IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TAMEKA RICHARDSON, as NEXT )

FRIEND OF N.D., a minor, )

)

Plaintiff, )

)

v. ) C.A. No. N18C-10-026 JRJ

)

CHRISTIANA CARE HEALTH )

SERVICES, INC., )

)

Defendant. )

MEMORANDUM OPINION

Date Submitted: March 25, 2021

Date Decided: June 21, 2021

Date Corrected: December 6, 2021* 

Upon Plaintiff’s Motion in Limine to Exclude Causation Testimony from Dr. Neil 

Silverman and Dr. Harold Wiesenfeld – GRANTED

Upon Plaintiff’s Motion in Limine to Limit Cumulative Expert Testimony – DENIED

Upon Plaintiff’s Motion in Limine to Limit Neil Silverman M.D.’s Testimony 

Regarding Standard of Care – DENIED

Upon Plaintiff’s Motion in Limine to Limit Dr. Coleen Cunningham’s Testimony 

Regarding the Standard of Care – MOOT

Upon Plaintiff’s Omnibus Motion in Limine – GRANTED IN PART AND DENIED 

IN PART

Timothy E. Lengkeek, Esquire, Young Conaway Stargatt & Taylor, LLP, Rodney 

Square, 1000 North King Street, Wilmington, Delaware 19801, Attorney for 

Plaintiff.

Joshua H. Meyeroff, Esquire, Morris James LLP, 500 Delaware Avenue, Suite 1500, 

Wilmington, Delaware 19801, Attorney for Defendant.

Jurden, P.J.

* The Court corrected a typographical error in footnote 71.
2

I. INTRODUCTION

Serving as next friend of her grandson (“N.D.”), Plaintiff Tameka Richardson

filed this medical negligence action against Defendant Christiana Care Health 

Services (“CCHS”). N.D.’s mother was infected with HIV while she was pregnant 

with N.D., and the virus was transmitted to N.D. Plaintiff alleges that this 

transmission occurred because CCHS—by and through its obstetric agents and 

employees—negligently failed to retest N.D.’s mother for HIV at 36 weeks, so it did 

not know that N.D.’s mother had been infected with the virus during pregnancy. 

Plaintiff has filed five Motions in Limine asking the Court to make various 

evidentiary rulings ahead of trial;

1

the Court addresses these Motions below. CCHS

has filed two Motions of its own,

2 which the Court will address separately. 

II. DISCUSSION

A. Plaintiff’s Motion in Limine to Exclude Causation Testimony from Dr. 

Neil Silverman and Dr. Harold Wiesenfeld3

Plaintiff asks the Court to exclude Dr. Silverman’s and Dr. Wiesenfeld’s 

testimony that N.D. was infected in utero rather than during the intrapartum period 

(i.e., during delivery).4 In support of this request, Plaintiff first points to testimony 

1 Trans. ID 65946740; Trans. ID 65946477; Trans. ID 65946338; Trans. ID 65946141; Trans. ID 

65946227.

2 Trans. ID 65863005; Trans. ID 65863041.

3 Trans. ID 65946740.

4

Id. at ¶ 2.
3

provided by CCHS’s own pediatric infectious disease expert, Coleen Cunningham, 

M.D.5 Dr. Cunningham testified that (1) it is impossible to know whether N.D. was 

infected in utero or during delivery, and (2) it is unknown whether the timing of a 

mother’s HIV infection (i.e., before or during pregnancy) affects the timing of HIV 

transmission to the baby (i.e., in utero or during delivery).6

Plaintiff argues that Dr. Silverman’s and Dr. Wiesenfeld’s testimony 

contradicts Dr. Cunningham’s testimony—and does so without an adequate basis in 

the literature.7 During his deposition, Dr. Silverman testified that the fact that N.D.’s

mother had been infected with HIV during pregnancy made it statistically more

likely that N.D. had been infected in utero rather than during delivery.

8

 Dr. 

Silverman stated that he based that opinion on data from the CDC and NIH and

pointed to the textbook Pediatric Infectious Disease for additional support.9 After 

Dr. Silverman’s deposition, CCHS’s counsel produced six documents, which, 

according to Plaintiff, “do not support Dr. Silverman’s testimony that it is 

statistically more likely N.D. was infected in utero because his mother’s infection 

occurred during pregnancy.”10 Next, Dr. Wiesenfeld testified as follows:

5

Id. at ¶ 3.

6

Id.

7

Id. at ¶ 4.

8

Id.

9

Id.

