SUPE'.RIOR COURT
oF‘rHE

STATE OF DELAWARE

R|CHARD R, COOCH NEW CASTLE COUNTY COURTHOUSE
REsrc>ENrJuncE 500 NORTH K|NG STREET, SUlTE 10400
WIL.M{NGTON, DE`.LAWARE 19301-3733
TELEPHONE (302) 255-0664

Francis J. Murphy, Esquire
Lauren A. Cirrinicione, Esquire
Murphy & Landon

1011 Centre Road, Suite 210
Willnington, De1aWare 19805
Attorneys for Plaintiff

Brad1ey J. Goewert, Esquire

Thomas J. Marcoz, Esquire

Marsha11 Dennehey Warner Coleman & Goggin
1007 North Orange Street, Suite 600

P.O. BoX 8888

Wilmington, Delaware 19899

Attorneys for Defendants

RE: Heather E. Turner v. Delaware Surgical Group, P.A., Eric D.
Kalish, MD., and Michael K. Conway, MD.
C.A. No. 09C-07-219 RRC

Submitted: February 11, 2016'
Decided: May 9, 2016

On Plaintiff’ s Motion in Limine to Admit Evidence of the CCHS
24-Hour Rule for the Purposes of Impeachment.
DENIED.

On Defendants’ Unopposed Motion to Prec1ude Wes1ey
C1ayton, M.D. From Offering Expert Opinions.
G}LANTED.

'- __¢__ ___= 1 .

1 This is the date of receipt in chambers of the transcript of the November 20, 2015 oral
argument

     

Dear Counsel:

This letter addresses the two motions in limine on which the Court reserved
decision at the November 20, 2015 oral argument. In 2008, after two laparoscopic
surgeries performed by Defendants Dr. Kalish and Dr. Conway, Plaintiff
experienced abdominal pain and a mass was discovered on her liver. That mass
was removed by Dr. Joseph Bennett, who then sent a letter to Plaintiff’ s
gastroenterologist stating that the mass "raised the concern about something that
spilled out from prior surgeries.” On January 10, 20l2, Plaintiff underwent a final
surgery to repair a large ventral incisional hernia that was allegedly caused by the
two previous laparoscopic procedures. Plaintiff filed an action in this Court and

the case was tried in June 20l2. '

The jury returned a defense verdict and Plaintiff was not awarded any
damages. Plaintiff appealed the jury’s verdict to the Delaware Supreme Court
which reversed the verdict for the unrelated reason that this Court allowed expert
testimony from Defendant Dr. Kalish when the defense had never provided an
expert report and had not disclosed that expert opinion during the pretrial
deposition. lt remanded the case for this Court to consider whether the so-called
"24-hour rule" (see z`nfra) should have been admissible for impeachment. The
Supreme Court found that this Court properly excluded evidence of the 24-hour
rule for the purpose showing affirmative proof of negligence. However, it
instructed this Court to determine whether evidence of the 24-hour rule should be
admitted for the purpose of impeachment of Defendant Dr. Conway.

However, since the Supreme Court’s remand, additional discovery has been
taken and the facts of the case surrounding the 24-hour rule have changed. During
the first trial the parties agreed that Christiana Care had in place a rule that required
the surgeons to dictate a post-operative report within 24 hours of the procedure.
Now, as a result of idrther discovery, it is disputed by the parties whether any such
"rule" actually existed. This report is intended to contain the doctor’s findings and
to explain the procedure that was performed. This dictated report is more detailed
than the handwritten post-operative note that is filled out on a preprinted hospital
form. Defendant Dr. Conway did not dictate his post-operative report until 52 days
after the surgery. Dr. Conway also performed at least 27 other surgeries during
those 52 days. This dictated report was the source of the opinions and testimony of
Dr. Conway, as well as of Dr. Kirkland (defense liability expert), of Dr. Beaton

(plaintiff` s liability expert), and of Dr. Bennett (treating physician).z Plaintiff has
filed a motion in limine to admit evidence that Christina Care had a 24-hour rule in

place for the purpose of impeaching those four witnesss’ testimony.

