasquale Fucci, M.D., and the note of office manager Erika Mutter,
                                 GRANTED.


Adam R. Elgart, Esquire, Mattleman, Weinroth & Miller, P.C., 200 Continental
Drive, Suite 215. Newark, Delaware, 19713. Attorney for Plaintiffs.


Thomas J. Marcoz, Esquire, Marshall Dennehey Warner Coleman & Goggin, 1007
N. Orange St., Suite 600, Wilmington, Delaware, 19899. Attorney for Defendants.


Scott, J.

                                            1
                                        Issue

      Are the notes taken by an office manager and two doctors in response to a

phone call from a wife who describes an adverse reaction of her husband, subject to

being produced when Defendants claim the notes are work product?

                                    Background

      This is a medical malpractice and wrongful death action. Mark Page began

seeing Defendant, Dr. Fucci on April 11, 2014 for outpatient drug addiction

treatment. Mr. Page was prescribed Suboxone as part of this treatment. Sometime

after being administered Suboxone, Plaintiff contacted Defendants' answering

service. The on-call physician Dr. Joshi returned that call and had a conversation

about the administration of Suboxone. The next day, on April 12th Mr. Page was

taken to Christiana Hospital and passed away on April 15th. The complaint alleges

Dr. Fucci was negligent in prescribing Suboxone to Mr. Page and failing to monitor

its effects on Mr. Page.

      Plaintiff (Mr. Page's spouse and adminstratrix) contacted Dr. Fucci's practice

manager and stated her husband's death was senseless, that she was seeking her

husband's medical records, intended to review those records, and would get an

attorney. Plaintiff's deposition testimony indicates she could not recall specifically

stating she intended to hire an attorney, but that it was something she would say out

                                          2
of anger. As a result of this conversation the practice manager and Drs. Fucci and

Joshi recorded their recollection of the events that had transpired. Dr. Joshi has

stated that these notes were not taken as part of a protocol, nor were similar notes

taken within the ordinary course of business. It is undisputed these notes were taken

without the advice and consent of an attorney representing Defendants.

        Plaintiff has moved to compel the production of these notes as part of their

discovery. Plaintiff contends that as these notes were taken without the advice and

consent of an attorney they fall outside of the protection of the work product

doctrine. Defendant answers that these notes fall within the protection as they were

prepared in preparation for litigation.

                                          Analysis

        Under Superior Court Civil Rule 26, parties may generally obtain discovery

regarding any matter, not privileged, which is relevant to the subject matter involved

in the pending action.1 Material prepared by or for an attorney in anticipation of

litigation generally fall within the work product doctrine as articulated by the United

States Supreme Court in Hickman v. Taylor.2 When seeking discovery of material

prepared in anticipation of litigation by a party’s representative (including the other




1
    Super. Ct. Civ. R. 26.
2
    Hickman v. Taylor, 329 U.S. 495 (1947).
                                         3
party's attorney, consultant, surety, indemnitor, insurer or agent), the party

demanding discovery must show a substantial need for the material, and that the

party is unable to discover the information without undue hardship.3

      However, “core or opinion work product that encompasses the mental

impressions, conclusions, opinion, or legal theories of an attorney or other

representative of a party concerning the litigation is generally afforded near absolute

protection from discovery.”4 A party asserting the work product privilege bears the

burden of establishing that the documents he or she seeks to protect were prepared

“in anticipation of litigation.”5 To determine if a document meets this test the Third

Circuit stated “only by looking to the state of mind of the party preparing the

document or, as here, the party ordering preparation of the document, can we

determine whether this test has been satisfied.”6 Both the Third Circuit and this

Court have required the preparer’s anticipation be reasonable. This Court held in

Cont'l Cas. Co. v. Gen. Battery Corp., and the Third Circuit both looked to

Professors Wright and Miller who articulated:

      Prudent parties anticipate litigation, and begin preparation prior to the
      time suit is formally commenced. Thus the test should be whether, in
      light of the nature of the document and the factual situation in the


3
  Super. Ct. Civ. R. 26.
4
  In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003). (internal
quotations omitted)
5
  Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000)
6
  Martin v. Bally's Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir. 1993)
                                        4
      particular case, the documents can fairly be said to have been prepared
      or obtained because of the prospect of litigation.7
      In Cont'l Cas. Co. v. Gen. Battery Corp., the action arose from General

Battery’s environmental liability nationwide for which Continental sought a

declaration of its rights and obligations. The Court did not accept that all documents

produced after Defendant became aware of potential liability were created in

anticipation of litigation.   Nor did the Court accept that defendants did not

“anticipate litigation” until just prior to the commencement of the action. 8

Ultimately the Court required an in camera review of documents so that a factual

analysis could be made and the five-part test adopted in Mullins v. Vakili applied.9

