IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY JOANNE HAMBLETON, Executrix of ) the Estate of FRANCES ALBANESE ) and JOANNE HAMBLETON, ) ) Plaintiffs, ) ) CIVIL ACTION NUMBER v. ) ) 97C-12-044-JOH CHRISTIANA CARE HEALTH ) SERVICES, INC., f/n/a THE ) MEDICAL CENTER OF DELAWARE ) INC., and KAY TAYLOR, ) ) Defendants. ) Submitted: January 29, 2002 Decided: January 31, 2002 MEMORANDUM OPINION Upon Motion of Plaintiffs in Limine - DENIED Upon Motion of Defendants in Limine - GRANTED Kenneth M. Roseman, Esq., of Ciconte, Roseman &Wasserman, attorney for plaintiffs Richard Galperin, Esq., and James E. Drnec, Esq., of Morris, James, Hitchens & Williams LLP, attorneys for defendants HERLIHY, Judge
The parties have filed motions in limine concerning use at trial of the discovery deposition of a standard of care expert. The expert is unavailable for trial. Plaintiffs seek to read that portion of the expert s deposition in which he indicates defendant Kay Taylor, a Christiana Care nurse, in one instance, breached a standard of care. Defendants move to bar use of the deposition at trial. This is a case in which the plaintiffs allege Taylor committed several different breaches of the applicable standard of care. The claims of breach revolve around an hour s period of time on December 30, 1995. At that time, Francis Albanese was a patient at Christiana Hospital. She had been in the hospital for about nine days. During the hour in question and for a period of time before it, she had a pulse oximeter attached to her to monitor her oxygen saturation. The oximeter was set at a base line which, if the oxygen saturation went below that level, caused an alarm to sound. At one point during this hour, the alarm sounded, Taylor heard it and headed to Albanese s room. On the way, she was distracted by a request for help from another nurse to handle a non-emergency matter. Taylor eventually arrived in Albanese s room and turned off the alarm. The machine was not malfunctioning. The extent of what she did or did not do at that point is in dispute. She did not remain long in Albanese s room before leaving. What is disputed is whether she breached the standard of care when in the room on that occasion or at any time in the next thirty minutes when another nurse checked the pulse oximeter. The defendants in pretrial discovery identified several years ago Dr. Brian Fillipo as their expert on standard of care. He would supposedly say Taylor did not commit 1
any breach. Plaintiffs took his discovery deposition on May 10, 1999, and during that deposition, defendants asked no questions. Plaintiffs asked Dr. Fillipo to assume certain facts about what Taylor did or did not do when she came into the room and he admitted that, if true, there was a breach. 1 The deposition was taken in preparation for the first trial of this case which occurred in August 1999. When this case was pre-tried on July 16, 1999, the defendants listed Dr. Fillipo as a witness, but the plaintiffs did not. Nor did plaintiffs reserve in the pretrial stipulation the right to call him or any defense witness. The defendants did not call Dr. Fillipo at trial. No objection was raised. The trial resulted in a verdict that the defendants were not negligent. The plaintiffs appealed this verdict and the Supreme Court reversed it and remanded the case for a new trial. 2 The case is now scheduled for trial the week of February 4, 2002. On March 20, 2001, plaintiffs counsel wrote defense counsel to say he was going to call Dr. Fillipo as a witness in the second trial. Either he would get Dr. Fillipo to testify in person, he said, or would use the portion of the deposition in which Dr. Fillipo said it was a breach not to go directly to Albanese s room to answer the pulse oximeter alarm and perform certain functions when she got there. The record does not reveal whether defense counsel responded to this letter. 1 Fillipo Deposition (May 10, 1999) at 63-65. 2 Hambleton v. Christiana Care Health Services, Inc., Del.Supr., No. 380, 1999, Holland, J. (September 25, 2000). 2
This case was pre-tried on January 16, 2002. In the pretrial stipulation, both parties listed Dr. Fillipo as a witness. Defendants objected, however, to plaintiffs calling him as a witness or using his discovery deposition. The defendants said that should the Court allow Dr. Fillipo s testimony on standard of care to be used, they wanted to use another portion of the same deposition. In that portion, while acknowledging a breach had occurred, Dr. Fillipo said it was no cause of injury to Albanese. 3 That statement has greater significance in this case. In the first trial, the Court ruled that if the jury found Taylor negligent, that negligence was a proximate cause of injury to Albanese. There had been no defense evidence on proximate cause. The defendants did not cross-appeal this Court s ruling. After the reversal, plaintiffs asked this Court to declare that its proximate cause ruling remained the law of the case. This Court ruled that it did. 4 When that ruling was discussed at the January pretrial conference, the Court preliminarily indicated, without having had the occasion or need at that point to read his deposition, that it did not see how Dr. Fillipo s standard of care testimony was related to his proximate cause testimony to be admissible, at least, pursuant to D.R.E. 106. But, there is one point in the deposition where this exchange occurs: Q. Is it still your opinion, based upon the records that you have reviewed, that [Taylor] did not violate the standard of 3 Fillipo Deposition (May 10, 1999) at 77. 4 Hambleton v. Christiana Care Health Services, Inc., Del.Super., C.A.No. 97C- 12-044, Herlihy, J. (February 2, 2001). 3
