Abbott v. Dedicated to Women OB/GYN ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STEPHANIE AND ALEXANDER ABBOTT, )
Individually, and as Personal Representatives )
of the Estate of their minor daughter, M.P.A., )
)
Plaintiffs, )
) C.A. No.: N20C-05-175 FJJ
v. )
)
DEDICATED TO WOMEN OB/GYN, P.A., )
BAYHEALTH MEDICAL CENTER, INC., )
And CHRISTIANA HEALTH CARE )
SERVICES, INC., )
)
Defendants. )
Submitted: December 18, 2023
Decided: January 2, 2024
OPINION AND ORDER
ON PLAINTIFF’S MOTION FOR A NEW TRIAL
DENIED
ON DEFENDANT’S MOTION FOR COSTS
GRANTED IN PART and DENIED IN PART
Bruce L. Hudson, Esquire, and Josh Inkell, Esquire, Hudson Castle & Inkell, LLC,
Wilmington, De., Attorneys for Plaintiffs
Gregg Luther, Esquire, Keenan Law Firm, Atlanta, GA, Attorney for Plaintiffs.
Gregory S. McKee, Esquire, and Jonathan Landau, Esquire, Wharton, Levin,
Ehrmantraut & Klein, P.A., Wilmington, De. Attorneys for Dedicated to Women
Ob/Gyn, P.A.
Colleen Shields, Esquire, Alexandra Rogin, Esquire, and Randall MacTough,
Esquire,, Eckert, Seamans, Cherin & Mellott, LLC, Wilmington, De., Attorneys for
Bayhealth Medical Center
Jones, J.
This is a medical malpractice case brought by Stephanie and Alexander
Abbott individually and as personal representatives of the Estate of Maisy Abbott
(hereinafter referred to the “Abbotts” or “Plaintiffs”). The Plaintiffs sued Dedicated
to Women OB/GYN, (hereinafter “DTW”), Bayhealth Medical Center, Inc.
(hereinafter referred to as “Bayhealth”) and Christiana Care Health Services, Inc.
(hereinafter referred to as “CCHS”). After a 2½ week trial, the jury returned a
verdict in favor of the Defendants. Plaintiffs have filed a Motion for a New Trial.
DTW has filed a Motion for Costs. This is the Court’s decision on both of these
motions.
FACTS
After jury selection but before opening statements, CCHS settled with the
Plaintiffs. The Court ascertained that DTW and Bayhealth intended to proof up their
cross claims against CCHS. Once DTW and Bayhealth indicated their intent to
proceed with their crossclaims the Court determined that a preliminary instruction
was required to advise the jury of CCHS’s involvement in the trial. The parties
debated whether the words “settlement” or “resolved” should have been in the
instruction to the jury or not; the Plaintiffs argued for resolved and the Defendants
for settlement. The following instruction was given to the jury before opening
statements:
Ladies and gentlemen, the Plaintiffs have resolved their
dispute with Christiana Care. Christiana Care will not be
participating in this trial. You may, however, be asked to
assess Christiana Care’s actions during your deliberations,
1
but I will instruct you further about that at the end of the
case during my jury instructions.
Prior to any testimony, the Plaintiffs advised the Court that they were “no longer
pursuing the remaining claims against the Bayhealth employees who were under Dr.
Stefano for any negligence because, quite frankly, causally, the damage was done,
and Dr. Stefano will tell the jury that.”1 In reliance on this statement, Bayhealth
eliminated a number of witnesses. During its case, DTW called and read into
evidence portions of Dr. Soltau’s deposition to prove the cross claim against CCHS.
Plaintiff also read portions of Dr. Soltau’s deposition to the jury. At the conclusion
of this read-in, Plaintiffs moved to reopen their case against Bayhealth. The Court
denied this request. The Court ruled that because Bayhealth had relied on the
Plaintiffs’ representation that these claims were not going to be presented in
choosing not to call certain witnesses, including experts, it would be inappropriate
to allow Plaintiffs to reopen their case.
At the conclusion of DTW’s case the Plaintiffs moved for directed verdict on
the grounds that DTW did not read into evidence the following question and answer
of Dr. Soltau, “Question: Do you hold all the opinions that you have provided here
today to a reasonable degree of medical probability? Answer: Yes, ma’am.” The
Court denied the Plaintiffs’ motion for directed verdict finding that when taking the
testimony as a whole and considering Delaware case law, DTW had made a prima
1
Trial Transcript, October 16, 2023, pg. 32, lines 16-20.
