IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ALLISON FASANO, Individually and as ) Administratrix of the Estate of the Late JO ) PAULA BARSHAY, PAUL GIBSON , ) EDDIE GIBSON, and KAREN YEATMAN,) Plaintiff s , ) ) v. ) C.A. N21C

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- 309 DJB ) SONYA TUERFF, M.D., DELAWARE ) VASCULAR & VEIN CENTER, LLC, a ) Delaware Corporation, and CHRISTIANA ) CARE HEALTH SYSTEM, INC. d/b/a ) CHRISTIANA CARE

- NEWARK, a ) Delaware Corporation, CHRISTIANA ) CARE HEALTH SERVICES INC. d/b/a ) CHRISTIANA CARE NEWARK, a ) Delaware Corporation, ALLEN KATZ, MD ) TIDAL HEALTH NANTICOKE, Inc., a ) Delaware Corporation, VIRTUAL ) RADIOLOGIC CORPORATION, a ) Delaware Corporation, NANTICOKE ) HEALTH SERVICES, INC., a Delaware ) Corporation, and NANTICOKE ) MEMORIAL HOSPITAL, INC., a Delaware) Corporation, )

Defendant s
. )

Date Submitted: January 16, 202 4 Date Decided: February 1, 2024

O RDER On Defendant s Sonia Tuerff, M.D. and Del aware Vas c ular and V ein Center ’s Motion to Extend the Discovery Dead line

- DENIED.Having considered Defendant s Sonia Tuerff, M.D. and Delaware Vascular

and Vein Center ’ s (hereinafter “ Va scular D efendants ” ) Motion to Extend the
D i sco very Deadline , Plaintiff’s response in opposition thereto, oral arguments of the parties , the joint supplemental letter sub mission of Plaintiffs and the Vascular
Defendants and the record in this matter; t he Court finds the following:
1. This is a medical negligence case in whic h P laintiff s allege negligence
in the t reatment of M s. Jo Paula B arshay by the name d defendants. Liability is claimed by Plaintiffs both directly and vicariously on the re spective defendants.
Th is action was brought in March of 202 1. 1
2. A n initial T rial S cheduling O r der was issued on October 27, 20 2 1. 2
This scheduling Order was amended on December 20, 2022, by St ipulation and
O r der extending fact and expert discovery

. 3 Onc e again, on February 15, 2023, the parties submitted a Stipulation to amend the Trial Scheduling Order. 4 This was denied by the Court given the time con strain ts with the original trial date and a scheduling conference wa s held, establishing new discovery deadlines, motion
deadlin es and a new t rial date

. 5 Effectively , that created the third Trial Schedul ing

1 Fas ano, et. al. v. Tuerff, et. al. , C.A. No. N21C

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- 309 DJB; D.I. 1. An Amended Complaint was filed on May 12, 2021. D.I. 12. 2 D. I. 82. 3 D.I. 149. 4 D.I. 157. 5 D.I. 158, 176.Order in th is case
. A gain, on September 19, 2023, counsel for the Vascular

Defendants wrote t o the Co urt reque sting an addition ninety (90) days to effectuate discovery. 6 This le tter acknowle dged the Court ’ s concern discussed at the previous scheduling con ference regarding the multiple e x tensions and need to move the trial
date in this case. The St ipulated Amended Trial Sc heduling Order was granted nonetheless, creating a fo urth scheduling Order

. 7
3. Before the Court now is a request to modify the trial scheduling Order
for a fifth time. Vascular Defendant s request this modification due to the
unavailabilit y of a fact wit ness, Plaintiffs ’ surgeon Dr. R o bb , for d eposition with in
the allotted timeframe. 8 Plaintiff s oppose
. 9 Neither the C h ristian a Care Health
Services Defendants , nor the Ti dalHealth Nanticoke, I n c. , Nan ticoke Health
S e rvices, In c. and Nanticoke Memor i al Hospital , Inc. Defendants oppose d the
motion and all requested excusal from oral argument

