Smith v. Serafimova

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TYRRAN SMITH and TATRA ) BRADSHAW, individually and as ) administrators of the ESTATE OF )

DENISE BRADSHAW, )

)

Plaintiffs, )

) )

v. ) C.A. N21C-08-245 JRJ )

NELI SERAFIMOVA, M.D., WESLEY ) EMMONS, M.D., JOHN ) D’AMBROSIO, D.O., MICHAEL ) VAN WINKLE, D.O., and ) ST. FRANCIS HOSPITAL, INC., )

)

Defendants. )

Date Submitted: April 18, 2024 Date Decided: April 22, 2024

OMNIBUS ORDER

Upon consideration of Defendants’,1 Drs. Neli Serafimova (“Dr.

Serafimova”) and Michael Van Winkle’s (“Dr. Van Winkle”) Motion for Summary

Judgment,2 Dr. John D’Ambrosio’s (“Dr. D’Ambrosio”) Motion in Limine and

Motion for Summary Judgment,3 Drs. Serafimova and Van Winkle’s Motion in

1 Defendant, Dr. Wesly Emmons has since been dismissed from the case. See Trans. ID 82598120. Since the filing of these motions, all other Defendants have joined each other’s motions. See Trans. ID 72483876, 72486130, 72495368, 72516919. 2 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. for Summ. J., Trans. ID 72483352 (March 11, 2024). 3 Defs.’ Br. in Supp. of Dr. D’Ambrosio’s Mot. in Lim. and Mot. for Summ. J., Trans. ID 72474665 (March 11, 2024).

Limine to “Preclude Unqualified Expert Causation Testimony Related to Any

Surgical or Embolization Procedure,”4 Drs. Serafimova and Van Winkle’s Motion

in Limine to “Preclude David Miller, M.D. from Offering Any Expert Testimony,”5

Drs. Serafimova and Van Winkle’s Motion in Limine to “Limit Plaintiffs’ Expert

Opinions Beyond their Expert Reports,”6 Plaintiffs’ Responses thereto,7 and the

record in this case, IT APPEARS THAT:

(1) Plaintiffs filed this medical negligence action after their mother, Denise

Bradshaw (“Ms. Bradshaw”), died on April 9, 2020, during her stay at St. Francis

Hospital.8 Plaintiffs allege that moving Defendants’ negligence proximately caused

the death of Ms. Bradshaw.9 Plaintiffs filed suit in Superior Court on August 27,

2021.10 Defendants proceeded to remove the case to Federal District Court in

October 2021,11 but the case was remanded back to the Superior Court on September

4 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Preclude Unqualified Expert Causation Test., Trans. ID 72494861 (March 12, 2024). 5 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Preclude Dr. Miller, Trans. ID 72495367 (March 12, 2024). 6 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Limit Pls.’ Experts’ Op., Trans. ID 72495652 (March 12, 2024). 7 Pls.’ Resp. to Defs.’ Serafimova & Van Winkle’s Mot. for Summ. J., Trans. ID 72649062 (April 1, 2024); Pls.’ Resp. to Def.’s D’Ambrosio’s Mot. for Summ. J., Trans. ID 72650577 (April 1, 2024); Pls.’ Resp. to Defs.’ Serafimova & Van Winkles’ Mot. in Lim. to Preclude Unqualified Expert Causation Test., Trans. ID 72705009 (April 9, 2024); Pls.’ Resp. to Defs.’ Serafimova & Van Winkle’s Mot. in Lim. to Preclude Dr. Miller, Trans. ID 72705320 (April 9, 2024); Pls.’ Resp. to Defs.’ Serafimova & Van Winkle’s Mot. in Lim. to Limit Pls.’ Experts’ Op., Trans. ID 72705640 (April 9, 2024). 8 Compl., Trans. ID 66885385 (Aug. 27, 2021). 9 See generally Compl. 10 Id. 11 Notice of Removal, Trans. ID 67015492, 67018401, 67019322, 67106701, 67059932.

19, 2022.12 Defendants then moved to dismiss the action under the Public Readiness

and Emergency Preparedness Act (“PREP Act”) on January 12, 2023, which was

denied by the Court on May 18, 2023.13 Trial is scheduled to begin on April 29,

2024.14

(2) Between March 11, 2024, and March 12, 2024, Defendants filed a

series of Motions in Limine and Motions for Summary Judgment. Herein lies the

Court’s decisions on all outstanding motions.

