SUPERIOR COURT OF THE STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse Judge 38 The Green Dover, DE 19901 302

- 735

- 2111
August 30 , 2017

Francis J. Murphy, Esq. Lorenza A. Wolhar, Esq. Kelley M. Huff, Esq. Bradley J. Goewert, Esq. Murphy & Landon Marshall, Dennehey, Warner, Coleman & 1011 Centre Road, Suite 210 Goggin Wilmington, DE 19805 1007 North Orange Street, Suite 600 Wilmington, DE 198 99

- 8888

RE: Regina Woodstock, Individually, and as Administratrix of the Estate of Ethelynn E. Woodstock, Deceased v. W olf Creek Surgeons, P.A. and Wendy S. Newell, M.D. C.A. No. K14C

- 0 7

- 027 JJC

Submitted: August 23 , 2017 Decided: August 30
, 2017

Counsel:
This case involves wrongful death and survivorship claim s based on alleged medical negligence surrounding the death of E t helynn Woodstock . T rial is set for September 18, 2017. T his letter sets forth the Court’s decision regarding two motions
in limine and one outstanding discovery issue. First, Plaintiff Regina Woodstock (hereinafter “Ms. Woodstock”) , both individually and as the administratix of her mother’s estate, seeks an order permitting2

her to use evidence of (1) an alleged prior medical negligence claim against Dr. Wendy
Newell , and (2) Dr. Newell’s prior testimony in a medical negligence case. Ms.
Woodstock argues that these matters are relevant to show Dr. Newell ’s bias because
she is identifie d as a potential expert witness

. Second, Ms. Woodstock requests an
order precluding reference s at trial to her counsel’s prior consultation with a defense
expert regarding a wholly sepa rate matter . Third
, after argument at the pretrial
conference
, Ms. Woodstock seeks a discovery sanction precludi ng Defendants Dr. Newell and Wolf Creek Surgeons, P.A. (hereinafter collectively “Dr. Newell”) from using written materials not produced during discovery to impeach Ms. Woodstock’s
witnesses. Ms. Woodstock specifically reques ted such information in discovery

. Dr.
Newell objected to the requests

. F or the reasons set forth below
, Ms. Woodstock is barred from both offering
substantive evidence regarding Dr. Newell’s alleged prior medical negligence and from using such evidence for impeachment

. Ms. Woodstock, however, is not barred from introducing or using Dr. Newell’s prior testimony or statements
, provided they are
otherwise admissible. Furthermore, Dr. Newell is barred from referencing Ms.
Woodstock’s counsel’s prior consultation wi th one of Dr. Newell’s expert witness es

. Finally, with regard to the discovery issue, both parties shall exchange any docu ments, transcripts, or writings that they will rely upon for purposes of impeachment that are
not oth erwise privileged , by no later than September 11 , 2017. Thereafter, use of any
documents not produced shall be barred from use at trial absent good cause shown, and first addressed outside the presence of the jury.

In this case, evidence or questioning regarding prior medical negligence claims against Dr. Newell is inadmissible as either substantive evidence or for

impeachment purposes.

Ms. Woodstock seeks leave to use certain evidence if Dr. Newell testifies as an expert at trial. Namely, Dr. Newell was allegedly named as a defendant in a prior3

medical negligence suit and may have provided expert testimony in at lea st one medical negligence case

. In her written motion, Ms. Woodstock first argued that if Dr. Newel l offers testimony as an expert, this evidence should be adm issible to show bias, motive, and competency. 1 She sought to offer this evidence pursuant to Delaware Rule of
Evidence 404(b) (hereinafter “Rule 404(b) ” ) as both substantive evidence and for impeachment purposes

. At oral argument, Ms. Woodstock clarified that she will not offer alleged prior
conduct as substantive evidence . Rather, she argues that if Dr. Newell offers expert testimony and was subject to a prior malpractice claim, she may be biased to an even greater degree than the typical defendant

. In response, Dr. Newell argue s that this
evidence is not relevant. Moreover, she argue d in he r written motion that the evidence does not satisfy the Getz factors the Delaware Supreme Court established as guidelines
for a Rule 404(b) analysis. 2 Finally, Dr. Newell argue s that even if this evidence was relevant, it would unfairly prejudice her and such prejudice would substantially outweigh any p robative va lue. Therefore, she argue s that this evidence is inadmissible
under Delaware Rule of Evidence 403 (hereinafter “Rule 403”)

.

