IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHANTALE SIGNEY and HEROLD )
SIGNEY, )
)
Plaintiffs, )
)
v. ) C.A. No. N20C-10-244 FJJ
)
WILLIAM L. PLAFF, M.D., and )
LEWES SPINE CENTER, LLC, )
)
Defendants. )
Submitted: July 7, 2023
Decided: July 25, 2023
ORDER
Upon Consideration of Defendants’ Motion to Strike Errata Changes:
DENIED.
1. This medical negligence action arises from two spinal surgeries performed on
Plaintiff Chantale Signey by Defendant Dr. William L. Pfaff at the Lewes Spine
Center (collectively, with Dr. Pfaff, “Defendants”) in January 2019. On April
6, 2023, Defendants deposed Dr. Nicholas Theodore, Ms. Signey’s medical
expert in this case. Following that deposition, Dr. Theodore submitted an errata
sheet setting forth multiple “clarifications” (“corrections”) of his deposition
testimony. Defendants now move to strike a number of those corrections,
arguing they materially change Dr. Theodore’s deposition answers.
2. After careful review of Dr. Theodore’s deposition testimony and errata sheet, it
appears that his revisions to his deposition answers are not a tactical attempt to
rewrite damaging deposition testimony. Accordingly, for the reasons that
follow, Defendants’ motion to strike the corrections is DENIED.
3. After a series of consultation appointments in late 2018, Dr. Pfaff performed two
anterior cervical discectomies on Ms. Signey to address complaints of neck pain
in early 2019. Put simply, the intent of the procedures was to relieve
compression of Ms. Signey’s nerve root and spinal cord.
4. Dr. Pfaff performed the first procedure on January 7, 2019. As he did so, he
noted a fluid leak in the left region of Ms. Signey’s spine and sprayed a spine
sealant in the area to stop the leak. When Ms. Signey awoke, she noted weakness
in both arms and paralysis of her right leg. A post-surgical cervical MRI
revealed severe spinal stenosis, most pronounced in the area Dr. Pfaff had just
performed on, with abnormal cord signal consistent with compressive
myelopathy. In other words, the surgery allegedly caused compression of the
spine, where the intent of the procedure was decompression.
5. Dr. Pfaff performed the second procedure the next day. Prior to beginning the
operation, Dr. Pfaff noted there was still cerebrospinal fluid leaking from the
sides of the prior incision and collecting in the Jackson-Pratt reservoir.
Nevertheless, he continued with the surgery and removed, among other things,
the spine sealant from the day before.
6. Ms. Signey allegedly received no relief of her symptoms from the second
surgery. As she claims, her extremities were effectively paralyzed. So, she was
transferred on an emergency basis to Thomas Jefferson University Hospital in
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Philadelphia, Pennsylvania, where orthopedic surgeons performed a posterior
cervical decompression and instrumented fusion. These procedures (and the
physical therapy that followed) allowed Ms. Signey to recover some motor and
sensory capability in her upper and lower extremities, although she alleges
significant deficits still remain.
7. Initially, Ms. Signey filed this claim against the Defendants on October 26, 2020.
She retained Dr. Theodore as her expert witness shortly after. Dr. Theodore
provided his narrative report on November 1, 2021.
8. The Defendants took Dr. Theodore’s deposition on April 6, 2023. At the
conclusion of the deposition, Dr. Theodore exercised his right to review his
deposition transcript. As he did so, the Defendants moved for summary
judgment on April 14, 2023. Nearly a month later, Dr. Theodore submitted an
errata sheet that Defendants contend substantively supplemented and changed
his deposition testimony. So, the Defendants filed this motion in response.
The corrections on the errata sheet Defendants move to strike are as follows:
Transcript Question Answer Desired Corrections
89:18 – 90:6 Q. My apologies A. On the CT scan A. On the CT scan
(statement). obviously we talked obviously we talked
about bony about bony
osteophyte and osteophyte and
even in the scan even in the scan
report and it's report and it's
obvious to look at, obvious to look at,
even the CT report even the CT report
said there is still said there is still
osteophyte there osteophyte there
and there is and there is
evidence of seeing a evidence of seeing a
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cord compression cord compression
and recommend and recommend
MRI. Okay. The MRI. Okay. The
MRI was done and MRI was done and
what the MRI scan what the MRI scan
shows is, you know, shows is, you know,
new high signal new high signal
edema acute type edema acute type
injury in the spinal injury in the spinal
cord at C6-7 with cord at C6-7 with
significant ongoing significant ongoing
compression of the compression of the
spinal cord. Worse spinal cord. Worse
than it was than it was
preoperatively. preoperatively.
That is a deviation
from the standard
of surgical care –
that is negligence.
90: 12 – 91:1 Q. In your opinion, A. So I think we A. So I think we
can the went back and said went back and said
postoperative part of the issue is, I part of the issue is, I
changes that we see mean, again, we mean, again, we
on the MRI and CT know that you can know that you can
of the 7th and or have a worsening have a worsening
8th, can that be due after surgery. But I after surgery. But I
to anything other guess the part I guess the part I
than negligence in have an issue with have an issue with
your opinion? is that we have this is that we have this
imaging which imaging which
shows that the shows that the
compression is compression is
ongoing and severe, ongoing and severe,
to me worse than it to me worse than it
was before the was before the
surgery, and that to surgery, and that to
me represents an me represents an
emergency. emergency caused
by negligence.
