             IN THE SUPREME COURT OF THE STATE OF DELAWARE

KATHLEEN L. PHELPS, Individually,
                              §                  No. 500, 2017D
and as Administratrix of the Estate of
                              §
ANTHONY O. PHELPS,            §
MARK S. PHELPS,               §
MATTHEW A. PHELPS and         §
MEGHAN PHELPS BUEHLER         §
                              §
      Plaintiff Below,        §                  Court Below – Superior Court
      Appellants,             §                  of the State of Delaware
                              §
      v.                      §
                              §
DR. JOSEPH T. WEST,           §                  C.A. No. N15C-12-136
CARDIOLOGY CONSULTANTS, P.A., §
and CHRISTIANA CARE HEALTH    §
SYSTEM, INC.,                 §
                              §
      Defendants Below,       §
      Appellees.              §

                                Submitted: August 15, 2018
                                Decided: August 16, 2018

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

                                         ORDER

       This 16th day of August 2018, upon consideration of the briefs and record on appeal,

it appears to the Court that:

       (1)    Kathleen Phelps and her children (the “Plaintiffs”) sued Dr. Joseph T. West,

Cardiology Consultants, P.A., and Christiana Care Health System, Inc. (“Defendants”) for

medical negligence during Dr. West’s treatment of Anthony Phelps, who was Kathleen’s

husband and the children’s father. Plaintiffs allege that, after Dr. West performed a

catheterization on Mr. Phelps on August 22, 2014, Dr. West failed to recommend that Mr.
Phelps remain hospitalized to undergo immediate surgery—a decision that they contend

led to Mr. Phelps’s death. They seek damages.

          (2)     On November 14, 2017, following a multi-day trial in the Superior Court that

began on November 6, 2017, the jury found Defendants not liable. The jury awarded no

damages. Plaintiffs appeal that verdict and an earlier, November 9, 2017 bench ruling

issued during trial that overruled Plaintiffs’ objection to the testimony of one of

Defendants’ experts. Plaintiffs allege that this testimony was not fairly disclosed in

conformance with Superior Court Civil Rules 16(e) and 26(e) ahead of trial and violated

their right to a fair trial.

          (3)     More specifically, Plaintiffs assert two arguments on appeal.

          (4)     First, they allege that the Superior Court abused its discretion in declining to

preclude the disputed expert testimony.

          (5)     Second, they allege that the Superior Court’s failure to preclude this

testimony “rendered the expert witness disclosure requirements of Superior Court Civil

Rules 16(e) and 26(e) meaningless.”1

          (6)     Rule 16(e) provides:

                  Pretrial Orders. After any conference held pursuant to this Rule, an
                  order shall be entered reciting the action taken. This order shall
                  control the subsequent course of the action unless modified by a
                  subsequent order. The order following a final pretrial conference shall
                  be modified only to prevent manifest injustice.2



1
    Plaintiffs’ Opening Br. at i.
2
    Del. Super. Ct. Civ. R. 16(e).

                                                  2
         (7)     Rule 26(e) provides:

                 (e) Supplementation of Responses. A party who has responded to a
                 request for discovery with a response that was complete when made
                 is under no duty to supplement the response to include information
                 thereafter acquired except as follows:

                 (1) A party is under a duty seasonably to supplement the response with
                 respect to any question directly addressed to (A) the identity and
                 location of persons having knowledge of discoverable matters, and
                 (B) the identity of each person expected to be called as an expert
                 witness at trial, the subject matter on which the person is expected to
                 testify, and the substance of the person’s testimony.3

         (8)     For the reasons set forth below, we reject Plaintiffs’ arguments and AFFIRM

the Superior Court’s November 9, 2017 bench ruling and the subsequent jury verdict in

Defendants’ favor.

                                                ***

         (9)     This case arises out of a tragic course of events. Following the referral of

Mr. Phelps’ regular cardiologist, defendant Dr. West performed a catheterization on Mr.