1 Ms. Woodstock subsequently amended her proffer to advocate its use only for purposes of impeachment to show bias . For that reason, the court only addresses the proffer on that basis.

2 See Getz v. State , 538 A.2d 726, 734 (Del. 1988). The guidelines established in Getz , in the criminal context, include: (1 ) [t]he evidence of other crimes must be material to an issue or ultimate fact in dispute in the case. If the State elects to present such evidence in its case

- in

- chief it must demonstrate the existence, or reasonable anticipation, of such a material issue. (2) The evidence of other crimes must be introduced f or a purpose sanctioned by Rule 404(b) or any other purpose not inconsistent with the basic prohibition against evidence of bad character or criminal disposition. (3) The other crimes must be proved by evidence which is plain, clear and conclusive. (4) T he other crimes must not be too remote in time from the charged offense. (5) The Court must balance the probative value of such evidence against its unfairly prejudicial effect, as required by D.R.E. 403. (6) Because such evidence is admitted for a limit ed purpose, the jury should be instructed concerning the purpose for its admission as required by D.R.E. 105.
Id.4

While Rule 404(b) most often arises in criminal cases, it applies equally in the
civil context. 3 However, s ince bias related impeachment is at issue , Rule 404(b) is no t the appropriate yardstick. Impeachment evidence of prior conduct to show bias does

not implicate the separate relevance analysis of Rule 404(b). 4 Instead, Rule 404(b)
deals with substantive evidence offered for a purpose other than to prove the character of a person to show action in conformity therewith. 5 Here , the Court ’s analysis must
focus on Delaware Rules of Evidence 401 and 403. In support of her position, Dr. Newell cites In re Servino v. Medical Center of Delaware, Inc. 6

, where the court analyzed a similar argument under Rules 401 and 403. There, the court found that evidence of a hospital’s prior negligence wa s not relevant and even if it was relevant, that relevancy would be substantially outweighed by its unfair prejudicial value. 7 In the Servino case, the court based its decision, in large part , on the fact that there was “minimal evidence available regarding the [prior]
case.” 8

Ms. Woodstock seeks to distinguish that case because it does not address the
issue of whether a defendant doctor who provides expert medical opinion testimony, as opposed to factual testimony, is open to the same scope of cross

- examination as the
othe r medical experts in the case. She is correct, in part. Serv ino , however, is still supportive of Dr. Newell’s position. Namely, in Servino
, the lack of detail ed

3 Mercedes

- Benz of North America, Inc. v. Norman Gershman’s Things to Wear, Inc. , 596 A.2d 1358, 1365 (Del. 1991).

4 See Gregory v. State
, 616 A.2d 1198, 1203 (Del. 1992) ( holding in the parallel context of impeachment by crimes of dishonesty, that reliance on the Getz factors is misplaced ); see also Wilkinson v. State, 929 A.2d 1111
, 2009 WL 2917800, at *2 (Del. Sept. 14, 2009) (noting that impeachment evidence is not analyzed under Rule 404(b)).

5 D.R.E. 404(b).

6 1997 WL 528037
, *2

– 6 (Del. Super. Ct. Mar. 4, 1997)

. 7 Id.

