This appeal arises from a survival and wrongful death action brought by plaintiffs-appellees/cross-appellees/cross-appellants Linda Crist, executrix of the Estate of Irene and Matthew Harris, Donald Harris, William Harris and Kathy McEvoy ("Plaintiffs"). The defendants-cross-appellants/cross-appellees are Mary Ann Connor, D.O. and her professional association, Van Buren Medical Associates, P.A. ("Dr. Connor") and defendant-appellant/cross-appellee Christiana Care Health Services ("CCHS"). Plaintiffs alleged that Dr. Connor and CCHS were negligent in the professional care provided to Matthew Harris during his stay at the hospital following hip surgery. A Superior Court jury found that both Dr. Connor and CCHS were negligent, that their negligence was a proximate cause of Harris's death, and awarded damages of $2 million in favor of Plaintiffs. The jury attributed 40 percent of the fault to Dr. Connor and 60 percent of the fault to CCHS.
On appeal, CCHS argues that the trial court improperly allowed a line of questioning of Plaintiffs' expert witness, which tainted the testimony presented to the jury and prejudiced its defense. CCHS also contends that Dr. Connor's counsel's closing remarks referring to CCHS's expert witness's credibility were also prejudicial. On cross-appeal, Dr. Connor argues that CCHS's expert on causation gave an impermissible opinion on the standard of care that was never identified and confused the jury. We find no merit to these arguments.
On cross-appeal, Plaintiffs argue that the trial judge erred as a matter of law in denying their request for prejudgment interest. Prior to trial, Plaintiffs made a settlement offer to Dr. Connor and CCHS for $1.25 million each, which both parties rejected. The trial judge found that the combined settlement offer exceeded the $2 million award of damages by the jury and denied prejudgment interest. We agree with Plaintiffs that the trial judge erred in denying prejudgment interest under 6 Del. C. § 2301(d). An award of prejudgment interest was required because Plaintiffs' settlement offer to Dr. Connor of $1.25 million, and its separate settlement offer to CCHS of $1.25 million, were each for an amount less than the amount of the $2 million judgment entered against them jointly and severally. We reverse the denial of Plaintiffs' motion for prejudgment interest and remand for further proceedings consistent with this Opinion.
Matthew Harris was seventy-four years old when he fell and fractured his hip on February 1, 2004. He was admitted to CCHS's hospital and, on February 5, asked for medication to help him sleep. At 6:50 p.m., the on-duty nurse called Ying Zhu, M.D., a member of Dr. Connor's medical practice group who was on call for Dr. Connor. Dr. Zhu prescribed 10 mg of Ambien, a sleep aide. The Ambien was administered at approximately 12:35 a.m. At approximately 4:30 a.m., Harris got out of bed and fell. Hospital staff notified Dr. Zhu of the fall.
Dr. Connor evaluated Harris at 9:25 a.m., and gave orders for his care, including a CT (CAT) scan to rule out any cranial injury, including a subdural hematoma. Dr. Connor ordered the CT Scan "routine" at that time. This CT scan was placed by the unit clerk as "CT head, with or without contrast" at 10:09. Around this
As framed by Plaintiffs, the allegations of medical negligence were: Dr. Zhu should have only prescribed 5 mg of Ambien because of Harris's age; the nurse who administered the Ambien should not have done so because the chart did not indicate that he had difficulty sleeping;
A. The Leading Questions
CCHS argues that Plaintiffs' attorney led his expert witnesses improperly throughout his direct examinations. CCHS objected several times and was eventually granted a continuing objection on this point. The trial judge overruled the objections, stating that the witnesses were experts. He later explained that the questions were not leading or "barely leading" and that experts are "less likely to give an answer suggested by an attorney."
"A trial judge has discretion to exercise reasonable control over the mode and order of the interrogation of witnesses."
A trial judge has broad discretion in allowing leading questions of a witness, including during the direct examination.
While the rule vests the trial judge with broad discretion to permit leading questions on direct examination, the record does not show that any party asked for the blanket ruling which the trial judge made in this case. Nor does the record show that the trial judge determined that leading questions were necessary to develop each witness's testimony as required by D.R.E. 611(c). Even though the trial judge did not apply D.R.E. 611(c) for each witness, CCHS has not demonstrated that the questions suggested false memories for any witness. To the contrary, it appears that even if some questions were leading, the experts testified in accordance with their own pre-trial disclosures. Accordingly, we conclude that the trial judge's error was harmless.
B. Counsel's remarks during closing
CCHS next argues that the trial judge abused his discretion by failing to correct Dr. Connor's counsel's comments about "the truth" during closing arguments. The issue was preserved through CCHS's motion for a new trial. We review a trial court's refusal to grant a new trial based on improper comment of counsel for abuse of discretion.
CCHS argues that Dr. Connor's counsel's closing comments were improper and focuses on three statements (italicized):
No objection was made contemporaneously to these statements. Nor did the trial judge intervene sua sponte. In response to CCHS's motion for a new trial, the trial judge found that "[i]n the context of Dr. Connor's counsel's entire and comprehensive closing argument, it cannot be said that the complained-of brief statements did, in fact, vouch for the credibility of witnesses."
C. The causation expert's testimony that the outcome would have been different if a stat CT had been made between 10 AM and 11:15 AM
Dr. Connor next argues that the trial judge erred when he overruled his objection under D.R.E. 403
The trial judge overruled the objection, finding that the risk of confusion did not substantially outweigh the probative value and noted that defense counsel could cross-examine the witness. In denying the motion for new trial, the trial judge noted that the objection was not on the basis that this opinion was previously undisclosed. Further, the trial judge noted that during cross-examination, counsel confirmed that he was only a causation expert and that "nothing [the expert] said today should be interpreted as being critical of any of the doctors and nurses who treated Mr. Harris."
As with the leading questions, this is an evidentiary ruling that we review for abuse of discretion. Both during direct and during cross-examination, the jury was made aware that the expert was not making a comment on the standard of care. Rather, the question simply asked whether the outcome (effect) would have been different had the CT been performed within the window accepted as the standard of care (cause). The expert answered that it would have been different. On the record before us, we find no abuse of discretion.
D. The trial judge's denial of the plaintiffs' prejudgment interest
Plaintiffs have cross-appealed the denial of their application for prejudgment interest. Prior to trial, Plaintiffs made separate written offers to settle all claims against each defendant for $1.25 million. The offer to settle provided, in relevant part: "Plaintiffs are agreeable to a settlement of all of their claims against Van Buren Medical Associates and any and all of its physician employees, including Dr. Connor, for $1,250,000." An offer with the identical language was sent to counsel for CCHS. The offer was rejected. The jury awarded damages totaling $2 million, apportioning fault 40 percent for Dr. Connor and 60 percent for CCHS.
Plaintiffs filed a motion for costs and prejudgment interest pursuant to 6 Del. C. § 2301(d), which provides:
Thus, if the settlement demand on a defendant is less than the amount of damages awarded by the jury against that defendant, the plaintiffs can recover prejudgment interest.
Plaintiffs assert that pursuant to this section, they were entitled to $469,477.44 in prejudgment interest. Defendants argued that no prejudgment interest should be awarded because the jury award, as apportioned to each individual defendant, was less than the individual settlement
Plaintiffs ask us to interpret the statute consistent with our interpretation of Rule 68 relating to offers of judgment.
Under 6 Del. C. § 2301(d), "interest shall be added to any final judgment entered for damages awarded ... provided that prior to trial the plaintiff had extended to defendant a written settlement demand valid for a minimum of 30 days in an amount less than the amount of damages upon which the judgment was entered."
The judgment of the Superior Court is