10 Id. at ¶ 5 (emphasis omitted).
4

Acute HIV infection in pregnancy is a very – is a time of extremely 

high risk of transmitting the virus to the baby, a far greater chance than 

if somebody was infected before the pregnancy and came into 

pregnancy with an HIV-positive diagnosis.11

Plaintiff contends that this was merely Dr. Wiesenfeld’s opinion; Dr. Wiesenfeld has 

never had a patient become infected with HIV while pregnant.12 And in support of 

his opinion, Plaintiff continues, Dr. Wiesenfeld cited a single study, which, in 

Plaintiff’s view, “in no way supports Dr. Wiesenfeld’s opinion.” In sum, Plaintiff 

argues that Dr. Silverman’s and Dr. Wiesenfeld’s causation testimony amounts to

ipse dixit, contradicts Dr. Cunningham’s testimony, and is not supported by the 

literature.13

In response, CCHS first argues that Dr. Silverman and Dr. Wiesenfeld are 

qualified to give opinion testimony under the Daubert standard and Delaware Rule 

of Evidence (“D.R.E.”) 702.14 Because medical testimony need not be produced for 

a qualified expert to give opinion testimony, CCHS maintains, Plaintiff’s 

contentions about the underlying literature are misplaced.

15

 Next, CCHS argues that 

Dr. Silverman and Dr. Wiesenfeld should not be prohibited from testifying simply 

11 Id. at ¶ 7.

12 Id.

13 Id. at ¶¶ 6, 8.

14 See Trans. ID 65976880, at ¶¶ 2–3 (first citing Bowen v. E.I. DuPont de Nemours & Co., Inc., 

906 A.2d 787, 795 (Del. 2006); and then citing D.R.E. 702).

15 Id. at ¶ 4 (citing Wong v. Broughton, 204 A.3d 105, 109 (Del. 2019)); id. at ¶ 4 n.8 (citing 

Norman v. All About Women, P.A., 193 A.3d 726, 731 (Del. 2018)) (“Regardless, medical literature 

is not necessary for admissibility of their expert opinions.”).
5

because their testimony contradicts Dr. Cunningham’s.16 Rather, all three experts

should be allowed to testify, leaving it to the jury to assign weight to each expert’s

testimony.17

The Court will exclude Dr. Silverman’s and Dr. Wiesenfeld’s testimony as to 

the issue of causation. The specific causation testimony that Plaintiff takes issue 

with is the doctors’ shared opinion that when a mother is infected with HIV during

pregnancy, the risk that her baby will be infected with HIV in utero is greater than 

50%.

18

 The Supreme Court of Delaware has decided that such statistical claims

cannot be used to negate proximate cause in a particular case.

19

 

In addition, Dr. Silverman and Dr. Wiesenfeld expressly stated that their 

statistical claims were based on the literature—not their personal experience.20 The 

16 See id. at ¶¶ 5–6.

17 Id. at ¶ 6.

18 See Dep. of Dr. Silverman, Trans. ID 65946740 (Ex. A), at 48:7–9 (emphasis added) (“[A]cute, 

primary maternal infection during a pregnancy, especially the third trimester, puts the risk of fetal 

infection at at least 50 to 75 percent.”); Dep. of Dr. Wiesenfeld, Trans. ID 65946740 (Ex. D), at 

45:3–9 (emphasis added) (“But looking at perinatally-infected individuals, of babies, when you 

look back at them, a high proportion of them, perhaps more than half, have been deemed to be 

acquired in utero, that is before the intrapartum process”).

19 Pruett v. Lewis, 2011 WL 882102, at *2 (Del. Super. Ct. Mar. 10, 2011) (citing and quoting 

Timblin v. Kent General Hospital, 640 A.2d 1021 1024–26 (Del. 1994)). At oral argument, 

Plaintiff clarified that this is the precise testimony that she wishes to exclude. Transcript of March 

25, 2021 Hearing, at 13:15–22 (Trans. ID 66654931) (Mr. Lengkeek: “[T]his testimony[,] the 50 

to 75 percent of moms pass it on in utero when they get HIV[,] is not truthful. . . . But the Court, 

as the gatekeeper, should decide under Daubert[,] under its prior decisions[,] and under Delaware 

Rule of 102 that this testimony not be permitted to be given to the jury.”).

20 Dep. of Dr. Silverman, Trans. ID 65946740 (Ex. A), at 45:2–13 (“Q. All right. Are you going 

to offer an opinion that the fetus was infected prior to 36 weeks? A. Statistically, it’s more likely. 

Yes, it was already infected. Q. What do you base that on? A. So I base that on fairly wellestablished data cited by the CDC and the NIH on their publicly available websites that acute HIV 
6

literature produced, however, does not contain the 50–75% statistic that Dr. 

Silverman cites—a point that CCHS’s counsel has conceded.21 And the study that 

Dr. Wiesenfeld relied on for his opinion appears not to support the idea that a 

mother’s infection with HIV during pregnancy can show when her baby was 

infected.22 In fact, the researchers involved in the study could not determine when

mother-to-baby transmission occurred in most cases; this conclusion supports Dr. 

Cunningham’s position.

