THE SUPERIOR COURT OF THE STATE OF DELAWARE

NICOLE LISOWSKI, )

as Next Friend of BRANDON )

RODRIGUEZ, JEREMIAH )

RODRIGUEZ, NICHOLAS )

O‟BRIEN, minors, and JUAN )

RODRIGUEZ, in his capacity as ) C.A. No. N15C-04-228 ALR

Personal Representative of the )

Estate of Alexis Rodriguez, )

 )

Plaintiffs, )

 )

v. )

 )

BAYHEALTH MEDICAL CENTER, )

INC., d/b/a KENT GENERAL )

HOSPITAL, ) 

 )

Defendant. )

Submitted: October 20, 2016

Decided: November 30, 2016

ORDER

Upon Plaintiffs’ Motion for New Trial 

GRANTED

This is a medical negligence action arising from the death of Alexis 

Rodriguez. Following an eight-day trial, a jury found that Defendant Bayhealth 

Medical Center, Inc., d/b/a Kent General Hospital (“Bayhealth”) had committed 

medical negligence in its care and treatment of Mr. Rodriguez, but that the 

negligence did not proximately cause Mr. Rodriguez‟s death. 
2

Plaintiffs filed a timely Motion for New Trial. Defendant opposes Plaintiffs‟ 

Motion. Upon consideration of the parties‟ submissions; the Superior Court Rules 

of Civil Procedure; the facts, arguments, and legal authorities set forth by the 

parties; decisional law; and the entire record in this case, the Court hereby finds as 

follows:

1. The parties submitted Joint Proposed Jury Instructions as part of pretrial proceedings. The parties agreed to include the following language in the 

Proximate Cause jury instruction: 

A party‟s negligence, by itself, is not enough to impose legal 

responsibility on that party. Something more is needed: the party‟s 

negligence must be shown by a preponderance of the evidence to be 

a proximate cause of the injury.

Proximate cause is a cause that directly produces the harm, 

and but for which the harm would not have occurred. A proximate 

cause brings about, or helps to bring about, the injury, and it must 

have been necessary to the result. 

2. Bayhealth proposed to add the following sentence to the Proximate 

Cause instruction:

An action is not the proximate cause of an event or condition if 

that event or condition would have resulted without the negligence.

Plaintiffs objected to the inclusion of this sentence in the Proximate Cause 

instruction. Bayhealth‟s proposed addition to the Proximate Cause instruction is 

referred hereinafter as “Bayhealth‟s Proposed Additional Sentence.” 
3

3. A Pre-trial Conference was held during which Plaintiffs renewed their

objection to Bayhealth‟s Proposed Additional Sentence on the grounds that

Bayhealth‟s Proposed Additional Sentence was not a correct statement of law 

under Delaware decisional precedent. In response to Plaintiffs‟ objection, 

Bayhealth represented that Bayhealth‟s Proposed Additional Sentence was 

included in the Superior Court‟s Civil Pattern Jury Instructions (“Pattern Jury 

Instructions”). Bayhealth also argued that the evidence presented at trial would 

make the instruction appropriate. Upon consideration of the parties‟ arguments 

and with heavy reliance on Bayhealth‟s representations, the Court overruled 

Plaintiffs‟ objection and Bayhealth‟s Proposed Additional Sentence was included

in the charge read to the jury.

4. During deliberations the jury submitted a note expressing confusion 

regarding the Proximate Cause instruction. Specifically, the jury asked whether 

the Court could “specify or expand” on Bayhealth‟s Proposed Additional 

Sentence.1 In response to the note, the Court reconvened the jury and explained 

that it was unable to expand on the Proximate Cause instruction. The Court re-read 

the Proximate Cause instruction as written, including Bayhealth‟s Proposed 

Additional Sentence. Shortly thereafter, the jury returned a verdict finding that 

 

1 Court‟s Exhibit #3, Jury‟s Note, Lisowski v. Bayhealth Med. Ctr., Inc., N15C-04-

228 ALR (Del. Super. Sept. 20, 2016). 
4

Bayhealth had committed medical negligence, but that the negligence did not 

proximately cause Mr. Rodriguez‟s death. 

