                                SUPERIOR COURT
                                    OF THE
                              STATE OF DELAWARE

Jeffrey J Clark                                               Kent County Courthouse
Judge                                                             38 The Green
                                                               Dover, DE 19901
                                                                 302-735-2111

                                August 30, 2017


Francis J. Murphy, Esq.               Lorenza A. Wolhar, Esq.
Kelley M. Huff, Esq.                  Bradley J. Goewert, Esq.
Murphy & Landon                       Marshall, Dennehey, Warner, Coleman &
1011 Centre Road, Suite 210           Goggin
Wilmington, DE 19805                  1007 North Orange Street, Suite 600
                                      Wilmington, DE 19899-8888


        RE: Regina Woodstock, Individually, and as Administratrix of the Estate of
            Ethelynn E. Woodstock, Deceased v. Wolf Creek Surgeons, P.A. and
            Wendy S. Newell, M.D.
            C.A. No. K14C-07-027 JJC

                            Submitted: August 23, 2017
                             Decided: August 30, 2017

Counsel:
        This case involves wrongful death and survivorship claims based on alleged
medical negligence surrounding the death of Ethelynn Woodstock. Trial is set for
September 18, 2017. This letter sets forth the Court’s decision regarding two motions
in limine and one outstanding discovery issue.
        First, Plaintiff Regina Woodstock (hereinafter “Ms. Woodstock”), both
individually and as the administratix of her mother’s estate, seeks an order permitting
her to use evidence of (1) an alleged prior medical negligence claim against Dr. Wendy
Newell, and (2) Dr. Newell’s prior testimony in a medical negligence case. Ms.
Woodstock argues that these matters are relevant to show Dr. Newell’s bias because
she is identified as a potential expert witness. Second, Ms. Woodstock requests an
order precluding references at trial to her counsel’s prior consultation with a defense
expert regarding a wholly separate matter.          Third, after argument at the pretrial
conference, Ms. Woodstock seeks a discovery sanction precluding Defendants Dr.
Newell and Wolf Creek Surgeons, P.A. (hereinafter collectively “Dr. Newell”) from
using written materials not produced during discovery to impeach Ms. Woodstock’s
witnesses. Ms. Woodstock specifically requested such information in discovery. Dr.
Newell objected to the requests.
       For the reasons set forth below, Ms. Woodstock is barred from both offering
substantive evidence regarding Dr. Newell’s alleged prior medical negligence and from
using such evidence for impeachment. Ms. Woodstock, however, is not barred from
introducing or using Dr. Newell’s prior testimony or statements, provided they are
otherwise admissible.     Furthermore, Dr. Newell is barred from referencing Ms.
Woodstock’s counsel’s prior consultation with one of Dr. Newell’s expert witnesses.
Finally, with regard to the discovery issue, both parties shall exchange any documents,
transcripts, or writings that they will rely upon for purposes of impeachment that are
not otherwise privileged, by no later than September 11, 2017. Thereafter, use of any
documents not produced shall be barred from use at trial absent good cause shown, and
first addressed outside the presence of the jury.


 In this case, evidence or questioning regarding prior medical negligence claims
     against Dr. Newell is inadmissible as either substantive evidence or for
                              impeachment purposes.
       Ms. Woodstock seeks leave to use certain evidence if Dr. Newell testifies as an
expert at trial.   Namely, Dr. Newell was allegedly named as a defendant in a prior
                                            2
medical negligence suit and may have provided expert testimony in at least one medical
negligence case. In her written motion, Ms. Woodstock first argued that if Dr. Newell
offers testimony as an expert, this evidence should be admissible to show bias, motive,
and competency. 1 She sought to offer this evidence pursuant to Delaware Rule of
Evidence 404(b) (hereinafter “Rule 404(b)”) as both substantive evidence and for
impeachment purposes.
       At oral argument, Ms. Woodstock clarified that she will not offer alleged prior
conduct as substantive evidence. Rather, she argues that if Dr. Newell offers expert
testimony and was subject to a prior malpractice claim, she may be biased to an even
greater degree than the typical defendant. In response, Dr. Newell argues that this
evidence is not relevant. Moreover, she argued in her written motion that the evidence
does not satisfy the Getz factors the Delaware Supreme Court established as guidelines
for a Rule 404(b) analysis.2 Finally, Dr. Newell argues that even if this evidence was
relevant, it would unfairly prejudice her and such prejudice would substantially
outweigh any probative value. Therefore, she argues that this evidence is inadmissible
under Delaware Rule of Evidence 403 (hereinafter “Rule 403”).