23

 

infection during pregnancy, especially in the third trimester, increases the risk of fetal transmission 

by a factor of two or three fold. That's based on numerous pre anti-retroviral therapy studies done 

across the globe.”); Dep. of Dr. Wiesenfeld, Trans. ID 65946740 (Ex. D), at 58:1–11 (“Q. Are you 

relying on any textbooks or any literature to support this specific opinion? A. Again, I mentioned 

to you -- again, from what I recall from reading about this topic in the past, that looking at those 

babies who -- in the UK who were perinatally infected with HIV in the more modern era, the 

majority of them were infected in utero, that is prior to the onset of labor.”).

21 See Transcript of March 25, 2021 Hearing, at 23:1–8 (The Court: “Before you go on. Before 

you go on. Where in the literature, where do you cite me to that has the 50 to 75 percent statistic 

that Dr. Silverman tallied?” Mr. Meyeroff: “So they did not cite -- I will be honest, Your Honor, 

I read the literature as well . . . . . I didn’t see that specific statistic.”); see also id. at 6:23–7:6 (Mr. 

Lengkeek: “I said, okay, I need to see those studies. Mr. Meyeroff provided me with those studies. 

. . . I have reviewed all of those studies. None of those studies, none of them state[s] that the risk 

of in utero transmission is 50 to 75 percent when mom gets HIV while she is pregnant.”).

22 Transcript of March 25, 2021 Hearing, at 10:19–11:3 (Mr. Lengkeek: “So there [are] 67 babies 

born [out of the 100 babies examined] with unknown HIV status. They found out down the road, 

just like they found out in this case, down the road, that the baby got HIV from his mother. In that 

case the timing of HIV acquisition could not be estimated for nearly 90 percent of those 67 

children. So this article does not help Dr. Wiesenfeld. In fact, it helps us.”). CCHS’s counsel did 

not rebut this interpretation of the study.

23 Id.
7

Finally, it is true, as CCHS argues, that supporting literature is not a 

prerequisite under Daubert.

24 Nor issupporting literature listed among the reliability 

factors that the Supreme Court of Delaware identified in response to Daubert:

(1) the witness is qualified as an expert by knowledge, skill, experience, 

training or education; (2) the evidence is relevant; (3) the expert’s 

opinion is based upon information reasonably relied upon by experts in 

the particular field; (4) the expert will assist the trier of fact to 

understand the evidence or to determine a fact in issue; and (5) the 

expert testimony will not create unfair prejudice or confuse or mislead 

the jury.25

The doctors’ statistical opinions do, however, run afoul of factor (5) above because 

they risk misleading the jury; they invite the jury to infer that any alleged negligence 

could not be the proximate cause of the injury in this case because that injury was 

statistically likely to happen anyway.26 And even if the experts’ opinions were to 

check all of Daubert’s boxes, that would not necessarily guarantee their 

admissibility.

27 The trial court must use its “broad latitude” to determine whether 

“Daubert’s specific factors are, or are not, reasonable measures of reliability in a 

24 See Trans. ID 65976880, at ¶ 6.

25 Norman v. All About Women, P.A., 193 A.3d 726, 730–31 (Del. 2018).

26 Timblin v. Kent General Hospital, 640 A.2d 1021 1024–26 (Del. 1994); cf. Crowhorn v. Boyle, 

793 A.2d 422, 433 (Del. Super. Ct. 2002) (noting that the doctor’s general “proposition that 

seventy-five percent of chronic back pain sufferers ‘get better’ in six weeks . . . would have no 

application to” the plaintiff because the doctor “offer[ed] no basis for placing [the plaintiff] among 

the seventy-five percent.”)

27 Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269 (Del. 2013) (quoting Daubert 

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993)) (“The United States Supreme Court has 

emphasized that those [Daubert] factors are not a ‘definitive checklist.’”).
8

particular case.”28 Here, the Court finds that Dr. Silverman’s and Dr. Wiesenfeld’s 

causation testimony is unreliable due to the absence of supporting literature and the 

existence of contradictory literature (and testimony).

29

 Accordingly, Plaintiff’s 

Motion in Limine to Exclude Causation Testimony from Dr. Neil Silverman and Dr. 

Harold Wiesenfeld is GRANTED.

B. Plaintiff’s Motion in Limine to Limit Cumulative Expert Testimony30

In this Motion, Plaintiff asks the Court to prevent CCHS “from presenting two 

experts who will offer identical opinions.”31 Those experts are Dr. Silverman and 

Dr. Wiesenfeld, both of whom are obstetricians.32 Plaintiff emphasizes the Court’s

discretion to limit the number of witnesses that a party may offer to support the same 

idea.

33

 In addition, Plaintiff points to Rule 403, which allows the Court to exclude 

relevant evidence on grounds such as undue delay, time wasting, and the needless 

presentation of cumulative evidence.34 Plaintiff fears that she will suffer prejudice

should the Court allow both Dr. Silverman and Dr. Wiesenfeld to testify.

