                                  SUPERIOR COURT
                                      of the
                                STATE OF DELAWARE


Jeffrey J Clark                                                   Kent C ounty Cou rthouse
Judge                                                                  38 The G reen
                                                                      Dover, DE 19901
                                                                  Telephone (302)739-5333


                                     December 3, 2015



Bartholomew J. Dalton, Esq.                John D. Balaguer, Esq.
Andrew C. Dalton, Esq.                     Lindsey E. Anderson, Esq.
Dalton & Associates PA                     White & Williams LLP
1106 West 10th Street                      824 N. Market Street, Ste. 902
Wilmington, DE 19806                       Wilmington, DE 19899

       RE:        Estate of Robert R. Rochester, Jr. v. Reyes, M.D., et al.
                  N13C-07-371 JAP

Dear Counsel:

       Plaintiffs move in limine to admit out-of-court statements allegedly made by
Christiana Care Health System agents instructing the decedent to stop his coumadin
regimen. Defendants object to the admission of these statements arguing they are
hearsay. Plaintiffs argue that the statements are nonhearsay because they are offered
to prove their effect on the listener and are not offered for the truth of the matter
asserted. Plaintiffs also move to exclude Defendants’ chart offered to show the
decedent’s five-year historical INR levels. Plaintiffs argue that the data, and
accordingly the chart summarizing the data, are irrelevant and also inadmissible
pursuant to Delaware Rule of Evidence 403.

       The parties submitted letter memoranda to the Court and then argued the issues
on December 2, 2015. For the reasons below, the Court grants, in part, Plaintiffs’
motion to admit Christiana Care agents’ alleged statements because they are
nonhearsay. The Court denies the Plaintiffs’ motion to exclude the decedent
Plaintiff’s historical INR chart because (1) it is relevant and; (2) it is not inadmissible
pursuant to DRE 403.
Est. Of Robert R. Rochester, Jr. v. Carlos E. Reyes, M.D., et al.
N13C-02-371 JAP
Page 2

                                          Background

       This is a medical malpractice case where the Plaintiffs allege that Defendants,
Dr. Reyes and Delaware Medical Group, were negligent in treating Plaintiff Robert
Rochester (“decedent”). More specifically, Plaintiffs allege that Dr. Reyes failed to
appropriately treat decedent’s hyercoagulation condition which in turn caused his
death.

       On October 12, 2012, the decedent went to the emergency room at Christiana
Hospital because of a dog bite he suffered while delivering mail. For at least several
years before the emergency room visit, the decedent took the blood thinner coumadin
due to a pulmonary embolsim in 2007. Plaintiffs proffer that two separate healthcare
professionals at Christiana instructed the decedent to stop taking his prescribed
coumadin until a followup appointment with his primary care provider, Dr. Reyes.

      The decedent visited Dr. Reyes four days after his emergency room visit. Dr.
Reyes claims that the decedent told him at this visit that he was still taking his
coumadin. The decedent died of a pulmonary embolism approximately eighteen
hours after leaving Defendants’ office.

       Christiana Health Services is no longer a party except for purposes of possible
apportionment of liability purposes, pursuant to a settlement including a joint
tortfeasor release. The two Christiana Health Services declarants that made the
statements at issue have not been identified.

       Finally, critical to the second issue in Plaintiff’s motion are the historical INR
levels of decedent. These levels record the levels of coumadin in a patient’s blood
to ensure they stay at a level sufficient to achieve the required purpose. During
decedent’s treatment after the pulmonary embolism in 2007, he regularly received
blood tests recording these levels. During this greater than five year period, many of
the INR results were lower than the therapeutic threshold.
Est. Of Robert R. Rochester, Jr. v. Carlos E. Reyes, M.D., et al.
N13C-02-371 JAP
Page 3

Statements made by Christiana Care employees to discontinue coumadin are
                   admissible as nonhearsay provided
           Robert Rochester was present when they were made.