Plaintiff contends that the credibility of Dr. Conway needs to be called into
question using evidence of the 24-hour rule for three reasons: (l) he denied in his
deposition that his recollection would have been better if the dictated post-
operative report was completed closer to the time of the surgery; (2) he denied the
existence of the rule; and (3) to show the bias of Dr. Kalish, who has been

practicing with Dr. Conway for about 21 years.

 
  
  

    
    

 

  det  of whether i ~._ ;_~ _"' ~'  "'.Bsible
is g<»v@maa  De     me courts  ' ,t 
Snowden states that this Court must consider: "(l) whether the testimony of the

witness being impeached is crucial; (2) the logical relevance ofthe specific
impeach_ineiit evidence to the question of bias; (3`) the danger of unfair prejudice,
confusion ofissues, and undue delay; and (4) whether the evidence of bias is

cumulative."

The first factor weighs in favor of allowing evidence of the 24-hour rule for
impeachment purposes. Dr. Conway is a defendant in this matter and it is his
dictated post-operative report that was completed 52 days following Plaintiff` s
procedure. Defendant Dr. Conway denies knowledge of any such rule. Also, Drs.
Kirkland, Bennett, and Beaton relied on this dictated post-operative report to form
their opinions. Therefore, it is likely that the testimony of Dr. Conway will be

crucial to his defense.

However, under the second Snowden factor, the logical relevance of the
specific impeachment evidence to the question ofbias, weighs in favor of
excluding specific evidence ofthe 24-hour rule for impeachment purposes. The
existence ofa 24-hour rule instituted by Christina Care is only logically relevant to
Dr. Conway’s testimony that no such rule exists. The existence of the rule does
not itself show any bias ofDrs. Kalish, Beaton, and Bennett.

.-2 Tlie Court notes that the Supreme Court stated that the only person to possibly be impeached by

the 24-hour rule is Dr. Conway. Turner v. Delaware Surgical Grp., 67 A.2d 426, 437 (Del.
2()l3) ("'l`he parties may again litigate the admissibility of the 24~hour rule for the purpose ol;`
impeaching Dr. Con\va_v's credibi|ity. zi'fter a balancing o‘f the factors set forth in Snowa'en v.
Sl'ate.").

3 672 A.zd 1017(1)@1. 1996).

The third Snowa’en factor, and the most important under these facts, weighs
heavily in favor of denial of the Motion in Limine. If Plaintiff is permitted to
introduce evidence of a 24-hour rule, it is quite probable that the jury will be
confused by the issues and that undue delay will result. Most of this danger stems
from the recent deposition testimony of Stefanie Brumberg, Christiana Care’s
30(b)(6) witness. Defendants concede that "[w]hen this case was initially litigated,
and even through the subsequent remand by the Delaware [Supreme] Court for
further consideration of the issue, the parties only has some policies and
procedure[s] from Christiana Care, without a true understanding of the purposes
and intent of those policies."4 So while the issue was not raised in the first trial,

Defendants now claim that the dictated post-operative report does not have to be
completed within 24 hours of the procedures In support of this position,
Defendants offer Ms. Brumberg’s July l5, 2015 deposition testimony in which she

stated:

Q@ lt says, "The operative note should be dictated before the
patient goes to another level of care (e.g. PACU) and
preferably within 24 hours of the surgery." Do you see
that?

A. I do.

Q. The sentence is referring to the dictated operative note,
correct?

A. It’s incorrect, actually. So the expectation is that the
handwritten operative note is entered into the record
within 24 hours immediately after surgery[;] actually
prior to the patient being transferred to the PACU. The
requirement about [] the dictation is a different
requirement. So what is here in the operating room
rules, they are using the term "dictated" incorrectly.
And that actually coincides with the Joint
Commission[’s] regulations and requirements. What

4 Resp. of Defs. To Pl’s. Mot. In Limine to Admit Evidence of the CCHS 24-Hour Rule for the
Purp§§§qz  ent, at   25, 2015).