35 She 

28 In addition, the Court must construe the Delaware Rules of Evidence—including Rule 702, 

which governs the admissibility of expert testimony—so as to pursue “the end of ascertaining the 

truth.” D.R.E. 102.

29 See Crowhorn, 793 A.2d at 433 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 

593 (1993)) (“Daubert requires that the expert's reasoning be both scientifically valid and 

applicable to the facts of the case.”).

30 Trans. ID 65946477.

31 Id. at ¶ 1.

32 Id.

33 Id. at 2 (citing Fromal v. George, 2004 WL 65334 (Del. Jan. 7, 2004)).

34 Id. (citing D.R.E. 403).

35 See id. at ¶ 3.
9

argues that that the jury will assign the doctors’ shared opinion greater weight after 

hearing it twice.

36

CCHS responds that Delaware law permits a party to present the testimony of

two experts who practice in the same field.37 And CCHS notes that, despite their 

shared field, Dr. Silverman and Dr. Wiesenfeld have different experiences by virtue 

of their practices.38 CCHS also contends that Dr. Silverman and Dr. Wiesenfeld will 

serve partially distinct functions, as each will rebut different opinions offered by one 

of Plaintiff’s experts, Dr. Elizabeth Eden.39 

The Court will allow the testimony of both Dr. Silverman and Dr. Wiesenfeld. 

The Supreme Court of Delaware has made clear that “the fact that evidence may be 

cumulative does not render it inadmissible.”40 With respect to Rule 403, the Court 

36 See id.

37 Trans. ID 65977063, at ¶ 1; see id. at ¶ 2 (first quoting Barrow v. Abramowicz, 931 A.2d 424, 

430 (Del. 2007); and then quoting Green v. Alfred A.I. DuPont Inst. of the Nemours Found., 759 

A.2d 1060, 1065 (Del. 2000)).

38 Id. at ¶ 6 (noting that Dr. Silverman, among other things, is a private practice physician and is 

board certified in maternal fetal medicine, whereas Dr. Wiesenfeld, among other things, practices 

at a teaching hospital and is not board certified in maternal fetal medicine); id. at ¶ 8 (“Dr. 

Wiesenfeld routinely orders HIV testing during pregnancy and delivers babies, whereas[] Dr. 

Silverman does not currently routinely do either.”).

39 Id. at ¶ 1.

40 Barrow v. Abramowicz, 931 A.2d 424, 430 (Del. 2007); accord Galmore v. St. Francis Hosp., 

2011 WL 2083888, at *2 (Del. Super. Ct. Apr. 27, 2011) (quoting Barrow v. Abramowicz, 931 

A.2d 424, 430 (Del. 2007)) (“[T]his Court should limit a party’s presentation of evidence on the 

ground that it is cumulative ‘only sparingly.’”); DeBussy v. Graybeal, 2016 WL 8379211, at *1 

(Del. Super. Ct. Dec. 2, 2016) (“[O]verlapping evidence is not automatically inadmissible.”). At 

the hearing, Plaintiff’s counsel attempted to distinguish the relevant cases—those just cited and 

others—on factual grounds. See Transcript of March 25, 2021 Hearing, at 30:10–41:5. But each 

case contains general—rather than fact-bound—statements to the effect that cumulative evidence 

should not automatically be excluded.
10

“has been cautioned against excluding cumulative evidence too freely [under Rule 

403] and informed that overlapping evidence is not automatically inadmissible.”41 

Also, if Dr. Silverman and Dr. Wiesenfeld each rebut a different aspect of Dr. Eden’s 

testimony, then each expert’s testimony will have independent probative value; and 

if evidence has probative value, then there is a heavy presumption in favor of its

admissibility under Rule 403.

42

 Finally, with respect to the potential for prejudice

to Plaintiff, the Court has noted that “[e]ven if [two] doctors largely duplicate one 

another's testimony, duplication does not equal prejudice.”43 In addition, the jury 

will be instructed that “[p]reponderance of the evidence does not depend on the 

number of witnesses.”44 

That said, the Court will not allow “piling on.” The causation opinions of 

these two experts are virtually identical. The differences are their specialties and 

experience. The Court expects that on direct examination, CCHS will not spend an 

inordinate amount of the jurors’ time and attention eliciting from both experts a 

41 DeBussy v. Graybeal, 2016 WL 8379211, at *1 (Del. Super. Ct. Dec. 2, 2016).

42 D.R.E. 403 (emphasis added) (“The court may exclude relevant evidence if its probative value 

is substantially outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.”).

43 DeBussy, 2016 WL 8379211, at *2.

44 Superior Court Civil Pattern Jury Instruction 4.1.; see also DeBussy, 2016 WL 8379211, at *2

(“The jury will be instructed not to give more weight to one side's evidence simply because that 

side has presented a greater number of experts or witnesses. Therefore, [the plaintiff] will not be 

unfairly prejudiced by the fact that [the defendant] will present two expert witnesses compared to 

her one witness.”).
11

lengthy explanation as to causation. D.R.E. 403 still applies, and there does come a 

point when the number of experts and the duration of their explanations of identical 

opinions becomes unfairly prejudicial to the other side.45 Consequently, Plaintiff’s 

Motion in Limine to Limit Cumulative Expert Testimony is DENIED without 

prejudice.