care in providing treatment to [Albanese] on December 30, 1995? A. I guess I would have to clarify it with the one exception that we already discussed. Q. In your opinion, did that exception cause any injury to [Albanese]? A. I don t believe that that violation would have changed the ultimate chain of events. 5 The defendants have further hinted that, in addition to this testimony, they would like to allow other doctors scheduled to appear to testify about proximate cause. To add to the mix, the plaintiffs now say that if the Court allows Dr. Fillipo s testimony about proximate cause, they want to produce live their proximate cause expert. They represent, however, he is unavailable indicating that they relied upon this Court s law-of-the-case opinion and did not make arrangements for him to appear in person. In this lawyerly check and check-mate exchange or one-upmanship, the Court must address the underlying substantive issue of plaintiffs ability to introduce the testimony of Dr. Fillipo about the standard of care. Plaintiffs rely upon several authorities in support of that ability. One is Superior Court Civil Rule 32(a)(3) which, in pertinent part, provides: (a) Use of depositions. At the trial or upon hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: * * * (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the Court finds:. eleven months later. 5 Fillipo Deposition (May 10, 1999) at 76-77. Albanese died approximately 4
.. (B) that the witness is out of the State of Delaware, unless it appears that the absence of the witness was procured by the party offering the deposition; or... (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena;... 6 It appears undisputed that Dr. Fillipo cannot be subpoenaed by either party. But does that alone mean plaintiffs can use his 1999 discovery deposition? The Court holds that it does not. The reasons are severalfold. One, while having the deposition available prior to the first trial, the plaintiffs did not pursue using it in the first trial and raised no objection or issue when the defendants chose not to have Dr. Fillipo testify in the first trial. Obviously, the jury s finding of no negligence on plaintiffs most significant allegation of negligence prompted a rethinking of trial strategy for the second trial. Another reason why the rule does not enable plaintiffs to use his deposition is that Dr. Fillipo is a defense expert. To compel that testimony, even by use of a deposition, is contrary to prior holdings of this Court. 7 Dr. Fillipo is not an independent expert such as the?ime doctor plaintiff was allowed to call over defense objections in Pinkett v. Brittingham. 8 6 Superior Court Civil Rule 32. 7 Schmidt v. Hobbs, Del.Super., C.A.No. 85C-OC-135, Babiarz, J. (March 17, 1988); Starkey v. Hunt-Madani Professional Assoc., Del.Super., C.A.No. 84C-SE-50, Gebelein, J. (March 31, 1988). 8 567 A.2d 858 (Del. 1989). 5
The Supreme Court in Pinkett and this Court in Winchester v. Hertrich, 9 took an expansive view of the opposing party being able to depose and use at the trial testimony of doctors performing so-called independent medical examinations. The expert here, however, is not such a doctor. And, in Pinkett, the Supreme Court, noting Schmidt and Starkey 10 drew a distinction between IME doctors and standard of care experts. 11 The bar created by these cases, therefore, remains. There are additional reasons why plaintiffs in this case cannot use the discovery deposition of Dr. Fillipo. When deposing him, plaintiffs asked a number of key questions to determine his competence to opine about the standard of case of a nurse. Those questions showed Dr. Fillipo had no training in nursing, had never opined about nursing standard of care and his background as a physician was very limited regarding his ability to offer nursing standard of care opinions. His claimed ability to offer such opinions came only from observations in his medical practice, most of which was in Pennsylvania. In addition, there are these exchanges: Q. Are you familiar with the standard of care that a nurse is required to follow? A. I would not feel comfortable, no. * * * Q. Are you familiar with the standard of care that is required to be provided by a nurse in Delaware? A. I have never practiced in Delaware, no, sir. 9 658 A.2d 1016 (Del.Super. 1995). 10 Supra, n. 8. 11 Pinkett, 567 A.2d at 861. 6