      This Court has adopted the five-part test laid out in Mullins to determine if

documents were created in anticipation of litigation:

             First, courts should consider the nature of the event that
      prompted the preparation of the materials and whether the event is one
      that is likely to lead to litigation.... Second, courts should determine
      whether the requested materials contain legal analyses and opinions or
      purely factual contents in order to make inferences about why the
      document was prepared. Third, courts should ascertain whether the
      material was requested or prepared by the party or their representative
      ... [W]hen litigation is anticipated it is expected that an attorney or party
      will [have] become involved. Fourth, courts should consider whether


7
  Cont'l Cas. Co. v. Gen. Battery Corp., 1994 WL 682320, at *6 (Del. Super. Ct.
Nov. 16, 1994) Citing 8 Wright and Miller, Federal Practice and Procedure, § 2024
(2d ed. 1982).
8
  Cont'l Cas. Co. v. Gen. Battery Corp., at *6.
9
  Mullins v. Vakili, 506 A.2d 192.
                                          5
       the materials were routinely prepared and, if so, the purposes that were
       served by that routine preparation ... Last, courts should examine the
       timing of the preparation and ascertain whether specific claims were
       present or whether discussion or negotiation had occurred at the time
       the materials were prepared.10
       The items sought to be discovered by Plaintiff in Mullins were notes taken

subsequent to receiving a letter from Plaintiff’s attorney indicating his representation

related to a medical malpractice action. To properly apply the Mullins test the Court

must consider the facts of each case.11

       In its analysis of the first part of the test in the Mullins case the Court reasoned

that the initiating event for the creation of the notes was the notification that Plaintiff

was represented by an attorney as opposed to having been created in response to the

event itself. The Court found “While an accident or injury […] may not necessarily

lead to litigation […] when an attorney notifies a doctor two months after an incident

out of which a claim arises that he represents the doctor's patient, it may be

reasonably inferred that litigation of some sort is likely.”12 In Mullins, the event that

prompted the preparation of the documents was a letter from Plaintiff’s

representative.




10
   Mullins v. Vakili, at 198.
11
   Id.
12
   Id.
                                            6
        Further application of the Mullins test in Mancinelli v. Delaware Racing

Association, determined that documents prepared during the investigation of a slip

and fall accident by an insurance company were primarily prepared as a result of the

accident giving rise to the action.13 These records, the Court found, were created in

the ordinary course of business, and not in anticipation of litigation. The Court did

withhold certain portions of the materials finding those pages contained legal

analysis and warranted protection.14

        After an in camera review of the notes sought to be discovered, the application

of the Mullins test favors allowing discovery. First, looking at the nature of the event

that prompted the preparation of the notes in question. Similar to Mullins, the

triggering event was the first contact. In Mullins, it was the letter, here it was a

phone call by the Plaintiff. Unlike Mullins, Defendant was not an attorney, and had

not retained an attorney.

        Secondly, the Court must determine whether the requested materials contain

legal analyses and opinions or purely factual contents in order to make inferences

about why the document was prepared. The notes in question were prepared by the

on-call physician, the office manager, and the treating physician. The notes contain

factual observations related to the phone call, the care received and the conversation


13
     Mancinelli v. Delaware Racing, 2014 WL 1267572.
14
     Id. at *2.
                                         7
between the parties. There are no impressions of counsel included, and the notes do

not show any indication litigation was anticipated.

      Third, the Court must ascertain whether the material was requested or

prepared by the party or their representative. Here, he notes were prepared at the

request of the office manager, and without a request by counsel.

      Fourth, the Court must consider whether the materials were routinely prepared

and, if so, the purposes that were served by that routine preparation. Although the

notes were specially prepared, they appear to be typical physician’s notes taken in

the ordinary course of business. The notes appear to present a record of the care

provided to a patient, not unlike any other physician’s notes contained within any

ordinary patient’s records.

      Finally, the Court must examine the timing of the preparation and ascertain

whether specific claims were present or whether discussion or negotiation had

occurred at the time the materials were prepared. While the notes were prepared

after it became apparent Mr. Page suffered an adverse reaction, they were prepared

before any discussions between the parties or their representatives began in earnest.




                                         8
      For the forgoing reasons, Plaintiff’s Motion to Compel Production of

Physician’s notes of Preet Joshi, M.D., Pasquale Fucci, M.D., and the note of office

manager Erika Mutter is Granted.

      IT IS SO ORDERED.




                                                   /s/ Calvin L. Scott
                                                   Judge Calvin L. Scott, Jr.




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