C. Plaintiff’s Motion in Limine to Limit Neil Silverman M.D.’s Testimony 

Regarding Standard of Care46

In this Motion, Plaintiff seeks to exclude Dr. Silverman’s testimony about the 

applicable standard of care.47 According to Plaintiff, the alleged breach in this case 

is the case is the failure of CCHS’s obstetric agents—a number of nurse 

practitioners—to appropriately test N.D.’s mother for HIV.48 Plaintiff argues that 

Dr. Silverman is not qualified to speak to this issue because he is a maternal fetal 

medicine physician who has not provided obstetrical care since 1997.49 Indeed, 

Plaintiff continues, Dr. Silverman conceded that the standard of care has changed 

since he last provided obstetrical care.50 And now that he is a maternal fetal medicine 

physician, Dr. Silverman no longer orders HIV testing or screening for expectant 

45 Yes, there is a curative instruction, but, as gatekeeper, the Court must exercise its discretion to 

ensure a fair trial.

46 Trans. ID 65946338.

47 Id. at ¶ 2.

48 Id. at ¶ 1.

49 Id. at ¶ 2.

50 Id. at ¶ 3.
12

mothers.51 Plaintiff avers that Dr. Silverman testified that no national standard of 

care exists for such testing or screening and that he is not qualified to offer an opinion 

about the standard of care for nurse practitioners providing obstetrical care in 

Wilmington, Delaware.52 

CCHS responds that Dr. Silverman should be able to testify as to whether 

CCHS’s obstetrics providers appropriately tested or screened N.D.’s mother for 

HIV.53 CCHS points out that, in addition to being a maternal fetal medicine 

physician, Dr. Silverman is board certified in obstetrics and gynecology and that he 

has been recognized as a national expert on HIV testing during pregnancy.54 Further, 

CCHS notes that Dr. Silverman was on the American College of Obstetricians and 

Gynecologists (“ACOG”) committee that published ACOG Committee Opinion 

752.55 This is significant, according to CCHS, because Plaintiff’s own standard-ofcare expert, Dr. Eden, conceded in her deposition that ACOG Committee Opinion 

752 articulates the standard of care that applies in this case.56 CCHS also argues that 

Plaintiff misleadingly characterizes Dr. Silverman as a maternal fetal medicine 

physician rather than an obstetrician because maternal fetal medicine is a 

51 Id.

52 Id.

53 See generally Trans. ID 65977202.

54 Id. at ¶ 1.

55 Id. at ¶ 2.

56 Id. at ¶ 3; id. at ¶ 5.
13

subspeciality of obstetrics and gynecology.

57

 Finally, CCHS charges Plaintiff with 

misconstruing Dr. Silverman’s testimony.58 According to CCHS, Dr. Silverman did 

not testify that there is no national standard for HIV screening during pregnancy;

rather, the testimony that Plaintiff refers to “concerns rescreening protocols for other 

sexually transmitted diseases such as chlamydia and gonorrhea.”59

The Court will allow Dr. Silverman to testify as to the standard of care. Dr. 

Silverman has relevant qualifications, in part because he was “on the committee that 

helped review and edit” ACOG Committee Opinion 752, which addresses prenatal 

and perinatal HIV testing.

60

 Plaintiff and CCHS agree that ACOG Committee 

Opinion 752 does not itself constitute the standard of care.61 But that does not bar 

Dr. Silverman from testifying about that publication for purposes of establishing the 

standard of care. As the Supreme Court of Delaware has stated, “It is settled law 

57 Id. at ¶ 4.

58 Id. at ¶ 6.

59 Id.

60 Trans. ID 65977202, Ex. C, at 15:9–15. Apart from his involvement with ACOG Committee 

Opinion 752, Dr. Silverman has substantial expertise in the realm of HIV issues during pregnancy. 

Trans. ID 65977202, Ex. C, at 10:10–14 (noting that he has been involved with “publications 

dealing with HIV issues in pregnancy starting in 1992[] and continuing until the present day when 

[he] was asked by ACOG to be the primary author on . . . Management of Labor and Delivery with 

HIV Infection,” which “was published in 2018”).