(3) The Court generally notes that the Delaware courts have embraced the

“jury’s exclusive providence to determine issues of credibility.”15 Throughout trial,

experts undergo vigorous cross-examination, and it is ultimately the jury’s job to

resolve any conflicts in testimony that arise.16 While the trial judge acts as a

“gatekeeper” to decide whether the expert testimony “has a reliable basis in the

knowledge and experience of [the relevant] discipline,” the Court will not exclude

12 Trans. ID 69267916. 13 See Smith v. Serafimova, 2023 WL 3582388 (Del. Super. May 18, 2023). 14 Stip. and Order Amend. Tr. Scheduling Order, Trans. ID 72007896 (Feb. 9, 2024). Jury selection will occur on April 23, 2024. 15 Baylis v. Wilmington Medical Center, Inc., 1989 WL 114330, at *1 (Del. Supr. Apr. 24, 1984). 16 Id.

an expert’s testimony because it is inconsistent with that of another.17 Instead, the

jury will be free to accept or reject any or all of the expert testimony presented.18

A. Defendants’ Motions in Limine19

(4) Defendants move to preclude Plaintiffs’ expert Dr. David Miller (“Dr.

Miller”) from (1) offering “unqualified expert causation testimony related to any

surgical or embolization procedure”; (2) “any expert testimony”; (3) to limit any

testimony given solely to his expert report; and (4) to preclude him from testifying

because “his methodology is flawed” and he cannot offer an “opinion as to

interventional radiology.”20

(5) Dr. Miller is a graduate of Washington University School of

Medicine.21 He is trained in Internal Medicine, Infectious Disease, and General

Surgery.22 Additionally, he has served as an Associate Physician and

17 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The “[C]ourt retains considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 2006) (quoting Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 152 (1999) (internal citation omitted). 18 Beatty v. Smedley, 2003 WL 23353491, at n.10 (Del. Super. Mar. 12, 2003) (citing DeAngelis v. Harrison, 1992 WL 207257, at *1 (Del. Super. Aug. 12, 1992)). 19 Throughout Defendants’ motions they argue for the exclusion of Dr. Bailey’s testimony, any reference to Dr. Bailey has become MOOT since Plaintiffs no longer intend to call Dr. Bailey to the stand. 20 See Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Preclude Unqualified Expert Causation Test; Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Preclude Dr. Miller; Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Limit Pls.’ Experts’ Op., Defs.’ Br. in Supp. of Dr. D’Ambrosio’s Mot. in Lim. and Mot. for Summ. J. 21 Compl., Ex. A (Dr. Miller’s Affidavit of Merit and Curriculum Vitae). 22 Id.

Instructor/Lecturer at Harvard Medical School.23 Dr. Miller’s current practice is in

General Internal Medicine and Primary Care at Massachusetts General Hospital.24

Dr. Miller is a General Internist with Harvard teaching credentials and University of

Pennsylvania surgical training.25

(6) Defendants first argue that Dr. Miller should be precluded from offering

testimony about Dr. Van Winkle’s “failure” to “strong-arm radiology into

performing an embolization procedure on Ms. Bradshaw.”26 Defendants aver that

without expert causation testimony, such testimony about Dr. Van Winkle’s

purported failures is irrelevant.27 Dr. Miller, in his expert report, explains that

defendant doctors were “required” to react more aggressively the morning and

evening of April 8, 2020.28 During his deposition testimony, he offered the

following causation testimony, “[i]t should have been clear to the team that was

taking care of her overnight that this patient was dying and that it required

persistence . . . but I’m saying that in totality, there was very significant delays in

the appropriate care of this patient. And had those delays been avoided, I think the

23 Id. 24 Id. 25 Id. 26 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Preclude Unqualified Expert Causation Test. at ¶ 16. 27 Id. at ¶ 24. 28 Pls.’ Resp. to Defs.’ Serafimova & Van Winkles’ Mot. in Lim. to Preclude Unqualified Expert Causation Test. at ¶ 10. See id., Ex. A (Dr. Miller’s Expert Narrative).

patient would probably still be alive.”29 Dr. Miller’s causation testimony is that if

the defendant doctors had intervened earlier, the bleeding could and would have

been stopped, and ultimately Ms. Bradshaw would have survived. As gatekeeper,

the Court declines to exclude the testimony concerning Dr. Van Winkle’s alleged

failures and leaves it to the finder of fact to determine what weight, if any, to give to

Dr. Miller’s causation opinions. Defendants’ Motion in Limine to “Preclude

Unqualified Expert Causation Testimony Related to Any Surgical or Embolization

Procedure” is DENIED.

