Page v. Fucci

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
VICTORIA PAGE AS )
ADMINSTRATRIX OF THE )
ESTATE OF MARK PAGE, and )
VICTORIA PAGE AS WIFE OF ) C.A. No. N15C-04-087 CLS
MARK PAGE, DECEASED, and )
VICTORIA PAGE IN HER OWN )
RIGHT, )
)
Plaintiffs, )
)
v. )
)
PASQUALE FUCCI, M.D. and )
BRANDYWINE MEDICAL )
ASSOCIATES, )
)
Defendants. )
Date Submitted: September 20, 2018
Date Decided: September 27, 2018
On Plaintiff’s Motion Compel Production of Physician’s notes of Preet Joshi,
M.D., Pasquale Fucci, M.D., and the note of office manager Erika Mutter,
GRANTED.
Adam R. Elgart, Esquire, Mattleman, Weinroth & Miller, P.C., 200 Continental
Drive, Suite 215. Newark, Delaware, 19713. Attorney for Plaintiffs.
Thomas J. Marcoz, Esquire, Marshall Dennehey Warner Coleman & Goggin, 1007
N. Orange St., Suite 600, Wilmington, Delaware, 19899. Attorney for Defendants.
Scott, J.
1
Issue
Are the notes taken by an office manager and two doctors in response to a
phone call from a wife who describes an adverse reaction of her husband, subject to
being produced when Defendants claim the notes are work product?
Background
This is a medical malpractice and wrongful death action. Mark Page began
seeing Defendant, Dr. Fucci on April 11, 2014 for outpatient drug addiction
treatment. Mr. Page was prescribed Suboxone as part of this treatment. Sometime
after being administered Suboxone, Plaintiff contacted Defendants' answering
service. The on-call physician Dr. Joshi returned that call and had a conversation
about the administration of Suboxone. The next day, on April 12th Mr. Page was
taken to Christiana Hospital and passed away on April 15th. The complaint alleges
Dr. Fucci was negligent in prescribing Suboxone to Mr. Page and failing to monitor
its effects on Mr. Page.
Plaintiff (Mr. Page's spouse and adminstratrix) contacted Dr. Fucci's practice
manager and stated her husband's death was senseless, that she was seeking her
husband's medical records, intended to review those records, and would get an
attorney. Plaintiff's deposition testimony indicates she could not recall specifically
stating she intended to hire an attorney, but that it was something she would say out
2
of anger. As a result of this conversation the practice manager and Drs. Fucci and
Joshi recorded their recollection of the events that had transpired. Dr. Joshi has
stated that these notes were not taken as part of a protocol, nor were similar notes
taken within the ordinary course of business. It is undisputed these notes were taken
without the advice and consent of an attorney representing Defendants.
Plaintiff has moved to compel the production of these notes as part of their
discovery. Plaintiff contends that as these notes were taken without the advice and
consent of an attorney they fall outside of the protection of the work product
doctrine. Defendant answers that these notes fall within the protection as they were
prepared in preparation for litigation.
Analysis
Under Superior Court Civil Rule 26, parties may generally obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter involved
in the pending action.1 Material prepared by or for an attorney in anticipation of
litigation generally fall within the work product doctrine as articulated by the United
States Supreme Court in Hickman v. Taylor.2 When seeking discovery of material
prepared in anticipation of litigation by a party’s representative (including the other
1
Super. Ct. Civ. R. 26.
2
Hickman v. Taylor, 329 U.S. 495 (1947).
3
party's attorney, consultant, surety, indemnitor, insurer or agent), the party
demanding discovery must show a substantial need for the material, and that the
party is unable to discover the information without undue hardship.3
However, “core or opinion work product that encompasses the mental
impressions, conclusions, opinion, or legal theories of an attorney or other
representative of a party concerning the litigation is generally afforded near absolute
protection from discovery.”4 A party asserting the work product privilege bears the
burden of establishing that the documents he or she seeks to protect were prepared
“in anticipation of litigation.”5 To determine if a document meets this test the Third
Circuit stated “only by looking to the state of mind of the party preparing the
document or, as here, the party ordering preparation of the document, can we
determine whether this test has been satisfied.”6 Both the Third Circuit and this
Court have required the preparer’s anticipation be reasonable. This Court held in
Cont'l Cas. Co. v. Gen. Battery Corp., and the Third Circuit both looked to
Professors Wright and Miller who articulated:
Prudent parties anticipate litigation, and begin preparation prior to the
time suit is formally commenced. Thus the test should be whether, in
light of the nature of the document and the factual situation in the
3
Super. Ct. Civ. R. 26.
