IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STACIA VICK and
CHADWICK VICK,
C.A. No. K17C-09-007 NEP
Plaintiffs, In and for Kent County
V.

DR. NASREEN KHAN and KHAN
OBSTETRICS AND GYNECOLOGY
ASSOCIATES, P.A.,

Defendants.

New Neue Nee” ee Nee” ee” ee “ee” ee” ee’ ee” ee’ ee”

Submitted: October 25, 2019
Decided: November 15, 2019

MEMORANDUM OPINION AND ORDER

Upon Former Defendants Bayhealth, Inc., Bayhealth Medical Center, Inc., and
Kent General Hospital's Motion in Limine to Preclude Any Evidence Regarding
Negligent Supervision and Training
DENIED AS MOOT

Upon Former Defendants Bayhealth, Inc., Bayhealth Medical Center, Inc., and
Kent General Hospital's Motion in Limine to Preclude Expert Testimony from
David Berry, M.D., Regarding Medical Ethics
DENIED AS MOOT

Upon Defendants Nasreen Khan, DO, and Khan Obstetrics and Gynecology
Associates, PA’s (Improperly named as Khan and Associates, PA), Motion in
Limine to Preclude Testimony and Evidence Unsupported by a Medical Expert
Causation Opinion
GRANTED

Upon Plaintiffs’ Motion to Preclude Bayhealth from Treating Danielle Teal as a
Client Instead of a Witness
DENIED AS MOOT

Upon Plaintiffs’ Motion to Limit the Number of Defendants’ Peremptory
Challenges
DENIED AS MOOT
Upon Plaintiffs’ Motion to Preclude Evidence of Plaintiff Stacia Vick’s Mental
State or Incompetency
DENIED AS MOOT

Upon Plaintiffs’ Motion to Preclude Evidence that Plaintiff Stacia Vick Assumed
the Risk or Gave Implied Consent for the Hysterectomy
DENIED AS MOOT

Upon Plaintiffs’ Motion to Preclude Evidence Regarding Plaintiff Stacia Vick’s
Immigration Status and Employment Status, and Either Plaintiff's Receipt of
Government Benefits
DENIED AS MOOT

Upon Plaintiffs’ Motion to Limit the Number of Defendants’ Experts to One Each
DENIED

Upon Plaintiffs’ Motion to Preclude Evidence Regarding the Care and Treatment
of Plaintiffs’Minor Child
DENIED

Upon Plaintiffs’ Motion to Preclude Questioning Regarding Privileged
Communications Between Plaintiffs
DEFERRED

Upon Plaintiffs’ Daubert Motion and Motion in Limine Regarding
David Schwartz, M.D.
DENIED

Upon Plaintiffs’ Daubert Motion and Motion in Limine Regarding
Daniel Small, M.D.
DENIED

Stacia Vick and Chadwick Vick, Plaintiffs, Pro se.

Thomas J. Marcoz, Jr., Esquire and Catherine M. Cramer, Esquire, Marshall,
Dennehey, Warner, Coleman & Goggin, for Defendants Nasreen Khan, DO and
Khan Obstetrics and Gynecology Associates, PA.

Primos, J.
Before the Court are several motions in limine including (1) a motion to
preclude any evidence regarding negligent supervision and training filed by
Defendants Bayhealth Inc., Bayhealth Medical Center, Inc., and Kent General
Hospital (hereinafter collectively “Bayhealth”); (2) a motion to preclude expert
testimony from Dr. Berry regarding the issue of medical ethics filed by Bayhealth
and joined in by Defendants Nasreen Khan, DO, and Khan Obstetrics and
Gynecology Associates, PA (hereinafter collectively the “Khan Defendants”); (3) a
motion to preclude testimony and evidence unsupported by a medical expert
causation opinion filed by the Khan Defendants; and ten (10) motions in limine filed
by Plaintiffs Stacia Vick and Chadwick Vick (hereinafter “Plaintiffs”), which will
be discussed in more detail below.

This opinion sets forth the Court’s decision on the motions following oral
argument on October 25, 2019. The Court refers the parties to its May 17, 2019,
Opinion and Order' on the dispositive motions and motions to strike for a recitation
of the facts and procedural history. The Court also refers the parties to that decision,
as Bayhealth was dismissed from the ensuing litigation upon a finding by this Court
that Plaintiffs are unable to demonstrate that Dr. Khan was acting as an agent or
apparent agent of Bayhealth, or advance any medical malpractice claims against
Bayhealth. Therefore, any motions directed to Bayhealth, including Plaintiffs’
motion to preclude Bayhealth from treating Danielle Teal as a client, or any motions
filed by Bayhealth and not joined in by the Khan Defendants, such as Bayhealth’s
motion to preclude evidence regarding negligent supervision or training, shall be
denied as moot.