61 See Transcript of March 25, 2021 Hearing, at 50:9–10 (Mr. Lengkeek: “[T]he document [ACOG 

Committee Opinion 752] itself says this is not the standard of care.”); id. at 55:8–17 (The Court:

“Mr. Meyeroff, do you agree with that statement, ACOG is not the standard of care? It cannot be 

used as the standard of care by its own express terminology?” Mr. Meyeroff: “Your Honor, I 

would say generally yes, but to caveat that Dr. Eden testified under oath that it defines the standard 

of care in this case. So as a general rule, yes, but their own expert has said this defines how a 

pregnant woman should be tested.”).
14

that the standard of care in a medical malpractice action is established by evidence

of the degree of care and competence ordinarily exercised by physicians on the same 

or similar community.”62 Plaintiff has not provided any authority to suggest that 

ACOG Committee Opinion 752 cannot constitute “evidence” of the applicable 

standard of care. Moreover, Plaintiff’s own standard-of-care expert, Dr. Eden, 

testified during her deposition that ACOG Committee Opinion 752 articulates the 

standard of care that applies in this case.63 If Dr. Eden is qualified to testify as to the 

applicable standard of care, and if Dr. Eden believes that the standard of care appears 

in ACOG Committee Opinion 752, then Dr. Silverman should be able to testify as 

to his understanding of the recommendations in that publication. To the extent that 

Dr. Silverman’s interpretation differs from Dr. Eden’s, that inconsistency would go 

to the weight of Dr. Silverman’s testimony, not its admissibility. Accordingly, 

Plaintiff’s Motion in Limine to Limit Dr. Silverman’s Testimony Regarding 

Standard of Care is DENIED.

D. Plaintiff’s Motion in Limine to Limit Dr. Coleen Cunningham’s 

Testimony Regarding the Standard of Care64

During the hearing on these Motions, CCHS’s counsel stated the following:

62 Pruett v. Lewis, 2011 WL 882102, at *2 (Del. Super. Ct. Mar. 10, 2011) (internal quotation 

marks omitted and emphasis added) (quoting Timblin v. Kent General Hosp., 640 A.2d 1021, 1024 

(Del. 1994)).

63 Trans. ID 65977202, Ex. E, at 22:22–23:1 (“Q. But is it fair to say that the Committee Opinion 

752 is articulating the standard of care that also applied back in 2016? A. Yeah.”).

64 Trans. ID 65946141.
15

To the extent that [CCHS is] able to call [Dr. Wiesenfeld and Dr. 

Silverman] to address the standard of care issues, [CCHS] would not 

offer Dr. Cunningham to address standard of care. . . . . [I]f that makes 

it easier for Your Honor we can probably moot this motion.65

Plaintiff has not sought to exclude Dr. Wiesenfeld’s testimony regarding the 

standard of care, and the Court will allow Dr. Wiesenfeld to testify as to that issue. 

As for Dr. Silverman, the Court has concluded he will be allowed to testify as to the 

standard of care. According to CCHS’s representation, then, CCHS will not call Dr. 

Cunningham to testify regarding the standard of care. Accordingly, Plaintiff’s 

Motion in Limine to Limit Dr. Coleen Cunningham’s Testimony Regarding the 

Standard of Care is MOOT.

E. Plaintiff’s Omnibus Motion in Limine66

1. Comparative Negligence

Plaintiff (N.D.’s grandmother) seeks to exclude any evidence or argument that 

she or N.D.’s mother was comparatively negligent.67 As for N.D.’s mother, the crux 

of the comparative negligence issue is whether she would have complied with her 

HIV treatment plan had CCHS retested her when she was 36 weeks pregnant and 

65 Transcript of March 25, 2021 Hearing, at 60:7–14.

66 Trans. ID 65946227.

67 Id. at ¶ 1. As CCHS clarified, however, it does not seek to show that Plaintiff was comparatively 

negligent; rather, it seeks to use evidence of Plaintiff’s conduct to show that she failed to mitigate 

the damages that she could recover should CCHS be found negligent. Transcript of March 25, 

2021 Hearing, at 68:23–69:3 (Mr. Meyeroff: “So if the grandmother learned of it earlier, but 

delayed treatment, that impacts the child’s condition[,] the life-care plan[,] and the damages 

claim.”); id. at 71:19–20 (Mr. Meyeroff: “For the grandmother issue, that would be for damages.”).
16

had that retest resulted in a positive diagnosis. CCHS argues that N.D.’s mother 

would have been noncompliant with her HIV treatment.

68

 In support, CCHS points 

to evidence that N.D.’s mother had not complied with certain recommendations 

during pregnancy or with her HIV treatment after she learned that she had been 

infected.

69

 Plaintiff responds that the jury should not be allowed to use this evidence 

to speculate that N.D.’s mother would have been noncompliant with her HIV 

treatment had she been diagnosed during pregnancy.

70

Pursuant to D.R.E. 403, the Court will exclude as unfairly prejudicial any 

testimony, comments, questions, arguments, or suggestions that N.D.’s mother was 

comparatively negligent. First, evidence of her prior noncompliance has

questionable probative value as to whethershe would have been noncompliant again. 