4
In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003). (internal
quotations omitted)
5
Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000)
6
Mart. v. Bally's Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir. 1993)
4
particular case, the documents can fairly be said to have been prepared
or obtained because of the prospect of litigation.7
In Cont'l Cas. Co. v. Gen. Battery Corp., the action arose from General
Battery’s environmental liability nationwide for which Continental sought a
declaration of its rights and obligations. The Court did not accept that all documents
produced after Defendant became aware of potential liability were created in
anticipation of litigation. Nor did the Court accept that defendants did not
“anticipate litigation” until just prior to the commencement of the action. 8
Ultimately the Court required an in camera review of documents so that a factual
analysis could be made and the five-part test adopted in Mullins v. Vakili applied.9
This Court has adopted the five-part test laid out in Mullins to determine if
documents were created in anticipation of litigation:
First, courts should consider the nature of the event that
prompted the preparation of the materials and whether the event is one
that is likely to lead to litigation.... Second, courts should determine
whether the requested materials contain legal analyses and opinions or
purely factual contents in order to make inferences about why the
document was prepared. Third, courts should ascertain whether the
material was requested or prepared by the party or their representative
... [W]hen litigation is anticipated it is expected that an attorney or party
will [have] become involved. Fourth, courts should consider whether
7
Cont'l Cas. Co. v. Gen. Battery Corp., 1994 WL 682320, at *6 (Del. Super. Ct.
Nov. 16, 1994) Citing 8 Wright and Miller, Federal Practice and Procedure, § 2024
(2d ed. 1982).
8
Cont'l Cas. Co. v. Gen. Battery Corp., at *6.
9
Mullins v. Vakili, 506 A.2d 192.
5
the materials were routinely prepared and, if so, the purposes that were
served by that routine preparation ... Last, courts should examine the
timing of the preparation and ascertain whether specific claims were
present or whether discussion or negotiation had occurred at the time
the materials were prepared.10
The items sought to be discovered by Plaintiff in Mullins were notes taken
subsequent to receiving a letter from Plaintiff’s attorney indicating his representation
related to a medical malpractice action. To properly apply the Mullins test the Court
must consider the facts of each case.11
In its analysis of the first part of the test in the Mullins case the Court reasoned
that the initiating event for the creation of the notes was the notification that Plaintiff
was represented by an attorney as opposed to having been created in response to the
event itself. The Court found “While an accident or injury […] may not necessarily
lead to litigation […] when an attorney notifies a doctor two months after an incident
out of which a claim arises that he represents the doctor's patient, it may be
reasonably inferred that litigation of some sort is likely.”12 In Mullins, the event that
prompted the preparation of the documents was a letter from Plaintiff’s
representative.
10
Mullins v. Vakili, at 198.
11
Id.
12
Id.
6
Further application of the Mullins test in Mancinelli v. Delaware Racing
Association, determined that documents prepared during the investigation of a slip
and fall accident by an insurance company were primarily prepared as a result of the
accident giving rise to the action.13 These records, the Court found, were created in
the ordinary course of business, and not in anticipation of litigation. The Court did
withhold certain portions of the materials finding those pages contained legal
analysis and warranted protection.14
After an in camera review of the notes sought to be discovered, the application
of the Mullins test favors allowing discovery. First, looking at the nature of the event
that prompted the preparation of the notes in question. Similar to Mullins, the
triggering event was the first contact. In Mullins, it was the letter, here it was a
phone call by the Plaintiff. Unlike Mullins, Defendant was not an attorney, and had
not retained an attorney.
Secondly, the Court must determine whether the requested materials contain
legal analyses and opinions or purely factual contents in order to make inferences
about why the document was prepared. The notes in question were prepared by the
on-call physician, the office manager, and the treating physician. The notes contain
factual observations related to the phone call, the care received and the conversation
13
Mancinelli v. Delaware Racing, 2014 WL 1267572.
14
Id. at *2.
7
between the parties. There are no impressions of counsel included, and the notes do
not show any indication litigation was anticipated.
Third, the Court must ascertain whether the material was requested or
prepared by the party or their representative. Here, he notes were prepared at the
request of the office manager, and without a request by counsel.
Fourth, the Court must consider whether the materials were routinely prepared
and, if so, the purposes that were served by that routine preparation. Although the
notes were specially prepared, they appear to be typical physician’s notes taken in
the ordinary course of business. The notes appear to present a record of the care
provided to a patient, not unlike any other physician’s notes contained within any
ordinary patient’s records.
Finally, the Court must examine the timing of the preparation and ascertain
whether specific claims were present or whether discussion or negotiation had
occurred at the time the materials were prepared. While the notes were prepared
after it became apparent Mr. Page suffered an adverse reaction, they were prepared
before any discussions between the parties or their representatives began in earnest.
8
For the forgoing reasons, Plaintiff’s Motion to Compel Production of
Physician’s notes of Preet Joshi, M.D., Pasquale Fucci, M.D., and the note of office
manager Erika Mutter is Granted.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
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