 __`_"___`_  ly to D  H_  ’ Response in which Defendants asserted that there was no
in place for a dictate post-operative report. In that Reply, Plaintiff stated that "[i]n
order to resolve this matter, Plaintiff respectfully submits that the Court will have to read the
entire deposition [of Ms. Brumberg] and review the deposition exhibits." Plaintiff did not direct
the Court to what Plaintiff believes are the most pertinent parts of the SO-page deposition. Nor
did Plaintiff make any request to exceed page limits. Therefore, this Court will not read the
entire deposition and guess at which testimony Plaintiff thinks is important.

4

 

  

that states [is] that the operative noting is to be entered
into the record immediately when the dictated report is
not going to be able_is not going to be entered
immediately after surgery, before the patient is
transferred to the next level of care. . . .

So I understand what you’re reading in the rule;
however, it is not truly what is_what has been expected
of the physicians. So that is_that is what’s in the
operating room rules, you’re absolutely correct. It’s
just not what the physicians are really expected to do.

So the physicians were not expected to do what is in the
actual rule?

No. I’m sorry, but no.6. . .

And is this the type of operative report that the operative
note rule says "should be dictated before the patient goes to
another level of care (e.g. PACU) and preferably within 24
hours of surgery"?

No. I think the problem and the challenge is that the
operating room rule is referring to the operative note.
The dictated document is referred to as the operative
report. They are not one and the same. So the
[handwritten] operative note is what is to be entered in
the record immediately after surgery, The dictated
operative report, we were asking for it to preferably be
 -' 24 hours   ' ‘ -'
   not-I  " 

       

  

l?f

You’re saying that this rule that you provided to us that you
say was in effect from 1996 to 2015 that says, "The
operative note should be dictated before the patient goes to
another level of care and preferably within 24 hours of
surgery" . . . it’s not correct?

It’s not worded properly. No, it’s not.8 . . .

6 Dep. Tr. of Stefanie
714 ar 39-40.
8 1¢1. at 41.

Brumberg, at 20-24.

Q. lt is your understanding that one of the statistics that the
Joint Commission is looking to when they come to evaluate
Christiana Care, among others, would be the percentage of
operative reports dictated within 24 hours?

A. No. Their expectation is that our records are
completed, at least 50 percent of them, within 30 days of
patient discharge. Their requirement is that the
[handwritten] operative note is entered immediately in
the records before the patient is transferred to the next
level of care, but they do not define requirements on

 the dictated operative report needs to be

  

The record is unclear as to what degree Ms. Brumberg was prepared for her
30(b)(6) deposition. Ms. Brumberg testified that the rule that says the dictated
operative note should be completed within 24 hours of the surgery, but that is not
the policy that is actually expected of the doctors. Ms. Brumberg then stated that
"the operative noting is to be entered into the record immediately when the dictated
report is not going to be able-is not going to be entered immediately after
surgery." She then testifies that the dictated post-operative note should preferably
be completed within 24 hours of the surgery, These inconsistencies in her
testimony will likely cause the jury confusion and distract from the issues of

liability.

The probability that allowing the 24-hour rule to be introduced for
impeachment purposes would distract from the core issues of liability in the
upcoming second trial was further highlighted by Plaintiff’ s counsel during oral
argument on this Motion in Lz'mine. Plaintiff’ s counsel stated:

l can’t believe as a Delaware lawyer I’ve been confronted with this
entire can of worms. So l ask a surgeon is there a rule at the
hospital? He says, ["]No, there’s no such rule.["] I ask two other
surgeons [who] operate, two of the other four surgeons [who]
operated on her is there a rule? ["]Yes, there is.["] 10

Given the dispute of whether a "24-hour rule" actually existed, or what it

meant, its admission for impeachment purposes will likely cause the jury to
confuse the issue that must be decided and cause an undue delay because the jury

9 1;1. ar 51-52_. l
m Tr. of oral argument at 14 (Nov. 20, 2015),§;

 
  

would first have to decide whether the ru§_i_;§ §§ `
that determination in assessing Dr. Conj,_._'__._`f`f$i€"i>§»_.;._ 

Further buttressing this Court’s decision not to allow evidence of the 24-
hour rule for impeachment of Dr. Conway is Plaintiff` s unusual and alternative
request for an "evidentiary hearing to determine the true facts concerning the
CCHS requirements for post-surgery documentation."'z Plaintiff and Defendants
took discovery on this issue. lt has been briefed by both parties and the Court held
oral argument. An open-ended "evidentiary hearing" on this issue presided over
by this Court is not the procedural vehicle for this Court to determine (if it even
can) the nature of existence of the 24-hour rule at CCHS as it may have existed in

2007-2008.