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facia case even without the referenced question and answer. To avoid any confusion
on the issue the Court exercised its discretion and allowed DTW to reopen its case
to read the foresaid question and answer to the jury. The question and answer was
then read to the jury.
The jury was given the following instruction during the course of final
instructions.
RESOLVED CO-DEFENDANT
When this case began, the Abbotts alleged that the joint
negligence of Bayhealth Medical Center, Inc.
(“Bayhealth”), Dedicated to Women (“DTW”) and
Christiana Care Health Services (“CCHS”) was the
proximate cause of their injuries and the death of Maisy
Abbott. Before this trial, CCHS resolved with Plaintiffs
on all of Plaintiffs’ claims against it. Your deliberations,
however, must determine whether CCHS, DTW, or
Bayhealth, were negligent and whether that negligence
was the proximate cause of the injuries to the Abbotts.
DTW and Bayhealth have asserted crossclaims against
CCHS, asserting that CCHS’s negligence was the
proximate cause of the injuries to the Abbotts. You must
determine whether either or all of Bayhealth, DTW, and
CCHS were negligent, and whether that negligence
proximately caused the Abbotts’ injuries. If you find that
either one or all of the Defendants committed medical
negligence and that the negligence was a proximate cause
of the injuries to the Abbotts, you must then determine
the amount of damages you should award to the Abbotts
to compensate them fairly and reasonably for their
injuries.
In computing these damages, don’t be concerned with the
fact that a resolution was made with CCHS. You must
not speculate about why the Abbotts resolved their claims
with CCHS. If you find from the evidence that each
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Defendant committed medical negligence and that
negligence proximately caused injury to the Abbotts,
then you should award damages to compensate the
Abbotts for their fair and reasonable damages in full. In
addition, you should apportion your verdict to attribute a
percentage of negligence to each Defendant in a
percentage range from zero to 100. You will be provided
with a verdict form to guide you in this process.
The jury was given a verdict sheet to complete. The first two questions related to
the liability of DTW and Bayhealth and the third question related to the liability of
CCHS. The jury answered in the negative as to the liability of DTW and
Bayhealth. The jury never reached the questions regarding CCHS. A verdict for
the Defendants was entered.
PLAINTIFF’S MOTION FOR NEW TRIAL
Plaintiffs have moved for a new trial pursuant to Superior Court Civil Rule
59 on two grounds: (1) Plaintiffs contend that counsel for DTW during his closing
argument violated the rule set forth in Atwell v. RHIS, Inc. by arguing to the jury
that CCHS’s settlement with Plaintiffs was an admission of liability,2 and (2)
Plaintiffs claim that the Court committed error in allowing DTW to reopen its case
to ask a question of Dr. Soltau as to whether all of his opinions were within a
reasonable degree of medical probability.
In Atwell, the Delaware Supreme Court found that the Defendant’s closing
argument justified a new trial because counsel’s closing argument was not a
2
974 A.2d 148 (Del. 2009).
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reference to a settlement, but “clearly implied that [the settling Defendant] had
admitted liability by settling.”3 In Atwell, the Supreme Court, citing Sammons v.
Doctors For Emergency Services, P.A.,4 reaffirmed the concept that it is proper for
a jury to be told that one of the parties has settled to avoid confusion. 5 The Court
also affirmed the notion that “it would be justly inconceivable that a jury couldn’t
be informed of [settling Defendants], otherwise they are not going to have any
understanding as to why they are not here.6 Moreover, there is no question that
evidence of previous settlements with joint tortfeasors is necessary to determine
the amount by which Plaintiffs claims against the remaining Defendants should be
reduced.7 What Atwell prohibits is an argument whose purpose is to persuade the
jury that the persons to blame for the accident had already admitted liability.8 In
Sammons the Court wrote:
Here, the trial judge properly acted within his discretion
by instructing the jury that one defendant “was no
longer in the case” and that they should not speculate
why. This instruction is permissible to define the
alignment of the parties and to avoid confusing the jury.
When necessary, the trial judge may instruct the jury
that a party has settled but that they should not speculate
why. Our decision in Sammons, however, permits trial
judges to allow counsel to refer to the settlement in
opening statements and closing arguments only after
counsel tells the judge what counsel intends to say, so
that the trial judge can assess the purpose of the
reference.
3
Atwell, at 148.
4
913 A.2d 519 (Del. 2006).
5
Atwell, at 153.