Phelps on August 22, 2014. Dr. West discovered that three of Mr. Phelps’ coronary arteries

were blocked, including 95% of the right coronary artery. Dr. West diagnosed Mr. Phelps

with multi-level coronary artery disease and determined that he needed to undergo

coronary artery bypass graft (CABG) surgery.4 Dr. West then advised Mr. Phelps of at

least some of the various risks and benefits associated with discharge, as well as the




3
    Del. Super. Ct. Civ. R. 26(e) (emphasis added).
4
  Plaintiffs’ Exhibit 13, Diagnostic Cardiac Catheterization Report for Anthony Owen Phelps
(Aug. 22, 2014), at A119-21.


                                                  3
alternatives to leaving the hospital.5 Dr. West then referred Mr. Phelps to a cardiac surgeon

and discharged him from the hospital.6 Following Mr. Phelps’ release, Dr. West was no

longer involved in Mr. Phelps’ care or treatment.

          (10)   On August 29, 2014, Mr. Phelps met with the surgeon, Dr. Paul Davis, who

agreed with Dr. West that Mr. Phelps should undergo CABG surgery. They scheduled the

procedure for September 11, 2014.7

          (11)   However, days before the scheduled surgery, Mr. Phelps contracted

bronchitis. He alerted Dr. Davis’s office on September 8, 2014, and they rescheduled the

surgery for September 25, 2014. On September 18, 2014, they again had to reschedule the

surgery—this time because of the operating room schedule. The surgery was pushed back

to October 1.

          (12)   But, on September 19, 2014, before the surgery could be performed, Mr.

Phelps developed an acute myocardial infarction (MI) and went into cardiac arrest.8 He

died the following day, September 20, 2014.9




5
    Pretrial Stipulations signed by Court (Oct. 23, 2017), at B147 [hereinafter Pretrial Stipulations].
6
    Discharge Instructions for Anthony Owen Phelps (Aug. 22, 2014), at B7.
7
 Exhibit 5 of the Deposition Transcript of Christine Brady, Christiana Care Cardiac Surgery Chart
Notes for Anthony Phelps, at A73. The dates on the chart are for the year 2015 instead of 2014.
The parties do not explain this discrepancy in the record before us, and thus we assume that the
chart meant to indicate 2014 as the year of the events in question given that Mr. Phelps passed
away in 2014.
8
    Plaintiffs’ Exhibit 16, Christiana Care Discharge Summary for Anthony Owen Phelps, at A74.
9
    Id. at A74-75.

                                                    4
          (13)   Plaintiffs filed this suit on December 15, 2015, and alleged, among other

things, that Dr. West was negligent in discharging Mr. Phelps prior to surgery and failing

to inform him of the risks of leaving the hospital.

          (14)   Consistent with these allegations, Plaintiffs disclosed before trial that their

only expert, Dr. Randall Zusman, would assert that Dr. West violated the applicable

standards of care in two ways: (1) failing to recommend that Mr. Phelps be admitted to the

hospital for surgery immediately following the cardiac catheterization, and (2) “failing to

inform Anthony Phelps of the reasons to remain in the hospital and the risks of leaving the

hospital.”10

          (15)   The second theory, the “informed consent” theory, is relevant here, given

that Plaintiffs argue on appeal that the trial court abused its discretion in permitting

testimony on this theory because Defendants’ expert disclosures allegedly failed to disclose

their expert’s plan to testify on this issue.

          (16)   Regarding Plaintiffs’ “informed consent” theory, Plaintiffs’ expert disclosure

stated that its expert would testify that “Dr. West should not have informed Anthony Phelps

that he would not have received any treatment if he remained in the hospital over the

weekend. Providing such misinformation would have encouraged Mr. Phelps not to remain

in the hospital.”11



10
  Plaintiffs’ Expert Disclosure, at A99-101. Accordingly, Dr. Zusman later testified at trial that
Dr. West “had an obligation . . . to fully discuss the risks and benefits of all of the options for Mr.
Phelps before Mr. Phelps made what, in this case, was an uninformed decision to leave the
hospital.” Randall Zusman Trial Testimony Transcript (Nov. 9, 2017), at B294-95.
11
     Plaintiffs’ Expert Disclosure, at A100.

