       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY

JEAN F. HONEY,                  :
                                :              C.A. No: K13C-05-018 RBY
                  Plaintiff,    :
                                :
      v.                        :
                                :
BAYHEALTH MEDICAL CENTER, INC., :
a Delaware corporation, and     :
ERIC M. HITCHCOCK, D.O.,        :
                                :
                  Defendants.   :


                       Submitted: November 20, 2014
                        Decided: January 23, 2015


  Upon Consideration of Defendants’ Motion in Limine to Exclude Evidence of
               Bayhealth’s or its agents’ Medical Negligence
              GRANTED IN PART and DENIED IN PART

Upon Consideration of Defendants’ Motion in Limine to Preclude Conversations
          Relating to an offer or Promise to Pay Medical Expenses
                                 GRANTED

  Upon Consideration of Defendants’ Motion in Limine to Limit Testimony by
                         Ronald J. Bagner, M.D.
                                DENIED

Upon Consideration of Defendants’ Motion in Limine to Preclude Postoperative
                         Conversations of Apology
             GRANTED IN PART and DENIED IN PART


                                  ORDER
William D. Fletcher, Jr., Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware
for Plaintiff.

James E. Drnec, Esquire, and Melony R. Anderson, Esquire, Balick & Balick, LLC,
Wilmington, Delaware for Defendant Bayhealth Medical Center, Inc.

Bradley J. Goewert, Esquire, and Lorenza A. Wolhar, Esquire, Marshall Dennehey
Warner Coleman & Goggin, Wilmington, Delaware for Defendant Eric M. Hitchcock,
D.O.



Young, J.




                                        2
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

                                  SUMMARY
       Jean Honey (“Plaintiff”) alleges she suffered both temporary and permanent
injuries at the hands of Dr. Eric M. Hitchcock, D.O. (“Dr. Hitchcock”), while
undergoing a procedure known as laparoscopic cholecystectomy. This surgery was
performed at Bayhealth Medical Center, Inc.’s (“Bayhealth,” and together with
Hitchcock, “Defendants”) facility in Milford, DE. Plaintiff filed a medical negligence
suit against Dr. Hitchcock, and also against Bayhealth, under a theory of respondeat
superior.
       During the course of discovery, evidence was uncovered regarding Plaintiff’s
medical condition and medical expenses, during both the operative and post-operative
periods. Defendants move to preclude any use of some of this evidence by their five
motions in limine: 1) motion in limine to exclude evidence of Bayhealth’s or its
agents’ medical negligence; 2) motion in limine to preclude evidence of medical
expenses exceeding those paid by Medicare; 3) motion in limine to preclude
conversations relating to an offer or promise to pay medical expenses; 4) motion in
limine to limit testimony of Ronald J. Bagner, M.D.; and 5) motion in limine to
preclude postoperative conversations of apology.
       Defendants’ first motion in limine concerns evidence obtained from the
deposition testimonies of Plaintiff and Paul Plaisted, her son, which Defendants claim
improperly allege direct negligence on the part of Bayhealth. As per Defendants, the
claim against Bayhealth sounds in vicarious liability. The Court GRANTS
Defendants’ motion in part, and DENIES Defendants’ motion in part. Only certain
portions of these deposition testimonies directly assert negligence on the part of

