IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TAMEKA RICHARDSON, as NEXT ) FRIEND OF N.D., a minor, ) ) Plaintiff, ) ) v. ) C.A. No. N18C-10-026 JRJ ) CHRISTIANA CARE HEALTH ) SERVICES, INC., ) ) Defendant. )
Date Submitted: September 14, 2021 Date Decided: November 19, 2021
ORDER Upon consideration of Defendant Christiana Care Health Services, Inc.’s
“Motion for Reargument as to Plaintiff’s Motion in Limine to Exclude Certain
Causation Testimony from Dr. Neil Silverman and Dr. Harold Wiesenfeld and as
to Portions of Plaintiff’s Omnibus Motion in Limine,”1 Plaintiff’s Opposition
thereto;2 and the record in this case, IT APPEARS THAT:
1. Defendant and Plaintiff Tameka Richardson (“Plaintiff”), as next friend
of her grandson (“N.D.”), filed several motions in limine in this case.3 Following
1 Defendant’s Motion for Reargument (“Def. Mot.”), (Trans. ID. 66721030). 2 Plaintiff’s Response (“Pl. Resp.”), (Trans. ID. 66733571). 3 Trans. ID. 65863005; Trans. ID. 65863041; Trans. ID. 65946141; Trans. ID. 65946227; Trans. ID. 65946338; Trans. ID. 65946477; Trans. ID. 65946740. extensive oral argument on those motions,4 the Court issued a Memorandum
Opinion deciding the motions on June 21, 2021.5
2. On June 28, 2021, Defendant filed a timely Motion for Reargument.6
In its Motion for Reargument, Defendant argues the following: (1) the Court erred
in precluding Dr. Neil Silverman and Dr. Harold Wiesenfeld’s causation testimony;7
and (2) the Court failed to address whether evidence that N.D.’s mother had been
noncompliant with certain medical treatments could be used for a purpose other than
arguing comparative negligence.8
3. According to Defendant, the Court erred in several respects: Dr.
Silverman and Dr. Wiesenfeld’s causation opinions are based on their experience,
research, and knowledge of the literature—not merely the six articles that were
produced;9 the Court misapplied Timblin v. Kent General Hospital;10 the Court’s
exclusion of the doctors’ causation opinions is inherently unfair to Defendant
because the Court has not prohibited Plaintiff from offering opinions based on
4 See Trans. ID. 66454859. 5 Memorandum Opinion (“Mem. Op.”), (Trans. ID. 66703354). 6 Def. Mot., Trans ID. 66721030. 7 Id. at 1. The specific causation testimony Defendant seeks to reargue is the doctors’ shared opinion that when a mother is infected with HIV during pregnancy, the risk that her baby will be infected with HIV in utero is greater than 50%. Mem. Op., Trans. ID. 66703354. 8 Def. Mot., Trans. ID. 66721030 at 7. This second issue is not properly before the Court on a Motion for Reargument because it was not addressed in the Plaintiff’s Omnibus Motion, and the Court did not rule on this issue in its June 21, 2021 Memorandum Opinion. Consequently, this issue will be addressed as a motion in limine in a separate order. 9 Id, at ¶¶ 2–3. 10 Id. at ¶ 4 (citing Timblin v. Kent General Hosp., 640 A.2d 1021 (Del. 1994)). 2 statistics;11 and the Court’s exclusion of the doctors’ causation opinions was
overbroad in that the Court excluded all of the doctors’ causation opinions, whereas
Plaintiff sought exclusion only of the doctors’ causation opinions relating to the
timing of transmission.12
4. In response, Plaintiff states:
This Court heard extensive oral argument regarding Plaintiff’s Motions in Limine on March 25, 2021. Defendant’s six page Motion for Reargument contains no new facts of legal argument, despite alleging that the Court misapprehended the law or the facts. Instead, Defendant simply rehashes the arguments it has already made, which the court rejected. As such, Plaintiff respectfully requests that Defendant’s motion be denied.13
5. A Motion for Reargument is governed by Superior Court Civil Rule
59(e).14 The purpose of such motion is to seek reconsideration of findings of fact,
conclusions of law, or judgment of law.15 Pursuant to Rule 59(e), such a motion will
be denied unless the movant demonstrates that the Court “has overlooked precedent
or legal principles, or the Court has misapprehended the law or the facts such as
would have changed the outcome of the underlying decision.” 16 A motion for