92: 1 - 20 Q. Let me get the A. Hold on. Let's A. Hold on. Let's
right words. I get this right for get this right for
apologize then. one second here. So one second here. So
Hang on so I can certainly it is certainly it is
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get your report. improper to damage improper to damage
Well I won't fight the spinal cord. Can the spinal cord. Can
with you on it but it happen? Yes, but it happen? Yes, but
it's in your report. it's not proper. It's it's not proper. It's
So let me pull it up. not what we are not what we are
trained to do. It's trained to do. It's
not what we do. It's not what we do. It's
not our intent. So not our intent. And
we're working in a where there is
tight space and more compression
obviously present post-
something surgery that is a
happened. Not negligent
proper. There was deviation.
some manipulation,
something So we're working in
happened at the a tight space and
time of surgery. So, obviously
again, the patient something
now wakes up with happened. Not
a deficit and we've proper. There was
got new imaging. some manipulation,
That's where we something
are. So I would say happened at the
improper. Is that time of surgery. So,
negligent in and of again, the patient
itself? Maybe not. now wakes up with
a deficit and we've
got new imaging.
That's where we
are. So I would say
again where more
6 compression was
caused by the
procedure that is
negligent.
93: 9 - 19 Q. Okay. So that's A. Yes. A. Yes. In addition
what we're on right to severe
now. The failure of compression
Dr. Pfaff in this caused during the
particular case is his procedure.
failure to appreciate
the CT, the MRI
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and this patient who
is waking up with
this lower extremity
weakness and I
don't mean to
confine it to that,
failing to appreciate
that and then going
back and
immediately
addressing that.
That's the failure of
Dr. Pfaff on
standard of care in
your mind; fair?
95: 17 – 21 Q. And then that's A. Yes. A. Causing severe
sort of the first compression was
deviation by Dr. first deviation.
Pfaff in your mind
in terms of having
the information to
get her back. Is that
a fair statement?
100: 18 – 101: 7 Q. And, likewise, A. Well if the same A. Well if the same
even if the very first thing happened, in thing happened, in
surgery on the 7th, other words, if the other words, if the
the one done at 3:30 same operation same operation
or so, had been occurred and occurred and severe
done perfectly with something compression
a full happened during happened during
decompression in surgery which I'm surgery which I'm
your mind, she still calling improper in calling improper in
may have had some that we don't want that we don't want
permanent that to be -- it's not that to be -- it's not
neurologic sequela; proper to bang into proper to bang into
correct? the spinal cord, so the spinal cord, so
something something
happened. So that's happened. So that's
what I'm calling what I'm calling
improper. improper and
negligent.
101: 12 - 17 Q. I understand. I A. That's correct. A. In this instance
understand. When causing severe
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you say improper compression was
you are equating negligent.
improper to we
don't want that to
happen, but
improper does not,
per se, equal
negligence in your
mind?
9. While Delaware Superior Court Civil Rule 30(e) allows a deponent to make
changes to their deposition testimony in form or substance, it does not allow
them to improperly alter what they testified to under oath.1 “A deposition is not
a practice quiz. Nor is it a take home exam.”2 An errata sheet exceeds the scope
of the type of revisions contemplated by Rule 30(e) when the corrections “are
akin to a student who takes her in-class examination home, but submits new
answers only after realizing a month later the import of her original answers
could possibly result in a failing grade.”3
10. In support of their position, Defendants primarily rely on this Court’s recent
decision in Alberts v. All About Women.4 The Alberts Court was concerned with
a defense expert’s substantive testimonial changes to deposition testimony after
the plaintiff’s expert had taken time (at the plaintiff’s expense) to review the
defense expert’s deposition and prepare a Supplemental Disclosure.5 Finding
1
Alberts v. All About Women, 2020 WL 6588643, at *3 (Del. Super. Nov. 10, 2020).
2
Id. (citations omitted).
3
Id.
4
See generally id.
5
Id. at *7.
7
the changes improper, Alberts concluded that “[a] tactic, the sole purpose of
which is to subvert a procedural device prescribed by the Court’s rules of civil
procedure, simply cannot be countenanced.”6
11. The facts in this case, however, lead to a different conclusion from the one
reached in Alberts. As presented above, Dr. Theodore used the word “improper”
multiple times during his deposition when describing the trauma that Dr. Pfaff
allegedly caused to Ms. Signey’s spinal cord. But his errata sheet does not
attempt to rewrite his deposition testimony. Instead, it merely clarifies the
conclusions in his written narrative report that “the only cause of [Ms. Signey’s]
spinal cord compression [is] from direct injury to the spinal cord or nerves,
incomplete decompression of the spinal cord or nerves, and potentially an
excessive improper use of [spine sealant].” Those conclusions have been a
prominent part of this case record since November 2021.
12. Dr. Theodore’s errata sheet does not attempt to “game the system.” At most, it
suggests that when surgical injury causes additional post-surgery spinal
compression, that is a deviation from the accepted standard of care. Given that
Dr. Theodore has maintained this position for nearly two years, Defendants’
claim that the errata sheet will cause them prejudice is rejected.
6
Id.
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13. The Court will permit thorough cross-examination of Dr. Theodore at trial.
Whether his credibility is impaired by reason of the changes he has made to his
sworn testimony will be a matter for the jury, and not the Court, to decide.
14. Based on the foregoing, Defendants’ motion to strike errata changes is
DENIED.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
Original to Prothonotary
cc: Leroy Tice, Esquire
Jonathan Landua, Esquire
Gregory McKee, Esquire
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