                                          3
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

Bayhealth. These identified sections are, thus, inadmissible. However, the remaining
sections (which, for example, generally describe Plaintiff’s condition while under the
care of Bayhealth and its staff) are admissible.
       The Court has, by letter dated January 6, 2015, instructed the parties to provide
additional analysis and support regarding their respective positions on Defendants’
second motion in limine. Until that time, the Court withholds its decision.
       The parties are in agreement concerning Defendants’ third motion in limine.
The deposition testimonies recounting an alleged offer by Dr. Hitchcock, to pay for
Plaintiff’s medical care are inadmissible, pursuant to D.R.E. 409. Defendants’ motion
is, therefore, GRANTED.
       The Court finds that the Defendants’ briefing concerning their fourth motion
in limine lacks sufficient support. Although Defendants claim that certain opinions
espoused by Dr. Ronald Bagner, M.D. (“Dr. Bagner”) in his deposition testimony
were not properly disclosed to them, they do so without specific citations to the
supposedly offending sections. As an impartial party, it is not the Court’s role to
formulate the Defendants’ argument for them, by combing through Dr. Bagner’s
testimony, searching for opinions Plaintiff failed to disclose timely, prior to the
deposition. The Court DENIES Defendants’ motion.
       Finally, the Court GRANTS in part, and DENIES in part, Defendants’ fifth
motion in limine. Defendants seek to exclude any use or reference to portions of
Plaintiff’s and her son’s depositions, which reveal a claimed apology expressed by
Dr. Hitchcock. Defendants cite to 10 Del. Code § 4318(b), also know as the “apology
statute,” which excludes from evidence manifestations of contrition, remorse, or

                                           4
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

benevolence, on the part of allegedly negligent healthcare providers. Excepted from
this statute, are direct admissions of fault. Given the lack of Delaware authority
interpreting the apology statute, this Court follows the well-reasoned lead of extra-
jurisdictional courts reviewing their own similarly worded statutes, in finding that
within a larger apology, can be found admissions of fault. The identified purported
statements of Dr. Hitchcock, constituting admissions of fault are, therefore,
admissible, even if found in a broader expression of apology.
                              FACTS AND PROCEDURES
       On March 1, 2012, Plaintiff underwent a laparoscopic cholecystectomy at
Bayhealth’s Milford Memorial Hospital, performed by Dr. Hitchcock. Plaintiff
alleges that the surgery resulted in a urinary bladder laceration, leading to further
complications from an undetected post-operative intra-abdominal hemorrhage. Dr.
Hitchcock’s negligent conduct in performing the surgery, is purported to be the
cause of Plaintiff’s injuries. Plaintiff claims she suffered from immense pain and
suffering, as well as having endured injuries to her gastrointestinal and urinary
systems.
       On May 16, 2013, Plaintiff filed a medical negligence action against Dr.
Hitchcock and Bayhealth. Plaintiff’s Complaint alleges $217,437.50 in damages
stemming from Plaintiff’s injuries, as well as additional medical expenses in the
future. At the time of Plaintiff’s surgery, she was enrolled in a Medical Advantage
program administered by a third party, Bravo Health, Inc. (“Bravo Health”). Bravo
Health is alleged to have covered the cost of these healthcare charges.
       Since the filing of Plaintiff’s suit, extensive discovery has taken place,

                                           5
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

including the depositions of Plaintiff, her son, and Plaintiff’s expert, Dr. Bagner.
These testimonies revealed certain alleged factual circumstances in the operative
and post-operative period, which form the bases of the motions presently before
the Court. Significantly, the depositions detail certain purported conversations
between Dr. Hitchcock, Plaintiff, and members of Plaintiff’s family, regarding her
medical condition.
                                        DISCUSSION
       As noted, Defendants bring a total of five motions in limine seeking to exclude
any use of or reference to certain evidence relating to Plaintiff’s malpractice suit. The
Court addresses each in turn.
I. Motion to Exclude Evidence of Bayhealth’s or its Agents’ Medical Negligence
       Defendants’ first motion in limine concerns evidence obtained primarily from
deposition testimony, which alleges medical negligence on the part of Bayhealth, or
its agents other than Dr. Hitchcock (“other agents”), in treating the Plaintiff. In
particular, Defendants object to the testimony of Plaintiff and of Plaintiff’s son, Paul
Plaisted, asserting negligence on the part of Bayhealth and of its agent, Dr. Harvey
Lee.1 Defendants contend that such evidence should be excluded, as Plaintiff’s direct
claim is solely against Dr. Hitchcock. Bayhealth is allegedly vicariously liable, not
directly liable to Plaintiff. Defendants further aver that if Plaintiff wishes to add a
direct claim of medical negligence against Bayhealth, or one of its other agents, she

       1
         Plaintiff testified that Dr. Lee failed to diagnose her condition in a timely fashion, and
her son testified that Bayhealth did not properly clean Plaintiff’s room, leading to further medical
complications. Furthermore, in Plaintiff’s Answer to Defendants’ Interrogatory No. 55, she
alleges negligence on the part of both Bayhealth and its other agents.