                                                  5
          (17)      Plaintiffs’ expert disclosure listed several omissions that allegedly

undermined Dr. West’s compliance with the informed-consent standard of care. It asserts

that Dr. West should have told Mr. Phelps the following information:

                    a.     If [Mr. Phelps] remained in the hospital, he would have been
                           treated as a priority patient. He could have been evaluated over
                           the weekend and surgery would have been performed before
                           leaving the hospital.

                    b.     If he left the hospital before surgery, he was at imminent risk
                           of death.

                    c.     If he left the hospital, surgery could be delayed due to
                           unforeseen factors, such as the development of other medical
                           problems, the unavailability of a surgeon, etc.

                    d.     If he left the hospital, his activity level could not be monitored.

                    e.     If he left the hospital and suffered a M.I., immediate treatment
                           options would not be available to him.12

          (18)      In turn, in addition to Dr. West, Defendants identified two experts in their

disclosure documents, Dr. Michael Fifer and Dr. Peter Smith.13 Defendants’ disclosures

noted that Dr. Fifer, the Director of the Cardiac Cath Lab and Professor at Harvard Medical

School, “may address and/or rebut any testimony provided by Plaintiffs’ experts.”14 In

addition, beginning on page 2, Defendants provided the following information concerning

Dr. Fifer’s anticipated testimony:

                    It is expected that Dr. Fifer will testify with regard to the issues of
                    standard of care and causation. It is Dr. Fifer’s opinion that Dr. West
                    complied with the applicable standards of care at all times hereto. It


12
     Id. at A100-101.
13
     Defendants’ Expert Disclosure, at A102, A105, A108.
14
     Id. at A103.

                                                    6
is further his opinion that no alleged negligent act by Dr. West caused
or contributed to Plaintiffs’ claimed injuries.

Specifically, it is Dr. Fifer’s opinion that Dr. West acted appropriately
in discharging Mr. Phelps on August 22, 2014. In particular, Dr. Fifer
believes that it was reasonable for Dr. West to discharge Mr. Phelps
after his diagnostic catheterization based on the findings during the
catheterization and Mr. Phelps’ clinical scenario. At all times during
Dr. West’s treatment of Mr. Phelps on August 22, 2014, Mr. Phelps
had stable angina and did not report any complaints of ongoing chest
pain at rest, ongoing shortness of breath at rest, or other potential
symptoms indicating unstable angina. In other words, Mr. Phelps
presented with stable angina. The catheterization films likewise do
not show anything that would indicate that Mr. Phelps needed
emergent surgery. Moreover, the discovery to date indicates that Dr.
West had no reason to suspect that Mr. Phelps had unstable angina at
any prior time. Dr. West also ordered a surgical consult, and Mr.
Phelps was seen on August 22, 2014 by a cardiac surgery physician
assistant before Mr. Phelps was discharged. Because Mr. Phelps had
stable angina, Dr. Fifer believes that it was reasonable to discharge a
patient like Mr. Phelps to his primary cardiologist and recommend
that he undergo cardiac surgery, rather than order emergent surgery or
keep Mr. Phelps in the hospital.

Dr. Fifer will further testify that, based on the discovery to date, Mr.
Phelps understood the need to recognize any chest pain symptoms and
immediately report to the emergency room if those occurred.
Moreover, the discovery to date indicates that Mr. Phelps did not have
any periods of unstable angina or complaints of chest pain at rest that
were reported to his treating physicians, including Dr. West, at any
point between August 22, 2014 and September 19, 2014.

Dr. Fifer will also opine that it is not the standard of care to keep
patients in the hospital when they have stable angina. Keeping a
patient in the hospital for potential elective surgery days later would
not be appropriate to the patient, would generate needless costs, and
could risk hospital acquired infections to the patient. Moreover, it
would not be inappropriate to tell a patient like Mr. Phelps that he
would not likely have elective cardiac surgery over the weekend.