The Court will begin its analysis by examining the motions in limine filed by

Bayhealth and the Khan Defendants. The Court will then address Plaintiffs’ various

 

' Vick v. Khan, 2019 WL 2177114 (Del. Super. May 17, 2019).
3
motions in limine beginning with the motions in limine that are now moot followed
by Plaintiffs’ remaining motions.
A. Bayhealth’s Motions in Limine

Bayhealth has filed two motions in limine, (1) to preclude any evidence
regarding negligent supervision and training, and (2) to preclude expert testimony
from Dr. Berry regarding the issue of medical ethics. Both of these motions should
be denied as moot.

Bayhealth’s motion regarding negligent supervision and training, as noted
supra, will be denied as moot because Bayhealth is no longer a party.

As to Bayhealth’s motion to preclude expert testimony from Dr. Berry
regarding the issue of medical ethics, in which the Khan Defendants joined, any
potential issue regarding medical ethics pertains to Plaintiffs’ original claim for lack
of informed consent. When Dr. Berry himself addressed the issue of medical ethics
in his deposition, he framed it in terms of Dr. Khan’s alleged failure to obtain Ms.
Vick’s consent before performing the hysterectomy.” Dr. Berry also stated that he
was “probably not the expert on that particular topic,’”? thus indicating that he would
likely not have qualified as an expert in the field of medical ethics. As the Court has
entered summary judgment on the informed consent claim, the motion is denied as
moot.

B. The Khan Defendants’ Motion in Limine

The Khan Defendants have filed a motion to preclude any testimony and
evidence unsupported by a medical expert, specifically regarding Ms. Vick’s
incontinence or bowels. The Khan Defendants argue that in order for Plaintiffs to
support a claim for medical negligence relating to Ms. Vick’s bowel incontinence,
dysfunction, and injury, Plaintiffs are required to present expert medical testimony

that Dr. Khan deviated from the standard of care in a manner that proximately caused

 

? Dr. Berry Dep. 13:16-25; 14:1-2.
> Id. at 85:25-86:1.
those conditions. As Plaintiffs have failed to do so, the Khan Defendants’ motion
will be granted.

On May 7, 2018, Plaintiff provided answers to the Khan Defendants’ written
discovery requests. Plaintiffs stated that Ms. Vick could not control her bowels
following the performance of the hysterectomy performed by Dr. Khan, and that Ms.
Vick still did not have full control over her bowels. On September 5, 2018, Ms.
Vick was deposed and testified that she suffered from incontinence and inability to
control her bowels and alleged that this was a result of negligence on the part of Dr.
Khan.

The Delaware Medical Malpractice Act requires that a plaintiff's claim for
medical malpractice be supported by expert medical testimony. 18 Del. C. § 6853(e)
provides that “[n]o liability shall be based upon asserted negligence unless expert
medical testimony is presented as to the alleged deviation from the applicable
standard of care in the specific circumstances of the case and as to the causation of
the alleged personal injury or death... .”4 Thus, Section 6853 specifically mandates
that before liability can be found in a medical malpractice action, the plaintiff bears
the initial burden of presenting expert medical testimony as to (1) the applicable

standard of care; (2) the alleged deviation from that standard; and (3) the causal link

 

* 18 Del. C. § 6853(e) provides three exceptions to the requirement that expert testimony must
support a claim for medical malpractice: “(1) [a] foreign object was unintentionally left within the
body of the patient following surgery; (2) [a]n explosion or fire originating in a substance used in
treatment occurred in the course of treatment; or (3) [a] surgical procedure was performed on the
wrong patient or the wrong organ, limb or part of the patient’s body.” None of these exceptions
are applicable to the present case. Therefore, Ms. Vick’s claim for medical malpractice must be
supported by expert medical testimony. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (“in the
absence of [the exceptions listed in 18 Del. C. § 6853(e)] ... a plaintiff's claim for medical
malpractice must be supported by expert medical testimony”) (emphasis in original).
5
between that deviation and the alleged injury.” Additionally, an expert must testify
to a reasonable medical probability as to each of the above elements.®

As previously held in the Court’s May 17, 2019, Opinion and Order, Plaintiffs
have failed to establish a prima facie case of medical negligence as to the
performance of the hysterectomy. Moreover, Plaintiffs have not provided any
evidence or testimony regarding Ms. Vick’s incontinence, bowel injury, or bowel
dysfunction, including her claims that her bowel was injured during the
hysterectomy or that she had incontinence or bowel dysfunction related to the
hysterectomy. In fact, Plaintiff's sole expert, Dr. Berry, has stated that he will not
be offering any testimony that Ms. Vick had any incontinence or bowel dysfunction
related to the hysterectomy:

Q: Now, a hysterectomy does not involve surgery on the bowel, does it?
A: Only inadvertently as a complication you could injure the bowel,

but there’s no intention and no goal to — it’s actually the goal to keep
the bowel out of your operative field.

