                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2004

Myers v. Med Ctr DE Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2373




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                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 03-2373




                        JOSEPH MYERS,
                                  Appellant

                                v.

          MEDICAL CENTER OF DELAW ARE, INC.;
     FRANCIS MASE, individually and as an agent, servant
      or employee of the Medical Center of Delaware, Inc.;
    LUCIA BENZONI, individually and as an agent, servant
         or employee of the Medical Center of Delaware;
       J. A. NEMER, individually and as an agent, servant
      or employee of the Medical Center of Delaware, Inc.;
 MICHELLE HINSON, individually and in her official capacity as
               New Castle County Police Officer;
DOE 1 THROUGH 10, individually and in their official capacities as
               New Castle County Police Officers;
          DOM ENICK GREGORY*; JACK GAHAN*;
             MALVERN SLAWTER; JOHN HAUG;
       DOCTORS FOR EMERGENCY SERVICES, P.A.;
                   DR. ANITA H. HODSON

        *(Dismissed Pursuant to Clerk order dated 3/16/04)




         On Appeal from the United States District Court
                 for the District of Delaware
              D.C. Civil Action No. 97-cv-00461
                (Honorable Gregory M. Sleet)
                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 25, 2004
     Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN*, Circuit Judges

                                     (Filed: July 29, 2004)




                                  OPINION OF THE COURT


SCIRICA, Chief Judge.

          In this matter, appellant Joseph Myers alleges the District Court erred in granting

summary judgment in favor of certain medical doctors and police officers involved in

events related to the tragic death of his five-year-old child, Valeria Myers. We will

affirm.

                                                I.

          On June 11, 1995, when Joseph Myers returned home to his mobile home in the

Delaware City Trailer Park, he noticed his daughter Valeria had gotten into bed with his

wife Phyllis. When he awoke, Valeria appeared to be sleeping on the floor, but Phyllis

discovered she was not breathing. Paramedics arrived at around 6:00 pm and attempted

to revive her. Valeria was transported by helicopter to the emergency room of the

Medical Center of Delaware, but she remained unresponsive to revival attempts by the

medical staff. She was pronounced dead at approximately 6:30 pm.


   *The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.

                                                2
       At that point in time, several emergency room doctors performed a “secondary

survey,” a more extensive physical examination of Valeria. The doctors noticed signs of

what they believed to be sexual abuse. One of the emergency room residents informed

Detective Michelle Hinson of the Newcastle County Police Department that Valeria may

have been sexually abused. Officer John Haug of the Police Department’s Evidence

Detection Unit took photographs of Valeria during the secondary examination. Detective

Jack Gahan of the Criminal Investigation Unit arrived, examined the body, and was

informed that Valeria had been sexually molested.

       Joseph and Phyllis Myers arrived at the Medical Center at 9:00 pm and were

permitted to view their daughter’s body. They were then taken by police into

headquarters for questioning, during which time Officer Domenick Gregory prepared a

search warrant of the Myers’ mobile home. Pursuant to a search warrant, Officer Haug

and Officer Malvern Slawter entered and searched the home and seized videotapes,

sexual toys, and devices.

       At 6:00 am the next morning, Joseph and Phyllis Myers were released from police

custody. Later that day, Assistant Medical Examiner Dr. Adrienne S. Perlman performed

an autopsy of Valeria and found no evidence of physical or sexual abuse. Dr. Perlman

concluded Valeria died from “natural causes.” The Myers were informed of this finding.

Myers requested return of his seized property, but Detectives Hinson and Gahan told him

the videotapes would be kept temporarily to determine whether any of the tapes contained



                                           3
child pornography. Ten days later, the detectives contacted Myers to arrange the return of

the videotapes. Myers did not pick up the tapes from the station house until August 11,

1995, forty days later.

                                            II.

       In June 1997, Myers filed suit against the Medical Center of Delaware, the doctors

who performed the secondary survey (“medical defendants”), and the police officers and

detectives who performed the investigation and search of his home. He alleged the police

officers violated his Fourth Amendment rights by searching the house without probable

cause and without a valid warrant, and he sought the return of four constitutional law

books that were allegedly seized. He also claimed the detectives improperly retained his

videotapes. Myers also claimed the medical defendants committed malpractice when they

erroneously found that Valeria had been sexually abused, and that they slandered him by

implying he abused his daughter.

       The District Court found Myers failed to present competent expert medical

testimony to support his claims of negligence against the medical defendants, a statutory

requirement under Delaware law. Myers v. Med. Ctr. of Del., Inc., 86 F. Supp. 2d 389,

407 (D. Del. 2000). It also found Myers failed to present a prima facie case of

defamation against the medical defendants, and in the alternative, that the medical

defendants were immune from suit, as their report to the police was protected by statute.