1
  Ms. Woodstock subsequently amended her proffer to advocate its use only for purposes of
impeachment to show bias. For that reason, the court only addresses the proffer on that basis.
2
 See Getz v. State, 538 A.2d 726, 734 (Del. 1988). The guidelines established in Getz, in the criminal
context, include:
       (1) [t]he evidence of other crimes must be material to an issue or ultimate fact in
       dispute in the case. If the State elects to present such evidence in its case-in-chief it
       must demonstrate the existence, or reasonable anticipation, of such a material issue.
       (2) The evidence of other crimes must be introduced for a purpose sanctioned by Rule
       404(b) or any other purpose not inconsistent with the basic prohibition against
       evidence of bad character or criminal disposition. (3) The other crimes must be proved
       by evidence which is plain, clear and conclusive. (4) The other crimes must not be
       too remote in time from the charged offense. (5) The Court must balance the probative
       value of such evidence against its unfairly prejudicial effect, as required by D.R.E.
       403. (6) Because such evidence is admitted for a limited purpose, the jury should be
       instructed concerning the purpose for its admission as required by D.R.E. 105.
Id.
                                                  3
           While Rule 404(b) most often arises in criminal cases, it applies equally in the
civil context. 3 However, since bias related impeachment is at issue, Rule 404(b) is not
the appropriate yardstick. Impeachment evidence of prior conduct to show bias does
not implicate the separate relevance analysis of Rule 404(b). 4 Instead, Rule 404(b)
deals with substantive evidence offered for a purpose other than to prove the character
of a person to show action in conformity therewith. 5 Here, the Court’s analysis must
focus on Delaware Rules of Evidence 401 and 403.
          In support of her position, Dr. Newell cites In re Servino v. Medical Center of
Delaware, Inc. 6, where the court analyzed a similar argument under Rules 401 and
403. There, the court found that evidence of a hospital’s prior negligence was not
relevant and even if it was relevant, that relevancy would be substantially outweighed
by its unfair prejudicial value.7 In the Servino case, the court based its decision, in
large part, on the fact that there was “minimal evidence available regarding the [prior]
case.”8
          Ms. Woodstock seeks to distinguish that case because it does not address the
issue of whether a defendant doctor who provides expert medical opinion testimony,
as opposed to factual testimony, is open to the same scope of cross-examination as the
other medical experts in the case. She is correct, in part. Servino, however, is still
supportive of Dr. Newell’s position.            Namely, in Servino, the lack of detailed

3
 Mercedes-Benz of North America, Inc. v. Norman Gershman’s Things to Wear, Inc., 596 A.2d 1358,
1365 (Del. 1991).
4
  See Gregory v. State, 616 A.2d 1198, 1203 (Del. 1992) (holding in the parallel context of
impeachment by crimes of dishonesty, that reliance on the Getz factors is misplaced); see also
Wilkinson v. State, 929 A.2d 1111, 2009 WL 2917800, at *2 (Del. Sept. 14, 2009) (noting that
impeachment evidence is not analyzed under Rule 404(b)).
5
    D.R.E. 404(b).
6
    1997 WL 528037, *2–6 (Del. Super. Ct. Mar. 4, 1997).
7
    Id.
8
    Id. at *2.

