Opinion
Civil Action No. 05C-11-074-JOH.
Submitted: July 21, 2009.
Decided: July 31, 2009.
Upon Cross-Motions in Limine Regarding Impeachment Evidence.
Natalie S. Wolf, Esquire, of Young Conaway Stargatt Taylor, Wilmington, Delaware, and Leon Aussprung, Esquire, of Kline Specter, Philadelphia, Pennsylvania, attorneys for the plaintiffs.
Dennis D. Ferri, Esquire, of Morris James, LLP, Wilmington, Delaware, attorney for defendants Martine, R.N., and Christiana Care Health Services, Inc.
John D. Balaguer, Esquire, of White and Williams, LLP, Wilmington, Delaware, attorney for defendants, Suh, M.D., and Family Ear Nose Throat Physicians, P.A.
MEMORANDUM OPINION
This is a medical malpractice case set to begin trial on August 3rd. There have been several prior trial dates. Defendants Christiana Care Health Services ("CCHS") and nurse Craig Martine have moved to continue this trial date (collectively "CCHS"). The basis for their motion is that two witnesses, whom they assert are essential, will be unavailable to testify at trial. Plaintiffs oppose the motion.
The two witnesses are police officers. CCHS wants them to testify in rebuttal to the plaintiffs' case and for impeachment purposes. Specifically, they want to impeach the testimony of a non-party witness, Gary Noble. Noble is expected to offer testimony that would, if believed, provide strong evidence of medical negligence by Martine, hence his employer CCHS. To refute Noble's credibility, CCHS needs the police officers to testify about statements Noble made to them which he has subsequently recanted or indicated were false or exaggerated. The context of these statements and the circumstances under which these were made have some relationship to Martine.
Connected to this continuance motion is the issue, discussed in separate memos from the parties, of whether the Court should even allow the impeachment testimony. As part of the issue of the admissibility of the impeachment testimony are the additional issues of whether extrinsic evidence of specific conduct are admissible and, if so, by what means.
The resolution of the admissibility of the proffered impeachment evidence obviously drives the resolution of CCHS' motion to continue the trial.
Factual Background
In this case, the plaintiffs claim medical negligence by CCHS through its "servant" nurse Martine. He was a nurse in the ICU and was responsible for monitoring plaintiff James Brady immediately following an extubation. He has testified in deposition that he was present in the ICU during the time his alleged medical negligence occurred. He was also assigned to monitor another patient. Defendant Dr. Gerald Suh was the treating physician who is also accused of medical negligence for either (1) failing to monitor Brady after the extubation or (2) providing adequate post-extubation orders for his treatment, or both. Plaintiffs claim that these, and possibly, other medical negligence claims, proximately caused significant brain damage to Mr. Brady who experienced problems within an hour after his extubation.Only a few weeks prior to the earlier trial date for this case, January 2009, Mr. Noble came to plaintiffs to say Martine told him he was not in ICU at the time the events involving Brady transpired but was, instead, outside the hospital smoking. This last-minute and significant revelation necessitated the trial be continued. There had to be discovery taken, including a deposition of Mr. Noble, consideration if his testimony meant the plaintiffs would add a claim for punitive damages, discovery regarding the other ICU patient to whom Martine was assigned at the same time as Brady, and related hospital records.
Ultimately, the plaintiffs opted not to pursue a claim for punitive damages. But the intervening discovery revealed matters pertinent to the impeachment issue now before the Court. It developed that Martine and Mr. and Mrs. Noble lived in the same residence in lower New Castle County. That discovery also revealed that Mrs. Cheryl Perry-Noble had three sets of criminal charges against her, one of which the alleged victim is Martine and two others in which Mr. Noble is the alleged victim.