                                                 6
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

must first meet the statutory requirements underlying a medical negligence claim.
Specifically, Plaintiff’s claims of medical negligence must be supported by expert
testimony, pursuant to 18 Del. Code § 6853(e). Defendants allege that any claim
against Bayhealth or its other agents, currently lacks such expert support.
Alternatively, even if the allegations of negligence were to have proper statutory
foundation, Defendants argue that any such evidence should be excluded as
irrelevant, which would serve only to confuse the jury as to the issue of negligence.
       Plaintiff does not dispute Defendants’ assertion that she is pursuing a direct
medical malpractice claim solely against Dr. Hitchcock. Instead, Plaintiff asserts that
the testimonies of Plaintiff and of her son, regarding the actions of Bayhealth and its
other agents, are admissible as relevant to Plaintiff’s condition, following the alleged
malpractice committed by Dr. Hitchcock. It is Plaintiff’s position that this evidence
does not serve to create Bayhealth’s or its other agents’ direct liability, but rather to
exemplify the types of damages resulting from Dr. Hitchcock’s negligence. That is
not persuasive.
       It is true that the threshold burden of proving relevancy is low: “[t]o be
admissible, evidence must be relevant, meaning its has any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”2 However, this
broad definition of relevance is tempered by the exclusionary rule of evidence,
recognizing that certain testimony might confuse the jury, unfairly prejudicing the


       2
          Slicer v. Hill, 2012 WL 1435014, at *5 (Del. Super. Ct. Apr. 20, 2012) (internal
citations omitted); see also D.R.E. 401.

                                                7
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

party against whom it is offered.3 Testimony by either the Plaintiff or her son that
speaks to her medical condition following the procedure performed by Dr. Hitchcock,
is relevant to the central issues in this case – specifically the extent of Plaintiff’s
damages. However, the precise testimonies to which Defendants cite are troublesome
to this Court as they, in non-subtle terms, allege negligence on Bayhealth’s and Dr.
Lee’s part.4 These testimonies do more than simply portray Plaintiff’s general
condition, after the allegedly botched operation. As such, there is an acute possibility
a jury would be confused by the use of the term “negligence” with respect to
Bayhealth, and its other agents, found in the evidence at issue. If the Plaintiff, as she
asserts, does limit her direct liability claim to Dr. Hitchcock, she must be sensitive to
this possibility.
       On the other hand, Defendants move to exclude all current and future
testimony, or other evidence, concerning Plaintiff’s treatment by Bayhealth or its
other agents. This request is much too broad in its scope. While the specific evidence
to which Defendants point, those portions of the testimonies directly alleging


       3
          See e.g., Langelle v. Bell Helicopter Textron, 2014 WL 5038142 at *12 (Del. Super. Ct.
Oct. 6, 2014) (“the Court must exclude even relevant evidence when 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”) (internal citations omitted); see also D.R.E. 403.
       4
         For example, Plaintiff’s Answer to Interrogatory No. 55 plainly states: “Defendant
Bayhealth’s medical staff were negligent in their care of Plaintiff during her hospital stay at
Milford Memorial Hospital by not timely cleaning her bed and room, and by almost
administering incorrect medication, and by their failure to respond to complaints from Plaintiff
and her family about the quality of her care.”Defendant Bayhealth’s Motion in Limine, dated
November 5, 2014, at ¶ 3.