                                                 4
information regarding the prior claim made the prior conduct irrelevant. Here, the
parties provided even less detail regarding the prior case or cases involving Dr. Newell.
The Court is unaware of the nature or outcomes of Dr. Newell’s prior suit or any
accompanying claims. Accordingly, the same evidentiary problems that arose in the
Servino case are present to a greater extent in this case.
           The burden is on the proponent of the evidence to structure an offer of proof
demonstrating the relevance of the evidence.9 Here, the Court cannot fully weigh the
probative value of this evidence for purposes of impeachment. Nevertheless, the
threshold for relevance is not high. The Court acknowledges that, as a general rule,
bias is always relevant,10 and even without more information regarding the prior matter,
use of this evidence for impeachment purposes would, to a minimal extent, assist the
jury in determining Dr. Newell’s bias if she testifies as an expert witness.11
           For purposes of a Rule 403 balancing test, however, minimal probative value is
all that can be assigned to such evidence. Here, the substantial risk of unfair prejudice
significantly outweighs it. Namely, any reference to the fact that Dr. Newell was a
named defendant in a prior health care negligence case would be highly prejudicial. 12
Since the proponent did not provide the Court with details surrounding Dr. Newell’s
prior medical negligence claims or their propensity to generate bias under the particular
circumstances of this case, the Court is left to speculate regarding the significance of
the evidentiary connection. Instead of assisting the jury, this evidence will likely excite
the jury’s prejudice and mislead it. 13 As a result, this unfair prejudice substantially


9
    Minner v. American Mortg. & Guar. Co., 791 A.2d 826, 843 (Del. Super. Ct. 2000).
10
     Weber v. State, 457 A.2d 674, 680 (Del. 1983).
11
   See Persichini v. William Beaumont Hosp., 607 N.W.2d 100, 106 (Mich. Ct. App. 1999) (holding
that evidence of prior malpractice actions against a witness is minimally probative of bias but not
relevant to the witness’s competency or knowledge).
12
     Lai v. Sagle, 818 A.2d 237, 248 (Md. 2003)
13
     Id.
                                                      5
outweighs its minimal probative value, making it inadmissible for impeachment
purposes pursuant to Rule 403.
      Dr. Newell’s testimony or statements made in previous cases are a different
matter, however. While evidence that Dr. Newell may have been the subject of prior
medical negligence suits or claims is not admissible, her prior testimony in previous
matters may be. That will depend on whether the prior statements are relevant as
substantive evidence or for impeachment purposes, and are otherwise admissible under
the Rules of Evidence. In furtherance of this Order, the parties must refrain, however,
from referencing the source of any such testimony or statement before the jury.
      Finally, Ms. Woodstock argues, in the alternative, that fairness dictates that Dr.
Newell not be permitted to impeach Ms. Woodstock’s expert witnesses by referencing
their alleged prior medical negligence. Here, Ms. Woodstock is correct in that, for
purposes of impeachment of experts, the same relevance analysis applies. It has, at a
minimum, some relevance to bias. A defendant-expert and a non-party expert require
a different Rule 403 analysis, however. On one hand, the propensity for unfair
prejudice would be higher regarding a doctor-defendant than regarding a typical expert
witness. On the other hand, given the Court’s ruling applicable to the doctor-defendant
in this case, the Court recognizes that there would be a heightened level of unfair
prejudice to Ms. Woodstock as well.
      In recognition of the later, if Dr. Newell seeks to impeach Ms. Woodstock’s
experts in a similar manner, she must first raise the issue outside the presence of the
jury. Since this was Ms. Woodstock’s motion, Dr. Newell has not had the opportunity
to establish the relevance of any such impeachment evidence for purposes of weighing
it against Rule 403 concerns. The Court’s decision on that issue must await further
evidentiary context.




                                           6
     Evidence that plaintiff’s counsel consulted with a defense expert on a prior
                          unrelated matter is inadmissible.
       Ms. Woodstock’s second motion in limine seeks to exclude evidence that one of
her attorneys consulted with one of Dr. Newell’s expert witnesses on a prior, unrelated
matter. She argues that such evidence is not relevant because it does not make any fact
of consequence to this case more or less probable. She also argues that this would
require impermissible vouching by an attorney regarding a witness’s credibility.
Finally, she argues that any possible probative value would be substantially outweighed
by its unfair prejudicial effect.
       In response, Dr. Newell argues that this evidence is relevant and should be
admissible. She argues that when Ms. Woodstock challenges the credibility of her
expert, as certainly will be the case, such evidence will be admissible to rehabilitate her
expert. She argues that this evidence will assist the jury in assessing the witness’
credibility.
       Dr. Newell correctly argues that the independence of an expert witness in a
medical negligence lawsuit, including his or her willingness to review a case regardless
of the referring party, is relevant and probative to the credibility of that witness, if
attacked. However, the Court finds that showing that Ms. Woodstock’s attorney
consulted with Dr. Newell’s experts on a prior unrelated case offers nothing to make
the existence of any fact of consequence more or less probable. Namely, the Court
finds that this evidence addresses witness credibility in an inadmissible manner. In the
Court’s judgment, Dr. Newell seeks to generate an inference by the jury that because
plaintiff’s counsel finds the defense expert to be credible, the jury should also find that
expert to be credible.14 Although this may not constitute direct vouching, the real
purpose for offering such evidence would be to persuade the jury to infer that Ms.