8 Id. at *2.5

information regarding the prior claim made the prior conduct irrelevant . Here, the parties provided even less detail regarding the prior case or cases in volving Dr. Newell

. T he Court is un aware of the nature or outc omes of Dr. Newell’s prior suit or any accompanying claims. Accordingly, the same evidentiary problems that arose in the
Servino case are present to a greater extent in this case

. The burden is on the proponent of the evidence to structure an offer of proof demonstrating the relevance of the evidence. 9 Here, the Court cannot fully weigh the probative value of thi s evidence for purposes of impeachment

. Nevertheless, t he
threshold for r elevance is not high

. T he Court acknowledges that, a s a general rule
, bias is always relevant
, 10 and even with out more info rmation regarding the prior matter
, use of this evidence for impeachment purposes would, to a minimal extent, assist the jury in determin ing Dr. Newell’s bias if she testifies as an expert witness

. 11

Fo r purposes of a Rule 403 balan ci ng test, however, minimal probative value is all that can be assigned to such evidence. Here , the substantial risk of unfair prejudice significantly outweighs it

. Namely, any reference to the fact that Dr. Newell was a
named defend ant in a pr ior health care negligence case would be highly prejudicial. 12

Since the proponent did not provide the Court with details surrounding Dr. Newell’s

p rior medical negligence claims or their propensity to generate bias under the particular circumstances of this case, the Court is left to speculate regarding the significance of
the ev i dentiary connection . I nstead of assisting the jury, this evidence will likely excite the jury’s prejudice and mislead it. 13 As a result , t his unfair prejudice substantially

9 Minner v. American Mort g. & Guar. Co. , 791 A.2d 826, 843 (Del. Super. Ct. 2000)

. 10 Weber v. State , 457 A.2d 674, 680 (Del. 1983).

11 See Persic hini v. William Beaumont Hosp. , 607 N.W.2d 100, 106 (Mich. Ct. App. 1999) (holding that evidence of prior malpractice actions against a witness is minimally probative of bias but not relevant to the witness’s competen cy or knowledge).

12 Lai v. Sagle , 818 A.2d 237, 248 (Md. 2003)

13 Id.6

outweighs its minimal probative value , making it inadmissible for impeachment

purposes pursuant to Rule 403. Dr. Newell’s testimony or statements made in previous cases are a different matter, however. While evidence that Dr. Newell may have been the subject of prior medical negligence suits or claims is not admissible, her prior testimon y in previous matters may be. That will depend on whether the prior statements are relevant as substantive evidence or for impeachment purposes, and are otherwise admissible under the Rules of Evidence. In furtherance of this Order, the parties must refrain , however, from referencing the source of any such testimon y or statement before the jury

. Finally, Ms. Woodstock argues , in the alternative, that fairness dictates that Dr.
Newell not be permitted to impea ch Ms. Woodstock’s expert witnesses by referencing their alleged prior medical negligence. Here, Ms. Woodsto ck is correct in that, for purposes of impeachment of experts, the same relevance analysis applies

. It has, at a minimum, some relevance to bias. A defendant

- expert and a non

- party expert require
a dif ferent Rule 403 analysis, however

. On one hand, the propensity for unfair prejudice would be higher regarding a do ctor

- defendant than regarding a typical expert
witness

. On the other hand, given the Court’s ruling applicable to the doctor

- defendant in this case, the Court recognizes that there would be a h eightened level of unfair prejudice to Ms. Woodstock as well. In recognition of the later, i f Dr. Newell seeks to impeach Ms. Woodstock’s experts in a similar manner, she must first raise the issue outside the presence of the jury. Since this was Ms. Wo odstock’ s motion, Dr. Newell has not had the opportunity

to establish the relevance of any such impeachment evi dence for purposes of weighing
it against Rule 403 concerns. The Court’s decision on that issue must await further evidentiary context.7

Evidence that p laintiff’s counsel consulted with a defense expert on a prior

unrelated matter is inadmissible

. Ms. Woodstock ’s second motion in limine seeks to exclude evidence that one of her attorneys consulted with one of Dr. Newell’s expert witnesses o n a prior, unrelated

matter . She argues that such eviden ce is not relevant because it does not make any fact of consequence to this case more or less pr obable. She also argues that this would require impermissible vouching by an attorney regarding a w itness’s credibility. Finally , she argues that any possible probative value would be substantially outweighed by its unfair prejudicial effect. In response, Dr. Newell argue s that this evidence is relevant and should be
admissible. She argue s that when Ms. Woodstock challenges the credibility of he r expert , as certainly will be the case, such evidence will be admissible t o rehabilitate her
expert