5. Plaintiffs filed a Motion for New Trial that is currently before the 

Court. 

6. Rule 59 provides that “[a] new trial may be granted as to all or any of 

the parties and on all or part of the issues in an action in which there has been a 

trial for any of the reasons for which new trials have heretofore been granted in the 

Superior Court.”2

7. In reviewing a motion for new trial based on a jury instruction, the 

Court must determine whether “the alleged deficiency in the jury instructions 

undermined the jury‟s ability to intelligently perform its duty in returning a 

verdict.”3 Jury instructions must be “reasonably informative and not misleading, 

judged by common practices and standards of verbal communication.”4 The Court 

must conduct its analysis by considering the instructions as a whole with no 

individual statement read out of context.5

 

2

Super. Ct. Civ. R. 59. 

3 Culver v. Bennett, 588 A.2d 1094, 1098 (Del. 1991) (citing Probst v. State, 547 

A.2d 114, 119 (Del. 1988)). 

4

Lowther v. State, 104 A.3d 840, 847 (Del. 2014) (quoting Dawson v. State, 581 

A.2d 1078, 1105 (Del. 1990) (citing Flamer v. State, 490 A.2d 104, 129 (Del. 

1984))).

5

Adkins v. State, 2016 WL 5940363, at *3 (Del. Oct. 12, 2016); Ireland v. 

Gemcraft Homes, Inc., 2011 WL 4553166, at *3 (Del. Oct. 3, 2011).
5

8. The Court‟s decision on a motion for new trial is reviewed under an 

abuse of discretion standard.6 Accordingly, the Court‟s decision must not exceed

“the bounds of reason.”7 An act of judicial discretion must be “based upon 

conscience and reason, as opposed to arbitrariness or capriciousness.”8

9. Plaintiffs contend that a new trial is warranted because Bayhealth‟s 

Proposed Additional Sentence created a misleading statement that prevented the 

jury from intelligently rendering a verdict. Specifically, Plaintiffs argue that the 

use of the phrase “event or condition” rather than “harm” or “injury” rendered the 

Proximate Cause instruction confusing. 

10. Bayhealth opposes Plaintiffs‟ Motion on the grounds that (1) Plaintiffs 

waived their objection to Bayhealth‟s Proposed Additional Sentence by failing to 

satisfy the procedural requirements of Rule 51;9and (2) Bayhealth‟s Proposed 

Additional Sentence is not misleading or confusing when considered in context. 

11. Rule 51 provides that “[n]o party may assign as error the giving or 

failing to give an instruction unless a party objects thereto before or at the time set 

 

6 Maier v. Santucci, 697 A.2d 747, 749 (Del. 1997) (citing Storey v. Camper, 401 

A.2d 458, 465 (Del. 1979)). 

7

Pesta v. Warren, 2005 WL 3453825, at *2 (Del. Dec. 14, 2005) (citing Chavin v. 

Cope, 243 A.2d 694, 695 (Del. 1968)).

8

Ams. Mining Corp. v. Theriault, 51 A.3d 1213, 1238 (Del. 2012) (citing 

Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 528 (Del. 2006) 

(quoting Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del. 

2006))). 

9

Super. Ct. Civ. R. 51. 
6

by the Court immediately after the jury retires to consider its verdict, stating 

distinctly the matter to which the party objects and the grounds of the party‟s 

objection.” Bayhealth asserts that Plaintiffs‟ pre-trial objections were solely on the 

grounds that Bayhealth‟s Proposed Additional Sentence was not included in the 

Pattern Jury Instructions, and that Plaintiffs could not locate the language under

Delaware case law. Bayhealth notes that Plaintiffs did not argue that the language 

was confusing or misleading during trial. Furthermore, Bayhealth contends that 

Plaintiffs failed to renew the objection immediately before the Court dismissed the 

jury for deliberations. 