Id. at 412. Therefore, it granted summary judgment in favor of the medical defendants.



                                             4
As for the police officers, the court found that Officers Gregory and Haug violated

Myers’s constitutional rights and held them liable for their participation in the search,

granting partial summary judgment against the two officers. But it held that Officer

Slawter and the detectives acted reasonably and in good faith and were immune from suit.

Id. The court then certified the case for appeal under Fed. R. Civ. P. 54(b), despite

outstanding damage claims against Officers Gregory and Haug. In a separate opinion, the

court denied Officers Gregory and Haug’s motion to reconsider. See Myers v. Med. Ctr.

of Del., Inc., No. CIV.A.97–461-GMS, 2000 WL 1728261 (D. Del. May 4, 2000).

       Myers appealed and Officers Gregory and Haug cross-appealed. In a not

precedential opinion, we found appellate jurisdiction over the denial of qualified

immunity for Officers Gregory and Haug. Myers v. Med. Ctr. of Del., Inc., 28 Fed. Appx.

163, 2002 WL 229493 (3d Cir. Feb. 15, 2002). We affirmed the denial of qualified

immunity for Officer Gregory but reversed the denial of qualified immunity for Officer

Haug, finding that Haug acted reasonably in relying on his superior officers and his own

knowledge of the facts. Id. at 167. Because there was no final order with respect to the

appeals other than those relating to qualified immunity, we lacked appellate jurisdiction.

Rule 54(b) certification was not appropriate.

       In March 2003, a jury trial commenced to determine any damages Officer Gregory

caused in violating Myers’ Fourth Amendment rights. Myers v. Gregory, No. CIV.A.97-

461-GMS, 2003 WL 1872973, at *1 (D. Del. Apr. 9, 2003). The jury found that “Myers



                                                5
was not entitled to damages because Gregory’s violation was not the proximate cause of

his injury.” Id. Myers’ motion for a new trial was denied. Id.

       In this appeal, Myers raises no challenge relating to the jury trial or damages of

Officer Gregory or to our finding of qualified immunity for Officer Haug. Instead, Myers

contends the District Court improperly granted summary judgment in favor of the medical

defendants, Officer Slawter and Detective Hinson. Specifically he argues the court erred

in excluding Dr. Perlman’s testimony and consequently granting judgment as a matter of

law in favor of the medical defendants, in rejecting his defamation claim against the

medical defendants, and in finding Detective Hinson and Officer Slawter protected from

suit by qualified immunity.

                                            III.

       We exercise plenary review over District Court’s grant of summary judgment.

Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). We have jurisdiction

under 28 U.S.C. § 1291.

                                            IV.

A.     Medical Defendants

       1.     Judgment as a Matter of Law due to lack of expert testimony

       To file a lawsuit in Delaware alleging medical malpractice, a plaintiff must include

evidence of the alleged deviation from the applicable standard of care proffered by an

qualified medical expert. 18 Del. C. § 6853(a)(1); Burkhart v. Davies, 602 A.2d 56, 59



                                             6
(Del. 1991). Among other things, the expert must be “familiar with the degree of skill

ordinarily employed in the field of medicine on which he or she will testify.” 18 Del. C. §

6854; Loftus v. Hayden, 391 A.2d 749, 753 (Del. 1978).

       The District Court found Myers’ sole proffered expert, Dr. Adrienne Sekula-

Perlman, a forensic pathologist, was not qualified to testify about the standard of care

applicable to emergency room physicians. It concluded that, absent the testimony of any

qualified medical expert, Myers lacked competent standard of care testimony in support

of his claim, and the medical defendants were entitled to judgment as a matter of law.

We review the court’s decision to exclude the expert testimony of Dr. Sekula-Perlman for

abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997).

       Myers contends the medical defendants who were emergency room physicians

were actually performing the duties of a pathologist when they performed the secondary

survey. For this reason, he contends Dr. Sekula-Perlman could testify on the standard of

care for physicians generally performing a post-death examination.1 He also argues the

methodology for identifying the changes in a deceased person are the same for emergency

doctors and for pathologists, so Dr. Sekula-Perlman should be able to opine on the




   1
    Dr. Sekula-Perlman’s affidavit stated the emergency room physicians usurped the
duties of a pathologist when they performed the secondary survey. But Dr. Sekula-
Perlman “admitted that she is neither trained nor certified in emergency medicine.
Furthermore, she has stated that there is no overlap between the two fields because the
death of the patient automatically separates the two.” Myers, 86 F. Supp. 2d at 411.