Dr. Fifer will opine that, if Mr. Phelps developed chest pain on
September 19, 2014 approximately 3-4 hours before he collapsed, and
if Mr. Phelps had presented to the Emergency Room when those

                                7
                   symptoms began, Mr. Phelps more likely than not would have been
                   taken to the catheterization lab. In the catheterization lab, it is more
                   likely than not that Mr. Phelps’ right coronary artery would have been
                   reopened with stenting procedures. Had that occurred, Mr. Phelps
                   would have survived his heart attack.15

           (19)    At his subsequent deposition, Dr. Fifer further testified that the disclosures

accurately reflected his views, but that they featured only “some” of his opinions.16 After

prompting by Plaintiffs’ counsel, Dr. Fifer explained how he would approach discussing

treatment options with a patient in Mr. Phelps’ situation prior to a possible discharge:

                   Well, you know, if it’s Thursday afternoon and the surgeon says I’ll
                   do this tomorrow morning, I would give the patient that option. I
                   would say you can either have it done tomorrow if you’re ready
                   psychologically or you can go home and come back. But there’s
                   nothing about Mr. Phelps’ clinical presentation or the catheterization
                   that would make me instruct him to stay in the hospital.17

           (20)    Plaintiffs’ attorney followed up by asking Dr. Fifer why he would have given

the patient the “option of staying in the hospital and having the surgery performed the next

day,” and Dr. Fifer responded “[f]or his convenience.”18 He stated that he subscribed to

“the principle of patient autonomy: If there are options, you give the patient the choice.”19

           (21)    Plaintiffs’ counsel also asked Dr. Fifer whether a treating physician should

inform the patient that indigestion could be a sign of ischemia, and Dr. Fifer responded:




15
     Id. at A103-05.
16
     Michael Fifer Deposition Transcript (June 30, 2017), at B23-24 [hereinafter Fifer Depo Tr.].
17
     Id. at B44.
18
     Id. at B45.
19
     Id.


                                                  8
                   I don’t think it’s something that a doctor would be required to inform
                   the patient of. There are many, many things we can tell patients, I
                   can’t think of all of them. I don’t think that’s one of the things that
                   would come to mind.20

           (22)    Dr. Fifer additionally testified that he does “[n]ot necessarily” tell all patients

that he discharges from the hospital following a cardiac catheterization that they should

report to the hospital if they experience angina, but he submitted that he might do so

“[d]epend[ing] on the patient,” as his evaluation “depends on many, many factors,” and

“too many variables” that he “couldn’t generalize.”21

           (23)    Plaintiffs objected before trial to expert testimony on informed consent

“absent the disclosure of such expert opinion,” as noted in the parties’ joint pretrial

stipulation.22

           (24)    At the pretrial conference, on October 23, 2017, the Superior Court heard

oral argument on the admissibility of testimony concerning informed consent. Defendants

highlighted the pertinent statements in their disclosure documents and elicited during Dr.

Fifer’s deposition testimony and argued that these statements show that Plaintiffs were on

notice that Dr. Fifer would testify as to whether Dr. West had complied with the informed-

consent standard of care.23         The trial court agreed with Plaintiffs that “to the extent an


20
     Id. at B49.
21
     Id.
22
     Pretrial Stipulations, supra note 5, at B149.
23
   Pretrial Conference Transcript (Oct. 23, 2017), at B96-97 [hereinafter Pretrial Conf. Tr.]
(Defendants’ Counsel: “[I]n the disclosure it is referenced that Dr. Fifer will discuss the
recommendation for surgery rather than keep him in; that’s at the bottom of paragraph one [on
page 3]. Paragraph two talks about how the patient understood the need to recognize his symptoms

                                                     9
opinion is not disclosed in an expert disclosure it is not - - it’s not admissible in evidence,”

but nonetheless also agreed with the Defendants that they identified language in the

disclosure document and Dr. Fifer’s deposition testimony that “at least go[es] to some of

the issues in the informed consent issue.”24 The trial court summarized:

                    [T]o the extent Dr. Fifer is testifying as to those particular opinions
                    that he has disclosed, I think that’s fair game and he’s entitled to
                    testify about it. If the testimony starts to stray beyond those particular
                    issues, then certainly you can raise an objection, Mr. Roseman
                    [Plaintiffs’ counsel]. Unless it’s within the expert disclosure that the
                    defendant’s [sic] provided, the testimony’s not admissible.25

          (25)      At trial, after Defendants’ attorney asked Dr. Fifer whether Dr. West violated

the standard of care by failing to warn Mr. Phelps that “he had certain risks and

complications if he didn’t stay in the hospital,”26 Plaintiffs objected. They argued that

defense counsel was trying to elicit testimony on informed consent that had not been

properly disclosed prior to trial pursuant to Superior Court Civil Rules 16(e) and 26(e).