                                                8
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

negligent medical treatment, do create too high a risk of jury confusion, to exclude
all references to the care Plaintiff received from any agent other than Dr. Hitchcock,
is over-inclusive. Defendants’ motion is, therefore, GRANTED in part and DENIED
in part. The specific portions of the testimonies referring to any negligence on the part
of Bayhealth, or its other agents are excluded.5 With respect to the portions that
simply mention Plaintiff’s condition, for example, the development of an abscess, or
the mere fact that she was treated by Dr. Lee, the Defendants’ motion is denied.
Regarding Defendants’ motion concerning all future testimony, this is likewise
denied. The Court will not speculate as to the substance of future testimony.
Defendants are free to bring up any further admissibility challenges as the testimonies
occur.
II. Defendants’ Motion in Limine to Preclude Evidence of Medical Expenses
Exceeding Those Paid by Medicare
         The Court withholds its decision concerning Defendants’ second motion in
limine, pending the parties’ response to this Court’s Letter, dated January 6, 2015.
The Court will issue its ruling on the second motion in limine, in due course.
III. Defendants’ Motion in Limine to Preclude Any Conversations Relating to an
Offer or Promise to Pay Medical Expenses
         Defendants root their third motion in limine in D.R.E. 409. In her response to
Defendants’ motion, Plaintiff has indicated that she is in agreement with their


         5
          Specifically, Plaintiff’s Answer to Interrogatory No. 55 is excluded in its entirety.
Plaintiff’s references or answers in the affirmative to the term “negligence” on the part of
Bayhealth or Dr. Lee in her deposition testimony are also excluded.

                                                  9
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

contentions, and does not object. Defendants’ motion is well taken. D.R.E. 409 is an
exclusionary rule, denying the admissibility of evidence constituting an offer or
promise to pay medical expenses.6 By their motion, Defendants seek to exclude
portions of Plaintiff’s deposition testimony, in which she recounts an alleged
conversation between Dr. Hitchcock and herself, wherein he allegedly considered
paying for Plaintiff’s medical bills. Such a statement, if made, would fall squarely
within the territory of D.R.E. 409. Thus, the Court GRANTS Defendants’ unopposed
motion. Any evidence of an offer or promise made by Dr. Hitchcock, to cover the
costs of Plaintiff’s medical care, is inadmissible under D.R.E. 409.
IV. Defendants’ Motion in Limine to Limit the Testimony of Ronald J. Bagner,
M.D.
       Pursuant to their fourth motion in limine, Defendants move to preclude the
admission of certain opinion testimony, arising from Dr. Bagner’s deposition.
Defendants take issue with statements made by Dr. Bagner concerning what is termed
“additional injuries,” allegedly caused by the procedure performed by Dr. Hitchcock.7
It is Defendants’ contention that these additional injuries, as the subject matter of Dr.
Bagner’s expert testimony, had not been revealed prior to the statements made in his
deposition. Defendants aver that, as a prerequisite to admissibility, the content of an



       6
          D.R.E. 409 provides in relevant part: “evidence of offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the
injury.”
       7
           Defendants’ Motion in Limine to Limit the Testimony by Ronald J. Bagner, M.D., at ¶
2.

                                                10
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

expert’s opinion must be fully disclosed prior to trial.8 Furthermore, according to
Defendants, such disclosure is to be made prior to such expert’s discovery
deposition.9 Having failed to make such revelations under the proper procedures,
Defendants argue that Dr. Bagner’s testimony, with regard to the additional injuries,
is inadmissible.
       Plaintiff responds to Defendants by listing various instances in which Plaintiff
forewarned Defendants of the contents of Dr. Bagner’s testimony in general. Notably,
Plaintiff does not provide evidence that he disclosed Dr. Bagner’s opinion, regarding
the additional injuries Defendants are concerned with. Instead, Plaintiff gives
examples of other instances in the discovery process where the allegation of these
additional injuries was made.
       However, Defendants fail to point to the specific portions of Dr. Bagner’s
testimony to which they object. Indeed, in footnote no. 2 to their motion, Defendants
indicate that a copy of Dr. Bagner’s deposition testimony, as well as citations to the
offending opinions, will be provided at a later time. Although by letter dated
November 17, 2014, Defendants attached a copy of the entire deposition transcript,
they did not provide this Court with the promised citations. The Court is, therefore,
left with the term “additional injuries,” without any specific guidance as to where in
Dr. Bagner’s testimony such ailments are referred to. There is concern that, if this
Court were to review the deposition transcript in its entirety, searching for what