11 Id. at ¶ 5. 12 Id. at ¶ 6. 13 Pl. Resp. at ¶ 2. 14 Super. Ct. Civ. R. 59(e). 15 Baldwin v. New Castle Cty., 2020 WL 638858, at *2 (Del. Super. Ct. Feb. 11, 2020) (citing Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969)). 16 State v. Brinkley, 132 A.3d 839, 842 (Del. Super. Ct. 2016) (internal quotations omitted) (quoting Kennedy v. Invacare, Inc., 2007 WL 488590, at *1 (Del. Super. Ct. Jan. 31, 2006)). 3 reconsideration or reargument is not an opportunity to rehash arguments already
decided by the Court, or to present new arguments that were not previously raised.17
6. The Defendant argues that the Court misapplied Timblin in excluding
the statistical evidence relied upon by Dr. Silverman and Dr. Wiesenfeld. As the
Court explained, the statistical evidence at issue risked improperly misleading the
jury18 as it “invite[s] the jury to infer that any alleged negligence could not be the
proximate cause of the injury in this case because that injury was statistically likely
to happen anyway.”19 The Court determined that the danger of such evidence
misleading or confusing the jury far outweighed the potential probative value of the
proffered evidence.20 In addition, the Court explained that it was relying on its
“broad latitude” under Delaware Rule of Evidence (“D.R.E.”) 702 to strike the
evidence as unreliable “due to the absence of supporting literature and the existence
of contradictory literature (and testimony).”21 Defendant argues that Timblin permits
17 CNH Am., LLC v. Am. Cas. Co. of Reading, Pa., 2014 WL 1724844, at *1 (Del. Super. Ct. Apr. 29, 2014); see also Kostyshyn v. Comm’rs of Bellefonte, 2007 WL 1241875, at *1 (Del. Super. Ct. Apr. 27, 2007) (“Delaware law places a heavy burden on a [party] seeking relief pursuant to Rule 59.”). 18 Mem. Op., Trans. ID. 66703354 at 7; D.R.E. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, . . . misleading the jury, . . .”). 19 Mem. Op., Trans. ID. 66703354 at 7; Timblin, 640 A.2d at 1024-26; cf. Crowhorn v. Boyle, 793 A.2d 422, 433 (Del. Super. Ct. 2002) (noting that the doctor’s general “proposition that seventy-five percent of chronic back pain sufferers ‘get better’ in six weeks . . . would have no application to” the plaintiff because the doctor “offer[ed] no basis for placing [the plaintiff] among the seventy-five percent.”). 20 Mem. Op., Trans. ID. 66703354 at 7. 21 Mem. Op., Trans. ID. 66703354 at 7-8; see Crowhorn v. Boyle, 793 A.2d at 433 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993)) (“Daubert requires that the 4 statistical evidence “to rebut the nexus between the defendant’s conduct and the
plaintiff’s injury by showing that the injury was likely to occur regardless of the
defendant’s alleged negligence.”22 But the above cited quote from Timblin actually
begins with the following: “Statistical evidence may be relevant in appropriate
circumstances . .
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TAMEKA RICHARDSON, as NEXT ) FRIEND OF N.D., a minor, ) ) Plaintiff, ) ) v. ) C.A. No. N18C-10-026 JRJ ) CHRISTIANA CARE HEALTH ) SERVICES, INC., ) ) Defendant. )
Date Submitted: September 14, 2021 Date Decided: November 19, 2021
ORDER Upon consideration of Defendant Christiana Care Health Services, Inc.’s
“Motion for Reargument as to Plaintiff’s Motion in Limine to Exclude Certain
Causation Testimony from Dr. Neil Silverman and Dr. Harold Wiesenfeld and as
to Portions of Plaintiff’s Omnibus Motion in Limine,”1 Plaintiff’s Opposition
thereto;2 and the record in this case, IT APPEARS THAT:
1. Defendant and Plaintiff Tameka Richardson (“Plaintiff”), as next friend
of her grandson (“N.D.”), filed several motions in limine in this case.3 Following
1 Defendant’s Motion for Reargument (“Def. Mot.”), (Trans. ID. 66721030). 2 Plaintiff’s Response (“Pl. Resp.”), (Trans. ID. 66733571). 3 Trans. ID. 65863005; Trans. ID. 65863041; Trans. ID. 65946141; Trans. ID. 65946227; Trans. ID. 65946338; Trans. ID. 65946477; Trans. ID. 65946740. extensive oral argument on those motions,4 the Court issued a Memorandum
Opinion deciding the motions on June 21, 2021.5
2. On June 28, 2021, Defendant filed a timely Motion for Reargument.6
In its Motion for Reargument, Defendant argues the following: (1) the Court erred
in precluding Dr. Neil Silverman and Dr. Harold Wiesenfeld’s causation testimony;7
and (2) the Court failed to address whether evidence that N.D.’s mother had been
noncompliant with certain medical treatments could be used for a purpose other than