14
  See Doochack v. Hobbs, 645 A.2d 568, 1994 WL 237597, at *5 (Del. May 18, 1994) (quoting
Joseph v. Monroe, 419 A.2d 927, 930 (Del. 1980)) (stating that “it is improper for counsel to comment
on the credibility of witnesses”).
                                                 7
Woodstock’s counsel found the defense expert witness credible enough to consult him.
As such, it constitutes, at a minimum, a call for an inference that counsel vouches for
a witness’ credibility. Since the Court finds this purpose to be irrelevant to any matter
of consequence, this evidence is not admissible. 15
         Even if this evidence contained any marginally probative value, its limited
probative value would be substantially outweighed by the danger of unfair prejudice
and confusion of the issues.16 If this evidence were admissible, it would focus the
jurors’ attention on a matter not relevant to the case. Namely, it would naturally draw
the jurors’ attention to counsel’s prior contact with the defense experts and cause
speculation, which is clearly not relevant to Dr. Newell’s level of care. Therefore, this
evidence would be alternatively inadmissible under Rule 403.
         Accordingly, Ms. Woodstock’s motion to preclude this evidence at trial is
granted.      This ruling, however, does not bar Dr. Newell from rehabilitating her
witnesses with other evidence offered to rebut attacks against her expert’s credibility,
provided such evidence is otherwise admissible. In this regard, the ruling is limited
and bars only evidence regarding the specific contact addressed by the Court.


     Both parties must disclose any documents that they intend to use to directly
      confront witnesses for impeachment purposes; this does not include work
                                      product.
         During the course of discovery, in March 2015, Ms. Woodstock made several
document requests including requests for:

15
     D.R.E. 402.
16
   See Peterson v. Willie, 81 F.3d 1033, 1038 (11th Cir. 1996) (holding inadmissible evidence that
defense expert was previously hired by plaintiff’s counsel because the unfair prejudice resulting from
disclosing this fact outweighed any probative value). In Peterson this issue arose in a case where the
defense expert testified in the same case where he was originally consulted by the plaintiffs. Id.
While, the Court believes that this fact makes such evidence more unfairly prejudicial than what it is
confronted with here, the outcome remains the same. Any relevance that this evidence carries would
be substantially outweighed by its resulting unfair prejudice.
                                                  8
               (7) All documents, including any deposition transcripts, trial
        transcripts, reports, treatises, texts, reference works, scholarly authority,
        scholarly materials, or any other documents or information, upon which
        you intend to rely at trial, or that you will use in examining or cross-
        examining any witness at trial or at deposition.
                                                 . . .
              [and that she] (26) Identify all documents that you are not
        producing on grounds that said document(s) are allegedly privileged
        because of work-product or attorney-client privilege.

        Ms. Woodstock also sought similar materials through the use of interrogatories
including requests that Dr. Newell:
               (22) State the title, author or editor, periodical name and volume (if
        applicable) and publication date of each textbook, treatise, periodical,
        pamphlet or other publication that will be used by the defense in their case
        in chief, or during cross-examination at any deposition or at the trial of
        this case.
                                                 . . .
               (34) Simultaneously with these interrogatories you are being served
        with a request for production of documents. With respect to any
        documents covered by this request for production but withheld under
        claim of privilege or work product protection, identify each such
        document on the basis on which the privilege or work product protection
        is claimed.