       8
           Id., at ¶ 3 (citing Russell v. K-Mart Corp., 761 A.2d 1, 4 (Del. 2000)).
       9
         Id., ¶ 4 (citing Sammons v. Doctors For Emergency Servs., P.A., 913 A.2d 519, 529
(Del. 2006)).

                                                  11
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

Defendants refer to as “additional injuries,” the Court would cross the line of
impartiality, and, in essence, formulate Defendants’ argument for them. If Defendants
wish this Court to consider their motion in limine, the allegedly offending opinions
found in Dr. Bagner’s testimony, must be pinpointed, and Defendants’ position
further developed. Defendants’ present motion is, therefore, DENIED.
V. Defendants’ Motion in Limine to Preclude Post Operative Conversations of
Apology
       Defendants’ final motion in limine brings into operation 10 Del. Code §
4318(b), a statute whose substance has led other jurisdictions to refer to their own
similar statutes as “apology statute[s].”10 Pursuant to 10 Del. Code § 4318(b), “any
statement...made by a health care provider...that expresses apology, sympathy,
compassion, condolence, or benevolence” in reference to the allegedly negligent
medical outcome for which the provider is being sued, is inadmissible. The exception
to this rule is the “admission of liability or fault” by the health care provider.11
       The parties’ dispute centers upon the deposition testimonies of Plaintiff and her
son, which recount alleged remarks made by Dr. Hitchcock. According to these two
testimonies, Dr. Hitchcock came to Plaintiff’s bedside during the post-operative
period to express his condolences. The disagreement between the parties concerns
whether Dr. Hitchcock’s supposed contrition constituted an apology, deemed
inadmissible by the governing statute, or was rather an admission of fault or liability.


       10
        See Davis v. Wooster Othropaedics & Sports Med., Inc., 952 N.E.2d 1216 (Ohio Ct.
App. 2011).
       11
            10 Del. C. § 4318(b).

                                            12
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

       The Court has been unable to find any Delaware case law interpreting this
statute – in particular the distinction between what constitutes an “apology” and what
constitutes “an admission of fault or liability.” Moreover, this would appear to be a
highly factually based, case-by-case determination. It has, therefore, been instructive
to look beyond Delaware to other jurisdictions. In particular, this Court is guided by
the reasoning of the Davis v. Wooster Orthopaedics & Sports Med., Inc. Court, in
contemplating the apology-admission dichotomy.12 The Davis Court was faced with
a slightly different scenario, in that the Ohio statute in question, did not expressly
except admissions of fault. However, in coming to the finding that the Ohio
Legislature intended to except admissions, the Davis Court reviewed the similar
“apology statutes” of 36 states (including Delaware), reasoning that the vast majority
included express language to such effect.13 Of great aid to this Court in the case at
bar, is the Davis Court’s review of the California “apology statute”:
    [t]he portion of statements or benevolent gestures expressing sympathy or a
    general sense of benevolence relating to the pain...of a person...shall be
    inadmissible as evidence of an admission of liability in a civil action. A
    statement of fault, which is part of, or in addition to, any of the above shall
    not be inadmissible...14
       The latter part of this analysis is of particular relevance to the testimonies
highlighted by Defendants, as implicating 10 Del. Code § 4318(b). Much of what
Plaintiff and her son testified to included statements by Dr. Hitchcock such as, “I am


       12
            952 N.E.2d at 1216.
       13
            Id., at 1219.
       14
            Id. (emphasis added)(internal quotations omitted).