12. This Court finds that Plaintiffs preserved their objection to 

Bayhealth‟s Proposed Additional Sentence. Plaintiffs originally noted their

objection in the parties‟ Joint Proposed Jury Instructions, as required by the 

Court‟s Trial Scheduling Order. Furthermore, Plaintiffs renewed their objection 

during the Pre-trial Conference. Accordingly, both the Court and Bayhealth were 

on sufficient notice that Plaintiffs challenged the propriety of the Proximate Cause 

instruction to ensure that the jury was properly charged on a fundamental issue of 

the case.10 The objection was preserved. 

13. Upon consideration of the evidence presented at trial and the jury 

instructions as a whole, this Court finds that Bayhealth‟s Proposed Additional 

 

10 See Pa. R.R. Co. v. Goldenbaum, 269 A.2d 229, 234 (Del. 1970).
7

Sentence undermined the jury‟s ability to intelligently render a verdict. The parties 

presented highly conflicting evidence regarding proximate cause at trial, including

contradicting expert testimony regarding the effect of Mr. Rodriguez‟s preexisting 

condition on his post-surgical death. In consideration of the parties‟ competing 

theories regarding proximate cause and the importance of the issue to this case, a 

clear and accurate submission of the law was essential to ensure the trial‟s integrity 

and the jury‟s ability to intelligently identify the relationship between Bayhealth‟s 

medical negligence and Mr. Rodriguez‟s death.

11

 Instead, Bayhealth‟s Proposed 

Additional Sentence invited confusion regarding the effect of Bayhealth‟s postsurgical care. Specifically, the use of the words “event” and “condition” instead of 

“injury” or “harm” may have misled the jury. The introduction of these undefined 

concepts rendered the Proximate Cause instruction misleading under common 

standards of verbal communication.12

14. While the Court recognizes the strong public policy of deference to 

jury verdicts, it is essential that the jury be provided an intelligible and accurate 

statement of the law on which to consider the evidence.13 Contrary to Defendant‟s 

 

11 See Duphily v. Del. Elec. Coop., Inc., 662 A.2d 821, 834 (Del. 1995); Schmidt v. 

Hobbs, 1988 WL 116338, at *2 (Del. Oct. 14, 1988). 

12 Lowther, 104 A.3d at 847 (internal citations omitted). 

13 See Keener v. Isken, 58 A.3d 407, 409 (Del. 2013) (citing Tsipouras v. 

Tsipouras, 677 A.2d 493, 497 (Del. 1996)) (noting the public policy in favor of 

trials on the merits); Waterhouse v. Hollingsworth, 2013 WL 5803136, at *3 (Del. 
8

representations during the Pre-trial Conference, Bayhealth‟s Proposed Additional 

Sentence is not contained in the Pattern Jury Instructions. Moreover, Bayhealth 

has not relied upon any decisional law as support for the inclusion of this sentence. 

Furthermore, the evidence presented did not ultimately render the language

appropriate. To the contrary, Bayhealth‟s Proposed Additional Sentence impacted

the jury‟s ability to intelligently perform its duty when considered in the context of 

the evidence presented at trial. A party is not entitled to a particular jury 

instruction, “even if the requested format set forth is the Pattern Jury Instructions 

for Civil Practice.”14 However, a jury instruction must not only provide a correct 

statement of law, but must also be “not so confusing or inaccurate as to undermine 

the jury‟s ability to reach a verdict.”15 

15. This Court‟s conclusion is supported by the factual record of this case. 

This is not a situation where “[t]he jury never gave any indication that it was 

confused.”16 Rather, the jury plainly expressed uncertainty and confusion 

regarding the Proximate Cause instruction during its deliberations by submitting a 

 

Super. Oct. 10, 2013) (“Delaware has a strong public policy favoring resolution of 

cases on their merits.”). 

14 Russell v. K-Mart Corp., 761 A.2d 1, 5 (Del. 2000) (citing Culver, 588 A.2d at 

1096).