arguing comparative negligence.8
3. According to Defendant, the Court erred in several respects: Dr.
Silverman and Dr. Wiesenfeld’s causation opinions are based on their experience,
research, and knowledge of the literature—not merely the six articles that were
produced;9 the Court misapplied Timblin v. Kent General Hospital;10 the Court’s
exclusion of the doctors’ causation opinions is inherently unfair to Defendant
because the Court has not prohibited Plaintiff from offering opinions based on
4 See Trans. ID. 66454859. 5 Memorandum Opinion (“Mem. Op.”), (Trans. ID. 66703354). 6 Def. Mot., Trans ID. 66721030. 7 Id. at 1. The specific causation testimony Defendant seeks to reargue is the doctors’ shared opinion that when a mother is infected with HIV during pregnancy, the risk that her baby will be infected with HIV in utero is greater than 50%. Mem. Op., Trans. ID. 66703354. 8 Def. Mot., Trans. ID. 66721030 at 7. This second issue is not properly before the Court on a Motion for Reargument because it was not addressed in the Plaintiff’s Omnibus Motion, and the Court did not rule on this issue in its June 21, 2021 Memorandum Opinion. Consequently, this issue will be addressed as a motion in limine in a separate order. 9 Id, at ¶¶ 2–3. 10 Id. at ¶ 4 (citing Timblin v. Kent General Hosp., 640 A.2d 1021 (Del. 1994)). 2 statistics;11 and the Court’s exclusion of the doctors’ causation opinions was
overbroad in that the Court excluded all of the doctors’ causation opinions, whereas
Plaintiff sought exclusion only of the doctors’ causation opinions relating to the
timing of transmission.12
4. In response, Plaintiff states:
This Court heard extensive oral argument regarding Plaintiff’s Motions in Limine on March 25, 2021. Defendant’s six page Motion for Reargument contains no new facts of legal argument, despite alleging that the Court misapprehended the law or the facts. Instead, Defendant simply rehashes the arguments it has already made, which the court rejected. As such, Plaintiff respectfully requests that Defendant’s motion be denied.13
5. A Motion for Reargument is governed by Superior Court Civil Rule
59(e).14 The purpose of such motion is to seek reconsideration of findings of fact,
conclusions of law, or judgment of law.15 Pursuant to Rule 59(e), such a motion will
be denied unless the movant demonstrates that the Court “has overlooked precedent
or legal principles, or the Court has misapprehended the law or the facts such as
would have changed the outcome of the underlying decision.” 16 A motion for
11 Id. at ¶ 5. 12 Id. at ¶ 6. 13 Pl. Resp. at ¶ 2. 14 Super. Ct. Civ. R. 59(e). 15 Baldwin v. New Castle Cty., 2020 WL 638858, at *2 (Del. Super. Ct. Feb. 11, 2020) (citing Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969)). 16 State v. Brinkley, 132 A.3d 839, 842 (Del. Super. Ct. 2016) (internal quotations omitted) (quoting Kennedy v. Invacare, Inc., 2007 WL 488590, at *1 (Del. Super. Ct. Jan. 31, 2006)). 3 reconsideration or reargument is not an opportunity to rehash arguments already
decided by the Court, or to present new arguments that were not previously raised.17
6. The Defendant argues that the Court misapplied Timblin in excluding
the statistical evidence relied upon by Dr. Silverman and Dr. Wiesenfeld. As the
Court explained, the statistical evidence at issue risked improperly misleading the
jury18 as it “invite[s] the jury to infer that any alleged negligence could not be the
proximate cause of the injury in this case because that injury was statistically likely
to happen anyway.”19 The Court determined that the danger of such evidence
misleading or confusing the jury far outweighed the potential probative value of the
proffered evidence.20 In addition, the Court explained that it was relying on its
“broad latitude” under Delaware Rule of Evidence (“D.R.E.”) 702 to strike the
evidence as unreliable “due to the absence of supporting literature and the existence