Q: ... [H]ave you seen any indication that the bowel was injured during

the course of Dr. Khan’s procedure?
A: No.

Q: Are you gonna be offering any opinion at trial that Ms. Vick has
incontinence related to the hysterectomy?
A: No.

Q: Are you gonna be offering any opinion at trial that Ms. Vick has any
type of bowel dysfunction related to the hysterectomy?

A: Not that I’ve been provided any information for... .’

 

> 18 Del. C. § 6853; Russell v. Kanaga, 571 A.2d 724, 732 (Del. Super. 1990); O’Donald y.
McConnell, 858 A.2d 960, at *2 (Del. 2004) (TABLE).
° See Floray v. State, 720 A.2d 1132, 1136 (Del. 1998) (“Generally when an expert offers a
medical opinion it should be stated in terms of ‘a reasonable medical probability’ or ‘a reasonable
medical certainty.’”’) (citing Oxendine v. State, 528 A.2d 870, 873 (Del. 1987)).
7 Dr. Berry Dep. 87:4-24.

6
Here, it is clear that Dr. Berry will not be providing any testimony as to the
three elements of Section 6853 above. Moreover, Plaintiffs themselves admitted at
the oral arguments held on March 15, 2019, that they have no evidence of the
hysterectomy’s being performed negligently and that their argument pertains to a
lack of consent. Therefore, as no party has asserted any criticism of the manner in
which Dr. Khan performed the hysterectomy, and no evidence or testimony has been
provided to establish that Ms. Vick’s incontinence, bowel injury or bowel
dysfunction are related to the performance of the hysterectomy, the Khan
Defendants’ motion is granted.

The same reasoning would apply to any potential testimony by Dr. Berry
regarding other physical conditions experienced by Ms. Vick allegedly resulting
from the Khan Defendants’ negligence. In his deposition, Dr. Berry conceded that
he would be offering no testimony supporting a causal relation between the alleged
negligence and certain other potential physical conditions.®

In short, Dr. Berry will be precluded at trial from offering testimony regarding
a causal relation between the alleged negligence and any of these physical
conditions, or regarding any physical condition that he has not previously indicated,
in his expert report or his deposition, to have been causally related to the alleged
negligence.

C. Plaintiffs’ Motions in Limine

Plaintiffs have filed ten motions in limine, which include various arguments
against the Khan Defendants and Bayhealth. As stated above, any motions as to
Bayhealth are now moot following this Court’s decision on the dispositive motions.
Certain others of Plaintiffs’ motions are moot for different reasons. As to the
motions involving the Khan Defendants, the Khan Defendants have opposed each

of Plaintiffs’ motions based on the untimeliness of Plaintiffs’ filings. The Court

 

8 Td. at 87:25-88:18.
refers the parties to its decision on the dispositive motions and motions to strike,
which denied the Khan Defendants’ motion to strike Plaintiffs’ motions as untimely,
finding that Plaintiffs demonstrated excusable neglect and that the Khan Defendants
failed to show how they had been unduly prejudiced by the late submissions. The
Court will first dispose of Plaintiffs’ motions that are denied as moot before

addressing the other motions in limine.

1. Plaintiffs’ Motion to Preclude Bayhealth from Treating
Danielle Teal as a Client Instead of a Witness

Plaintiffs have filed a motion in limine to preclude Bayhealth from treating
Danielle Teal as a client instead of as a witness. The Court finds this motion to be
moot, and therefore denies it, because Bayhealth is no longer a party to the action.”

2. Plaintiffs’ Motion to Limit the Number of Defendants’
Peremptory Challenges

Plaintiffs filed this motion seeking to limit the number of peremptory
challenges for Defendants or, in the alternative, increase the number of peremptory
challenges for Plaintiffs. Plaintiffs argue that all Defendants should be treated as
one party for the purposes of using their peremptory challenges, as it would create
unfair prejudice to allow Defendants to have more peremptory challenges than
Plaintiffs simply because they are multiple parties.