       The statements allegedly made by Christiana Care’s agents to the decedent are
admissible nonhearsay. The threshold issue in hearsay analysis always starts with
asking what is the evidence offered to prove. This necessarily gives some flexibility
to the proponent as evidence often can have more than one purpose. The Plaintiffs
offer this evidence to show its effect on the listener – the decedent. Namely, the
evidence is offered to prove that decedent likely stopped taking his coumadin in
response to the statements.

       As presented to the Court at this juncture, the challenged out-of-court
statements fall in three categories. First, there are proferred statements made to the
decedent telling him to stop taking his coumadin with relatives present. Second, there
is the exchange between decedent’s son and decedent confirming that decedent was
told to stop taking his coumadin. Third, there is at least one statement Plaintiff may
seek to offer involving an exchange between decedent’s son Christopher and
decedent’s brother confirming the statements made by agents of Christiana Care.

       The Defendants argue that all three are offered to prove the truth of the matter
asserted. Defendants frame the analysis by arguing that the matter asserted is that the
decedent was in fact taking his coumadin between the hospital visit and the followup
primary care visit. Furthermore, citing Atkins v. State1 and Sanabria v. State2, the
Defendants submit that effect on the listener nonhearsay requires that there be some
independent evidence that the decedent stopped taking his medication as a
prerequisite to admit nonhearsay in this category.

      The Delaware Supreme Court, as the Federal courts, recognize this category
of nonhearsay. 3 Furthermore, the key Delaware Supreme Court decision cited by


       1
           Atkins v. State, 523 A.2d 539 (Del. 1987).
       2
           Sanabria v. State, 974 A.2d 107 (Del. 2009).
       3
           Atkins, 523 A.2d at 547.
Est. Of Robert R. Rochester, Jr. v. Carlos E. Reyes, M.D., et al.
N13C-02-371 JAP
Page 4

both parties, Atkins v. State, does not require independent corroborating evidence as
a prerequisite to admission of nonhearsay. 4

       Defendants also rely on Sanabria v. State, arguing that it requires that
admitting such a statement is conditioned on the availability of other admissible
evidence that the listener acted in accordance with the instructions. Sanabria,
however, was decided in the criminal law context where the Confrontation Clause
was a key concern. There, the State attempted to admit a dispatcher’s statement
which was the only evidence that a burglar was physically in a home.5 The non-
testifying dispatcher’s statement about an essential element of a crime violated the
Confrontation Clause of the Sixth Amendment.6

      The Confrontation Clause, of course, does not apply in this civil context.
Furthermore, the statements in Sanabria regarding “independent evidence that the
defendant possessed cocaine” were included in the Delaware Supreme Court’s
analysis of sufficiency of the evidence for purposes of determining whether the
Confrontation Clause violation was harmless.7 Lastly, even in the criminal law
context, Sanabria noted that such testimony could be properly admitted if the trial
court issues a limiting instruction after conducting a DRE 403 balancing test.8
Accordingly, the reasoning in Sanabria does not support Defendant’s position in this
case. Given an absence of any direct authority submitted by the Defendants, the
Court does not find that independent evidence of action taken by the listener is a
prerequisite to admission of nonhearsay in this category.9


       4
           Id.
       5
           Id. at 121.
       6
           Id. at 120.
       7
           Id. at 121.
       8
           Id. at 116.
       9
         Plaintiff also submits that a pill count from decedent’s pill bottle evidences that he
stopped taking coumadin. Such evidence, if admitted, would constitute some independent
evidence regarding decedent’s coumadin regimen during the intervening days at issue.
Est. Of Robert R. Rochester, Jr. v. Carlos E. Reyes, M.D., et al.
N13C-02-371 JAP
Page 5

       Defendants argue that the statements at issue could also tend to prove the truth
of the matter asserted. They are correct. However, nonhearsay statements involving
effect on the listener “frequently have an impermissible hearsay aspect as well as the
permissible nonhearsay aspect.”10 If the evidence is not barred pursuant to DRE 403,
such evidence is properly admitted, subject to an appropriate limiting instruction.11
As noted in a well-recognized federal evidence and practice treatise, the general
evidentiary rule is that instructions to an individual to do something are not hearsay. 12
Here, the instructions to the decedent to stop taking his coumadin are not hearsay.