. She argue s that this evi dence will assist the jury in assessing the witness’ credibility.
Dr. Newell correctly argues that the independence of an expert witness in a medical negligence lawsuit, including his or her willingness to review a case regardless
of the referring party , is relevant and probative to the credibility of that witness
, if
attacked . H owever, t he Court finds that showing that Ms. Woodstock’s attorney
consulted with Dr. Newell’s experts on a pri or unrelated case offers nothing to make
the existence of a ny fact of consequence more or less probable

. Namely, t he Court
finds that this evidence addresses witness credibility in an in admissible manner

. In the Court’s judgment, Dr. Newell seeks to generate an inference by the jury that because plaintiff’s c ounsel finds the defense expert to be credible
, the jury should also find that expert to be credible. 14 Although this may not constitute direct vouching, t he real purpose for offering such evidence would be to persuade the jury to infer that Ms.

14 See Doochack v. Hobbs , 645 A.2d 568, 1994 WL 237597, at *5 (Del. May 18, 1994) (quoting Joseph v. Monroe , 419 A.2d 927, 930 (Del. 1980)) (stating that “it is improper for counsel to comment on the credibility of witnesses”).8

Woodstock ’s counsel found the defense expert witness credible enough to consult him.

As such, it constitutes
, at a minimum, a call for an inference that counsel vouches for a witness’ credibility. Since the Court finds this purpose to be irrelevant to any matter of consequence , this evidence is not admissible. 15

E ven if this evidence c ontained any marginally probative value , its limited probative value would be substantially outweighed by the danger of unfair prejudice
and confusion of the issues

. 16 If this evidence were admissible, it would focus the jurors’ attention on a matter not r elevant to the case

. Namely, it would naturally draw the jurors’ attention to counsel’s prior contact with the defense experts and cause speculation, which is clearly not relevant to Dr. Newell’s level of care

. T herefore, this
evidence would be alternati vely inadmissible under Rule 403

. Accordingly, Ms. Woodstock’s motion to preclude this evidence at trial is granted. T his ruling , however, does not bar Dr. Newell from rehabilitating he r witnesses with other evidence offered to rebut a ttac ks against her expert’s credibility, provided such evidence is otherwise admissible

. In this regard, t he ruling is limited
and bars only evidence regarding the specific contact addressed by the Court.

Both parties must disclose any documents that t he y intend to use to directly confront witne sses for impeachment purposes; this does not include work product.
During the course of discovery, in March 2015, Ms. Woodstock made several
document requests including requests for :

15 D.R.E. 402.

16 See Peterson v. Willie , 81 F.3d 1033, 1038 (11th Cir. 1996) (holding inadmissible evidence that defense expert was previously hired by plaintiff’s counsel because the unfair prejudice resulting fro m disclosing this fact outweighed any probative value ). In Peterson this issue arose in a case where the defense expert testified in the same case where he was origina lly consulted by the plaintiffs. Id. While, t he Court believes that this fact makes such evidence more unfairly prejudicial than what it is confronted with here
, the outcome remains the same. Any relevan ce that this evidence carries would be substantially outweighed by its resulting unfair prejudice.9

(7) All documents, including any deposit ion transcripts, trial transcripts, reports, treatises, texts, reference works, scholarly authority, scholarly materials, or any other documents or information, upon which you intend to rely at trial, or that you will use in examining or cross

examining an y witness at trial or at deposition.

. . . [and that she] (26) Identify all documents that you are not producing on grounds that said document(s) are allegedly privileged because of work

- product or attorney

- client privilege.
Ms. Woodstock also sought similar materials through the use of interrogatories including requests that Dr. Newell :

(22) State the title, author or editor, periodical name and volume (if applicable) and publication date of each textbook, treatise, periodic al, pamphlet or other publication that will be used by the defense in their case in chief, or during cross

- examination at any deposition or at the trial of this case.