As a general rule, Delaware Rules of Civil Procedure 47(c) states that “[e]ach
party shall be entitled to 3 peremptory challenges. Several defendants or several
plaintiffs may be considered as a single party for the purposes of making challenges,
or the court may allow additional peremptory challenges and permit them to be

exercised separately or jointly.”

 

” As noted by counsel for the Khan Defendants at oral argument on the motions in limine, Ms.
Teal will be called as a witness by the Khan Defendants at trial, and Bayhealth’s counsel will
presumably be present in the courtroom as counsel for Ms. Teal but will not otherwise be
participating in the proceedings.

8
In this case, Plaintiffs’ motion is moot, as Bayhealth is no longer a party to
these proceedings and, thus, not entitled to any peremptory challenges. Here, the
Khan Defendants are not seeking separate peremptory challenges for each remaining
Defendant, namely Defendants Nasreen Khan, DO, and Khan Obstetrics and
Gynecology Associates, PA. Rather, the Khan Defendants have argued in their
written response that the parties should be grouped in the manner in which the case
has been litigated, with the Khan Defendants receiving three peremptory challenges
and Bayhealth receiving three peremptory challenges. However, as all claims
against Bayhealth have been dismissed pursuant to this Court’s May 17, 2019,
Opinion and Order, the Court finds this issue to be moot. The Khan Defendants, as
one party, and Plaintiffs, as one party, shall each receive three peremptory
challenges.

3. Plaintiffs’ Motion to Preclude Evidence of Plaintiff Stacia
Vick’s Mental State or Incompetency

Plaintiffs have filed a motion in limine to preclude the Khan Defendants and
their experts from suggesting that Ms. Vick was incompetent during the course of
the surgical procedures or from attacking Ms. Vick’s mental state. Plaintiffs argue
that allowing such evidence or testimony would create unfair prejudice and confuse
and mislead the jury, particularly as neither Defendants nor Defendants’ experts are
mental health experts, and are therefore unqualified to testify as to issues dealing
with competency.

This Court previously granted summary judgment for the Khan Defendants
on the issue of informed consent. Ms. Vick’s mental status or competency goes to
this same issue of consent and whether she was able to properly rescind consent for
the performance of the hysterectomy. The Khan Defendants conceded at oral
argument that they will not be offering evidence regarding Ms. Vick’s mental state
or incompetency, as the issue of consent is no longer part of the case. Therefore,

Plaintiffs’ motion is moot and is denied as such.

9
4. Plaintiffs’ Motion to Preclude Evidence that Plaintiff Stacia
Vick Assumed the Risk or Gave Implied Consent for the
Hysterectomy

For the same reasons as stated above, this motion is denied as moot. Plaintiffs
filed this motion arguing that Defendants and Defendants’ expert witnesses should
be precluded from presenting any evidence or testimony that Ms. Vick consented in
any way to the hysterectomy.

This Court previously held that Delaware law precludes a plaintiff from
prevailing on an informed consent claim where the treatment provided arose in the
context of an emergency, and that there is no dispute among the parties that the
hysterectomy was an emergency treatment. Thus, as judgment as a matter of law
was granted in favor of the Khan Defendants on the issue of informed consent,
evidence surrounding Ms. Vick’s providing or not providing consent is irrelevant,
and this motion will be denied as moot.

5. Plaintiffs’ Motion to Preclude Evidence Regarding Plaintiff
Stacia Vick’s Immigration Status and Employment Status, and
Either Plaintiff's Receipt of Government Benefits

The Court will next examine Plaintiffs’ motion to preclude evidence regarding
Plaintiff Stacia Vick’s immigration status, employment status, and either Plaintiff's
receipt of any state or government benefits. Plaintiffs argue that immigration status
is not relevant to the case at hand and may unfairly prejudice a jury. Moreover,
Plaintiffs argue that Ms. Vick’s employment status, her lack of employment, and the
fact that Plaintiffs were receiving government assistance and benefits may also
unfairly prejudice the jury.

First, with regard to Plaintiffs’ immigration and employment status, the Court
finds these issues to be moot. The Khan Defendants have stated in their response to
Plaintiffs’ motion that they do not intend to introduce any evidence regarding
Plaintiffs’ immigration or employment status unless the issue is raised by Plaintiffs.
If Plaintiffs “open the door” to this evidence, then the Khan Defendants are certainly

10
entitled to cross-examine or put forth rebuttal testimony. However, as the parties do
not disagree as to the relevancy, or lack thereof, of these two issues, the Court finds
the motion as to these two claims to be moot.

As to Plaintiffs’ motion to preclude evidence regarding Plaintiffs’ receipt of
government benefits, this issue is also moot. Plaintiffs conceded at oral argument
that they will not be presenting any medical bills as evidence at trial, and the Khan
Defendants in turn represented that there will be no need for them to present
evidence relating to Ms. Vick’s receipt of Medicaid benefits. Therefore, the motion
is denied as moot.