        Dr. Newell responded to this discovery with objections that it was vague, overly
broad, unduly burdensome, and beyond the scope of Superior Court Civil Procedure
Rule 26 (hereinafter “Rule 26”). She also raises the work product doctrine as an
objection. With regard to Ms. Woodstock’s request for a privilege log, Dr. Newell
responded to both requests maintaining that she did not refuse to disclose any
documents based upon privilege.
        Pursuant to the Court’s scheduling order, discovery ended on November 21,
2016.    On July 19, 2017, Ms. Woodstock served Dr. Newell with a request to



                                             9
supplement prior discovery responses.17 On August 18, 2017, Dr. Newell provided a
response restating her objections.        For the first time at the pretrial conference, Ms.
Woodstock raised the issue that these materials were not disclosed. Ms. Woodstock
did not move to compel responses to these requests. However, she argues that these
materials are relevant and discoverable under the Delaware Rules of Civil Procedure.
Dr. Newell, on the other hand, maintains that documents to be used solely for
impeachment are not discoverable and are protected by the work product doctrine.
Although these objections would have best been reviewed pursuant to a motion to
compel, Ms. Woodstock seeks to preclude the use of any nondisclosed material
pursuant to Superior Court Civil Rule 37(b)(2).
          Analysis of this issue starts with recognizing the scope of discovery governed by
Rule 26. Rule 26(b)(1) provides that
          [p]arties may obtain discovery regarding any matter, not privileged, which
          is relevant to the subject matter involved in the pending action, whether it
          relates to the claim or defense of the party seeking discovery or to the
          claim or defense of any other party, including the existence, description,
          nature, custody, condition and location of any books, documents, or other
          tangible things and the identity and location of persons having knowledge
          of any discoverable matter. It is not ground for objection that the
          information sought will be inadmissible at the trial if the information
          sought appears reasonably calculated to lead to the discovery of
          admissible evidence. 18

          The scope of discovery under this Rule is broad and far-reaching.19 Rule 26
contemplates a liberal standard designed to advance the purposes of discovery




17
     See Super. Ct. Civ. R. 26(e).
18
     See Super. Ct. Civ. R. 26(b)(1).
19
  E.g. Levy v. Stern, 687 A.2d 573, 1996 WL 742818, at *2 (Del. Dec. 20, 1996) (Table) (noting that
the “discovery rules are to be afforded broad and liberal treatment”); Hunter v. Bogia, 2015 WL
5050648, at *2 (Del. Super. Ct. July 29, 2015).
                                                10
including “reducing the element of surprise at trial.”20 There is nothing in the Rule that
precludes discovery of materials used solely for impeachment purposes. Instead the
language and purpose of this Rule dictate that evidence used solely for impeachment
purposes is discoverable. While it does not appear that any Delaware court has
addressed this issue, courts in other jurisdictions have considered whether
impeachment evidence is discoverable. They predominantly find such material to be
discoverable upon a party’s request. 21
       Given (1) the purpose of the discovery rules, (2) their broad scope, and (3) that
courts interpreting discovery rules containing similar language to Delaware’s rule
require disclosure of impeachment evidence upon specific request, the Court finds that
evidence used solely for impeachment is discoverable pursuant to Rule 26(b)(1). While
the Court acknowledges the adversarial nature of a trial and the purpose of
impeachment, on balance, the Court believes that disclosure of this evidence furthers
the purpose of the discovery rules to ensure that trials are decided fairly on the merits.
       For these materials to be discoverable, they must fit within the scope of Rule 26.
Therefore, the evidence must be relevant to the subject matter involved in the pending
case. Dr. Newell argues that requests for prior transcripts and testimony in unrelated
cases are not relevant to the subject matter at issue. She argues that the only matter at
issue is whether Dr. Newell breached the standard of care when treating Ethelynn
Woodstock. Accordingly, she argues that because these materials would only be used

