Opinion
C.A. No. 05C-02-031 WLW.
Submitted: October 20, 2006.
Decided: January 30, 2007.
Upon Defendants' Motion in Limine to Preclude Plaintiffs from Impeaching Samuel Ross Fox, Jr., M.D. with Prior Disciplinary History. Granted.
William D. Fletcher, Jr., Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Plaintiffs.
Dennis D. Ferri, Esquire of Morris James LLP, Wilmington, Delaware; attorneys for the Defendants.
ORDER
Defendants filed a Motion in Limine to preclude Plaintiffs from impeaching their medical expert, Samuel R. Fox, Jr., M.D., with the Doctor's prior disciplinary history. Dr. Fox is a Washington State bar iatric surgeon, and he has issue d an expert report in this case "vital to the defense." As a result of being deposed on September 15, 2006, Plaintiffs became aware of Dr. Fox's prior disciplinary history. The Defendants now seek to preclude Plaintiffs from impeaching Dr. Fox concerning his prior disciplinary history.
Defendants Nanticoke Surgical Associates, P.A ., and Roy T. Smoot, Jr., M.D. filed the present Motion.
Plaintiffs in this action are Arba L. Henry, individually and as executor of the Estate of Paige M. Henry, deceased.
Dr. Fox graduated from medical school in 1956 and completed his residency in 1961. He has worked in the Washington State area eve r since. Dr. Fox's expert status does not appear to be an issue, so the Court will not address his credentials.
Dr. Fox was placed on probation by the Department of Health, Medical Quality Assurance Commission for the State of Washington (the "Commission") in August of 1998, due to a prior drug-related offense. The Commission discovered that in 1984, Dr. Fox was arrested at Heathrow Airport in London, England and charged with possession of 5 grams of marijuana and 7.2 grams of cocaine. Dr. Fox pled guilty to the charges, paid the appropriate fines and was released. Dr. Fox failed to report the incident to the State of Washington and failed to disclose the convictions in license or privilege renewals. There have been no further incidents of illegal drug use or possession by Dr. Fox since his 1984 conviction.
The Commission reviewed the matter after becoming aware of Dr. Fox's convictions. The Commission recognized that the convictions occurred almost 14 years prior [to the Commission's hearing] but found the convictions to be serious in nature. Further, the Com mission found it highly inappropriate that Dr. Fox failed to disclose the convictions. In noting that the high-risk level of bariatric surgery patients require their surgeon to have a higher standard of fitness, the Commission entered an Order: (1) suspending Dr. Fox's license to practice in the State of Washington, but stayed the s u s p e n s i o n conditioned upon Dr. Fox's compliance with certain monitoring requirements to which he agreed, including submitting to periodic random and observed biological fluid testing; and (2) directing Dr. Fox to pay an $5,000 administrative fine to the Commission. After periodic (slight) non-compliance with the Order, Dr. Fox was released from the monitoring requirements, and the Order was terminated on March 8, 2001. There has been no further allegations that Dr. Fox has engaged in any drug-related activity since 1984 or engaged in any further professional misconduct.
Discussion
Delaware Rules of Evidence Rule 608(b) provides in relevant part:
"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. . . "
Dr. Fox's convictions are not admissible pursuant to D.R.E. 609. Since the convictions occurred 23 years ago, the convictions are not admissible pursuant to D.R.E. 609(b), unless the Court determines that the probative value of the convictions supported by specific facts and circumstances substantially outweighs the prejudicial effect. The probative value of Dr. Fox's 1984 convictions and subsequent probation does not substantially outweigh its prejudicial effect in this case.
D.R.E. 609(b) provides that the stated inquiry is appropriate when the conviction is greater than 10 years old.
The Court's discussion of D.R.E. 608(b) will add clarity to the Court's reasoning on this point.
It is within the discretion of the trial court to admit specific instances of conduct of a witness into evidence for the purpose of impeaching the witness' character for truthfulness. The Supreme Court articulated that the trial court should consider: (1) whether the testimony of the witness being 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 is cumulative.
Coverdale v. State, 844 A.2d 979, 980-81 (Del.Supr. 2004) citing Weber v. State, 457 A,2d 674, 681 (Del. 1983).
Plaintiffs argue that they are entitled to attack the credibility of Dr. Fox by showing that the Doctor has acted unprofessionally in treating bariatric patients by his unacceptable conduct regarding controlled substances and his concealment of the conduct from the appropriate medical authorities for 14 years. Plaintiffs further claim that Dr. Fox's expert medical opinions concerning what constitutes the acceptable standard of care has been undermined by his own conduct and the discipline taken against him. On the other hand, Defendants argue that Dr. Fox's conduct has no bearing on his credibility, and it would be inappropriate to impeach the doctor based on the Commission's decision or his past drug related charges.
Dr. Fox's disciplinary history consists of two underlying acts committed by Dr. Fox. First, Dr. Fox was convicted of drug offenses in 1984. Second, Dr. Fox failed to report his convictions to the State of Washington in either his license renewals or in his privilege renewals. These incidents led to the Commission's Order disciplining Dr. Fox.
Dr. Fox's drug convictions standing alone would be inadmissible under D.R.E. 608(b). Drug offenses are generally not crimes of dishonesty. Pursuant to 608(b), for the Court to find specific instances of a witness' conduct admissible, the instances must be probative on the witness' truthfulness. Dr. Fox's 23 year old convictions do not relate to the Doctor's propensity to tell the truth. Further, testimony concerning the convictions, standing alone, would not be relevant to show any biases of Dr. Fox, and it would likely be unfairly prejudicial. The drug convictions are not relevant concerning Dr. Fox's ability to provide a truthful opinion regarding the appropriate standard of care for a bariatric surgery patient.
Id. at 982.
The non-disclosure of Dr. Fox's convictions to the State of Washington does tend to relate to the Doctor's truthfulness. Non-disclosure standing alone could possibly, in the Court's discretion, be admissible due to its probative value concerning Dr. Fox's propensity for truthfulness. However, the Court must consider Dr. Fox's disciplinary history as a whole. The Commission's Order encompasses the Doctor's non-disclosure and underlying convictions together. The non-disclosure concerns the underlying drug offenses that are not probative to D r. Fox's truthfulness. If the Court were to admit only the non-disclosure portion of the Doctor's prior disciplinary history, then the jury would likely speculate as to what the underlying offenses that Dr. Fox failed to disclose were. This speculation could lead to unfair prejudice. The specific instances of Dr. Fox's conduct that culminated in the Commission's Order disciplining the Doctor, are not logically relevant to any bias Dr. Fox may have. The convictions occurred over 23 years ago, Dr. Fox has had no further allegations of drug use or possession, the Doctor has had no further allegations of professional misconduct, and he was released from the Commission's Order almost 7 years ago.
The Doctor's prior disciplinary history, if admissible to impeach the Doctor, would be more prejudicial than probative concerning Dr. Fox's ability to provide a truthful opinion regarding the appropriate standard of care for a bariatric surgery patient. Therefore, Dr. Fox's prior disciplinary history is inadmissible for the purpose of impeaching the Doctor.
Based on the foregoing, Defendants' Motion in Limine to Preclude Plaintiffs from Impeaching Dr. Fox with his Prior Disciplinary History is granted.
IT IS SO ORDERED.