6. Plaintiffs’ Motion to Limit the Number of Defendants’ Experts
to One Each

Plaintiffs have requested that this Court limit the number of Defendants’
experts to one each. Plaintiffs argue that Defendants do not need multiple experts
to testify on the same issues, and that allowing such testimony of multiple experts in
the same field and with the same opinions will confuse the jury and constitutes
cumulative evidence. Although not explicitly stated in Plaintiffs’ motion, Plaintiffs
are essentially making an argument under Delaware Rule of Evidence 403, namely
that the testimony of multiple experts in the same field and with the same opinions
would have limited probative value, and that such probative value is substantially
outweighed by considerations of confusion and delay.

As Bayhealth is no longer a party, Plaintiffs’ motion is, of course, moot as to
its experts. The Khan Defendants, for their part, argue that Plaintiffs have put forth
various allegations in their Complaint and that multiple experts with different
specialties are needed to testify due to the complexities of the case. The Khan
Defendants’ experts all have different specialties and backgrounds and discuss
different issues pertinent to the case. Thus, multiple experts are actually needed to
avoid confusing the jury. For example, the Khan Defendants proffer that (1) Dr.

Small will testify as to standard of care issues; (2) Dr. Gerson will testify as a

11
maternal and fetal expert and as to prenatal issues, specifically relating to the impact
of Ms. Vick’s pre-existing uterine fibroids; (3) Dr. Schwartz will testify as a
pathology and morbidity expert and as to the location, size, and characteristics of
Ms. Vick’s uterine fibroids and how they played a role in her postpartum
hemorrhage; and (4) Dr. Kiss will testify as a hematologist as to Ms. Vick’s massive
blood loss and the impact of that blood loss on her prognosis.

Delaware Rule of Evidence 403 states, “[a]lthough relevant, evidence may be
excluded 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.” In this
case, the Court finds that the issues presented are complex and that expert testimony
from multiple experts with different specialties and testimony as to different aspects
of Plaintiffs’ case would assist the jury. Each of the experts brings a “unique
educational background’'° and knowledge from a different specialty that is pertinent
to the case and will help the jury in understanding the various issues. Moreover, as
this Court held in Galmore v. St. Francis Hospital,'' “[a]lthough the testimony of
each of these experts may be somewhat overlapping or cumulative, this does not
necessarily render the testimony of any given one of these experts inadmissible.
Further, this Court should limit a party’s presentation of evidence on the ground that
it is cumulative ‘only sparingly.’”'”

In Galmore, the Court found that “[g]liven the inherent complexity of
Plaintiffs claims, Defendants’ expert’s anticipated testimony will be material to the
defense case and does not appear to be inappropriately cumulative.”'? This Court,

likewise, has been presented with several complex medical issues and, thus, finds

 

'0 See DeBussy v. Graybeal, 2016 WL 8379211, at *2 (Del. Super. Dec. 2, 2016) (“[I]t has been
held that an expert’s ‘unique educational background’ can afford him or her with ‘a different
perspective that is potentially helpful to the court.’”) (citation omitted).
'! 2011 WL 2083888 (Del. Super. Apr. 27, 2011).
2 Td, at *2.
13 Id.

12
that multiple expert witnesses may be needed to testify as to the various issues.
Plaintiffs have put forth several claims and allegations, but have decided to rely on
the opinions and testimony of one expert, Dr. Berry. It would be unfairly prejudicial
to hinder the Khan Defendants in the presentation of their defense of these claims
simply because Plaintiffs chose to retain only one expert. Therefore, Plaintiffs’
motion in limine to limit the number of the Khan Defendants’ experts to one is
denied.

7. Plaintiffs’ Motion to Preclude Evidence Regarding the Care
and Treatment of Their Minor Child

Plaintiffs filed this motion seeking to preclude any mention of the care,
treatment or wellbeing of their minor child, Josiah Vick (hereinafter “Josiah”), from
his birth to the conclusion of this litigation. Plaintiffs have argued that Josiah is not
a party to these proceedings, and that any mention of him would violate his privacy
rights and would not preserve his future rights against Defendants.

The Court is puzzled by Plaintiffs’ arguments, particularly as Plaintiffs have
failed to put forth any explanation regarding potential future claims of Josiah, or any
evidence as to how his privacy rights would be violated by discussion of his care,
treatment, or wellbeing. Plaintiffs have not argued that their son suffered any
injuries during or as a result of his birth, nor does this Court see how Josiah’s right
to privacy or future rights would be impacted by discussing such matters.

