IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
. I.D. Nos. 1709017188 and
v. : 17 1 1012278
Kent County
GRACE I. YU a/k/a I-YIN LIU
a/k/a GRACE LIU,
Defendant.

Submitted: October 22, 2018
Decided: November 7, 2018

ORDER
Upon Defendant’s Motion in Limine

To Exclude Testimony of Dr. Giordano.
Granted in Part,' Denz'ea' in Part.

Laura N. Najemy, Esquire of the Department of Justice, Wilmington, Delaware;
attorney for the State.

Eugene J. Maurer, Jr., Esquire and Elise K. Wolpert, Esquire of Eugene J. Maurer, Jr.,
P.A., Wilmington, Delaware; attorneys for the Defendant.

VVITHAM, R.J.

State v. Grace I. Yu
I.D. No. 1709017188, 1711012278
November 7 , 2018

Upon consideration of the Motion in Limine filed by the Defendant, Dr. Grace
I. Yu,1 the opposition of State, oral argument, and the record of the case, it appears
that:

l. The Defendant is a licensed dentist in Delaware and is licensed to administer
Nitrous Oxide (N20) to patients.

2. The 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.2

3. On 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.

4. The State disclosed that it intended to ca11 Dr. Lawrence Giordano, a board
certified dentist in the field of oral and maxillofacial surgery, as an expert Witness for
the State.

5. In 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”3 that appears to be the basis of his testimony. The report offered

 

1 The Defendant is known as Dr. Grace I. Yu, I-Yu Liu, and/or Grace Liu.

2 DMAP Provider Policy Manual at § 4.2.1.2. See also 24 Del. Aa'min. C. § 1100-7.2.1.
(Emphasis added.)

3 D. Mot. Ex. B.

State v. Grace I. Yu
I.D. No. 1709017188,1711012278
November 7, 2018

the following conclusions:
[A]. [Defendant] allows many (most?) of her assistants to begin the
administration of N20[;]
[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 N20 inhalation sedation to her patients.4
6. At 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. § 913A5 and the
Defendant’s motion in limine in regard to Giordano’s proposed testimony.
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 1 1, 2018.6 Despite the fact that the Defendant had nearly

 

4 Id. at 4 11 13.
5 Indictment, State v. Grace Liu, Nos. 1709017188 and 1711012278.

6 Pretrial Scheduling Order at 11 6.

State v. Grace I. Yu
I.D. No. 1709017188,1711012278
November 7, 2018

four months to complete her motion, she untimely filed on July 19, 2018.7 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, 2018.8

8. The Court has broad discretion to enforce its rules of procedures and pretrial
orders.9 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 the merits.

9. The 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.10 Here, Giordano is the State’s witness. Thus, the State carries that
burden.

1 0. Expert opinion evidence under Delaware law is governed by Delaware Rule

 

7 At the hearing, the Defendant claimed that she did not think the May 1 1, 2018 deadline was
the deadline and concedes that she should have verified with the State.

8 At the hearing, the State contended that it filed its response on August 20, 2018. However,
the response was marked by the Prothonotary on August 22, 2018. The Court has found no
alternative explanation for this, other than it was received by the Court on August 22.

9 Miller v. State, 2010 WL 3328004, at *2 (Del. Super. 2010).

10 Pavey v. Kalish, 2010 WL 32943 04, at *3 (Del. 2010) (citing Sturgis v. Bayside Health
Ass'n, 942 A.2d 579, 584 (Del. 2007) quoting Bowen v. E.I. Dupont Nemours & Co., Inc., 906 A.2d
787, 795 (Del. 2006)).