of contradictory literature (and testimony).”21 Defendant argues that Timblin permits
17 CNH Am., LLC v. Am. Cas. Co. of Reading, Pa., 2014 WL 1724844, at *1 (Del. Super. Ct. Apr. 29, 2014); see also Kostyshyn v. Comm’rs of Bellefonte, 2007 WL 1241875, at *1 (Del. Super. Ct. Apr. 27, 2007) (“Delaware law places a heavy burden on a [party] seeking relief pursuant to Rule 59.”). 18 Mem. Op., Trans. ID. 66703354 at 7; D.R.E. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, . . . misleading the jury, . . .”). 19 Mem. Op., Trans. ID. 66703354 at 7; Timblin, 640 A.2d at 1024-26; cf. Crowhorn v. Boyle, 793 A.2d 422, 433 (Del. Super. Ct. 2002) (noting that the doctor’s general “proposition that seventy-five percent of chronic back pain sufferers ‘get better’ in six weeks . . . would have no application to” the plaintiff because the doctor “offer[ed] no basis for placing [the plaintiff] among the seventy-five percent.”). 20 Mem. Op., Trans. ID. 66703354 at 7. 21 Mem. Op., Trans. ID. 66703354 at 7-8; see Crowhorn v. Boyle, 793 A.2d at 433 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993)) (“Daubert requires that the 4 statistical evidence “to rebut the nexus between the defendant’s conduct and the
plaintiff’s injury by showing that the injury was likely to occur regardless of the
defendant’s alleged negligence.”22 But the above cited quote from Timblin actually
begins with the following: “Statistical evidence may be relevant in appropriate
circumstances . . .”.23 And the sentence that directly follows the quote provided by
Defendant is: “[e]ven in such circumstances . . . the evidence must be carefully
scrutinized to ensure its relevance and guard against unfair prejudice.”24 As the
Delaware Supreme Court noted in Timblin:
Delaware courts have recognized that evidence of statistical probability creates a significant risk of jury confusion and unfair prejudice because such evidence may lead a jury to decide a case based on what happens normally instead of what happened in the case before it.25
Timblin makes clear that when determining the admissibility of statistical evidence,
the Court must apply the D.R.E. 403 balancing test.26 The Court did so here and
expert’s reasoning be both scientifically valid and applicable to the facts of the case.”); see also Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010) (“This Court has adopted the United States Supreme Court holding in Daubert, which requires that an expert's opinion be based upon a proper factual foundation and sound methodology to be admissible, as the correct interpretation of D.R.E. 702. Pursuant to that rule, the trial judge acts as the gatekeeper to determine whether a proffered expert's testimony satisfies D.R.E. 702 and is thus admissible as evidence. In making that determination, the trial judge has “broad latitude” to decide whether the proffered expert testimony is sufficiently reliable and relevant.”). 22 Def. Mot., Trans. ID. 66721030 at ¶ 4 (citing Timblin, 640 A.2d at 1024 (Del. 1994)). 23 Timblin, 640 A.2d at 1024. 24 Id. 25 Id. 26 Id. at 1023. The court explains that D.R.E. 403 provides the following: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the 5 decided under the facts and circumstances in this case that the statistical evidence
created a substantial risk of unfair prejudice and jury confusion.27 In so ruling, the
Court did not overlook precedent or legal principles, nor did it misapprehend the law
or the facts such as would have changed the outcome.
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant
Christiana Care Health Services, Inc.’s Motion for Reargument as to Plaintiff’s
Motion in Limine to Exclude Certain Causation Testimony from Dr. Neil Silverman
and Dr. Harold Wiesenfeld is DENIED.
IT IS SO ORDERED.
/s/ Jan R. Jurden Jan R. Jurden, President Judge
cc: Prothonotary
jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Id. 27 Mem. Op., Trans. ID. 66721030 at 7. (“The doctors’ statistical opinions . . . risk misleading the jury . . .”). 6