          (26)      Defendants again pointed to the aforementioned excerpts from Dr. Fifer’s

disclosures and deposition testimony and asserted that they cover Dr. Fifer’s opinions

concerning the conversation that a doctor should have with his patient prior to discharge

from the hospital in these circumstances. Defendants argued that pretrial expert disclosures


and report to the emergency room. And the third paragraph, the bottom says: ‘Moreover, it would
not be inappropriate to tell a patient like Mr. Phelps that he would not likely have elective cardiac
surgery over the weekend,’ which obviously addresses what Mr. Phelps was told and what’s
appropriate.”) (also referencing statements in Dr. Fifer’s deposition testimony).
24
     Id. at B99-100.
25
     Id. at B100.
26
     Jury Trial Transcript (Nov. 9, 2017), at B361 [hereinafter Trial Tr.].


                                                   10
need not include “magic words” such as “informed consent” in order for the court to allow

the expert to testify on a given subject such as informed consent.27

          (27)      The trial court overruled Plaintiffs’ objection.       The judge agreed with

Defendants that they had “fairly disclosed that [Dr. Fifer] intended to offer a decision as to

the standard of care as to informed consent.”28

          (28)      Describing the decision as a “close call,” the trial judge listed several reasons

for her conclusion that the pretrial disclosures adequately disclosed Dr. Fifer’s intended

opinion testimony:

                    On page two, second paragraph, second sentence, the disclosure
                    states: ‘It is Dr. Fifer’s opinion that Dr. West complied with the
                    applicable standards,’ plural, ‘of care at all times hereto. It is further
                    his opinion that no alleged negligent act by Dr. West caused or
                    contributed to Plaintiff’s claimed injuries.’

                    In the context of this case and with all the parties knowing that there
                    were two different standards of care in issue, and the fact that
                    standards is used in plural sense, to be distinguished from Dr. Smith’s
                    disclosure which only is the standard in the singular sense, coupled
                    with the fact that Defendants also disclosed on page eight of the
                    disclosure that all of the experts were expected to rebut the opinions
                    put forth in the same or similar field by Plaintiffs’ experts, and the fact
                    that the disclosure at page three refers, though somewhat obliquely, to
                    what it would be appropriate to tell a patient like Mr. Phelps regarding
                    both the possibility of hospital infections and the likelihood of having
                    surgery over the weekend, and coupled with the fact that there was at
                    least some deposition testimony regarding what the risks and benefits
                    of discharge were, giving a patient the option to stay in the hospital
                    and disclosing to a patient or advising a patient regarding certain
                    symptoms and whether they should be flagged for a patient, all of that,
                    again, though borderline, I think, and in view of the fact that this was
                    not raised in a Daubert Motion or in a motion in limine, which I think

27
     Id. at B365-69.
28
     Id. at B372.

                                                    11
                 would have been the more appropriate – or, frankly, in a motion for
                 summary judgment if the Plaintiffs believed that the Defendants had
                 put forth no expert opinion as to informed consent, and at this late
                 date, precluding the doctor from testifying would leave the
                 Defendants without any expert testimony other than Dr. West, who is
                 the Defendant, regarding the issue of informed consent, balancing all
                 of those factors, the objection to the doctor’s testimony regarding the
                 standard of care for informed consent is overruled.29

          (29)   Dr. Fifer then testified at trial that Dr. West had complied with the applicable

standards of care. Defendants’ counsel resumed questioning as follows:

                 Q:     Did you understand that the Plaintiffs’ two allegations
                        concerning Dr. West, one is that he should have kept Mr.
                        Phelps in the hospital when he did his cath; and two, that he
                        should have given him certain information concerning the risks
                        of him leaving the hospital. Do you understand that?

                 A:     Yes.

                 Q:     And in this case, did you reach an opinion on those issues, after
                        you have reviewed all of the records and the depositions, on
                        those questions?

                        A:     Yes.

                 Q:     Briefly, what is your opinion as to those two?

