IN 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: April 18, 2017
Decided: April 20, 2017
ORDER
Upon Bayhealth’s Motion for Protective Order
DENIED
Upon consideration of the Motion for Protective Order filed by Defendant
Bayhealth Medical Center, Inc., d/b/a Kent General Hospital (“Bayhealth”);
Plaintiffs’ opposition thereto; the facts, arguments, and legal authorities set forth
by the parties; decisional law; the Superior Court Civil Rules; and the entire record
in this case, the Court hereby finds as follows:
1. This is a medical negligence action arising from the death of Alexis
Rodriguez on April 25, 2013. Following an eight-day trial, a jury found that
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 on the grounds that the
proximate cause jury instruction was erroneous and undermined the jury’s ability
to intelligently fulfill its duty to render a verdict. By Order dated November 30,
2016, this Court granted Plaintiffs’ motion for new trial (“New Trial Order”).1 By
Order dated December 29, 2016, this Court denied Bayhealth’s request for
certification of the New Trial Order for interlocutory appeal,2 and Bayhealth filed
a timely motion for interlocutory appeal to the Delaware Supreme Court thereafter.
By Order dated January 11, 2017, the Supreme Court refused Bayhealth’s
interlocutory appeal.3 Retrial is set to begin on July 17, 2017.
3. On February 10, 2017, Plaintiffs filed four notices of Rule 30(b)(6)
depositions. Plaintiffs seek to conduct additional discovery in anticipation of
retrial by deposing employees of Defendant with knowledge in specific areas that
1
Lisowski v. Bayhealth Med. Ctr., Inc., 2016 WL 6995365 (Del. Super. Nov. 30,
2016).
2
Lisowski v. Bayhealth Med. Ctr., Inc., 2016 WL 7477606 (Del. Super. Dec. 29,
2016).
3
Bayhealth Med. Ctr., Inc. v. Lisowski, 2017 WL 443701 (Del. Jan. 11, 2017).
2
relate to the timing and effect of Bayhealth’s post-surgical conduct on Mr.
Rodriguez’s death. Specifically, Plaintiffs seek to discover information in the
following subject areas: (i) the preparation, availability, transportation to, and
completion of an abdominal CT scan for a patient admitted to Kent General
Hospital in April 2013; (ii) the preparation, availability, transportation, and priority
given for admission into the Intensive Care Unit for a patient at Kent General
Hospital in April 2013; (iii) the typing and transfusion of blood products for a
patient admitted to Kent General Hospital in April 2013; and (iv) the process and
availability of emergency surgery by an appropriate surgeon for a patient admitted
to Kent General Hospital in April 2013. Plaintiffs also seek to retain an additional
expert witness in the field of critical care.
4. On March 7, 2017, Bayhealth filed a Motion for Protective Order
pursuant to Rule 26(c) of the Superior Court Civil Rules, and the Court conducted
a hearing on the merits. Bayhealth contends that justice requires a protective order
preventing Plaintiffs from conducting the requested discovery and enlisting an
additional expert. Bayhealth asserts that Plaintiffs are impermissibly reopening
discovery by attempting to obtain evidence that was available prior to the first trial.
Bayhealth asserts that additional discovery will cause Bayhealth to suffer undue
burden and expense. Plaintiffs oppose Bayhealth’s Motion for Protective Order.
3
5. Rule 26(c) of the Superior Court Civil Rules provides, in pertinent
part:
Upon motion by a party or by the person whom discovery is sought,
and for good cause shown, the Court . . . may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . . .
The burden is on the moving party to show “good cause” for a protective order to
prevent undue burden or expense.4 The decision of whether to issue a protective
order pursuant to Rule 26(c) involves the application of discovery rules and is
reserved to this Court’s discretion.5
6. In considering Plaintiffs’ efforts to gather additional evidence, this
Court is persuaded by the standards articulated by federal courts under similar
procedural circumstances.6 There is no statute or rule that prohibits a trial court
from allowing a party to conduct additional discovery or designate a new expert in
4
Super. Ct. Civ. R. 26(c).
5
See Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 419 (Del. 2010); Bryant
ex rel. Perry v. Bayhealth Med. Ctr., Inc., 937 A.2d 118, 122 (Del. 2007); Coleman
v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del. 2006).
6
The only state-specific case relied upon by either party is the 2008 Superior Court
decision in Barrow v. Abramowicz, 2008 WL 495703 (Del. Super. Feb. 4, 2008).
Barrow involves a request to reopen the evidentiary record following a successful
appeal to the Delaware Supreme Court. Id. at *1. This Court notes that the analysis
in Barrow is heavily predicated on the “law of the case” doctrine and the necessity
to proceed in accordance with the Supreme Court’s mandate on remand. See id. at
*1–2. This Court relies on federal jurisprudence, in part, because of the
distinguishable procedural context between Barrow and the current litigation.