The charges in which Martine is the alleged victim, offensive touching and criminal mischief, are pending in the Court of Common Pleas, and are scheduled for trial on October 15, 2009. The incident is alleged to have occurred on October 5, 2008. The affidavit of probable cause for the arrest warrant in this case contains a paragraph pertinent to the issue at hand:
Your affiant investigated a late reported physical domestic that occurred on 100508 at approx. 1300 to 1400 hrs at 421 Blackbird Station Rd in Townsend, New Castle County, Del.? (Sic)
The victim, Craig Martine responded to Troop 9 in Odessa, to report a physical domestic between him and the Def. Cheryl Perry-Noble.? (Sic)
Your affiant was advised that at the time of the domestic, the victim and the Def. were living in the same household and were boyfriend and girlfriend, involved in a relationship, along with the Def's husband.? (Sic)
Your affiant was advised that the Def. got angry with the victim and began hitting him as he was getting into his truck. The victim stated that during the incident the Def, bit his left hand causing it to bleed. The victim had a scab on his left hand on this date, and provided pictures of what appeared to be a bit mark at the same location on his hand.? (Sic)
The victim further stated that the Def. took his glasses from his face during the incident, and as she walked from his truck, the Def. crushed the glasses and threw them into the field. The victim stated that he has since moved from this residence.
Court of Common Pleas Case No. MN-08-10-3690, 3691.
But this is only a beginning to the saga relevant to the impeachment issue. On October 29, 2008, another incident allegedly occurred resulting in Mrs. Noble being arrested, and later indicted for attempted murder first degree and possession of a firearm during the commission of a felony. The alleged victim is Mr. Noble. Her trial on these charges is now set for September 22, 2009. It is alleged Mrs. Noble shot at Mr. Noble several times.
That trial date was set because, as of the earlier trial date in July, there was no report back from psychiatrist performing a court ordered mental examination of Mrs. Noble.
The affidavit of probable cause for the arrest warrant for these charges also has several paragraphs pertinent to the impeachment motion:
I made contact with CPL/3 Ebby at Troop 9 upon my arrival. He stated that the victim, Gary Noble, WM 06-06-54 had responded to Troop 9 for help after his wife, Susp Cheryl Perry-Noble, shot a 45 caliber weapon at him, striking his driver's side door as he attempted to flee form the scene, after seeing the Susp point a handgun at him. He stated that he and CPL/2 Harach and CPL Long, responded to the address of the incident and took the Susp into custody with no incident. The Susp advised the location of the handgun and it was recovered by CPL Long and CPL Harach. CPL Ebby advised that the Susp stated to him that she was mad at her husband because he did not tell her goodbye. She also advised that they had been fighting all night over an incident involving an ex-roommate, Craig Martine. She stated that during the argument, she told the victim that she was going to shoot herself and he told her to go ahead. The victim's comment upset her. She claimed to not know that the gun was loaded. She also stated that she had placed the gun to her head but was to much of a coward to pull the trigger.
* * * * *
Gary Noble stated that he and his wife have been married for 37 years and have really not had many domestic issues. He stated that approx 3 to 4 weeks ago, a guy that was living at their residence had made some accusations about him and his wife having sexual relationships with the guy, doing threesomes. The guy is gay and also developed a drinking problem so they told him that he had to leave. He stated ever since then, his wife has been acting differently. He stated that the Susp is taking medication for depression but has been taking that for some time. Approx two weeks ago, the ex-roommate had the Susp arrested for offensive touching and criminal mischief. He stated that the roommate and the Susp got into a confrontation when the roommate responded to their residence to pick up some of his belongings. He stated that this has completely stressed the Susp. He stated that he keeps telling her that the incident with Craig is over and they need to move on but she will not let it go and is upset with him for not siding with her. When he left to go to work, she told him to take her car so he did. Then at Approx 0600 hours, she called him and told him to bring her car back, that she wanted her car. So he responded back to the residence, took their Honda Pilot out of the garage, placed her vehicle in the garage and started to park the Honda Pilot in te driveway as was going to go in and tell her that her car was back. Before he could get back out of the vehicle, the Susp was standing on their back porch with the handgun pointed at him, telling him to get out of the car.