                 A:     My opinion is that there was no requirements [sic] to keep the
                        patient in the hospital and that Dr. West fulfilled all of the
                        standards of care requirements.

                 Q:     Do you hold those opinions to the degree of reasonable medical
                        probability?

                 A:     Yes.”30




29
     Id. at B372-74.
30
     Id. at B376-77.


                                                12
           (30)    He testified that a physician need not warn a patient that indigestion might

be a sign of angina.31 He also testified that a physician need not warn a patient in Mr.

Phelps’ situation that he could die from an MI if he were discharged,32 and that his risk of

dying was less than 1%.33 Dr. Fifer also testified that the standard of care does not require

a physician to tell a patient that he had the option of staying in the hospital.34

           (31)   Following trial, the special verdict form asked the following question, among

others:

                  Do you find that the defendant, Joseph T. West, breached the standard
                  of care by failing to obtain informed consent from Anthony O. Phelps
                  during his treatment of him?35

           (32)   The jury answered “No.”36

                                               ***




31
  Id. at B420 (Q. “Because indigestion can be considered an angina equivalent, did Dr. Schaeffer
or Dr. Grubbs have a duty to tell Mr. Phelps, you better watch out, if you have indigestion
symptoms, you need to go to the hospital?” A. “You know, I don’t think there’s a requirement for
a doctor to say that.”).
32
   Id. at B434 (Q. “Based upon the cath images that you have reviewed, based upon the clinical
information that you have seen from Dr. Grubbs’s H&P, did standard of care require that Mr.
Phelps be told that he could die of an MI if he went home?” A. “No. That’s not what we generally
do.”).
33
   Id. at B436 (Q. “Based upon the cath report and everything else that Dr. West knew of Mr.
Phelps, and based upon your education and experience, if Mr. Phelps had asked, what is the change
that I’m going to die if I go home, what would he be told?” A. “I would say it’s less than one
percent.”).
 Id. (Q. “Was offering the patient the choice of staying in the hospital for surgery the next day or
34

whatever, under this scenario, required under the standard of care?” A. “No.”).
35
     Special Verdict Sheet (Nov. 14, 2017), at A70.
36
     Id.


                                                 13
         (33)   Plaintiffs frame their arguments on appeal somewhat awkwardly, but the core

of their argument is that the Superior Court abused its discretion—and violated the spirit

of Rules 16(e) and 26(e)—by allowing Dr. Fifer’s testimony on informed consent, and that

that decision by the trial court should be reversed and a new trial granted because the

admission of such testimony denied Plaintiffs a fair trial.

         (34)   The parties agree that our standard of review when reviewing a Superior

Court decision to admit certain evidence is “abuse of discretion.” They also agree that, if

we find such an abuse, we may order a new trial only if the mistake “constituted significant

prejudice so as to have denied the appellant a fair trial.”37

         (35)   Because the trial court did not abuse its discretion, we affirm its ruling and

deny Plaintiffs’ request for a new trial. However, we emphasize that this is a difficult case,

and Defendants squeak by a narrow margin. A lot of time and resources could have been

spared had the Defendants provided more thorough expert disclosures in compliance with

the spirit—and not the mere letter—of Rules 16(e) and 26(e).

         (36)   Indeed, “the requirement of a party to comply with discovery directed to

identification of expert witnesses and disclosure of the substance of their expected opinion

is a pre-condition to the admissibility of expert testimony at trial.”38 As we said in Barrow




37
  Barrow v. Abramowicz, 931 A.2d 424, 429 (Del. 2007) (quoting Green v. Alfred A.I. duPont
Institute of the Nemours Foundation, 759 A.2d 1060, 1063 (Del. 2000)) (internal quotation marks
and citation omitted).
38
     Bush v. HMO of Delaware, Inc., 702 A.2d 921, 923 (Del. 1997).


                                               14
v. Abramowicz,39 the Rules require “timely disclosure of [an expert’s] opinions and the

bases for his opinions” because, “[w]ithout this notice, the other party cannot properly

prepare for trial.”40 Adherence to the disclosure rules is essential to a fair and efficient trial

process.