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anticipation of a second trial.7 Rather, the Court’s familiarity with the original trial
and considerations for judicial economy provide significant latitude for the Court
to allow or disallow new witnesses and evidence with adequate notice to each
party.8 As the United States District Court for the District of Delaware has stated,
“[w]hether new evidence should be allowed at a retrial is within the exercise of a
court’s discretion as guided by considerations of fairness, including the need to
avoid undue prejudice to either party.”9
7. In this case, Plaintiffs filed their notice of Rule 30(b)(6) depositions
on February 10, 2017, shortly after the Court issued a new Trial Scheduling Order
on January 17, 2017. In addition, by email dated February 15, 2017, Plaintiffs
informed Bayhealth that Plaintiffs intend to enlist a new expert in the field of
critical care.10 Accordingly, the record reflects that Bayhealth was on notice of
Plaintiffs’ intent to collect additional evidence less than one month after the Court
set applicable deadlines, and more than five months prior to the commencement of
trial on July 17, 2017. Moreover, the requested discovery is relatively limited in
7
Yong ex rel. Yong v. Nemours Found., 432 F. Supp. 2d 439, 441 (D. Del. 2006).
8
See Habecker v. Clark Equp. Co., 36 F.3d 278, 288 (3d Cir. 1994); Cleveland v.
Piper Aircraft Corp., 985 F.2d 1438, 1449–50 (10th Cir. 1993); Fresno Rock Taco,
LLC v. National Sur. Corp., 2014 WL 1664942, at *1 (E.D. Cal. Apr. 25, 2014);
Total Containment, Inc. v. Dayco Prods. Inc., 177 F. Supp. 2d 332, 338 (E.D. Pa.
2001).
9
McMillan v. Weeks Marine, Inc., 2008 WL 4442087, at *2 (D. Del. Sept. 30,
2008) (citing Habecker, 36 F.3d at 288).
10
Def’s Mot. Protect. Order, Ex. K at 1.
5
scope, and Plaintiffs have represented to the Court that Plaintiffs estimate that
additional depositions will take no more than one day to complete. This Court
finds that the discovery is reasonable and Plaintiffs’ requests are timely. Bayhealth
is on sufficient notice to prevent manifest injustice and ensure that fundamental
notions of fairness are observed.
8. It is axiomatic that “[v]irtually all evidence is prejudicial to one party
or another.”11 Here, Bayhealth fails to establish that Bayhealth will suffer a burden
from Plaintiffs’ introduction of additional evidence beyond a generalized assertion
relating to the inherent expense of adequately defending a wrongful death action
involving allegations of medical negligence. Rule 26(c) requires Bayhealth to
establish “good cause” for a protective order by demonstrating that the order is
necessary to prevent “undue burden or expense.”12 This Court finds that Bayhealth
has not carried this burden.
9. Finally, this Court does not find that permitting Plaintiffs’ additional
discovery and expert is likely to result in undue prejudice or offend fundamental
considerations of fairness.13 During the first trial, the parties presented highly
conflicting evidence regarding proximate cause, including contradicting testimony
11
Lecompte v. State, 2016 WL 6519002, at *1 n.2 (Del. Nov. 2, 2016) (quoting 2
JOSEPH M. MCLAUHLIN, WEINSTEIN’S FEDERAL EVIDENCE § 403.04 [1] (2d ed.
2016)).
12
Super. Ct. Civ. R. 26(c) (emphasis added).
13
See McMillan, 2008 WL 4442087, at *2.
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regarding the timing and effect of Bayhealth’s post-surgical conduct on Mr.
Rodriguez’s death. In certain circumstances, witnesses testified to the significance
of mere seconds to Mr. Rodriguez’s survival. Plaintiffs’ proposed discovery and
additional expert pertain to the same issues of time and causation that were central
to the first trial without raising new claims or theories of liability. Plaintiffs do not
seek to introduce issues that Bayhealth’s witnesses are unlikely to have
contemplated. This Court finds that the potential for undue prejudice or burden
arising from Plaintiffs’ discovery is outweighed by the likelihood that the evidence
sought will promote the truth-seeking function of trial that Delaware courts have
regularly recognized.14
10. The timeliness and limited nature of Plaintiffs’ requested discovery in
conjunction with the specific issues that Plaintiffs seek to address minimize the
potential for unfair prejudice or undue burden to Bayhealth. Bayhealth fails to
show good cause under Rule 26(c) for an order preventing Plaintiffs from
conducting the requested discovery or enlisting an additional expert. The exercise
14
Smith v. State, 913 A.2d 1197, 1239 (Del. 2006); Weber v. State, 457 A.2d 674,
679 n.6 (Del. 1983); OptimisCorp v. Waite, 2015 WL 5147038, at *8 (Del. Ch.
Aug. 26, 2015); M & G Polymers USA, LLC v. Carestream Health, Inc., 2010 WL
1611042, at *60 (Del. Super. Apr. 21, 2010). See also D.R.E. 611(a) (“The court
shall exercise control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation effective
for the ascertainment of the truth . . . .”); Del. P.J.I. Civ. § 3.2 (“Justice through
trial by jury always depends on the willingness of each juror to do two things: first,
to seek the truth about the facts from the same evidence presented to all the jurors .
. . .”).
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of this Court’s discretion indicates that Bayhealth’s Motion for Protective Order
should be, and therefore is, denied.
NOW, THEREFORE, this 20th day of April, 2017, Bayhealth’s Motion
for Protective Order is hereby DENIED.
IT IS SO ORDERED.
Andrea L. Rocanelli
_____________________________
The Honorable Andrea L. Rocanelli
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