State v. Grace I. Yu
I.D. No. 1709017188, 1711012278
November 7, 2018

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 testify thereto in the form of an opinion or otherwise, if
1) the testimony is based upon sufficient facts or data;
2) the testimony is the product of reliable principles and methods; and
3) the witness has applied the principles and methods reliably to the
facts of the case.
11. To determine the admissibility of an expert opinion under Daubert11 and
D.R.E. 702, the Court must consider a list of non-exhaustive factors including:
l) witness' qualifications as an expert based on knowledge, skill, experience,
training or education;12
2) the evidence's relevance;13
3) the opinion is based upon information reasonably relied upon by experts in
the particular field;14
4) the testimony will assist the trier of fact to understand the evidence or to

determine a fact in issue;15 and

 

11 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
12 Nelson v. State, 628 A.2d 69, 74 (Del. 1993); D.R.E. 702.

13 Id.; D.R.E. 401 and 402.

14 Ia'.; D.R.E. 703.

15 Ia'.; D.R.E. 702.

State v. Grace I. Yu
I.D. No. 1709017188,1711012278
November 7, 2018

5) the testimony will not create unfair prejudice or confuse a jury.16

12. Turning to the merits, although both parties acknowledge Giordano as an
expert and qualified dentist, the Defendant contends that Giordano’s opinion is not
relevant, nor would the testimony assist the trier of fact. The Defendant further
asserts that in the event the Court finds Giordano’s testimony relevant, the testimony
creates unfair prejudice and confuses the jury because Giordano’s testimony, and the
report his testimony is based on, centers around uncharged Child Endangerment
charges.17 The State counters that Giordano “can opine that, from a reasonable
degree of medical certainty, per state regulations, [the Defendant] could not allow her
[unauthorized] dental assistants to administer N2O to patients” thus establishing
relevancy. Additionally, the State asserts the report serves to refute any defense
regarding the theory that the Defendant, not her assistants, administered the N2O.18

13. Only relevant evidence is admissible at trial, or in other words, evidence
is only admissible when it demonstrates “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less

3319

probable than it would be without the evidence. The Court, in evaluating

 

16 Nelson, 628 A.2d at 74; D.R.E. 403
17 D. Mot. at 5.
18 Id. The State, at oral argument, did not directly raise this point.

19 D.R.E. 401.

State v. Grace I. Yu
I.D. No. 1709017188,1711012278
November 7 , 2018

relevance, considers both materiality and probative value.20 Materiality refers to the
relationship between the propositions for which the evidence is offered and the issues
in the case, while probative value refers to the tendency of the evidence to establish
the proposition that it is offered to prove.21

14. In his report, Giordano states, in laymen’ s terms, an explanation of the N2O
administration process. The State asserts that the N2O administration testimony is
relevant and helpful to the jury. Specifically, the State argues that the precise N2O
administration process must be understood since it can show that the Defendant did
not administer the N2O to patients, but yet billed DMAP as if she had. I disagree.
As it pertains to the alleged 11 Del. C. § 913A violation, the Court finds Giordano’s
proposed testimony is relevant in part and irrelevant in part.

15. Section 913A provides a person is guilty of health-care fraud when the
person knowingly:

1) Presents or causes to be presented any fraudulent health-care claim to any
health-care benefit program; or

2) Engages in a pattern of presenting or causing to be presented fraudulent
health-care claims to any health-care benefit program.22

16. Here, the Defendant’s alleged violation of section 913A is not based on any

aspect of the precise administration of N20. Rather, the section 913A charges are

 

20 State v. Roberts, 2018 WL 2085196, at *6 (Del. Super. May 2, 2018) (citing Galloway v.
smze, 65 A.3d 564, 569-70(De1. 2013)).

21 Roberts, 2018 WL 2085196, at *6 citing Galloway, 65 A.3d at 569.

22 ii Del_ c. § 913A(a)(i)-(2).

State v. Grace I. Yu
I.D.No.1709017188,1711012278
November 7, 2018

based on the allegation that the Defendant did not administer the N2O at all, and then
knowingly billed DMAP as if she had personally performed the N2O administration
If the State had continued to pursue Child Endangerment charges against the
Defendant, then the precise step-by-step procedure may have been both material and
probative to the elements of those violations. However, since the State chose not to
pursue those charges and, as a result any detailed testimony regarding N20
administration procedures is neither material nor probative to the Defendant’ s section
913A charges, it is thus irrelevant to the State’s case in chief.