Mrs. Noble was arrested again for another incident allegedly occurring on March 13, and 15, 2009. The charges are terroristic threatening, assault 3rd, reckless endangering 2nd, criminal mischief among other charges. The alleged victim is again Mr. Noble and his property (PC, Nikon camera, etc.). Trial on these charges is scheduled for September 24, 2009 in this Court.
There is, or course, an affidavit of probable cause for arrest of Mrs. Noble relating this last set of charges, but it, unlike the other two affidavits, contains no direct reference to Martine. It and the one underpinning the attempted murder charge contain statements the Delaware State Police swore Mr. Noble made to them. When, however, the parties in the case deposed Mr. Noble in April this year he either recanted or substantively altered what the police swore he told them in October regarding the shooting incident and said to them about the March incident. Recently, CCHS moved to compel the Delaware State Police to produce the tapes of Mr. Noble's two statements to them for use as impeachment. The Court denied CCHS' motion.
Brady v. Suh, Civil Action No. 05C-11-074, Herlihy, J., (July 9, 2009); not yet on Westlaw.
At the time that opinion was issued, the trial dates for the two sets of charges against Mrs. Noble were set for July 21st on the attempted murder and weapons charge on July 23rd for the second set of charges. Subsequent to the date of the opinion, however those dates were moved to September which, obviously, will be after the August trial of this medical negligence case.
In its motion to continue the trial, CCHS, notes the State will not permit two State Police officers to testify in this case. That, if course, is due to the criminal trials now occurring after this trial. The Court's earlier decision reaffirmed the privilege the State has that matters in criminal investigations are not discoverable in civil cases particularly prior to the resolution of the criminal proceedings. The State's position that the two State Police officers cannot testify at this civil trial is a logical extension of the privilege it invoked and this Court upheld previously.
It was once hoped, of course, that the July trials would have concluded. This would remove the privilege/bar and allowed the officers to testify. Such will not now be the case.
Because CCHS recognizes the officers will not be available, it proposes an alternative method for impeaching Mr. Noble's credibility and as a way to preserve the August trial date:
If counsel for the other parties in this case will stipulate that if Detective Bartkowski and Corporal O'Leary were called as witnesses at trial that they would testify as set forth in the affidavits of probable cause that are attached hereto and agree to their admission into evidence, defendants would not pursue this Motion for a Continuance.
Defendant's Motion for Continuance of Trial Date at p. 3.
Parties' Contentions
CCHS argues it needs to impeach Mr. Noble about his recantations and modifications of what the told the State Police leading up to Mrs. Noble's arrests. It argues it should be allowed to delve into Mr. Noble's specific incidents of untruthfulness. This assumes, of course, that Mr. Noble testifies and, if allowed, can be questioned about his "recantations." Further, it contends that it should be able to use extrinsic evidence of specific acts of misconduct, presumably that he lied in his deposition or to the State Police.CCHS also asserts it should be allowed to use and introduce into evidence the affidavits since they are not hearsay but are prior inconsistent statements of a witness. If the affidavits cannot be used, CCHS says it should be allowed to call the police officers or play the tapes of Mr. Noble's interviews with the police. That step, of course, would necessitate continuing the August trial until after the resolution of the criminal proceedings.
Plaintiffs oppose continuing the trial. They cite to prior trial dates in this case. Plaintiffs argue the witnesses are not "unavailable." And, of course, they contend the impeachment testimony CCHS proffers is inadmissible. They claim it will, if allowed, create a trial within a trial. The rules of evidence, plaintiffs assert, prohibit extrinsic evidence of specific acts of untruthfulness. They oppose introduction into evidence of the affidavits and so far, are only willing to stipulate to their content.
Discussion
The decision to admit evidence is one of discretion. The analysis of the admissibility of the proposed impeachment evidence begins with D.R.E. 608(b):
Tice v. State, 624 A.2d 299, 401 (Del. 1993).
Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The exercise of the discretion to be used by this Court in allowing or barring the impeachment of Mr. Noble is determined within several guidelines: (1) whether the testimony of the witness to be impeached is crucial; (2) the logical relevance of the specific impeachment evidence to the question of bias; (3) the danger of unfair prejudice, confusion of issues and undue delay; and (4) whether the evidence of bias is cumulative.
Weber v. State, 457 A.2d 674, 681 (Del. 1983).
Is Nobel Testimony Crucial?
The plaintiffs' claim against Martine were originally that while in the ICU charged with maintaining proper monitoring of Mr. Brady, he failed to do so. That failure, plaintiffs allege, made him medically negligent. Martine says he was in the ICU at all times and properly monitored Mr. Brady's post-extubation recovery. Mr. Noble's testimony, based on his deposition, is that Brady says he was not the ICU and the hospital itself, but was outside smoking. The jury, therefore, could decide Martine either (1) was in the ICU and was medically negligent, or not, or (2) was outside the ICU when he was should not have been and was medically negligent in any respect. It is free to choose from these alternative allegations of medical negligence. Of course, it could decide Martine was not medically negligent.One allegation puts Martine outside the ICU at a key point in Mr. Brady's care which is a crucial piece of evidence. It is a specific act, rather severe, of medical negligence, if believed, and it is very likely the jury would find Martine medically negligent, and, of course, that means CCHS would be liable.
Candidly, the Court is concerned that if a jury believed Martine was outside when he should been inside caring for Mr. Brady, it may make an award of compensatory damages in an amount containing an award — unstated — for punitive damages. Again, the plaintiffs are not seek punitive damages.
There could be no more central or crucial issue concerning Martine's alleged medical negligence than presence or absence from the ICU at critical time in Mr. Brady's post-extubation care. Noble's testimony goes to the very core of plaintiffs' case against Martine/CCHS.
Logical Relevance
Above the Court observed, in the context of the centrality of Noble's testimony about Martine, that, if believed, the odds of a plaintiffs' verdict against CCHS are very high. Such evidence is about as close to a "lock" as one could get in a jury trial.
In short, Noble's credibility is a keystone to the plaintiffs' case and CCHS' defense. Bias of a witness is always important. Mr. Noble's potential bias against Martine is palpable. The affidavits of probable cause, for purposes of the Court deciding the issues before it, show a probable three-way relationship involving the Nobles and Martine. Martine is an alleged victim of acts by Mrs. Noble which prompted him to move out and allegedly also led to her soon thereafter allegedly arguing with Mr. Noble over Martine and trying to kill Mr. Noble.
Michael v. State, 529 A.2d 752, 759 (Del. 1987).
As a starter, there is something potentially in the relationship between Mr. and Mrs. Noble involving Martine that may have motivated Mr. Noble to implicate Martine in a serious act of medical negligence. Mr. Noble came to the plaintiffs in January which suggests the "blood was still warm." In short, there is a probability of a relevant motive to provide "incriminating" (of negligence) testimony against Martine.
The affidavits strongly infer a close relationship of the events involving Mrs. Noble with Martine and Mrs. Noble with her husband. That is, Martine, is a central figure in two events even though he is the alleged victim in only one. And the shooting event in October, apparently following an argument over Martine, is the first of the two events where what Mr. Noble told the State Police he now seeks to recant or, at least, "waffle." The second event between the Nobles in March, 2009 is another one where in his deposition he to appears to recant what he told the the police; criminal charges could be nolle prossed based on that testimony.
Mr. Noble, of course, had no direct involvement in the matter between his wife and what she supposedly did to Martine. But the two subsequent events for which she has been charged strongly appear to flow from whatever caused the incident between Martine and Mrs. Noble. And that all goes back to the issue of bias and, therefore, Mr. Noble's credibility.