When N.D.’s mother failed to comply with recommendations during pregnancy, she 

was not aware that she had HIV; and when she failed to comply with her HIV

treatment, she was not pregnant with N.D. Her noncompliance under these 

circumstances sheds little light on whether she would comply with her HIV 

treatment during pregnancy, when noncompliance would mean risking transmission

of the virus to N.D. And to the extent that evidence of N.D.’s mother’s prior 

68 Transcript of March 25, 2021 Hearing, at 72:4–18.

69 Id.; id. at 73:3–6.

70 Id. at 77:17–78:4.
17

noncompliance has probative value, the Court finds that it is substantially 

outweighed by the risk that the jury would use that evidence to speculate that N.D.’s 

mother would again be noncompliant.

71

 

Next, CCHS argues that evidence of Plaintiff’s conduct should be admissible 

to show that Plaintiff delayed or otherwise failed to take appropriate steps in 

facilitating N.D.’s HIV treatment.72 CCHS would offer such evidence to show that 

Plaintiff allegedly failed to mitigate damages.73 “Failure to mitigate damages is an 

affirmative defense . . . .”74 “Generally, an affirmative defense must be pled or the 

defense is waived.”75 Nonetheless, a “party may amend the party’s pleading . . . by 

71 In addition, D.R.E. 404(b) prohibits “[e]vidence of a . . . wrong[] or other act . . . to prove a 

person's character in order to show that on a particular occasion the person acted in accordance 

with the character.” D.R.E. 404(b). Although the evidence would invite a predictive inference 

(i.e., suggesting what N.D.’s mother would have done rather than what she in fact did on a 

particular occasion), the inference violates the spirit of 404(b), which is to “forbid[] the proponent 

. . . from offering evidence of . . . misconduct to support a general inference of bad character.” 

Getz v. State, 538 A.2d 726, 730 (Del. 1988).

72 See id. at 71:7–71:14; see, e.g., id. at 68:19–21 (“The . . . issue is when did [Plaintiff] learn of 

the HIV diagnosis for [N.D] and what role that may have played.”); id. at 70:22–71:6 (“[T]here 

are references in the records that there was difficulty in getting the baby to take the HIV medicine

. . . . [T]he delay in treatment impacts the vital load and the growth. And Dr. Bennett agreed if 

there was a delay in administering the medications, that impacts the growth of the HIV . . . .”).

73 Transcript of March 25, 2021 Hearing, at 71:9–23.

74 BTG Int’l, Inc. v. Wellstat Therapeutics Corp., 2017 WL 4151172, at *20 (Del. Ch. Ct. Sept. 19, 

2017) (internal quotation marks omitted) (quoting Tanner v. Exxon Corp., 1981 WL 191389, at *4 

(Del. Super. Ct. July 23, 1981)), aff’d in part, rev’d in part on other grounds, BTG Int’l, Inc. v. 

Wellstat Therapeutics Corp., 2018 WL 2966941 (Del. June 11, 2018).

75 James v. Glazer, 570 A.2d 1150, 1153 (Del. 1990) (citations omitted); see also Del. Super. Ct. 

R. Civ. 8(c) (“In pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . .

matter constituting an . . . affirmative defense.”).
18

leave of court,” which “shall be freely given when justice so requires.”

76

 Whether 

to grant a motion to amend is “entrusted to the sound discretion of the trial court.”

77

 

Here, CCHS filed its Answer on November 28, 2018.78 CCHS did not include 

Plaintiff’s alleged failure to mitigate damages as an affirmative defense. Nor did 

CCHS move to amend its Answer to include that defense. Indeed, the Court first 

learned that CCHS intended to raise that defense at the hearing on March 25, 2021. 

Plaintiff, too, was previously unaware that CCHS intended to raise the defense.79 

For these reasons, the Court will exclude testimony, comments, questions, 

arguments, and suggestions that Plaintiff failed to mitigate damages by delaying or 

otherwise failing to take appropriate steps in facilitating N.D.’s HIV treatment.

2. References by Any Expert as to How S/he Personally Would Have 

Treated the Plaintiff (or a Similar Patient), or How the Expert’s Partners 

or Associates Would Have Treated the Plaintiff

Plaintiff argues that the jury might misconstrue testimony about experts’

anecdotal experiences and what they would have done in this case as evidence of the 

applicable standard of care.80 Such testimony, Plaintiff contends, should be 

76 Del. Super. Ct. R. Civ. P. 15(a).

77 State v. Sykes, 2013 WL 3834048, at *2 (Del. Super. Ct. July 12, 2013) (citing Mullen v. 

Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993)).

78 Trans. ID 62702317.

79 See Trans. ID 65946227, at ¶ 1 (emphasis added) (asking the Court to “preclude testimony, 

comments, questions, arguments, or suggestions that she [Plaintiff] was comparatively negligent

in any respect”).

80 Trans. ID 65946227, at ¶ 2.
19

excluded under D.R.E. 402 and D.R.E. 403; Plaintiff also asserts that such evidence 

amounts to hearsay.

