IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BLANCHE NEWBORN,
Individually and as Executrix of the
Estate of Lindsay Hurley Ballas,
Plaintiff,
V. C.A. No. N16C-05-047 VLM
CHRISTIANA PSYCHIATRIC
SERVICES, P.A. and LEATRICE S.
ALBERA, as EXecutriX of the
Estate of Jorge A. Pereira-Ogan, M.D.
Defendants.
Q_U
Subrnitted: January 9, 2017
Decided: January 25, 2017
Upon Consideration ofDefendant Leatrice S. Albem, as Execuz‘rz`x ofthe
Estate of.forge A. Pereira-Ogan, MD. ’S Motz`on to Reconsl'der the Courz‘ ’s
November 30, 2016 Order. GRANTED.
AND NOW this 25th day of January, 2017, upon consideration of Defendant
Leatrice S. Albera, as EXeoutriX of the Estate of Jorge A. Pereira-Ogan, M.D’s
Motion to Reconsider the Court’s November 30, 2016 Order, the response thereto,
and the parties’ oral arguments, IT IS HEREBY ORDERED that the Motion to
Reconsider the Court’s Novernber 30, 2016 Order is GRANTED for the following
1'€3501'181
1. On November 30, 2016, this Court entered an Order (“Order”)
granting, in part, Defendants’ and the State/Division of Professional Regulation’s
Motions to Quash and for a Protective Order.l Specifically, Plaintiff, Blanche
Nevvborn, Individually and as Executrix of the Estate of Lindsey Hurley Ballas
(“Plaintiff’), successfully argued, in part, that she should be permitted access to
documents related to a former investigation of Jorge Pereira-Ogan, M.D.
(“Dr. Ogan”). Defendant Estate of Jorge A. Pereira-Ogan, M.D (“Estate”) now
moves pursuant to Superior Court Civil Rule 59(e) for
Reargurnent/Reconsideration.
2. Briefly, this case involves a Wrongful death and medical malpractice
action against the Estate’s decedent, Dr. Ogan, and his former practice group,
Defendant Christiana Psychiatric Services, P.A. (“CPS”, collectively
“Defendants”), alleging that Dr. Ogan provided negligent medical treatment to
Plaintiff` s decedent, Ms. Ballas, vvhich caused her to commit suicide in August
2014.2
3. As part of the inquiry into Ms. Ballas’ death, an investigation
regarding her professional and personal relationship vvith Dr. Ogan ensued. For
purposes of this Motion, the relevant State agencies that participated in the
‘ see D.I. #59892622 [hereinaaer order].
2 Order at 3-4.
investigation included the Division of Forensic Science (formerly known as the
“Office of the Chief Medical Examiner” or “OCME”), the Board of l\/Iedical
Licensure and Discipline (“Board”), the Division of Professional Regulation
(“DPR”), and the Department of Justice (“D()J”).
4. After filing her civil claim, Plaintiff issued a subpoena to DPR and
Deputy Attorney General Stacey Stewart of the DOJ seeking the production of
DPR’s investigative file. In response to this subpoena, DPR inadvertently
forwarded the file to Plaintiff` s counsel.3 When counsel for the State and DPR
noticed this mistake, both the State and DPR filed their respective Motions to
Quash and for a Protective Order.4 Defendants filed their joint Motion to Quash
and for Protective Order shortly thereafter.5
5. In this Court’s Order, Plaintiff was permitted access to portions of
DPR’s investigative tile. Specifically, the Court permitted discovery of Ms.
Ballas’ medical records that were incorporated into the DPR file.6 The Court
3 order ar 12-13.
4 DPR did not file its own Motion to Quash, but later joined the State’s Motion to Quash and for
Protective Order following oral arguments on the Motions.
5 The Motions were consolidated and oral arguments were heard on the Motions on November 1,
2016.
6 DPR’s investigative file contained Ms. Ballas’ mental health/psychiatric records from Dr.
Ogan’s time in solo practice. These records Were transferred to CPS’s records department and
turned over to DPR as part of its investigation
further permitted discovery of what had been represented as Dr. Ogan’S statements
made to the DPR during its investigation7
6. Of particular relevance to this Motion, this Court determined that
Delaware’s peer review privilege, 24 Del. C. § 1768, did not apply to bar discovery
of Dr. Ogan’s statements in the present civil suit.8 The facts-as they existed at
that time--established that DPR initiated its investigation into Dr. Ogan absent
evidence of any involvement by the Board.9 Thus, DPR, in its capacity as an
independent investigator, was not operating as the mandatory investigatory arm of
the Board and this Court held that the file was not subject to the peer review
privilegedO
7. The Estate now moves under Superior Court Civil Rule 59 for this
Court to reconsider its ruling on the basis of newly discovered evidence. The
Estate has reviewed the DPR file and now represents that the Board--and not
DPR-initiated the investigation into Dr. ()gan after two email complaints were
7 Order at 22-23.
8 Order at 13-17 (discussing peer review privilege and holding DPR was not acting as “peer
review committee or organization” when it investigated Dr. Ogan).
