DiStefano v. McIntosh

• Court: Superior Court of Delaware
• Decided: September 11, 2024
• Docket: N21C-06-233 FJJ
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOESPH DISTEFANO, Individually ) and as Administrator of the Estate ) of Charlene DiStefano, his deceased ) wife, and NICHOLAS DISTEFANO, ) ) Plaintiffs, ) ) v. ) C.A. No. N21C-06-233 FJJ ) KARL MCINTOSH, M.D., ) KARL MCINTOSH, M.D., P.A., and ) ADVANCEXING PAIN & ) REHABILITATION CLINIC, P.A., ) ) Defendants. )

Submitted: September 10, 2024 Decided: September 11, 2024

ORDER

Upon Consideration of Advancexing Pain & Rehabilitation Clinic, P.A.’s Motion to Bifurcate DENIED.

Having considered Defendant Advancexing Pain & Rehabilitation Clinic,

P.A.’s Motion to Bifurcate Trial and the Plaintiffs’ Response, it appears to the Court

that: 1. On June 24, 2021, Plaintiffs filed a Complaint against Karl McIntosh, M.D.,

and Karl McIntosh, M.D., P.A. (“McIntosh”) alleging survival and wrongful

death claims based on McIntosh’s treatment of the decedent.1

2. On October 1, 2021, Plaintiffs filed the First Amended Complaint joining

Advancexing Pain & Rehabilitation Clinic, P.A. (“Advancexing”) as a co-

Defendant.2

3. On August 15, 2024, Advancexing filed this instant Motion to Bifurcate Trial

under RULE 42(b) contending that trying the Defendants separately would

avoid prejudice to Advancexing and be more efficient. 3

4. On September 4, 2024, Plaintiffs filed their Opposition to this Motion

indicating that separate trials for the Defendants does not align with the

requirements under SUPERIOR COURT CIVIL RULE 42(b).4

5. RULE 42(b) states that the Court “may order a separate trial of any claim” if it

is “in furtherance of convenience or to avoid prejudice, or when separate trials

will be conducive to expedition and economy.” 5 The Court has the discretion

to determine whether to separate a trial. 6 Claims that have a common issue of

law or fact are presumptively heard together.7

1 Docket Item (“D.I.”) 1. 2 D.I. 5. 3 D.I. 81. 4 D.I. 87. 5 Del. Super. Ct. Civ. R. 42(b). 6 Earl D. Smith, Inc. v. Carter, 2000 WL 972825 (Del. Super. Ct. Apr. 20, 2000). 7 Id. At 42(a). McClean v. DiLiberto, 2021 WL 5504977, at *2 (Del. Super. Ct. Nov. 16, 2021). 6. The Court determines whether separate trials would save “time, effort and

cost, in contrast to additional inconvenience, delay and expense,” as well as

“whether the court can prevent confusion and prejudice.” 8 Factors considered

in this analysis include whether the court can avoid “overlap of evidence and

witness testimony, double expense, judicial efficiency, undue hardship to the

parties. . . [and] undue prejudice or jury confusion.”9

7. Advancexing contends a consolidated trial would be prejudicial to

Advancexing because Plaintiffs will likely introduce evidence pertaining to

the “criminal nature of allegations against McIntosh” and of the punitive

damages sought against him. 10 Advancexing is concerned this will cause the

jury to confuse the allegations against McIntosh with their own actions in

determining liability, which could lead to the Plaintiffs recovering in full from

Advancexing under a joint and several liability theory. Advancexing further

contends that the witnesses and burden of proof for each Defendant are

different because “reasons for prescribing medications and the medications

[themselves]” are different. 11

8. Plaintiffs counter that a consolidated trial is not prejudicial because the

theories of liability against each Defendant are separate and unique. Plaintiffs

8 McClean, 2021 WL 5504977, at *3. 9 Id. 10 D.I. 81. 11 Id. argue that “the facts, the timeline, and the injuries remain indivisibly

intertwined,” and, if there were separate trials, similar documents and

duplicate witnesses would be introduced at each trial. 12 Most importantly,

Plaintiffs argue that two trials could lead to inconsistent verdicts. 13

9. The Court agrees with Plaintiffs that there is no prejudice or convenience

interest that warrants separate trials for the Defendants under RULE 42(b). The

issue of liability among the Defendants is separate and unique, and a proper

jury instruction will clarify any possible jury confusion or prejudice towards

Advancexing.14 Moreover, while the liability theory is different for each

Defendant, the compensatory damages would be the same. If the Court were

to allow separate trials, inconsistent verdicts would undoubtedly result.

Additionally, Plaintiffs maintain that both doctors’ joint actions caused the

decedent’s death. Therefore, Defendants must be tried together.

10. Moving Defendants also argue that bifurcation is required in this case because

they may end up having to pay the entire award because they are insured and

the Codefendants are not. The Joint Tortfeasor Act is the law of this state.15

While the Act can seem harsh to defendants in the position of Moving

Defendants, that is a consequence of the Act. The Act requires that fault be

12 D.I. 87. 13 Id. 14 Id. McClean, 2021 WL 5504977, at *3. 15 Uniform Contribution Among Tortfeasors Law, 10 Del. C. §§6301-6308. apportioned among codefendants. In the instant case, each Codefendant has

asserted a cross claim for contribution which will require apportionment if the

jury finds both sets of Defendants liable. Separate trials would make it

impossible for there to be the required apportionment. This set of

circumstances is yet another reason why bifurcation is inappropriate in this

case.

11. Advancexing has failed to meet the standard under RULE 42(b). The claims

against each Defendant arise from the same factual issues. Separate trials

would require multiple witnesses to appear twice and the use of similar

evidence resulting in duplicity, ineffectiveness, and could result in

inconsistent verdicts. The Court is prepared to give proper limiting

instructions to avoid jury prejudice or confusion in determining the

Defendants’ separate liabilities and to make it clear which claims relate to

which Defendant.

For the stated reasons, Defendant’s Motion to Bifurcate Trial is DENIED.

IT IS ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones Jr., Judge

cc: Original to the Prothonotary Lauren A. Cirrincione, Esquire Maria R. Granaudo, Esquire