The relevance of the impeachment testimony for which CCHS seeks it in light of the centrality of Nobel's testimony is manifest compared to that suggested in Snowden v. State. In that case, the issue was why a key police officer witness was fired, (the reason is not in the opinion) was deemed important enough to allow a defendant to at least see the police personnel file and potentially use the reasons for firing for impeachment purposes. Snowden was a criminal case where the right of confrontation was also involved. However, the ability to use extrinsic evidence for impeachment was later upheld in a civil setting for the same reason of possible biased testimony, Garden v. Sutton. Sutton was a police officer. While chasing after a vehicle his car and Garden's collided. Subsequently, he was fired from the police department on a conviction of recklessly burning a woman's, not his wife's, car. Apparently, he used some deception to get her car keys. The Supreme Court held it was error to not allow plaintiff's counsel to inquire into the reasons Sutton was fired.
672 A.2d 1017 (Del. 1996).
Id. at 1026.
683 A.2d 1041, 1043 (Del. 1996).
Id. at 1044.
It is instructive to note that the reason Sutton was fired had no direct relationship to Garden. Potentially, the unstated bias for finding error not allowing this evidence was (1) police are not supposed to commit crimes and/or (2) the "deception" element in the crime he committed. What has always been curious about the Sutton case is that there was no denial of negligence. Sutton's police car was headed the wrong way on a one way street which made him negligent. The connection between the reasons he was fired and the circumstances of the accident are somewhat attenuated.
Here, of course, there is a direct link between Mr. Noble's testimony about Martine and his potential bias and credibility. That credibility issues arises from apparent recantations of his statements to the police about Mrs. Noble's actions but which the relaying what the Nobles themselves said stemmed from the prior three-way relationship and subsequent "break-up."
In Cunningham v. McDonald, the Supreme court said that is was error to exclude certain testimony relating to the background of a defense expert witness. Dr. Ali Hameli, former State Chief Medical Examiner, was a defense witness, and the issue in that civil case involving a car accident case was whether the plaintiff driver had fallen asleep or was under the influence. Dr. Hameli opined that the driver was under the influence. After extensive voir dire touting his expertise, the plaintiffs, however were not allowed to cross-examine him about that he had been fired as the State's Chief Medical Examiner or the reasons for it. The exclusion of that evidence, since Dr. Hameli's testimony was "crucial" to the defendant's case, was error.
689 A.2d 1190 (Del. 1997)
Id. at 1194-95.
Id. at 1195.
Id. at 1196.
The Cunningham case is important to this case for two reasons. One, as with Noble's testimony about Martine's whereabouts, Dr. Hameli's testimony was crucial for the party for whom he was testifying. Two, the Supreme Court said this extrinsic evidence of misconduct and being fired for it should have been admitted.
In each of the cases cited above, the issue involved extrinsic evidence of misconduct. That is what CCHS seeks to do here. And it is evidence of alleged false information being give to the police. More instructive for this case on that very point is the Supreme Court's latest pronouncement on such evidence in Harper v. State. One of the acts of extrinsic evidence involved the defendant giving the police a false name when being questioned about an unrelated criminal investigation. He was, however, never charged for giving a false name. The Supreme Court affirmed the Superior Court's decision to allow the State to question the defendant about that when he testified.
970 A.2d 199 (Del. 2009).
Here, it is alleged that Mr. Noble gave false information to the police. The Court finds significant logical relevance of this potential impeachment testimony.
The Court is compelled to observe that if Mr. Noble testifies directly or indirectly that he gave false information to the police about his wife's actions, he is subject to potential criminal prosecution. He has a right against self-incrimination which he could exercise at this trial. If he does, it would deprive CCHS of effective cross-examination. That presents two options: (1) if he invoked during cross-examination, the Court would have to strike his direct testimony and instruct the jury to disregard all of it or (2) much more preferably, determine before he takes that stand if that is what he would do and not permit him to testify at all. Mr. Noble is better advised to consult with counsel of his choosing and not any counsel in this case about his course of action.