9 Order at 15 (“In this case, DPR received the initial complaint regarding Dr. Ogan without the
involvement of the Board. . . .”).
10 Order at 15-16.
filed with DPR in mid-November 2014.ll The Estate further clarifies that the
original representations that there were statements of Dr. Ogan in the investigative
file are actually notations made by a DPR investigator following his
communications with Dr. Ogan. As such, the statements sought to be protected are
more akin to the investigator’s impressions than actual statements provided by Dr.
Ogan.
8. Plaintiff opposes the Motion on both procedural and substantive
bases. Although Plaintiff concedes that the peer review privilege does apply when
the Board initiates an investigation, she argues that this new evidence should not
be considered because a motion to reconsider “seeks only a re-examination of the
facts in record at the time of the decision or the law as it applies to those facts.”12
Notwithstanding this general rule, however, “[i]n appropriate circumstances . . . a
litigant may seek reargument based on newly discovered evidence.”13 The burden
is on the moving party to show the newly discovered evidence “came to his
ll The Estate confirmed that Dr. Ogan’s correspondence with the Division of Forensic
Science/OCME occurred before the initiation of the Board’s investigation in mid-November
2014. The Estate therefore concedes that this correspondence is not subject to the peer review
privilege and, thus, is discoverable The Court’s ruling in this Order focuses only on the
documents produced for the purposes of the Board’s investigation into Dr. Ogan after the Board
initiated its investigation in mid-November 2014.
12 Plaintiff’ s Response at 11 7. See Ml`les, lnc. v. Cookson Am., Inc., 677 A.2d 505, 506 (Del. Ch.
1995) (quoting Mala’onaa'o v. Flynn, 1980 WL 272822, at *3 (Del. Ch. July 7, 1980)).
13 R€Serves Dev. LLC v. Severn Sav. chk, FSB, 2007 WL 46447()8, at *l (Del. Ch. Dec. 31,
2007) (citing Bala v. Bata, 170 A.2d 711, 714 (Del. 1961)).
knowledge” since the motion and could not, “in the exercise of reasonable
diligence, have been discovered for use at the time” of the motion.14 Plaintiff also
argues in the alternative that the Estate has not met its burden of proving that this
new evidence, even if considered, would change the outcome of this Court’s
decision. Specifically, Plaintiff maintains that the information in the DPR file was
not used exclusively by the Board in its investigation and, therefore, the peer
review privilege does not apply.15 This Court finds both grounds unavailing
9. Superior Court Civil Rule 59(e) permits the Court to reconsider “its
findings of fact, conclusions of law, or judgment.”16 “Delaware law places a heavy
burden on a [party] seeking relief pursuant to Rule 59.”17 To prevail on a motion
for reargument, the movant must demonstrate that “the Court has misapprehended
the law or facts such as would have changed the outcome of the underlying
decision.” 8 Further “ a motion for rear jrument is not a device for raisin new
9
“‘ 1a reitng Bam, i70 A.2d at 7i4>.
‘5 Cf. opace @f Chi¢fMed. Exam’r v. Dover Behavz@ml Heazzh sys., 976 A.2d 160, i64 (D@i_
2009) (quoting Connolly v. Labowitz, 1984 WL 14132, at *1 (Del. Super. Dec. 17, 1984)) (the
peer review privilege applies to records, including “any paperwork, reports or compilation of
date [sic] which are used exclusively by the [peer review] committee.”).
‘6 Hesszer, ma v. Fawell, 260 A.2d 701, 702 ).
35 ]a', (emphasis added).
36 Additionally, the Court finds the parties’ clarification concerning the nature of Dr. Ogan’s
statements in the investigative file significant At the time of the Order, Dr. Ogan’s putative
statements were reportedly formal statements authored, recorded, or otherwise verbalized by Dr.
Ogan to a DPR investigator. The parties now represent to the Court that the one statement in the
investigative file derives from notes made by the DPR investigator about his communications
with Dr. Ogan. This characterization of the statement bolsters the privileged nature of the
information contained in the investigative file
ll
The Court finds that the Estate has met its burden under Rule 59(e) of
demonstrating that the new facts in the DPR file constitute newly discovered
evidence permitting the Court to reconsider its Order. The Court further finds that
this new evidence is sufficient to change the outcome of the Court’s Order.
Therefore, the Estate’s Motion to Reconsider the Court’s Order is GRANTED.
;%/\
Judge Vivian L. Medinilla
IT lS SO ORDERED.
oc: Prothonotary
cc: All Counsel of Record (via e-filing)
12