The United States Court of Appeals for the Third Circuit addressed a
procedurally similar but factually different issue under a Federal Rule of Evidence

403 analysis in Langer v. Monarch Lzfe Insurance Company.m The court in

not abuse its discretion in__excluding evidence

 ' a plainti‘i@@i    

  the    exclude the
 have "mis laced th[e   focus onto

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Similarly, this Court need not reach the issue of whether Christiana Hospital
is "bound" by Ms. Brumberg’s deposition testimony, as Defendants assert.

 

" Tzzghman v. Delaware sr U., 2014 WL 703869, ar 2-3 (D@i. super. Feb. 10, 2014) molding
that record and reports of State K-9 training had to be excluded in a dog-bite action against State
defendants because: (l) the records would have likely caused undue delay and confusion of the
issues for the jury; and (2) they were voluminous).

12 Pl’s. Reply in Support of their Mot. in Lz`mine to Admit Evid. of the CCHS 24-Hour Rule for
the Purposes of Impeachment, at* 8 (Nov. 18, 2015).

'3 966 F.zd 736 (3<1 Cir. 1992).

14
Ia'. at 799.
15 Id. See also Mark S. Brodin et al., Weinstein ’s Federal Evidence § 403.05 (2d ed. 2016)

("Courts are reluctant to admit evidence that appears at first to be plausible, persuasive,
conclusive, or significant if detailed rebuttal evidence, or complicated judicial instructions would
be required to demonstrate that the evidence actually has little probative value."); Mark S.
Brodin et al., Weinstein ’s F ederal Evidence § 403.06 (Zd ed. 20l6) ("Although evidence may be
relevant for Rule 403 to come into play, one of the reasons often expressed in these cases for
excluding challenged evidence is that the evidence was so nearly irrelevant as to not be worth the
expenditure of time. Courts often speak in terms of consumption of time when faced with

collateral issues.").

However, the confusion over this issue further militates in favor of not allowing
the evidence because of the confusion and undue delay that it will cause.lé

Finally, the fourth factor of whether the evidence of bias is cumulative is
neutral under these facts, as was stated by defense counsel at oral argument."

In light of the Court’s analysis of the Snowden factors, Plaintiff s Motion in
Limine to Admit Evidence of the CCHS 24-Hour Rule is denied. While the
testimony Plaintiff seeks to impeach is likely to be somewhat crucial because it is
the testimony of a defendant, the other factors compel this Court to exclude
evidence of the rule. However, it is important to note that this ruling does not
preclude the jury from hearing that Dr. Conway completed the dictated post-
operative report 52 days following the surgery. The jury may then draw its own
conclusion about the accuracy of the report and the credibility of Dr. Conway’s

testimony.

Defendants also filed a related Motion to Exclude Dr. Wesley Clayton F rom
Offering Expert Opinions of the Timing of Dictated Operative Reports. Since the
Court has already ruled that evidence of the 24-hour rule is inadmissible under
Snowa’en, it follows that any testimony from Dr. Clayton about the timing of those
operative reports would also be precluded.

Therefore, Plaintiff’s Motion in Lz`mine to Admit Evidence of the CCHS
24-Hour Rule for the Purposes of Impeachment is DENIED and Defendants’
Motion to Preclude Wesley Clayton, M.D. From Offering Expert Opinions is
GRANTED.

'6 F or a discussion on this issue see generally J ames C. Winton, Corporate Representative
Depositions Revisz'tea’, 65 Baylor L. Rev. 938 (2013).
17 Tr. at 40.

IT IS SO ORDERED.

Very truly yours,

§§ .

; , _ -. . _
|-  __ _____ __ 
c .

\ -r_»_ _ 

Richard R. Cooch

 

RRC/jmf
cc: Prothonotary