                                             7
performance of the emergency doctors.2

             But the medical defendants presented two experts in emergency medicine who

opined the secondary survey is standard procedure in emergency medicine.3 One of the

experts testified further that failure to perform the survey constitutes a breach of the

standard of care for emergency physicians.4 Furthermore, Dr. Sekula-Perlman


      2
    While a practitioner of one school of medicine is generally not permitted to testify as
an expert witness in a malpractice action against a practitioner of another school of
medicine, the Delaware Superior Court has recognized exceptions where: (1) an expert is
familiar with the defendant’s practice area, or (2) the two specialties involve a concurrent
area of expertise and a common standard of care. See Hurley v. Med. Ctr. of Del., Inc.,
1988 W L 130399 (Del. Super. Ct. Nov. 28, 1988) (not published). Myers contends Dr.
Sekula-Perlman’s testimony falls under both exceptions. But Dr. Sekula-Perlman
conceded she was not familiar with emergency medicine practices, and she also stated
there is no crossover between the two fields. As such, the Hurley exceptions do not
apply.
      3
   The District Court noted:
      The medical defendants . . . have introduced the testimony of Cynthia
      Christian, M.D., who is board certified in emergency medicine and
      specializes in the care of children. According to Dr. Christian, “a physician
      who is presented with a child who dies in the emergency room would
      always complete the physical examination of their patient,” including the
      secondary survey, in order to determine whether any conclusions could be
      reached “about the cause of death, regardless of whether it [resulted from]
      child abuse and neglect or gangrene . . . .”
Myers, 86 F. Supp. 2d at 411.
      4
          According to the District Court:
            Frances Speidel, M.D., another one of the defendants’ experts who is
            similarly trained and certified, has expressed the same conclusions. In fact,
            Dr. Speidel has testified that if the emergency room physicians had declined
            to perform this type of thorough physical examination after Valeria had
            been declared dead, they would have breached the governing standard of
            care.
Id.

                                                  8
acknowledged that she was not familiar with the standard of care for emergency room

procedures.

       Also, we note the court stated in a hearing on February 23, 1999 that Dr. Sekula-

Perlman might not be qualified to testify as an expert witness, due to her lack of expertise

in emergency medicine. It rejected Myers’ medical negligence claims in January 2000.

Despite being put on notice, Myers never presented a medical expert qualified to testify

about the standard of care for emergency room physicians. See generally Burkhart, 602

A.2d at 60-61. We see no abuse of discretion in the District Court’s ruling.

       2.     Defamation claim against medical defendants

       Myers claims the medical doctors slandered him when they made statements to the

police officers of alleged sexual abuse. To establish a claim, Myers must demonstrate:

(1) a false and defamatory statement; (2) has been communicated; (3) the communication

referred to Myers; (4) the police officers understood the communication’s defamatory

character; and (5) Myers was injured. Los v. Davis, No. 89C-OC-122, 1991 Del. Super.

LEXIS 122, at *3 (Del. Super. Ct. April 9, 1991), aff’d, 602 A.2d 1081 (Del. 1991); Re v.

Horstmann, No. 83C-FE-82, 1987 Del. Super. LEXIS 1276, at *8-9 (Del. Super. Ct. Aug.

11, 1987).

       Myers claimed the doctors’ communications implied he was a suspected

perpetrator, since parents are “automatically” considered to be suspects in sexual abuse

cases. He also argues the question of whether the statements were “of and concerning”



                                             9
him should be reserved for the jury. The District Court rejected Myers’ argument, stating,

“[N]o doctor ever identified Myers by name. Nor did any physician state that ‘it was

probably the father who did it’ or tell the police that they ‘might want to talk to the dad.’

Thus, there is no evidence that the comments made by the emergency room staff were ‘of

and concerning’ Myers.” Myers, 86 F. Supp. 2d at 412.