Plaintiffs have made various allegations of negligence — such as not following
the birth plan that Ms. Vick wanted and misappropriating Josiah’s umbilical cord —
to which the care, treatment, and wellbeing of Josiah are relevant. Plaintiffs allege
that Dr. Khan violated Ms. Vick’s birth plan by cutting Josiah’s umbilical cord
instead of allowing Mr. Vick to cut the cord, and by giving Josiah to the NICU staff
instead of allowing immediate skin-to-skin contact as Ms. Vick requested. The Khan
Defendants claim that deviation from the birth plan was necessary due to medical

concerns relating to Josiah’s condition. As these claims relate to the care, treatment,

13
and wellbeing of Josiah, any evidence as to why Dr. Khan deviated from the birth
plan, as well as any evidence as to why Dr. Khan took a piece of Josiah’s umbilical
cord, are relevant to Plaintiffs’ allegations and necessary for the Khan Defendants
to defend against such claims. Therefore, Plaintiffs’ motion is denied.'*

8. Plaintiffs’ Motion to Preclude Questioning Regarding
Privileged Communications Between Plaintiffs

Plaintiffs seek to preclude Defendants from asking questions about any
confidential communications between Plaintiffs. Plaintiffs assert that they are
married and, as such, are asserting their spousal privilege to preclude questioning on
any discussions that they have had in regard to this litigation.

The Khan Defendants, in response, assert that Plaintiffs have failed to lay the
proper foundation to assert spousal privilege, as Plaintiffs have not provided any
proof, such as a formal marriage certificate, to indicate that they are indeed married
and were married at the time of the communications in question. Additionally, the
Khan Defendants argue that even if Plaintiffs had laid the proper foundation for this
privilege, the spousal privilege would nonetheless be inapplicable, as Plaintiffs have
waived their privilege via the so-called “‘at issue” exception and through disclosure
to a third party. For the following reasons, Plaintiffs’ motion should be deferred.

Spousal privilege in Delaware is governed by Delaware Rule of Evidence 504,
which states that “[a]n individual has a privilege to refuse to testify and to prevent
the individual’s spouse from testifying as to any confidential communication
between the individual and the spouse during their marriage.”'> Spousal privilege

only applies to “confidential communications,” which are those “communication(s)

 

‘4 As the Court has explained, discussion of Josiah’s care and treatment were put at issue by
Plaintiffs due to their claims. However, as reference to Josiah by name is not necessary to such
discussions, the Court will direct the parties to refer to Josiah as “baby Vick” during the trial and
to redact his name from any documentary exhibits.
'S D.R.E. 504(c).

14
that an individual made privately to the individual’s spouse that was not intended for
disclosure to any other person.” '®

Disclosure of an otherwise privileged communication to a_ third-party
constitutes a waiver of privilege, even if the communication would otherwise
constitute a privileged marital communication.'? The Court notes that any
communications that were not made privately between Plaintiffs, such as any
communications made in front of Dr. Khan or other medical staff, are not subject to
the spousal privilege.

Here, Plaintiffs have failed to lay the proper foundation to assert the spousal
privilege. However, to bar Plaintiffs from utilizing their right to protect privileged
confidential communications would unfairly prejudice the Plaintiffs. Therefore, to
the extent that Plaintiffs have not provided this Court with any formal documentation
regarding their marriage, they shall be required to submit such documentation along
with the pretrial stipulation.

Assuming that Plaintiffs provide such documentation, the Khan Defendants
argue that when a loss of consortium claim is asserted, as in this case, the party
asserting the claim waives his or her spousal privilege regarding discovery of those
communications, including any communications as to the health of the marriage.
The Khan Defendants argue that Plaintiffs may not simultaneously assert a claim
that places otherwise privileged communications “at issue” in this litigation, while
then attempting to conceal those communications.

Delaware has incorporated the common law rule of spousal privilege into Rule
504. However, Delaware has not incorporated one of the common law exceptions
to this rule — waiver of the privilege upon filing a loss of consortium claim — into the

Rule, nor has it developed this exception through common law.

 

'6 T).R.E. 504(a)(1).
'7 Weedon v. State, 647 A.2d 1078 (Del. 1994).
15
In contrast, federal law does not have a rule of evidence governing spousal
privilege, and therefore the privilege is controlled by federal common law.
Therefore, the federal cases that the Khan Defendants cite in their Response are
neither applicable nor persuasive."