          (37)      Plaintiffs’ first specific argument on appeal is that the Superior Court abused

its discretion in allowing Dr. Fifer to testify on whether Dr. West had complied with the

informed-consent standard of care in his discussion with Mr. Phelps prior to Mr. Phelps’

discharge. Even though Plaintiffs allege that Dr. West violated the standard of care by

failing to inform Mr. Phelps of the reasons to remain in the hospital and the risks of leaving

the hospital, Plaintiffs argue that Defendants cannot rebut their expert testimony on this

issue because Defendants’ disclosures did not state that Dr. Fifer would testify on this

“informed consent” issue in particular.

          (38)      This Court has held that expert disclosures need not state “magic words” for

an expert to be able to testify on a certain issue. In Barriocanal v. Gibbs,41 in a slightly

different context, this Court concluded that the trial court abused its discretion by barring

an expert from testifying for failure to articulate certain “magic words.” We said that such

an approach would “exalt form over substance.”42 And, when determining whether expert




39
     931 A.2d 424 (Del. 2007).
40
     Id. at 434.
41
     Barriocanal v. Gibbs, 697 A.2d 1169, 1172 (Del. 1997).
42
     Id. at 1172.


                                                   15
testimony was previously disclosed, this Court evaluates “the substance of the proffered

testimony as a whole.”43

          (39)      Dr. Fifer’s failure to utter “informed consent” should not preclude him from

testifying consistently with his expert disclosure and his discovery deposition in this case.

The trial court did not abuse its discretion in examining the substance of the prior

disclosures and deposition testimony as a whole to determine whether it provided notice to

the opposing party as to the sort of expert opinion that the witness would provide at trial.

          (40)      Although not ideal, Dr. Fifer’s disclosures and deposition testimony gave

Plaintiffs adequate notice that he planned to testify on many issues relevant to the

informed-consent standard of care and the basis of his opinions on these issues—

supporting our view that the Superior Court did not abuse its discretion in determining,

after “having looked through the entirety of Dr. Fifer’s disclosure,” that “it is fairly

disclosed that [Dr. Fifer] intended to offer a decision as to the standard of care as to

informed consent.”44

          (41)      For one, Defendants expressly provided in their disclosure that their experts

“may address and/or rebut any testimony provided by Plaintiffs’ experts.” 45 Further, Dr.

Fifer’s deposition testimony addressed the conversation that he would likely have with a


43
     Id. at 1173.
44
     Trial Tr., supra note 26, at B372.
45
   The Superior Court observed that it did not think “a blanket statement that your experts will
respond or rebut the opinions of plaintiffs’ expert is sufficient under 26(b)(4),” but noted that other
language in the disclosures “does at least go to some of the issues in the informed consent issue.”
Pretrial Conf. Tr., supra note 23, at A64.


                                                  16
patient in Mr. Phelps’ situation—a consideration relevant to whether Dr. West had

complied with the informed consent standard.46 When responding to Plaintiffs’ counsel’s

question as to whether he would have recommended surgery before discharging Mr. Phelps

from the hospital, Dr. Fifer said that he would “not necessarily” do so and then discussed

the information that he would—or would not—provide to the patient before discharge.47

When asked by Plaintiffs’ counsel whether a doctor should inform a patient that indigestion

can be a symptom of ischemia, Dr. Fifer said, “I don’t think it’s something that a doctor

would be required to inform a patient of. There are many, many things we can tell patients,

I can’t think of all of them. I don’t think that’s one of the things that would come to

mind.”48 Dr. Fifer further stated that he would “not necessarily” warn a patient upon

discharge to report to the hospital if he developed angina because “[t]here are too many

variables” to consider.49

           (42)    As the Superior Court summarized, “there was at least some deposition

testimony regarding what the risks and benefits of discharge were, giving a patient the

option to stay in the hospital and disclosing to a patient or advising a patient regarding

certain symptoms and whether they should be flagged for a patient . . . .”50 Dr. Fifer’s

disputed trial testimony appears consistent with these disputed statements.51 Thus, the


46
     See Fifer Depo Tr., supra note 16, at B44-45, B49.
47
     Id. at B44.
48
     Id. at B49.
49
     Id.
50
     Trial Tr., supra note 26, at B373.
51
     Id. at B377, B420-21, B434, B436.