. . . (34) Simultaneously with these interrogatories you are being served with a re quest for production of documents. With respect to any documents covered by this request for production but withheld under claim of privilege or work product protection, identify each such document on the basis on which the privilege or work product prote ction is claimed.
Dr. Newell responded to this discovery with objections that it was vague, overly broad, unduly burdensome , and beyond the scope of Superior Court Civil Procedure
Rule 26 (hereinafter “Rule 26”) . She also raises the work product doctrine as an objection

. With regard to Ms. Woodstock’s request for a privilege log, Dr. Newell responded to both requests maintaining that she did not refuse to disclose any
documents based up on privilege

. Pursuant to the Court’s scheduling order, discovery e nded on November 21, 2016. On July 19, 2017, Ms. Woodstock served Dr. Newell with a request to10

supplement prior discovery responses

. 17 On August 18, 2017, Dr. Newell provided a

response re stating her objections. For the first time at the pretrial confer ence, Ms.
Woodstock raised the issue that these materials were not disclosed. Ms. Woodstock
did not move to compel responses to these requests. However, she argues that these
materials are rel evant and discoverable under the Delaware Rules of Civil Proce dure

. Dr. Newell, on the other hand, maintains that documents to be used solely for impeachment are not discoverable and are protected by the work product doctrine. Although these objections would have best been reviewed pursuant to a motion to compel, Ms. Woodstock seeks to preclude the use of any nondisclosed material

pur suant to Superior Court Civil Rule 37(b)(2). Analysis of this issue starts with recognizing th e scope of discovery governed by Rule 26. Rule 26(b) (1) provides that [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having kn owledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 18
The scope of disco very under this Rule is broad and far

- reaching. 19 Rule 26 contemplates a liberal standard designed to advance the purpose s of discovery

17 See Super. Ct. Civ. R. 26(e).

18 See Super. Ct. Civ. R. 26(b)(1).

19 E.g. Levy v. Stern , 687 A.2d 573, 1996 WL 742818, at *2 (Del. Dec. 20, 1996) (Table) (noting that the “discovery rules are to be afforded broad and liberal treatment”); Hunter v. Bogia , 2015 WL 5050648, at *2 (Del. Super. Ct. July 29, 2015).11

including “reducing the element of surprise at trial.” 20 There is n othing in the Rule that precludes discovery of materi als used solely for impeachment purposes. Instead th e language and purpose of this R ule dictate that evidence used solely for impeachment

purposes is discoverable. While it does not appear that any Delaware court has addressed this issue, courts in other jurisdictions have considered whether impeachment evidence is discoverable . They predominantly find such material to be discoverable upon a party’s request. 21

Given (1) the purp ose of the discovery rules, (2) their broad scope, and (3) that

courts interpreting discovery rules containing similar language to Delaware’s rule require disclosur e of impeachment evidence upon specific request, the Court finds that evidence used solely for impeachment is discoverable pursuant to Rule 26(b)(1). While
the C ourt acknowledges the adversarial nature of a trial and the purpose of impeachment, on balance, the Court believes that disclosure of this evidence furthers the purpose of the discovery rules to ensure that trials are decided fairly on the merits.

F or th ese materials to be discoverable, they must fit within the scope of Rule 26

. Therefore, the evidence must be relevant to the subject matter involved in the pending

case

. Dr. Newell argues that requests for prior transcripts and testimony in unrelated cases are not relevant to the subje ct matter at issue. She argues that the only matter at
issue is whether Dr. Newell breached the standard of care when treating Ethelynn Woodstock. Accordingly, she argues that because these materials would only be used

20 Levy , 1996 WL 742818, at *2; Hamilton Partners, L.P . v. Highland Capital Mgmt. , L.P. , 2016 WL 612233, at *2 (Del. Ch. Feb. 2, 2016). While both of these cases in terpret Court of Chancery Civil Procedure Rule 26(b)(1), the Court of Chancery Rule is identical to the Superior Court’s rule