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4. Vascular Defendants argue that this is a simpl e modification so that a
fact w itness can be d eposed and maintain Plaintiffs will suffer no prejudice as a
result. Pl aintiffs argue there is real and potential prejudice, as these defendants intentionally waited to schedule this d eposition , the expert discovery deadline ha s

6 D.I . 202. 7 D.I. 204. 8 D.I. 211. 9 D.I. 216. 10 D.I. 214 , 217

.expired and that costs and delay will ensu e in getting new deposition transc ripts to

all experts if this is allowed. Addition ally, Plaintiffs fear the Vascular Defenda nts
wil l be attempting to circumvent the ex pert deadline by presenting the testimony of
Dr. Robb , who was not designated as an expert.
5. Vascular Defenda nts stated that it was a “ strat e gic de cision ” to wait to
notice and sc hedule Dr. Robb ’ s deposition

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6. A l l parties agree that Dr. R o bb may only be called as a fact witness as this point in the litigation. All parties also agree that Dr. Robb ’ s testimony would
be r egarding his medical record s for the procedure he p erformed on Ms. Barsha y prior to the alleged negligence and those records are found in the Christiana Ho spital Records for Ms. Barshay . These records have all been provided to the releva nt experts prior to their respective depositions and conclusions

. 7. Defendants allege prejudice if this deposition is not permitted bec ause

“ Dr. R o bb performed the surgi cal procedure at the center of Plaintiff s ’ allegation: a total aortic arch replacement. ” 12 H o wever, the Court fails to find substantial prejudice, if any at all, exists if Dr. Robb is not deposed. First and f oremost, a deposition is not a prerequi site t o t r ial testimon y, so Dr. Robb ’ s presentation is still
available for the Vascular Def endants at trial. Se cond, Dr. R o bb is only permitted

11 D.I. 232. 12 D.I. 211 (emphasis in original stricken).to give fact testimony and the record before the Court is devoid of any comp el ling

argument as to why hi s medical records alone are now insuffi cient

. There is also

n othing before the Court that any of the prof fered experts found these record s to be
insufficient , thus necessitating further questioning at a deposition prior to th em being

a ble to for mulate a conclusion. Finally, the choice to wait to depose D r. Robb was wholly on Vascular Defenda nts.
8. It is well

- settled that it is within the Court ’ s discretion to control its
docket

. 13 “ The Court enters scheduling orders for a reason

– to insure prompt, fair adjudication of ci vil suits. T h rough its scheduling orders, the Court atte mpts to effectively and efficiently manage its constantly growing civil docket. ” 14
9. Even assuming there is prejudice to Vascular Defen dants , it is not outweigh ed by the additional time and expense that will inevitably be spent by all parties in providing the deposition testimony to the experts an d any resulting

consequences

– all after the expert deadlines have passed. As a rticul ated above, the
T rial S cheduling Order in this case has been modified repeatedly at the request of parties in this case. The Court voiced its concerns with the con stant modification
at the f inal scheduling conference, but ultimately amended the Order accordingly based upon the parties joint re quest . The fact that there is a January 202 5 trial date

13 R ispoli v . Stancoski , M.D. , et al. , 2006 WL 3492447 *1 (Del. Su per. Ct. Dec. 1 , 2006). 14 Id.does not negate t he additional expenses all will endure and the very real possibility

that the Trial Schedul ing Order will have to be modifi ed in the future as a result of this fact deposition.
10. Therefore, for the r easons stated, the Vascular Defendants ’ Motion to Extend the Discovery Deadl ine is DENIED. The current Trial Schedul ing Order is

to r emain in effect with the exception of the d i spositive and Dau bert m otion
d eadline, which was previously extended as a result of th e inst ant motion , to
Feb r uary 2, 2024

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IT IS SO ORDERED.

____________________________ Danielle J. Brennan, Judge

Cc: All parties via File&Serve Express

15 D.I. 232.