Hopefully, all of that will be resolved before the trial begins.
Danger of Unfair Prejudice, Confusion
Weighing this factor is not quite as easy as the first two. After all, this is a medical negligence case. The Court has weighed that most important fact against the impeachment testimony which would be allowed. The witness is the plaintiffs'. He has something most damaging and crucial to offer in the plaintiffs' case.There are risks of a "trial within a trial" concerning this extrinsic evidence and of prejudice and confusion. Nevertheless, the crucial and probative value of his testimony about Martine are not substantially outweighed by the risks of unfair prejudice or confusion.
Cumulative Evidence
The impeachment evidence which CCHS offers against Mr. Noble is not cumulative.
Method of Proof
While the substance of impeachment is admissible, the issue now becomes one of how CCHS can introduce evidence of what Mr. Noble said to the police if his trial testimony is consistent with his deposition testimony of recantation. The Attorney General's office has said it will not allow the two police officers who took Mr. Noble's statements in October 2008 and March 2009 to testify. This Court upholds that position.
That renders these officers as "unavailable." D.R.E. 804(a)(1). It would be a fruitless act for CCHS to send them subpoenas. The State's motion to quash any such subpoenas would be granted.
Because of the State's position and consequent unavailability of the two police officers, CCHS proposes to introduce into evidence the affidavits of probable cause for Mrs. Noble's arrests. At the July 7, 2009, pretrial conference the Court ruled the affidavits of probable cause were inadmissable. The ruling was founded on the belief the two police officers would by August 3rd have testified at the criminal trial. As such, the privilege formerly prohibiting them from being called as witnesses would have become inoperable. They were listed as CCHS witnesses as of that time, and plaintiffs did not object to them as witnesses if I allowed the impeachment evidence. CCHS would have to insure their availability and presence for rebuttal to properly testify about what mr. Noble told them. Now that they are unavailable the premise for the July 7th ruling is gone. The issue of the method of proof becomes important.
The plaintiffs only argument now is that CCHS cannot introduce the affidavits as "refresher" evidence. That is, if Mr. Noble is cross-examined about them to "refresh" his memory, they are not admissible. The Court agrees with plaintiffs as far as it goes. But plaintiffs do not address the more fundamental evidentiary question of the admissibility of the affidavits as evidence in lieu of actual police testimony. Since the officers are not going to be available to do that, can the affidavits themselves (with some redactions) be used in place of or as a substitute for the officers' testimony? Merely reading a stipulation of what the affidavits say would not have the same impact as the officers' testimony. There is also some fairness due CCHS in its ability to offer impeachment evidence. To equate as much possible, therefore, that missing live testimony, the affidavits are needed. The Court finds they are admissible as documents as the next best evidence of what Mr. Noble told the police.
Plaintiffs failure to address this issue means they: (1) have to stipulate that the affidavits themselves are admissible as evidence — without surrendering their overall objection to this impeachment testimony or (2) the trial will have to be postponed until after the resolution of the charges against Mrs. Noble so that the officers would no longer be barred from testifying.
If CCHS does not settle with plaintiffs, plaintiffs may then have another choice. It is to not present Mr. Noble in their case. But based on Dr. Suh wanting Mr. Noble's testimony if all the parties are in the case and if CCHS is still a party in trial, Mr. Noble will be needed as a witness and the impeachment testimony comes in even if Mr. Noble is now "Dr. Suh's witness."
Conclusion
The impeachment evidence against Mr. Noble is admissible. The method of proof issue, however, determines whether CCHS' motion to the trial is granted or denied. If the plaintiffs agree to the admission of the affidavits into evidence, there will be no need to continue the trial; if they do not, which means that the police officers will be needed as witnesses, then the trial will have to be continued until after the criminal charges are concluded.
IT IS SO ORDERED.