Stevenson v. State of Delaware

• Court: Supreme Court of Delaware
• Decided: April 1, 2020
• Docket: 84, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ROGER C. STEVENSON, M.D., and § LIMESTONE MEDICAL AID UNIT § No. 84, 2020 LLC, a Delaware Limited Liability § Corporation, § § Defendants Below, § Appellants, § § v. § Court Below – Superior Court § of the State of Delaware STATE OF DELAWARE, JOANNE § C. KLOSIEWICZ, Individually and § C.A. No. N17C-02-191 as Personal Representative of THE § ESTATE OF THOMAS J. § KLOSIEWICZ, SR., THOMAS J. § KLOSIEWICZ, JR., AMY § WHARRY, and DENISE FAY, § § Plaintiffs Below, § Appellees. §

Submitted: March 18, 2020 Decided: April 1, 2020

Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.

ORDER

Upon careful consideration of the supplementary notice of appeal from an

interlocutory order, it appears to the Court that:

(1) The defendants below-appellants, Roger C. Stevenson, M.D. and

Limestone Medical Aid Unit LLC (collectively, “the Defendants”) have petitioned

this Court under Supreme Court Rule 42 to accept an interlocutory appeal from the February 12, 2020 Superior Court decision that granted the motion for a new trial

filed by plaintiffs below-appellees Joanne C. Klosiewicz, Individually and as

Personal Representative of the Estate of Thomas J. Klosiewicz, Sr., Thomas J.

Klosiewicz, Jr., Amy Wharry, and Denise Fay (collectively, “the Plaintiffs”).

(2) This medical malpractice case arose out of the death of Mr.

Klosiewicz, who died of sepsis one day after Defendant Dr. Stevenson diagnosed

him as suffering from the flu. The case proceeded to a jury trial in July 2019. The

parties stipulated that Mr. Klosiewicz did not have a spleen and that no one,

including Mr. Klosiewicz, knew that he did not have a spleen. The purpose of the

stipulation was two-fold: (i) to ensure that the jury would not find Dr. Stevenson

liable for not knowing that his patient did not have a spleen and (ii) to permit the

jury to consider the fact that Mr. Klosiewicz did not have a spleen when it

considered the issue of causation.

(3) The Defendants, who had initially designated Dr. Stevenson as a

standard-of-care expert,1 stated in their pretrial disclosures made under Superior

Court Civil Rule 26 that Dr. Stevenson’s trial testimony would be limited to the

testimony he offered at deposition. Plaintiffs called Dr. Stevenson in their case-in-

chief. On cross-examination by the Defendants, Dr. Stevenson testified that, had

he known Mr. Klosiewicz did not have a spleen, he would have sent Mr.

1 The Defendants later changed their minds and designated Dr. Stevenson as a fact witness to limit the Plaintiffs’ ability to challenge Dr. Stevenson’s credentials as an expert.

2 Klosiewicz to the emergency room as opposed to sending him home with a

prescription for flu medicine. Plaintiffs moved to strike this testimony as irrelevant

and speculative and requested a curative instruction. Plaintiffs argued that this line

of questioning permitted Dr. Stevenson to use the stipulation to speculate that he

would have provided different medical treatment to Mr. Klosiewicz if he had

known Mr. Klosiewicz did not have a spleen. The Defendants opposed the request

for a curative instruction and argued that Dr. Stevenson’s opinion was relevant and

a previously-disclosed expert opinion. The Superior Court accepted the

Defendants’ representation, overruled the motion to strike, and did not give a

curative instruction. Because the jury concluded that Dr. Stevenson had met the

requisite standard of care, it never reached the issue of whether Dr. Stevenson’s

treatment was the proximate cause of Mr. Klosiewicz’s death.

(4) Plaintiffs then timely filed a motion for a new trial, arguing that the

Defendants had elicited undisclosed inadmissible expert testimony from Dr.

Stevenson. Although the Defendants had represented that Dr. Stevenson’s opinion

as to the significance of the spleen had been disclosed at his deposition, the

Superior Court found it had not been. Accordingly, the Superior Court concluded

that, regardless of which party called Dr. Stevenson as a witness, he gave an

undisclosed and inadmissible expert opinion. The Superior Court found that a new

trial was warranted where the evidence weighed heavily against the jury verdict on

3 the issue of standard of care, and the jury verdict was tainted by the court’s legal

error in admitting Dr. Stevenson’s undisclosed expert opinion on that issue.

(5) On February 24, 2020, the Defendants asked the Superior Court to

certify an interlocutory appeal from the court’s order granting Plaintiffs’ motion

for a new trial. The Defendants maintained that the court’s order decided a

substantial issue of material importance.2 The Defendants also argued that the

following Rule 42(b)(iii) factors weighed in favor of granting interlocutory review:

the order vacated a jury verdict;3 interlocutory review could terminate the

litigation;4 and interlocutory review would serve the considerations of justice.5

The Plaintiffs opposed the application.

(6) On March 11, 2020, the Superior Court denied the Defendants’

application for certification of an interlocutory appeal.6 The Superior Court

disagreed with the Defendants and found that its ruling did not decide a substantial

issue of material importance—a threshold consideration under Rule 42(b)(i).

Furthermore, in balancing the Rule 42(b)(iii) factors, the Superior Court concluded

that five of the eight factors objectively weighed against certification of an

interlocutory appeal. The Superior Court found that two of the factors cited by the

2 Del. Supr. Ct. R. 42(b)(i). 3 Del. Supr. Ct. R. 42(b)(iii)(E). 4 Del. Supr. Ct. R. 42(b)(iii)(G). 5 Del. Supr. Ct. R. 42(b)(iii)(H). 6 On February 26, 2020, the Superior Court inadvertently granted the application by signing a draft order submitted to the court by the Defendants. The Superior Court vacated that order on March 4, 2020.

4 Defendants—that interlocutory review could terminate the litigation and would

serve the considerations of justice—to be of questionable weight. The only factor

that the Superior Court found objectively weighed in favor of certification was that

its order had set aside a jury verdict. We agree with the Superior Court’s

conclusion.

(7) Applications for interlocutory review are addressed to the sound

discretion of the Court. 7 Giving due weight to the trial court’s analysis and in the

exercise of our discretion, this Court has concluded that the application for

interlocutory review does not meet the strict standards for certification under

Supreme Court Rule 42(b). Exceptional circumstances that would merit

interlocutory review of the Superior Court’s decision do not exist in this case, 8 and

the potential benefits of interlocutory review do not outweigh the inefficiency,

disruption, and probable costs caused by an interlocutory appeal. 9

NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is

REFUSED.

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves Justice

7 Del. Supr. Ct. R. 42(d)(v). 8 Del. Supr. Ct. R. 42(b)(ii). 9 Del. Supr. Ct. R. 42(b)(iii).