17. However, the State also asserts that Giordano’s conclusions are based in
part on “every comment by the various [dental] assistants”23 and further “quantifie[s],
to some extent” that the Defendant’s assistants “many (most?) (sic) did turn on the
N2O.”24 Giordano’s testimony regarding any statement made by the Defendant’s
dental assistants to shed light on their actions, or lack of actions, regarding N20, is
relevant and ultimately, insightful to the trier of fact in their evaluation and
determination of whether the Defendant knowingly violated section 913A. The Court
finds that portion of Giordano’s testimony is material and probative, as it goes to the
very heart of the Defendant’s alleged section 913A violation, Thus, this portion of
Giordano’s testimony is relevant and admissible only in regard to whether the

Defendant knowingly presented or caused to be presented, fraudulent health-care

 

23 The State, at oral argument, stated Giordano had not interviewed any of dental assistants.
His review Was limited to medical documentation, police reports, and other notes.

24D. Mot. Ex. B at4,1113.

State v. Grace I. Yu
I.D. No. 1709017188,1711012278
November 7, 2018

claims to DMAP and that this alleged conduct constituted a pattern of presenting or
causing to be presented, fraudulent health care claims.

18. Since the Court finds a portion of Giordano’s testimony relevant, it now
turns to the second issue raised by the Defendant, whether the testimony is unfairly
prejudicial.25 Here, Dr. Giordano’s testimony would not create unfair prejudice.

19. Even marginally relevant evidence may be admissible at trial, provided its
probative value is not outweighed substantially by the danger of unfair prejudice,
confusions of the issues, or misleading the jury.26 D.R.E. 403 permits the Court to
exclude evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time or needless presentation of cumulative evidence.”27
“The determination of whether the probative value of a particular piece of evidence
is substantially outweighed by the danger of unfair prejudice is a matter which falls
particularly within the discretion of the trial judge, who has the first-hand opportunity
to evaluate relevant factors.”28

20. In this case, danger of unfair prejudice - that is, the danger that the jury will

consider the portions of Giordano’s testimony already deemed irrelevant - is not

substantially outweighed by the relevant portion’s value in establishing the State’s

 

25 The State did not respond to the Defendant’s D.R.E. 403 argument in its response.
26 Roberts, 2018 WL 2085196, at *6 (citing D.R.E. 403).
27 D.R.E. 403.

28 Gallaway, 65 A.3d at 571 (quoting Williams v. State, 494 A.2d 1237, 1241 (Del. 1985).

9

State v. Grace I. Yu
I.D. No. 1709017188,1711012278
November 7, 2018

case against the Defendant. In other words, by limiting the scope of the testimony,
the Court mitigates any potential prejudice on behalf of the Defendant and thus makes
it unlikely that a jury would factor the multiple uncharged counts of Child
Endangerment, into its deliberations, the basis of the Defendant’s D.R.E. 403
argument.

21 . The Court finds that only those portions of Giordano’s testimony regarding
whether the Defendant knowingly presented, or caused to be presented, fraudulent
health-care claims to DMAP constituting a pattern of presenting, or causing to be
presented, fraudulent health care claims in violation of l l Del. C. § 913A is relevant
and admissible The Court further finds that limiting the scope of Giordano’s
testimony to those relevant portions mitigates any potential prejudice.

22. For the above stated reasons, the Defendant’s Motion in Limine is
GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED.

   

Hon. iliam .
Resident Judge

WLW/dmh

oc: Prothonotary

cc: Laura N. Najemy, Esquire
Eugene J. Maurer, Jr., Esquire
Elise K. Wolpert, Esquire

10