Moreover, the Delaware cases that the Khan Defendants cite in their Response
are not persuasive because they address different privileges and are factually distinct
from the case at bar.'? This Court in Green cited Delaware Rule of Evidence
503(d)(3), which specifically provides that the physician-patient privilege is waived
where a claim is filed putting the plaintiff's condition at issue.2? There is no
corresponding provision in Rule 504. Similarly, in Sokol, the Court of Chancery
cited numerous prior decisions of the Court of Chancery holding that the attorney-
client privilege is waived when the attorney-client communications are at issue in

' The Khan Defendants conceded at oral argument that there is no

the litigation.’
Delaware authority holding that the spousal privilege is waived where one of the
spouses has filed a loss of consortium claim. Neither will this Court make such a
ruling.

Therefore, the Court will not force the disclosure of private communications
made between Plaintiffs, regardless of the nature of such communications, simply
because Mr. Vick is bringing a claim for loss of consortium. As stated previously,
however, the Court’s decision on Plaintiffs’ motion will be deferred to allow

Plaintiffs to filed documentation verifying their marriage along with the pretrial

stipulation.

 

'8 Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018, at *1 (D.Colo. Apr. 21, 2009); Laudicina
vy. City of Crystal Lake, 238 F.R.D. 510, 516 (N.D.ILl. 2018); Powell v. United Parcel Serv., Inc.,
2010 WL 1490029 (S.D.Ind. Apr. 13, 2010).
'° Green v. Bloodsworth, 501 A.2d 1257, 1259 (Del. Super. 1985); Sokol Holdings, Inc. v. Dorsey
& Whitney, LLP, 2009 WL 2501542, at *7 (Del. Ch. Aug. 5, 2009).
20 501 A.2d at 1258.
21 2009 WL 2501542, at *6 n. 29.

16
9. Plaintiffs’ Motions to Preclude or Limit Testimony of Dr.
Schwartz and Dr. Small

Lastly, the Court will examine Plaintiffs’ Daubert motions and motions in
limine to preclude or limit the testimony of Dr. David Schwartz and Dr. Daniel
Small, two of the Khan Defendants’ experts. The Court will address these motions
together, as Plaintiffs and the Khan Defendants make largely the same arguments
regarding each motion.

Essentially, Plaintiffs are requesting that this Court act as a “gatekeeper” and
exclude the opinions and testimony of Dr. Schwartz and Dr. Small from these
proceedings. Plaintiffs assert that Dr. Schwartz is not an OBGYN doctor and is thus
unqualified to testify as to obstetrics or gynecology or any standard of care issues.
Moreover, Plaintiffs claim that the basis for Dr. Schwartz’s opinions is factually
unsound and that he does not meet the minimum standards for admission as an
expert. Plaintiffs also argue that Dr. Schwartz’s testimony should be excluded
because his methodology was deficient, since he based his opinions upon an
examination of purported slides of Ms. Vick’s uterus, but her uterus was allegedly
destroyed. In the alternative, Plaintiffs argue that Dr. Schwartz’s testimony should
be limited to the area of pathology.

As to Dr. Small, Plaintiffs assert that he also does not meet the requirements
to be considered an expert. Plaintiffs argue that Dr. Small has adopted the “any
reasonable patient” standard, which is an incorrect standard. Plaintiffs argue that
this standard implies to a jury that Ms. Vick was being unreasonable in her desire to
avoid a hysterectomy. Moreover, Plaintiffs assert that this testimony may unfairly
prejudice and mislead a jury, as it insinuates that Plaintiffs’ thoughts and wishes
were “erroneous,” “distorted,” “unreasonable,” and “egregious.”

The Delaware Supreme Court has identified five factors that a court must

consider when determining the admissibility of expert evidence. These factors

17
include (1) whether the witness is qualified as an expert by knowledge, skill,
experience, training or education; (2) whether the evidence offered is otherwise
admissible, relevant and reliable; (3) whether the expert’s opinion is based upon
information reasonably relied upon by experts in the field; (4) whether the
specialized knowledge being offered will assist the trier of fact to understand the
evidence or determine a fact in issue; and (5) whether the expert testimony will
create unfair prejudice, confuse the issues or mislead the jury.”