20
  Levy, 1996 WL 742818, at *2; Hamilton Partners, L.P. v. Highland Capital Mgmt., L.P., 2016 WL
612233, at *2 (Del. Ch. Feb. 2, 2016). While both of these cases interpret Court of Chancery Civil
Procedure Rule 26(b)(1), the Court of Chancery Rule is identical to the Superior Court’s rule.
21
   See, e.g., Varga v. Rockwell Int’l Corp., 242 F.3d 693, 697 (6th Cir. 2001) (holding that the
language of Rule 26 clearly allows for evidence used solely for impeachment to be discoverable);
Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 516 (5th Cir. 1993) (stating that the federal
rules promote broad discovery so it is likely that impeachment evidence would be discoverable);
Newsome v. Penske Truck Leasing Corp., 437 F. Supp.2d 431, 436 (D. Md. 2006) (holding that upon
a specific discovery request, a party must disclose impeachment evidence); Gutshall v. New Prime,
Inc., 196 F.R.D. 43, 45 (W.D. Va. 2000) (holding that evidence used solely for impeachment falls
within the broad scope of Rule 26 and must be disclosed).
                                               11
for impeachment and not a pivotal or substantive purpose, they are not discoverable.
Here, the Court disagrees and finds that this evidence is relevant to the subject matter
at issue. These requests are designed to identify evidence that could be used to attack
the credibility of a witness providing substantive evidence.22 Accordingly, as long as
such material is not privileged, it is discoverable under this Rule.
           The next level of analysis involves the work product doctrine. Rule 26(b)(3)
defines the work product doctrine in Delaware. It provides that
           a party may obtain discovery of documents and tangible things otherwise
           discoverable under subdivision (b)(1) of this Rule and prepared in
           anticipation of litigation or for trial by or for another party or by or for that
           other party’s representative . . . only upon a showing that the party seeking
           discovery has substantial need of the materials in the preparation of the
           party’s case and that the party is unable without undue hardship to obtain
           the substantial equivalent of the materials by other means. 23

Under this rule, only materials that are prepared in anticipation for litigation are
protected under the work product doctrine. 24
           Dr. Newell’s objection based on the work product doctrine has merit in part.
Certainly, no notes of counsel or memoranda disclosing trial strategy are discoverable.
Likewise, she need not disclose what portions of any documents, transcripts, or
statements she may use to directly confront any witnesses. On the other hand, Ms.
Woodstock’s discovery requests sought items that Dr. Newell would seek to use to
directly confront witnesses on cross-examination.                 These include prior trial and
deposition transcripts from other matters. Additionally, it is possible that Dr. Newell’s
counsel will rely on reports, treatises, texts, reference works, scholarly authority,


22
  See James WM. Moore, Moore’s Federal Practice 26-182 (3d ed. 2013) (examining Federal Rule
of Civil Procedure Rule 26 and noting that the advisory committee notes list impeachment evidence
among the types of information that are properly discoverable since it is relevant to the subject matter
involved).
23
     Super. Ct. Civ. R. 26(b)(3).
24
     Id.
                                                  12
scholarly materials, case law, or other documents or information that were created
separate and independent from this case.      These items clearly do not fall under the
work product doctrine because they were not created in anticipation of this litigation.
      At this point, since no motion to compel was filed, Dr. Newell need not formally
respond to Ms. Woodstock’s interrogatories or requests for production. Discovery has
passed. However, Ms. Woodstock’s motion to preclude the use of these items was
timely. In the interest of justice, the Court holds that Dr. Newell may not confront any
witness with any documents, articles, statements, or transcripts not produced on or
before September 11, 2017. The only exception to this ruling will be limited to Dr.
Newell establishing, through good cause, why there was surprise or other unforeseen
circumstances warranting non-production. In such a circumstance, any such request
must be made outside the presence of the jury. Finally, this ruling in no way requires
Dr. Newell to identify any portion of any documents she intends to use. Nor does it
require the disclosure of any work product.
      Finally, at the pretrial conference, the parties indicated that Dr. Newell also
requested copies of all relevant documents. Although her request may not have
specifically targeted impeachment materials as did Ms. Woodstock’s, Ms. Woodstock
must also produce any like materials she intends to directly confront Dr. Newell’s
witnesses with by September 11, 2017. Imposing this reciprocal obligation recognizes
both (1) the good faith basis for Dr. Newell’s objections and position since there is no
Delaware authority on this issue, and (2) that Ms. Woodstock did not move to compel
responses to her discovery prior to the pretrial conference but rather sought exclusion
of any documents not produced.
                                     Conclusion
      For the reasons set forth herein, Ms. Woodstock’s motions in limine are Granted
in part and Denied in part. Further, her motion to exclude materials Dr. Newell intends
to use to confront her witnesses is Granted in respect to any such documents not

                                           13
produced by September 11, 2017. This Order also imposes reciprocal obligations and
consequences upon Ms. Woodstock regarding any materials she seeks to use for
impeachment purposes.
      IT IS SO ORDERED


                                                /s/Jeffrey J Clark




                                       14
