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,)

Plaintiffs, ) 

)

v. ) C.A. N21C-03-309 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, )

Defendants. ) 

Date Submitted: January 16, 2024

Date Decided: February 1, 2024

ORDER

On Defendants Sonia Tuerff, M.D. and Delaware Vascular and Vein Center’s 

Motion to Extend the Discovery Deadline - DENIED.
Having considered Defendants Sonia Tuerff, M.D. and Delaware Vascular

and Vein Center’s (hereinafter “Vascular Defendants”) Motion to Extend the 

Discovery Deadline, Plaintiff’s response in opposition thereto, oral arguments of the 

parties, the joint supplemental letter submission of Plaintiffs and the Vascular 

Defendants and the record in this matter; the Court finds the following:

1. This is a medical negligence case in which Plaintiffs allege negligence 

in the treatment of Ms. Jo Paula Barshay by the named defendants. Liability is 

claimed by Plaintiffs both directly and vicariously on the respective defendants. 

This action was brought in March of 2021.1

2. An initial Trial Scheduling Order was issued on October 27, 2021.2 

This scheduling Order was amended on December 20, 2022, by Stipulation and 

Order extending fact and expert discovery.

3 Once 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 constraints with the original trial date and a 

scheduling conference was held, establishing new discovery deadlines, motion 

deadlines and a new trial date.

5 Effectively, that created the third Trial Scheduling 

1 Fasano, et. al. v. Tuerff, et. al., C.A. No. N21C-03-309 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 this case. Again, on September 19, 2023, counsel for the Vascular

Defendants wrote to the Court requesting an addition ninety (90) days to effectuate 

discovery.6 This letter acknowledged the Court’s concern discussed at the previous 

scheduling conference regarding the multiple extensions and need to move the trial 

date in this case. The Stipulated Amended Trial Scheduling Order was granted 

nonetheless, creating a fourth scheduling Order.

7

 

3. Before the Court now is a request to modify the trial scheduling Order 

for a fifth time. Vascular Defendants request this modification due to the 

unavailability of a fact witness, Plaintiffs’ surgeon Dr. Robb, for deposition within 

the allotted timeframe.8 Plaintiffs oppose.

9 Neither the Christiana Care Health 

Services Defendants, nor the TidalHealth Nanticoke, Inc., Nanticoke Health 

Services, Inc. and Nanticoke Memorial Hospital, Inc. Defendants opposed the

motion and all requested excusal from oral argument.

10

 

4. Vascular Defendants argue that this is a simple modification so that a 

fact witness can be deposed and maintain Plaintiffs will suffer no prejudice as a 

result. Plaintiffs argue there is real and potential prejudice, as these defendants 

intentionally waited to schedule this deposition, the expert discovery deadline has

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 ensue in getting new deposition transcripts to 

all experts if this is allowed. Additionally, Plaintiffs fear the Vascular Defendants 

will be attempting to circumvent the expert deadline by presenting the testimony of 

Dr. Robb, who was not designated as an expert. 

5. Vascular Defendants stated that it was a “strategic decision” to wait to 

notice and schedule Dr. Robb’s deposition.

11

6. All parties agree that Dr. Robb 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 regarding his medical records for the procedure he performed on Ms. Barshay

prior to the alleged negligence and those records are found in the Christiana Hospital 

Records for Ms. Barshay. These records have all been provided to the relevant 

experts prior to their respective depositions and conclusions. 

7. Defendants allege prejudice if this deposition is not permitted because 

“Dr. Robb performed the surgical procedure at the center of Plaintiffs’ allegation: a 

total aortic arch replacement.”

12

 However, the Court fails to find substantial 

prejudice, if any at all, exists if Dr. Robb is not deposed. First and foremost, a 

deposition is not a prerequisite to trial testimony, so Dr. Robb’s presentation is still 

available for the Vascular Defendants at trial. Second, Dr. Robb 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 compelling 

argument as to why his medical records alone are now insufficient. There is also 

nothing before the Court that any of the proffered experts found these records to be 

insufficient, thus necessitating further questioning at a deposition prior to them being 

able to formulate a conclusion. Finally, the choice to wait to depose Dr. Robb was 

wholly on Vascular Defendants. 

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 civil suits. Through its scheduling orders, the Court attempts to 

effectively and efficiently manage its constantly growing civil docket.”

14

9. Even assuming there is prejudice to Vascular Defendants, it is not 

outweighed by the additional time and expense that will inevitably be spent by all 

parties in providing the deposition testimony to the experts and any resulting 

consequences – all after the expert deadlines have passed. As articulated above, the 

Trial Scheduling Order in this case has been modified repeatedly at the request of 

parties in this case. The Court voiced its concerns with the constant modification 

at the final scheduling conference, but ultimately amended the Order accordingly

based upon the parties joint request. The fact that there is a January 2025 trial date 

13 Rispoli v. Stancoski, M.D., et al., 2006 WL 3492447 *1 (Del. Super. Ct. Dec. 1, 

2006).

14 Id.
does not negate the additional expenses all will endure and the very real possibility

that the Trial Scheduling Order will have to be modified in the future as a result of 

this fact deposition. 

10. Therefore, for the reasons stated, the Vascular Defendants’ Motion to 

Extend the Discovery Deadline is DENIED. The current Trial Scheduling Order is 

to remain in effect with the exception of the dispositive and Daubert motion 

deadline, which was previously extended as a result of the instant motion, to 

February 2, 2024.

15

IT IS SO ORDERED.

____________________________

Danielle J. Brennan, Judge

Cc: All parties via File&Serve Express

15 D.I. 232.