                                                 13
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

so sorry, would you please forgive me...” as well as, “I am so sorry [for] what I have
done and, believe me, I will be here by her side to take her back to where she was
before.”15 The Court finds such remarks to be more in line with an “apology,” rather
than an admission of fault.16 However, Plaintiff’s testimony further claims that Dr.
Hitchcock allegedly stated that the “cut” he made was a “miscalculation.”17 In
addition, her son alleges Dr. Hitchcock to have stated that he“made a mistake.”18
These statements, unlike the generalized contrition allegedly expressed by the
previous statements, are more directly an admission of fault.19 If accurate, Dr.
Hitchcock admitted to making a “miscalculation” and a “mistake.” Here, again, the
Davis Court’s guidance is helpful. As noted in Davis, within an ordinary statement
of apology, such as the “I am so sorry [for] what I have done,” referred to above, can
be “a statement of fault, which is part of, or in addition to” broader contrition.20 Such


       15
           Defendants’ Motion in Limine to Preclude Postoperative Conversations of Apology, at
¶ 3 (citing Exhibit A to Defendants’ motion, at 50:22-224; 51:1-7).
       16
           See e.g., Schaaf v. Kaufman, 850 A.2d 655, 664 (Pa. Super. Ct. 2004) (“when hearing
that someone’s relative has died, it is common etiquette to say ‘I’m sorry,’ but no one would take
that as a confession of having caused the death”).
       17
            Id.
       18
            Id., at ¶4 (citing Exhibit B to Defendants’ motion, at 28:16-24; 29:1-24; 30:1-24).
       19
         See e.g., Lawrence v. Mountain Star Healthcare, 320 P.3d 1037, 1049 (Utah Ct. App.
2014) (court analyzing healthcare provider’s statements under a similar apology statute as the one
found in Delaware held, “the statements that there had been an accident or complication and that
‘we messed up’ do not fall within the categories” of the apology statute as they are admissions of
fault).
       20
        Davis, 952 N.E.2d at 1219; see also Strout v. Cent. Maine Med. Ctr., 94 A.3d 786, 789
(Me. 2014) (court analyzing Maine’s apology statute, which is similarly worded to Delaware’s,

                                                  14
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

is the Court’s interpretation of Plaintiff’s and her son’s account of Dr. Hitchcock’s
remarks. The reference to a “miscalculation,” and a “mistake,” are – of accurate –
direct admissions of fault, within a larger expression of apologetic angst.
       The Court, therefore, GRANTS Defendants’ motion in part, and DENIES
Defendants’ motion in part. Specifically, the references to a “miscalculation,” and
“mistake,” are admissible as the exception to 10 Del. Code § 4318(b). Any of the
other statements pinpointed by Defendants, for example “I am so sorry [for] what I
have done” are inadmissible under 10 Del. Code § 4318(b).
                                        CONCLUSION
       For the foregoing reasons this Court:
1) GRANTS in part, and DENIES in part, Defendants’ motion in limine to
exclude evidence of Bayhealth’s or its agents’ medical negligence;
2) Awaits further support from the parties concerning Defendants’ motion in
limine to preclude evidence of medical expenses exceeding those paid by
Medicare;
3) GRANTS Defendants’ unopposed motion in limine to preclude conversations
relating to an offer or promise to pay medical expenses;
4) DENIES Defendants’ motion in limine to limit testimony of Ronald J. Bagner,
M.D.; and
5) GRANTS in part, and DENIES in part, Defendants’ motion in limine to
preclude postoperative conversations of apology.


reasoned “[n]othing in the language of the statute suggests that statements of fault are
inadmissible if they are accompanied by expressions of apology or benevolence”).

                                                15
Honey v. Bayhealth, et. al.
C.A. No.: 13C-05-018 RBY
January 23, 2015

       IT IS SO ORDERED.
                               /s/ Robert B. Young
                                          J.
RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
     File




                              16