. 21 See, e.g., Varga v. Rockwell Int’l Corp. , 242 F.3d 693, 697 (6th Cir. 2001) (holding that the language of Rule 26 clearly allows for evidence used solely for impeachment to be discoverable); Chiasson v. Zapata Gulf Marine Corp. , 988 F.2d 513, 516 (5th Cir. 1993) (stating that the federal rules p romote broad discovery so it is likely that impeachment evidence would be discoverable); Newsome v. Penske Truck Leasing Corp. , 437 F. Supp.2d 431, 436 (D. Md. 2006) (holding that upon a specific discovery request, a party must disclose impeachment evidenc e); Gutshall v. New Prime, Inc. , 196 F.R.D. 43, 45 (W.D. Va. 2000) (holding that evidence used solely for impeachment falls within the broad scope of Rule 26 and must be disclosed).12

for impeachment and not a pivotal or substantive purpose, they are not discoverable

. Here, the Court disagrees and finds that this evidence is relevant to the subject matter
at issue. T hese requests are designed to identify evidence that could be used to attack the credibility of a witness providing substantive evidence

. 22 Accordingly, as long as
such material is not privileged, it is discoverable under this R ule. The next level of analysis involves the work product doctrine. Rule 26(b)(3) defines the work product doctrine in Delaware. It provides that a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. 23
Under this rule, only materials that are prepared in anticipation for litigation are protected under the work product doctrine. 24 Dr. Newell’s objection based on the work product doctrine has merit in part

. Certainly, no notes of counsel or memoranda disclosing trial strategy are discoverable. Likewise, she need not disclose what portions of any documents, transcripts, or
statements she may use to directly confront any witnesses. On the other hand, Ms.
Woodstock ’s discovery requests sought items that Dr. Newell would seek to use to
d irectly confront witnesses on cross

- examination. These include prior trial and deposition transcripts from other matters. Additionally, it is possible th at Dr. Newell’s counsel will rely on reports, treatises, texts, reference works, scholarly authority,

22 See James WM. Moore, Moore’s Federal Practice 26

- 182 (3 d ed. 2013) (exam ining F ederal Rule of Civil Procedure R ule 26 and noting that the advisory committee notes list impeachment evidence among the types of information that are properly discoverable since it is relevant to the subject matter involved ).

23 Super. Ct. Civ. R. 26(b)(3).

24 Id.13

scholarly materials, case law, or other documents or information that were created separate and independent from this case. These items clear ly do not fall under the work product doctrine because they were not created in anticipation of this litigation. At this point , since no motion to compel was filed, Dr. Newell need not formally respond to Ms. Woodstock’s interrogatories or requests for production. Discovery has passed. However, Ms. Woodstock’s motion to preclude the use of these items was timely. In the interest of justice, the Court holds that Dr. Newell may not confront any
witness with any documents, articles, statements, or trans cripts not produced on or before September 11 , 2017. The only exception to this ruling will be limited to Dr. Newell establishing, through good cause, why there was surprise or other unforeseen circumstances warranting non

- production. In such a circumsta nce, any such request
must be made outside the presence of the jury. Finally, this ruling in no way require s Dr. Newell to identify any portion of any documents she intends to use. Nor does it require the disclosure of any work product. Finally, a t the pretrial conference, the parties indicated that Dr. Newell also requested copies of all relevant documents. Although her request may not have specifically targeted impeachment materials as did Ms. Woodstock’ s , Ms. Woodstock
must also produce any lik e materials she intends to directly confront Dr. Newell’s
witnesses with by September 11 , 2017. Imposing this reciprocal obligation recognizes both (1) the good faith basis for Dr. N ewell’s objections and position since there is no Delaware authority on t his issue, and (2) that Ms. Woodstock did not move to compel responses to her discovery prior to the pretrial conference but rather sought exclusion of any documents not produced

. Conclusion For the reasons set forth herein, Ms. Woodstock’s motion s in limine are Granted in part and Denied in part. Further, her motion to exclude materials Dr. Newell intends to use to confront her witnesses is Granted in respect to any such documents not14

produced by Septembe r 11 , 2017. This Order also imposes reciprocal obligation s and

consequences upon Ms. Woodstock regarding any materials she seeks to use for impeachment purposes

. IT IS SO ORDERED

/s/Jeffrey J Clark