6
Sammons, at 534.
7
Id. at 535.
8
Atwell, at 154.
5
In the instant case counsel did not violate the Atwell restriction. Counsel
made it known to the Court both before openings and closings, when discussing
the preliminary instructions and the final instructions, that it intended to pursue its
cross claim and argue CCHS’s negligence and that the jury had to apportion fault if
it found two or more of the Defendants, including CCHS, at fault.9 Counsel’s
remarks emphasized Plaintiffs’ alternative causation theories and were made to
assist the jury in understanding the alignment of the parties. No settlement figures
were disclosed and there was no attempt to persuade the jury that CCHS had
admitted fault by settling.10 Counsel’s closing remarks on this issue align with the
remarks made by counsel in Sammons and not the remarks in Atwell. There is no
error associated with DTW counsel’s closing remarks.11
Plaintiffs further maintain that the Court erred in allowing DTW to reopen
its case when Plaintiffs were not permitted to reopen their case. The decision on
whether to allow a party to reopen its case is within the sound discretion of the trial
court.12 The Court allowed DTW to reopen its case to ask Dr. Soltau a question to
confirm that all of his opinions were within a reasonably degree of medical
probability. There was no surprise to the Plaintiffs as to this testimony as it was
clearly in Dr. Soltau’s deposition transcript. There was no prejudice to the
9
Trial Transcript, October 16, 2023, pages 7-8.
10
Id.11
Even assuming that there was some error in the remarks during closing any error is moot as the jury never
reached a decision on causation or liability as to CCHS because it found that the remaining defendants were not
liable.
12
Pepe v. State, 51 Del. 417, 171 A.2d 216, 219 (1961); Zeglin v. Hayden, 1995 Del.Super. LEXIS.
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Plaintiffs other than the inevitable “I got you.” Additionally, any fair reading of
the portions of the deposition of Dr. Soltau that were initially read to the jury can
only lead to a conclusion that Dr. Soltau’s had clear expert opinions on causation
and the breach of the standard of care as to CCHS.13
The fact that the Court denied a similar request to the Plaintiffs to reopen
their case does not establish the law of the case for this issue. Each of the requests
to reopen the case involved unique situations that called for the Court to exercise
its judgment on the two separate individual situations. As to the Plaintiffs’ request,
it came well after Plaintiffs had advised the Court that they would not be pursuing
these claims and the effected Defendant had relied on these representations.
Moreover, Plaintiffs cannot claim surprise because they knew from the preliminary
jury instruction dialogue that DTW was going to prove its cross claims and was
going to do it through Dr. Soltau.
There was no error in allowing DTW to reopen its case.
Plaintiffs Motion for New Trial is DENIED.
DEFENDANT’S MOTION FOR COSTS
I now turn to Defendant DTW’s Motion for Costs. Having considered the
Motion, the Plaintiffs’ response, and the entire record, I award a total of $36,319.57
broken down as follow:
13
Green v. Weiner, 766 A.2 492 (Del. 2001) The Delaware Supreme Court has written that Del. Code 18 § 6853
does not require medical experts to couch their opinions in legal terms or to articulate the standard of case with a
high degree of legal precision or with “magic words”, In this Court’s view, this is a magic word situation especially
where it is clear from the testimony ready that Dr Soltau’ s testimony met the requirements of Section 6853.
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1. Costs associated with Steven Nelson M.D. $8,655.92. I reduced his trial rate
from $8,000 to $5,000 as I found the rate to be excessive. For the same
reasons I reduced his travel time from $4,000 to $2,000.
2. Costs associated with Michelle Owens, M.D. $9,348.70.
3. Costs associated with Joseph Adashek, M.D. $10,552.96. I reduced his rates
from $12,000 to $9,000 as the second day was for travel which should be at
½ of the full rate. I also reduced the travel expenses from $5,404.56 to
$1,552.96 as the flight charge of $4,851.60 was excessive. I awarded $1,000
for flight travel.
4. Meditator’s fee of $600.00.
5. Cost of technology $7,161.99 reduced from $10,753.75 as all three parties
utilized the costs. I have included the amount of Plaintiffs’ portion. If the
Plaintiffs have separately paid for this, then the amount Plaintiffs have paid
should be deducted from this amount.
For the above reasons, Plaintiffs’ Motion for a New Trial is DENIED and
Defendant’s Motion for Costs are GRANTED in part and DENIED in part.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
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