81

 CCHS largely agrees.

82

 It maintains, however, that expert 

testimony should not be excluded if its purpose is to impeach or to demonstrate 

reasonable alternative medical treatments consistent with the standard of care.83 But 

CCHS later states that it does “not intend to argue that there were ‘alternative 

treatments’ to screening that should/should not have been employed.”

84 So the Court

need only clarify that it will allow proper impeachment testimony but will otherwise 

exclude as unfairly prejudicial any testimony from experts about what they (or their 

partners or associates) would have done in this case or what they have done with 

similar patients.

3. Evidence of Good Character

Because the admissibility of evidence of good character will depend on the 

way that it is characterized, the Court will defer ruling on this aspect of the Motion 

until trial. When such evidence is offered at trial, the Court will view it through the 

lens of D.R.E. 403.

4. That Defendant’s Agents and Employees Exercised a Good Faith 

Judgment Between Two Appropriate Alternative Medical Treatments

81 Id.

82 Trans. ID 65977132, at ¶ 2.

83 Id.

84 Id. at ¶ 4.
20

Plaintiff argues that CCHS should not be able to avoid liability by showing or 

attempting to show that it was not negligent because it chose between acceptable 

alternative treatments.

85

 CCHS does not intend to make that argument.

86

 So the 

Court will exclude testimony, comments, questions, arguments, and suggestions to 

that effect. 

5. Uncalled Witness(es)

At the hearing, Plaintiff’s counsel limited the scope of his request to 

“propos[ing] that nobody comments on an uncalled witness before informing the 

other side or the Court.”87 The parties therefore agree that this issue is best handled 

at trial,

88 and the Court will defer ruling on it until it arises. 

6. Apologies, Condolences, or Sorrow Over N.D.'s HIV Status

Pursuant to 10 Del. C. § 4318(b), The Court will exclude testimony, 

comments, questions, arguments, and suggestions that CCHS is sympathetic or 

apologetic as to N.D.’s being born HIV positive.89

7. Vouching

85 Trans. ID 65946227, at ¶ 4.

86 Trans. ID 65977132, at ¶ 4.

87 Transcript of March 25, 2021 Hearing, at 87:7–9.

88 Trans. ID 65977132, at ¶ 5.

89 The Court will also ensure that Plaintiff does not attempt “to mislead the jury or appeal to its 

bias or prejudice.” Deangelis v. Harrison, 628 A.2d 77, 80 (Del. 1993). “[W]here objection is 

made, the trial court is obliged to act firmly with curative instructions even where no objection is 

forthcoming until after summations.” Id. (citing Massey-Ferguson, Inc. v. Wells, 421 A.2d 1320, 

1324 (1980)).
21

The Court will exclude testimony, comments, questions, arguments, and 

suggestions that CCHS’s experts are “the best” or any similar attempt to vouch—

except as necessary to establish the experts’ qualifications. Accordingly, Plaintiff’s 

Omnibus Motion in Limine is GRANTED IN PART AND DENIED IN PART.

V. CONCLUSION

In sum, the Court GRANTS Plaintiff’s Motion in Limine to Exclude 

Causation Testimony from Dr. Neil Silverman and Dr. Harold Wiesenfeld, DENIES

Plaintiff’s Motion in Limine to Limit Cumulative Expert Testimony, DENIES

Plaintiff’s Motion in Limine to Limit Neil Silverman M.D.’s Testimony Regarding 

Standard of Care, finds that Plaintiff’s Motion in Limine to Limit Dr. Coleen 

Cunningham’s Testimony Regarding the Standard of Care is MOOT; and GRANTS 

IN PART AND DENIES IN PART Plaintiff’s Omnibus Motion in Limine as 

follows: 

• The Court will exclude testimony, comments, questions, arguments, 

and suggestions that N.D.’s mother was comparatively negligent.

• The Court will exclude testimony, comments, questions, arguments, 

and suggestions that Plaintiff failed to mitigate damages by delaying

or otherwise failing to take appropriate steps in facilitating N.D.’s 

HIV treatment.

• The Court will exclude testimony from experts about what they (or 

their partners or associates) would have done in this case or what 

they have done with similar patients.
22

• The Court will defer to trial ruling on evidence of good character 

and comments on uncalled witnesses.

• The Court will exclude testimony, comments, questions, arguments, 

and suggestions to that effect CHSS made a good faith judgment 

between acceptable alternative medical treatments.

• The Court will exclude testimony, comments, questions, arguments, 

and suggestions that CCHS is sympathetic or apologetic as to N.D.’s 

being born HIV positive.

• The Court will exclude testimony, comments, questions, 

arguments, and suggestions that CCHS’s experts are “the best” or 

any similar attempt to vouch.

IT IS SO ORDERED.

/s/ Jan R. Jurden

Jan R. Jurden, President Judge

cc: Prothonotary