Q. Have you ever attended any type of nursing conventions in the State of Delaware? A. I have not, sir. Q. Have you ever attended any nursing seminars in the state [sic] of Delaware? A. No, sir. 12 Arguably and ironically, by seeking the use of Dr. Fillipo s deposition, plaintiffs are willing to overlook what might be grounds for barring Dr. Fillip on expert competency grounds. All of his testimony regarding his qualifications would have to be read; not just this exchange. But this exchange highlights another barrier to using the deposition at trial. This was a discovery deposition. If defendants wanted to rehabilitate his competency credentials, they were not necessarily compelled to do so in this context. Nor were they necessarily compelled to ask any questions. Obviously, they had the opportunity to do so and there is a risk by not doing so in some circumstances. The Court does not believe that opposing counsel must always realize or appreciate there is a substantial risk that every discovery deposition could be used at trial. If so, this would result in prolonging, making more expensive and more treacherous discovery depositions. Finally, Rule 32(a)(3) does not mean the Rules of Evidence are abrogated. Two potential rules barring use of this particular deposition are implicated. The first is D.R.E. 403. While Dr. Fillipo s opinion on the breach is relevant, that relevance is outweighed by a substantial risk of prejudice. It would be difficult to isolate what the plaintiffs want to read without reading much more. In addition, fairness would seem to 12 Fillipo Deposition (May 10, 1999) at 9, 12. 7
dictate Dr. Fillipo s proximate cause testimony, particularly the one exchange cited earlier, would have to be read, too. D.R.E. 702 is also implicated. The Court has serious concerns based on the testim ony, which is all that there is, about Dr. Fillipo s qualification to testify about nursing standard of care in Delaware. At trial or in a trial deposition, those concerns may have been addressed, but that is not the record here. In sum, the Court does not see a basis under Rule 32(a)(3) to permit use of Dr. Fillipo s deposition. Plaintiffs rely upon another authority as support for their use of the doctor s deposition at trial. That authority is the recent case of Green v. Alfred A. I. dupont Institute of the Nemours Foundation. 13 In Green, the Supreme Court held a standard of care expert s trial deposition, in the circumstances of that case, could be used at trial. Those factual circumstances, however, are not replicated in this case and do not support plaintiffs use of Dr. Fillipo s deposition. In Green, the defendants listed the expert as a witness in two separate pretrial stipulations. The plaintiff also listed him as a witness, albeit, through a videotaped deposition. Unlike this case, however, that deposition was a trial, not a discovery, deposition, which both sides contemplated using at trial. When the plaintiff listed the expert as her witness in the pretrial stipulation, the defendants did not object. The defendants in this case have objected to the use of the discovery deposition, i.e., plaintiffs using Dr. Fillipo as their witness. In Green, after the trial started, the plaintiff 13 759 A.2d 1060 (Del. 2000). 8
sought to introduce the expert s trial deposition. On this occasion, the defendants objected claiming they were not going to use him. The trial judge sustained the objection. It was this ruling which was reversed on appeal. Interestingly, in reversing the trial ruling, the Supreme Court in Green refers to Pinkett. In discussing the fear of compulsion raised (but not used as a bar to the use of the IME doctor s testimony in Pinkett), the Green court said there was no compulsion present. Both parties intended to use the trial video deposition and said so on the video. Further, the defense had raised no pretrial objections. 14 None of these circumstances are present in this case. This is a discovery deposition and neither party intended or contemplated when taking it that it would be used at trial. When the defendants in the first trial did not call Dr. Fillipo, the plaintiffs did not object or seek to introduce the discovery deposition. Plaintiffs did not list Dr. Fillipo as a witness in their 1999 pretrial stipulation. When they did so in 2002, the defense objected. The Court should note at this point that defendants should have responded to plaintiffs March 20, 2001 letter when they said they would seek to use the deposition. But, that comment does not translate into a basis for allowing use at trial of Dr. Fillipo s deposition. In short, the factual basis for the Green holding is sufficiently dissimilar to the facts in this case, that it does not support plaintiffs proposed use of the doctor s deposition. Finally, the Court notes that there remains an issue over the extent to which other witnesses can testify about Albanese s medical condition, before and after the incident 14 Id. at 1065. 9
at issue. The Court has not been shown anything that would enable that testimony or any testimony to change its prior ruling that if Taylor is found negligent, that negligence is a proximate cause of injury to Albanese. CONCLUSION For the reasons stated herein, plaintiffs motion in limine to include the testimony of Dr. Fillipo is DENIED and defendants motion in limine to exclude the testimony of Dr. Fillipo, live or by deposition, is GRANTED. IT IS SO ORDERED. J. 10