       Before admitting the evidence, the Court is required to perform a DRE 403
balancing test. Statements made to the decedent by health care professionals that he
should stop taking his coumadin are probative circumstantial evidence that he took
that action. The risk of unfair prejudice cannot be said to substantially outweigh the
probative value of this evidence. The Court, however, will issue a limiting
instruction at an appropriate time during the course of the trial to emphasize its
limited purpose to the jury.

       To the extent that any Christiana Care agent’s out-of-court statements were
made to the decedent’s relatives outside the presence of the decedent, they will be
barred pursuant to DRE 403. The relevance as to such statements effect on
Christopher or Ronald Rochester is minimal at best. In fact, the Court does not
appreciate any relevance of actions taken by them as a result of instructions given to
the decedent regarding his medication. Moreover, the substantial risk of confusing
the issues and unfairly prejudicing the Defendants would substantially outweigh any
probative value of such evidence If the decedent was present during such statements,
they are admissible for the limited purpose offered. If the decedent was not, they are
not admissible.

      Finally, the statements identified by Defendants between Christopher Rochester
and his father will similarly be admitted. Defendant’s argues that these statements


       10
            McCormick on Evidence § 249 (3rd ed).
       11
            Id.
       12
            30B Federal Practice and Procedure “Definition of Hearsay” § 7005, at 73-76 (2011).
Est. Of Robert R. Rochester, Jr. v. Carlos E. Reyes, M.D., et al.
N13C-02-371 JAP
Page 6

involve multiple levels of hearsay. At each level analyzed, the statements in this
exchange are nonhearsay. They are offered to prove circumstantial evidence of the
statements effect on the listener – that he was not taking his coumadin during that
period.

        The Defendant’s chart summarizing Decedent’s Prior INR levels
                                is admissible

        Defendants offer into evidence a chart summarizing decedent’s prior INR
levels to show (1) that decedent’s INR values regularly fluctuated in and out of the
therapeutic range for greater than five years before his death; (2) that he did not
experience a pulmonary embolism during the periods his INR was as low or nearly
as low as alleged in the instant case; (3) that when decedent’s levels were low, Dr.
Reyes’ practice was to re-test the INR levels and adjust decedent’s dosage; and (4)
at the times decedent’s levels were as low as the levels involved in this incident, the
decedent was not hospitalized.

       Plaintiffs oppose its admission based on relevancy. Namely, Plaintiffs
emphasize that both Defendants’ experts testified in their depositions that the INR
reading immediately preceding decedent’s office visit with Dr. Reyes was irrelevant
to whether Dr. Reyes breached the standard of care. Both Defendant’s proffered
experts, Dr. Skolnick and Dr. Fogarty, testified in depositions that a reasonable doctor
would not be influenced by the immediately preceding INR result. Thus, Plantiffs
argue that five years of prior results are likewise irrelevant. Plaintiff’s argument in
this regard goes to the weight the jury should place on the data. If Dr. Reyes’
testimony will be as proffered, the chart will be relevant.

       Plaintiffs also object to this evidence based on DRE 403, arguing somewhat
narrowly that the probative value of any such evidence is substantially outweighed
by the danger of confusing the issues and by needless presentation of cumulative
evidence. Here, the data in the chart is confined to the period Dr. Reyes provided
treatment to the decedent for the condition Plaintiffs allege caused Mr. Rochester’s
death. Such evidence is probative and the Plaintiffs’ arguments do not convince the
Court that DRE403 considerations substantially outweigh the data’s relevance.
Accordingly, the chart will be admitted for at least some of the purposes proffered by
Defendants. Testimony and argument regarding some of the itemized reasons
Est. Of Robert R. Rochester, Jr. v. Carlos E. Reyes, M.D., et al.
N13C-02-371 JAP
Page 7

proffered by the Defendants may be limited, however, by expert disclosures,
discovery responses, and the requirements for expert opinion evidence.

       IT IS SO ORDERED.



                                              /s/ Jeffrey J Clark

JJC/dsc
Via File & ServeXpress
oc: Prothonotary