       Myers makes a valid argument. See Restatement (Second) of Torts § 564 cmt. b

(1977) (“It is not necessary that the plaintiff be designated by name; it is enough that

there is such a description of or reference to him that those who hear or read reasonably

understand the plaintiff to be the person intended. Extrinsic facts may make it clear that a

statement refers to a particular individual although the language used appears to defame

nobody.”) Nevertheless, the medical defendants’ statements to the police are protected

statements. Statements made to a police officer to assist in the prevention or detection of

a crime are protected from liability in defamation proceedings if the statements are made

without malice. Newark Trust Co. v. Bruwer, 141 A.2d 615, 617 (Del. 1958); Prosser &

Keeton on Torts § 114, at 815-16, 830 (5th ed. 1984).5 The medical defendants here

informed the police officers that Valeria had been sexually abused in order to assist in a




   5
    See also Restatement (Second) of Torts § 598 cmt. d (1977) (A publication is
conditionally privileged “when any recognized interest of the public is in danger,
including the interest in the prevention of crime and the apprehension of criminals.”);
Foltz v. Moore McCormack Lines, 189 F.2d 537 (2d Cir. 1951) (noting that
communications made without malice to law enforcement officials to aid in an
investigation are protected).

                                              10
potential criminal investigation. There is no evidence of malice here. The District Court

correctly found these statements are privileged.

B.     Qualified immunity for police officers

       Qualified immunity shields “law enforcement officials who ‘reasonably but

mistakenly’ conclude that their conduct comports with the requirements of the Fourth

Amendment.” Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (citing Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (per curiam)). The privilege “‘gives ample room for

mistaken judgments’ by protecting ‘all but the plainly incompetent or those who

knowingly violate the law.’” Id. The reasonableness of an officer’s beliefs or actions is a

question for the court. Id. at 828. We have held that officers may reasonably rely on the

statements of other officers in believing probable cause for the actions existed. Sharrar,

128 F.3d at 827-28. Furthermore, officers need not read the content of a warrant if they

have received instruction prior to the search regarding the nature of the investigation and

the scope of the search. Marks v. Clarke, 102 F.3d 1012, 1030 (9th Cir. 1996); Guerra v.

Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986); Bilida v. M cCleod, 211 F.3d 166, 174-75

(1st Cir. 2000).

       1.     Officer Slawter

       On the evening of Valeria’s death, Officer Slawter was dispatched to secure the

Myers’ mobile home. Slawter already been informed that Valeria had been found dead in

the mobile home and that she may have been sexually assaulted. When his superior



                                             11
officer informed him over the radio that the warrant had been signed, Slawter commenced

to search the house. Slawter, along with Officers Haug and Gregory, seized materials he

believed to be relevant to the investigation. The District Court granted Slawter qualified

immunity, finding that he reasonably believed probable cause existed for performing the

search due to information he received from his superior officers.

       Myers contends the grant of qualified immunity was erroneous, since Slawter was

incapable of conforming to the parameters of the search warrant without first having read

it. But Slawter was informed by his superior officer prior to the search that he was to

investigate the possible abuse of a minor and that a search warrant had been signed. The

District Court did not err in finding that Slawter reasonably believed the search was

legally justified, and that he was able to limit his search to those items relevant to an

investigation regarding the sexual abuse of a minor. We see no error.

       2.     Detective Hinson

       Canvassing the neighborhood on the night of the mobile home search, several

residents told police that Myers’ wife Phyllis was having sex with children. Because of

this, Detectives Hinson and Gahan decided to review the seized videotapes to determine

whether they involved child pornography. The review lasted one and a half weeks. The

District Court determined the decision to review the materials was objectively reasonable

and the detectives were following orders by their superiors.




                                              12
       Myers claims Detective Hinson acted unreasonably in reviewing the tapes after the

autopsy revealed Valeria was not abused sexually. He contends there is a factual dispute

as to whether it was Detective Hinson or her superior who made the ultimate decision to

retain and review the tapes and that this issue should have been submitted to the jury. But

this determination is immaterial, as the decision to retain and review the videotapes was

objectively reasonable. As the District Court stated, “given the unfortunate frequency of

this type of report today, the authorities would have been loath to summarily dismiss such

allegations.” Myers, 86 F. Supp. 2d at 409. The detectives reviewed the tapes to follow

up on the allegations made by the neighbors, and they offered to return the tapes as soon

as the review was completed. We see no error.

C.     Replevin Claim

       Finally, Myers claims the District Court erred in granting summary judgment on

his replevin claim, alleging he should have been compensated for four constitutional law

books that were allegedly seized during the search of his mobile home. But Myers has

presented no evidence regarding the existence or seizure of these books. None of the

police officers recalled seeing constitutional law books during the search at Myers’

residence, let alone seizing them. There was no record of the books in the relevant

Evidence Collection Log. As the District Court concluded, Myers “failed to submit any

evidence which would enable a reasonable jury to return a verdict in his favor on this

issue.” Myers, 86 F. Supp. 2d at 410. W e see no error.



                                            13
                                     V.

For the foregoing reasons, we will affirm the judgment of the District Court.




                                     14