Looking first to Dr. Schwartz, the Court finds that Plaintiffs’ allegations
regarding Dr. Schwartz’s qualifications are largely unfounded and that Dr. Schwartz
clearly meets the five factors above. Plaintiffs argue that Dr. Schwartz is not
qualified to offer testimony as to the standard of care or matters dealing with
obstetrics or gynecology as he is not an OBGYN. However, the Khan Defendants
have indicated that Dr. Schwartz will not be offering any such testimony. Rather,
Dr. Schwartz is Board-Certified in Anatomic Pathology, is currently working as a
pathologist at the Medical College of Georgia, and will be called to testify as to his
pathology findings. The Khan Defendants assert that Dr. Schwartz’s testimony will
likely include discussing issues such as the location of Ms. Vick’s uterine fibroids,
the impact that the fibroids had on Ms. Vick’s uterus and post-partum hemorrhaging,
the cause of Ms. Vick’s hemorrhage, the pathology of her uterine hemorrhage, and
Ms. Vick’s increased risk of death due to the hemorrhage. None of these matters
pertain to any standard of care issue or issues within obstetrics or gynecology. Thus,
to the extent that Plaintiffs seek to preclude Dr. Schwartz from testifying because of
these concerns, the Court finds this argument to be moot. Moreover, Plaintiffs have

conceded in their motion that Dr. Schwartz is an expert in pathology.”

 

2 Conway v. Bayhealth Medical Center, 2001 WL 337228, at *1 (Del. Super. Mar. 26, 2001)
(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1991)).
3 “While a qualified expert in Pathology, it is clear from Dr. Schwartz’s CV that he has never

practiced as a doctor of Obstetrics and Gynecology. .. .”
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To the extent that Plaintiffs argue that Dr. Schwartz’s opinion is based upon
a deficient “methodology,” the Court finds no merit in such an assertion. The Court
finds, to the contrary, that Dr. Schwartz’s opinions are based upon information
reasonably relied upon by experts in his field. To the extent that there is some factual
dispute regarding whether slides examined by Dr. Schwartz were depictions of Ms.
Vick’s uterus, Plaintiffs may present any competent evidence on this issue at trial.
The Court, however, finds no valid basis to preclude Dr. Schwartz’s testimony at
this time, and Plaintiffs’ motion to preclude his testimony will be denied.

As to Dr. Small, the Court, likewise, finds Plaintiffs’ motion to be without
merit. Any contentions regarding Dr. Small’s use of the “any reasonable patient”
standard have been rendered moot by the Court’s dismissal of Plaintiff's informed
consent claims. The Khan Defendants confirmed at oral argument that they will
elicit no such testimony from Dr. Small.

Regarding Dr. Small’s qualifications, Dr. Small is Board-Certified in
Obstetrics and Gynecology and currently works as an obstetrician and gynecologist
at Capital Health Medical Center, where he has practiced since 1998. He is the Chief
of the Division of Gynecology and the Director of Gynecologic Minimally Invasive
Surgery. In this case, Dr. Small has indicated that he has reviewed the pertinent case
documents and medical records and provided his expert disclosures and testimony
based upon his education, experience, and training. The Court finds Plaintiffs’
allegations that Dr. Small is not qualified to discuss standard of care and causation
issues to be without merit and believes that his opinion will assist the trier of fact.

Therefore, Plaintiffs’ motion to exclude the testimony of Dr. Small is also denied.

WHEREFORE, for the foregoing reasons, Bayhealth’s (1) motion to
preclude evidence regarding negligent supervision and training and (2) motion to
preclude expert testimony from Dr. Berry regarding the issue of medical ethics are
both DENIED AS MOOT; (3) the Khan Defendants’ motion to preclude testimony

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and evidence unsupported by a medical expert causation opinion is GRANTED;
Plaintiffs’ (4) motion to preclude Bayhealth from treating Danielle Teal as a client,
(5) motion to limit the number of Defendants’ peremptory challenges, (6) motion to
preclude evidence of Plaintiff Stacia Vick’s mental state or incompetency, (7)
motion to preclude evidence that Plaintiff Stacia Vick assumed the risk or implied
consent for the hysterectomy, and (8) motion to preclude evidence regarding
Plaintiff Stacia Vick’s immigration status and work status, and either Plaintiff's
receipt of government benefits are all DENIED AS MOOT;; Plaintiffs’ (9) motion
to limit the number of Defendants’ experts to one each, (10) motion to preclude
evidence regarding the care and treatment of Plaintiffs’ minor child, (11) motion to
exclude or limit the testimony of Dr. Schwartz, and (12) motion to exclude the
testimony of Dr. Small are all DENIED; and (13) Plaintiffs’ motion to preclude
questioning regarding privileged communications between Plaintiffs is
DEFERRED.
IT IS SO ORDERED.

/s/ Noel Eason Primos
Judge

 

NEP/wijs

Via File & ServeXpress, Email and U.S. Mail

oc: Prothonotary

cc: Stacia Vick and Chadwick Vick
Thomas J. Marcoz, Jr., Esquire
Catherine M. Cramer, Esquire

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