15 Pesta, 2005 WL 3453825, at *2 (quoting Cabrera v. State, 747 A.2d 543, 543 

(Del. 2000)). 

16 Reinco, Inc. v. Thompson, 906 A.2d 103, 112 (Del. 2006).
9

note to the Court requesting clarification on Bayhealth‟s Proposed Additional 

Sentence and the legal definition of proximate cause.17 

16. In Reinco, Inc. v. Thompson,

18 the Delaware Supreme Court found 

that a trial judge abused her discretion by granting a motion for new trial for jury 

confusion where “the jury never sent a note to the judge” or “rendered an 

inconsistent verdict . . . .”19 The Supreme Court noted that a decision to grant a 

new trial constitutes an abuse of discretion if based upon a “speculative conclusion 

that the jury was confused.”20 However, the Supreme Court also noted that “cases 

where the jury sends a note to the judge expressing confusion or the jury returns an 

inexplicably inconsistent verdict might be sufficient to warrant granting a motion 

for new trial on the basis of jury confusion.”21 This Court‟s conclusion is not 

based upon improper speculation or a “gut feeling,”22 but identifiable evidence that 

 

17 See Atwell v. RHIS, Inc., 974 A.2d 148, 154–55 (Del. 2009) (finding that a jury‟s 

submission of questions during deliberation evidenced actual confusion); Reinco, 

Inc., 906 A.2d at 110 n.15. Cf. Nagle v. Riverview Cemetery, 1989 WL 89496, at 

*4 (Del. Super. June 30, 1989) (quoting Reeves v. Am. Airlines, Inc., 408 A.2d 283, 

284 (Del. 1979)) (“The Delaware Supreme Court has noted that a jury may 

demonstrate „the elimination of prior confusion by the failure to request further 

instruction . . . .‟”).

18 906 A.2d 103 (Del. 2006).

19 Id. at 112.

20 Id. at 110 n.15.

21 Id.

22 Id. 
10

the jury was actually confused by Bayhealth‟s Proposed Additional Sentence and

the Proximate Cause instruction.

23

16. Upon consideration of Bayhealth‟s Proposed Additional Sentence in 

context of the conflicting causation evidence presented at trial and the jury 

instructions as a whole, the Court finds that Bayhealth‟s Proposed Additional 

Sentence undermined the jury‟s ability to intelligently fulfill its duty to render a 

verdict.24 This conclusion is based upon the Court‟s conscience, reason, and 

firsthand evaluation of the proceedings in this case. The jury‟s confusion 

regarding Bayhealth‟s Proposed Additional Sentence warrants this Court‟s exercise 

of its sound discretion in the interest of preventing a miscarriage of justice.25

 

23 Cf. Dickens v. Costello, 2004 WL 1731136, at *5 (Del. Super. July 20, 2004) 

(denying plaintiff‟s motion for a new trial where plaintiff‟s claim was 

“unsupported conjecture,” and plaintiff “offered no proof that any juror was 

confused.”); Connelly v. Willey, 1990 WL 58175, at *2 (Del. Super. Mar. 20, 1990) 

(denying plaintiff‟s motion for a new trial where there was “nothing in the record 

to indicate confusion by the jury in its final award . . . .”).

24 Culver, 588 A.2d at 1098.

25 See Schmidt, 1988 WL 116338, at *2; Nelson v. Fregoso, 2014 WL 7008885, at 

*2 (Del. Super. Nov. 18, 2014); Cain v. Sadler, 2014 WL 2119994, at *3 (Del. 

Super. May 9, 2014). See also Blancha v. Raymark Indus., 972 F.2d 507, 518 (3d 

Cir. 1992) (Seitz, C.J., dissenting).
11

NOW, THEREFORE, this 30th day of November, 2016, Plaintiffs’ 

Motion for New Trial is hereby GRANTED. 

IT IS SO ORDERED.

Andrea L. Rocanelli

_____________________________

The Honorable Andrea L. Rocanelli