(7) Next, Defendants argue that Dr. Miller should be precluded from

offering any testimony regarding a breach in the standard of care during the early

stages of the pandemic because he was not working as a doctor during that time.30

From March to April 2020, Dr. Miller was transitioning from his position as

Associate Chief Medical Officer at Tufts Medical Center to the Mass. General

Medical Group.31 The gist of Plaintiffs’ claims against Defendants is that Ms.

Bradshaw died because Defendants failed to timely address Ms. Bradshaw’s

bleeding.32 Dr. Miller’s deposition testimony reflects his opinion that earlier

29 Pls.’ Resp. to Defs.’ Serafimova & Van Winkles’ Mot. in Lim. to Preclude Unqualified Expert Causation Test. at ¶ 10, Ex. B (Dr. Miller’s Deposition) at 138:2-23. 30 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Preclude Dr. Miller at ¶¶ 8, 12. 31 Pls.’ Resp. to Defs.’ Serafimova & Van Winkle’s Mot. in Lim. to Preclude Dr. Miller at ¶ 10. During that transition period Dr. Miller reviewed medical literature which is common practice in the medical field. Id. at 5, n.7. 32 See generally Compl.

intervention could have stopped the bleeding.33 Dr. Miller’s “break” in seeing

patients during COVID does not extinguish his knowledge, experience, and

expertise in internal medicine, and Defendants will have ample opportunity to cross-

examine him on this and many other points. The jury will decide what weight, if

any, to give this evidence.34 Defendants’ Motion in Limine to “Preclude Dr. Miller

from Offering Any Expert Testimony” is DENIED.

(8) Defendants’ move to preclude Dr. Miller from offering any expert

testimony regarding his criticisms of Defendant doctors’ use of Protamine.35

Defendants argue that because Dr. Miller did not specifically mention Protamine in

his report, his opinions regarding it should be barred at trial.36 Defendants have been

on notice regarding Dr. Miller’s opinion (and criticism) on the use of Protamine

since his deposition December 21, 2023.37 Defendants have known for a year that

one of the overarching issues in the case was the failure to address the

“anticoagulation” in a timely manner.38 In addition to Dr. Miller’s deposition

33 Pls.’ Resp. to Defs.’ Serafimova & Van Winkles’ Mot. in Lim. to Preclude Unqualified Expert Causation Test. at ¶ 10, Ex. B (“Dr. Miller’s Deposition”) at 138:2-23. 34 See McKenzie v. Blasetto, 686 A.2d 160, 161 (Del. 1996). 35 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. in Lim. to Limit Pls.’ Experts’ Op. at ¶¶ 9, 17. 36 Pls.’ Resp. to Defs.’ Serafimova & Van Winkles’ Mot. in Lim. to Preclude Unqualified Expert Causation Test. 37 Pls.’ Resp. to Defs.’ Serafimova & Van Winkles’ Mot. in Lim. to Preclude Unqualified Expert Causation Test., Ex. B. 38 Pls.’ Resp. to Defs.’ Serafimova & Van Winkle’s Mot. in Lim. to Limit Pls.’ Experts’ Op. at ¶ 10; Id., Ex. B (Dr. Miller’s Expert Narrative) at 3-4.

testimony, Dr. Bailey discussed this and offered opinions on this same issue during

his deposition.39 Defendants have had adequate notice and time to prepare a defense

to Dr. Miller’s testimony concerning Protamine, and the Court declines to exclude

it. Defendants Motion in Limine to “Limit Plaintiffs’ Experts’ Opinions Beyond

their Export Reports” is DENIED.