                                                 17
Superior Court did not abuse its discretion by allowing Dr. Fifer to provide consistent

testimony relevant to informed consent and state at trial that he believed that Dr. West had

complied with the standard of care.

           (43)    Plaintiffs’ second argument on appeal is that the Superior Court abused its

discretion by allowing expert opinion testimony that had not been disclosed in violation of

Superior Court Civil Rules 16(e) and 26(e). They assert that the trial court’s refusal to

preclude the testimony in question rendered the expert witness disclosure requirement of

Superior Court Rules 16(e) and 26(e) meaningless. In advancing this argument, Plaintiffs

cite this Court’s language in Barrow v. Abramowicz,52 where we said that the trial judge’s

decision to admit previously undisclosed evidence “rendered the mandatory expert witness

disclosure requirement of Superior Court Rules 16(e) and 26(e) meaningless,”53 and was

“highly prejudicial and denied [the plaintiffs] a fair trial.”54 Relying on the policy behind

the disclosure rules, we stated in Barrow that “we cannot overlook the requirement that a

defendant doctor wishing to so testify must give notice to an opposing party to give that

party a fair opportunity to meet that ‘expert’ opinion on the same basis as any other expert

opinion from a nonparty witness.”55

           (44)    In Barrow, the defendants failed to disclose that the defendant doctor, Dr.

Abramowicz, would testify as an “expert” in the case—not just as a fact witness—and give


52
     931 A.2d 424 (Del. 2007).
53
     Id. at 435.
54
     Id.
55
     Id. at 433.


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an opinion on an ultimate issue in the case. The trial judge allowed Dr. Abramowicz to

testify that, even if there were cancer in the deceased’s left upper lobe, “a failure to so

report could not have produced a timely, lifesaving diagnosis and treatment plan.”56 But,

given that the defendants never identified the doctor as an expert witness, the plaintiffs

were deprived of the opportunity to respond with an expert of their own on the same issue.

Moreover, we noted that “[t]he significance of Dr. Abramowicz’s noncompliance is

enhanced because his pretrial testimony on the underlying causation issue contradicted his

trial testimony.”57

           (45)    We again emphasize the importance of complying with the disclosure rules,

but nonetheless observe that Barrow is distinguishable from the facts in this case. In

Barrow, the lack of notice that Dr. Abramowicz would testify as an expert—and do so on

the issue of causation—left the plaintiffs without any expert to rebut Dr. Abramowicz’s

testimony. Here, Defendants timely identified Dr. Fifer as their standard of care expert,

and the jury was able to consider evidence from both parties given that Plaintiffs had their

own standard of care expert. Moreover, Plaintiffs’ deposition of Dr. Fifer revealed at least

some of his opinions concerning Dr. West’s compliance with the informed-consent

standard of care. According to the trial court, “there was at least some deposition testimony

regarding what the risks and benefits of discharge were, giving a patient the option to stay

in the hospital and disclosing to a patient or advising a patient regarding certain symptoms


56
     Id. at 434.
57
     Id.


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and whether they should be flagged for a patient . . . .”58 Further, Defendants’ disclosures

provided that Dr. Fifer “may address and/or rebut any testimony provided by Plaintiffs’

experts.” Thus, the disclosure statement and deposition together gave Plaintiffs notice that

Dr. Fifer would testify as an expert and would be prepared to respond to questions

concerning the issue of informed consent—in contrast to Barrow, where there was no such

warning.

          (46)      Further, unlike Dr. Abramowicz’s testimony in Barrow, Dr. Fifer’s trial

testimony did not contradict his pretrial testimony. Dr. Fifer’s testimony at trial that “there

was no requirement[ ] to keep the patient in the hospital and that Dr. West fulfilled all of

the standard of care requirements”59 was consistent with Defendants’ disclosures that stated

that “[i]t is Dr. Fifer’s opinion that Dr. West complied with the applicable standards of care

at all times hereto.”60

          NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court be, and the same is hereby, AFFIRMED.

                                                    BY THE COURT:


                                                    /s/ Karen L. Valihura
                                                    Justice




58
     Trial Tr., supra note 26, at B373.
59
     Id. at B377.
60
     Defendants’ Expert Disclosure, at A103.

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