(9) Last, Defendants attempt to exclude Dr. Miller’s testimony pertaining

to the care administered by Dr. D’Ambrosio.40 They argue that if Dr. Miller is

precluded from testifying against Dr. D’Ambrosio, then Plaintiffs cannot establish

causation, so summary judgment should be granted.41 As stated above, the Court

finds Dr. Miller’s experience and qualifications sufficient to allow him to testify as

an expert for Plaintiffs. But, Defendants argue that because Dr. Miller is not

specifically qualified in Internal Radiology (“IR”), he cannot render a causation

opinion that had Ms. Bradshaw been moved to IR earlier, she would have survived.42

The Court declines to exclude Dr. Miller as an expert simply because he does not

specialize in IR. Based on the record, he has experience referring to and interacting

with IR, following protocols (and instructions) set by IR, requesting IR bedside

consults depending upon the deterioration of the patient, teaching medical students

39 Defs.’ Br. in Support of Dr. D’Ambrosio’s Mot. in Lim. and Mot. for Summ. J. 40 Id. 41 Id. 42 Id.

on basic medical processes like embolization, and he works in a hospital as a General

Internalist.43 Defendants’ Motion in Limine and Motion for Summary Judgment is

DENIED.

B. Summary Judgment Motions

(10) Defendants move for summary judgment based on the alleged

inadequacy of Dr. Miller’s expert testimony against Dr. D’Ambrosio.44 Because the

Court finds Dr. Miller is qualified to testify as an expert against Dr. D’Ambrosio,

the Defendants’ Motion for Summary Judgment as to Dr. Miller is DENIED AS

MOOT.

(11) Defendants also move for summary judgment on the basis of the PREP

Act.45 Parties agreed that the question of whether PREP Act immunity applies to

Defendants in this case is a legal question of statutory interpretation. 46 This is not

an issue of fact for the jury. As the Court articulated during its pretrial conference,

it does not interpret the PREP Act to be as expansive as Defendants would like. As

the Court noted in Hansen I, the purpose of the PREP Act was to “ensure that drug

manufactures will not be sued should the vaccine or other government-ordered

countermeasure turn out to be defective or harmful.”47 The Court noted in Hansen

43 Compl., Ex. A; Dr. Miller’s Deposition at 138:02-144:15. 44 Defs.’ Br. in Support of Dr. D’Ambrosio’s Mot. in Lim. and Mot. for Summ. J. 45 Defs.’ Br. in Supp. of Drs. Serafimova & Van Winkle’s Mot. for Summ. J. 46 Id.; Pls.’ Resp. to Defs.’ Serafimova & Van Winkle’s Mot. for Summ. J. 47 Hansen v. Brandywine Nursing and Rehabilitation Center, Inc., 2023 WL 587950, at *3 (Del. Super. Jan. 23, 2023) (“Hansen I”).

II that “immunity does not extend to standard infections disease protocols that were

or were not followed.”48 Similarly, immunity does not extend to standard internal

bleeding protocols that were—or were not—timely administered or timely reversed.

For the reasons stated at the pre-trial conference, Defendants’ Motion for Summary

Judgment is denied, and the Court finds as a matter of law based on statutory

interpretation that Defendants are not insulated from allegations of medical

negligence under the PREP Act.49 Therefore, Defendants’ Motion for Summary

Judgment is DENIED.

THEREFORE, IT IS HEREBY ORDERED that Defendants’ Motions in

Limine and Motions for Summary Judgement are DENIED.

IT IS SO ORDERED.

/s/ Jan R. Jurden Jan R. Jurden, President Judge

cc: Prothonotary

48 Hansen v. Brandywine Nursing and Rehabilitation Center, Inc., 2023 WL 2199610, at *3 (Feb. 24, 2023) (“Hansen II”). 49 See Hansen I, 2023 WL 587950, at *8 (“the PREP Act's ‘covered countermeasures’ did not establish a new defense to [ordinary negligence] claims, nor did they foreclose [on defendants] from showing that [they] acted within the standard of care at the time the Plaintiffs contracted COVID-19.”) See Roebuck v. Mayo Clinic, 256 Ariz. 161, 298 (Ariz. Ct. App. Sept. 19, 2023) (holding the PREP Act did not provide immunity for complications arising from an ABG test ordered by doctors to assess and treat a patient for COVID-19).